Prabhat Kumar Singh vs State Of U.P. & Others
2012 Latest Caselaw 1843 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

AFR
 
Court No. - 2
 

 
Case :- WRIT - C No. - 12340 of 1997
 
Petitioner :- Prabhat Kumar Singh
 
Respondent :- State Of U.P. & Others

Petitioner Counsel :- R.C.Singh

Respondent Counsel :- C.S.C.

And

Case :- WRIT - C No. - 12341 of 1997

Petitioner :- Ravi Pratap Narain Singh

Respondent :- State Of U.P. & Others

Petitioner Counsel :- R.C.Singh,Vinod Sharma

Respondent Counsel :- C.S.C.

Hon'ble Sudhir Agarwal,J.

1. Heard Sri R.C.Singh, learned counsel for the petitioner and learned Standing Counsel for the respondents.

2. Both these writ petitions arise out of the common proceedings and the same order dated 19.3.1997 rejecting appeal against the orders dated 31.1.1997 of the Ceiling Authorities, therefore as agreed by learned counsel for the parties, are being decided by this common judgment.

3. It is contended by Sri R.C.Singh, learned counsel for the petitioner that in respect to the holding of Sri Chandrabhan Trust, ceiling proceedings held earlier attained finality vide Prescribed Authority's order dated 25.11.1966 (Annexure 3 to the writ petition) having not been assailed in appeal before any other superior Forum. The said issue and findings recorded therein operate res judicata. In the fresh proceedings initiated under Section 10(2) of U.P. Imposition of Ceiling on Land Holdings Act, 1960 (hereinafter referred to as "Act, 1960") vide notice dated 28.5.1976, the issue(s) earlier decided could not have been reopened and it was not permissible to the Prescribed Authority to reagitate the issue afresh and record a contrary finding.

4. Sri Singh said, the Prescribed Authority in its order dated 31.01.1997 has illegally held that the said findings would not operate as res judicata by referring to Section 38-B of the Act, 1960 and the appellate authority has also erred in law by confirming the view of the Prescribed Authority and rejecting petitioner's appeal.

5. Learned Standing Counsel though did not dispute that on the question of Trust property, an issue was framed in the earlier proceedings and it was decided in a particular manner but referring to Section 38-B, he supported the view taken by the Ceiling Authorities.

6. A short question up for consideration is, whether findings recorded by Ceiling Authorities in the earlier proceedings could have been ignored altogether in the fresh proceedings initiated in 1976 after Amendment of the Act permitting fresh proceedings and whether Section 38-B helps the respondents in the manner they have read and interpreted for ignoring earlier findings recorded by Prescribed Authority in its order dated 25.11.1966.

7. I find that this issue is no more res integra having already been decided by Apex court and this Court in several matters which has recently been considered in Writ Petition No.15387 of 1997 (Kailash Babu Vs. Commisioner, Kanpur Div. Kanpur & Anr.) decided on 8.11.2011 wherein at paras 4 to 9, this Court observed as under:-

"4. A perusal of Section 38 - B of the Act shows that the same would not apply in the order, which has been passed under the provisions of the Ceiling Act itself. It reads as under: -

38 - B. Bar against res judicata. - . No finding or decision given before the commencement of this section in any proceeding or on any issue (including any order, decree or judgment) by any Court, tribunal or authority in respect of any matter governed by this Act, shall bar the retiral of such proceeding or issue under the Act, in accordance with the provisions of this Act as amended from time to time.

5. A perusal of Section 38- B of the Act shows that it applies in respect to the findings or decision given by any court, tribunal or authority in respect of any matter governed by this Act, but not in the proceeding of this Act.

6. This question came to be considered before the Apex Court in Devendra Kumar Singh v. Civil Judge and others, 2000 (91) RD 28 and the Court after considering Section 38-B in paragraph 3 held as under: -

"3. ................The power under Section 38-B merely indicates that if any finding or decision was there by any ancillary forum prior to the commencement of the said section in respect of a matter, which is governed by the Ceiling Act then such findings will not operate as res-judicata in a proceeding under the Act. That would not cover the case where findings have already reached the finality in the very case under the Act. In this view of the matter we have no hesitation to come to the conclusion that the Prescribed Authority had no jurisdiction to reopen the question of majority of the two sons in purported exercise of the power under Section 13-A. If the Authority had no jurisdiction, question of waiver of jurisdiction does not arise, as contended by learned counsel for the respondent."

7. The Apex Court also considered the Full Bench judgment in Ram Charan v. State of U.P., AIR 1979 Alld. 114 and explained that therein the findings were arrived at under the provisions of Consolidation Act and, therefore, the Full Bench held that in view of Section 38-B of Ceiling Act, the said finding will have no binding effect in the ceiling proceedings.

8. In Lady Parassan Kaur Charitable Educational Trust Society, Gorakhpur v. State of U.P. and others, (2001) 1 SAC 711 a learned Single Judge of this Court considered the question as to whether second notice could have been issued under Section 10 (2) of the Act once proceedings after issuance of notice under Section 10 (2) of the Act have attained finality. Referring to Sections 3, 6, 10, 13-A, 29, 30, 31 and 38-B of the Act the Court said that the aforesaid statutory provision reveals that if any reply of a notice issued under Section 9 of the Act, no return is filed, the Prescribed Authority may issue notice to the tenure-holder calling upon him to show as to why the land (specified by him) be not declared surplus. This order of the Prescribed Authority would be appealable under Section 13 of the Act. The orders of the Prescribed Authority and Appellate Authority are liable to be corrected in the proceedings under Section 13-A of the Act. The power could, however, be exercised only if the orders suffer from an error apparent on the face of record or for correction of a bona fide clerical error. Sections 29, 30 and 31 provide subsequent declaration and determination of surplus land.

9. Here, it is not the case of the respondents that proceedings were reconsidered in exercise of power under Sections 13-A, 29, 30 or 31 of the Act. The authorities below have specifically relied upon Section 38-B of the Act. In view of what has been stated by the Apex Court in Devendra Kumar Singh (supra) this Court hold that second notice under Section 10 (2) of the Act is bad in law. In my view, the authorities below, in the present case also, have completely erred in law as proceedings under Ceiling Act were already finalized pursuant to the notice issued earlier in 1974 and, therefore, the impugned orders cannot sustain."

8. In Kr. Shiv Mahendra Kumar Singh Vs. The State of U.P. & Ors. 1982 All.L.J. 106 a Single Judge of this Court also said:

"4. The controversy is as to what extent the findings which were recorded in the earlier ceiling proceedings, incorporated in the order of the Prescribed Authority dated 6-5-1964 (a true copy whereof is ann.3 to the petition), will operate as binding in the subsequent proceedings. The Prescribed Authority and the appellate Court were of the view of S.38 B, the earlier findings were not binding. The learned counsel for the petitioner has placed reliance on the Division Bench pronouncement in Uma Shanker v. State of U.P. (1980 All WC 487) to contend that the said view is wrong. It has been laid down by the Division Bench, affirming the correctness of some earlier single Judge pronouncements, that it was not the purpose of s. 38B of the Act to enable the ceiling authorities to disregard the earlier findings i.e. the findings recorded in the earlier ceiling proceedings even where there had been no change in the statutory ceiling law. In other words, it was emphasised that the earlier findings were bound to be treated as binding in the subsequent ceiling proceedings unless, on account of some change in the ceiling law, it was open to the Ceiling Authorities to reverse the earlier finding. The learned counsel for the petitioner emphasised that so far as the question of ostensibility of ownership is concerned, the law was the same before the U.P. Amending Act No. 18 of 1973 came into force. The Explanation I to S.5 (1) was added by U.P. Act no. 2 of 1975. It says:-

"In determining the ceiling area applicable to a tenure-holder, all land held by him in his own right, whether in his own name, or ostensibly in the name of any other person. Shall be taken into account".

In s. 4 (1) of the Act before its amendment by U.P. Amendment Act No. 18 of 1963, it was laid down at follows:-

"Subject to the provisions of this Act, the ceiling area applicable to a tenure-holder shall be calculated after taking into account all the land in any holding in the State held by him in his own right, whether in his own name or ostensibly in the name of any other person."

5. In my view, this contention is correct. So far as the question of ostensibility of ownership is concerned, there has been no change in the law by the various amendments effected. Therefore, in so far as such plots are concerned as were sought to be included in the holding of the tenure-holder, in the earlier ceiling proceedings, but which were ultimately excluded by the Prescribed Authority by his order dated 6-5-1964 from his holding after allowing his objections in this instant petition has arisen. This is one the basis of the aforesaid Division Bench pronouncement in Uma Shankder's case (Supra). However, I am not going into certain other questions which may arise on account of the change which was brought about in reference to ceiling law relating to a Co-operative Society in view of S.5(4) of the present Act and the deletion of S.6 (15) of the unamended Act, i.e. before it was amended by U.P. Amending Act No. 18 of 1973."

9. The Ceiling Authorities, however, have not considered the matter in the correct perspective and in the light of the dictum of the Courts but in a mechanical manner referring to Section 38-B, they have attempted to wriggle out the finality attached to the issue relating to trust property in earlier ceiling proceedings. They have not cared to discuss, how Section 38-B applies in this matter so as to enable them to ignore earlier findings.

10. There is another aspect pointed out by Sri Singh, regarding sale deeds executed prior to 24.01.1971 in respect whereto Ceiling Authorities have discussed the question, whether sale deeds are genuine and executed in a bona fide manner or not. However, Section 5(6) of Act 1960 permit enquiry into sale deeds, whether same were executed bona fide and for valid consideration but it applies to only those deeds which were executed on and after 24.1.1971 and not prior thereto. The Apex Court in Ramadhar Singh Vs. Prescribed Authority & Ors. 1994 Supp. (3) SCC 702 said:

"2. It has to be seen under what provision of the Act can be validity of the sale executed prior to January 24, 1971, the appointed day, be gone into ? Sub-section (6) of Section 5 of the said Act says that in determining the ceiling area applicable to a tenureholder, any transfer of land made after the 24th day of January, 1971, which but for the transfer would have been declared as surplus land under the Act shall be ignored and not taken into account. The proviso (b) thereto, inter alia, provides that a transfer proved to the satisfaction of the prescribed authority to be in good faith and for adequate consideration and an irrevocable instrument, not being of benami transaction or for immediate or deferred benefit for the tenureholder or other members of the family, is outside the scope of the aforesaid sub-section Thereafter Explanation II provides that the burden of proving that a case falls within Clause (b) of the proviso shall rest with the parry claiming its benefit. Apparently, it is under this provision of law that the validity of the sale deed dated April 22, 1969 was put to test. The authorities under the Act took the view that the sale deed was not genuine because no consideration appears to have passed before the Sub-Registrar and that it was a transfer between father and son raising a dust of suspicion. Otherwise it was not disputed on fact that the sale had been effected by means of a registered deed in which the passing of consideration was mentioned as a recital. The existence of the sale deed being not disputed and it having taken place, as said before, on February 24, 1969, prior to the appointed day that is January 24, 1971, the inquiry regarding the validity of the sale deed under Sub-section (6) of Section 5 was totally misplaced. Thereunder, as it appears to us, the appropriate authority had no jurisdiction to be put the validity of the sale deed to test since his jurisdiction arose only when the deed of transfer had been effected on or after the appointed day. Not only the first and the appellate authority under the Act persisted in that view, but the High Court too proceeded on that basis. The effort of the appellant to have it declared that the authorities had no jurisdiction to invalidate the sale under Sub-section (6) of Section 5 when read with Explanation II to Sub-section (1) of Section 5 also was a futile attempt because the High Court followed the path, as did the authorities under the Act, and rejected the writ petition. We are of the view that this was a wholly erroneous approach. Sub-section (6) of Section 5 did not confer jurisdiction on the authorities to determine the validity of the sale and if that is so any finding of theirs as to the contents of the sale is of no assistance."

(emphasis added)

11. In view of the above, once it is not disputed that sale deed was executed prior to 24.1.1971, it does not appear correct that the authorities still can possess jurisdiction to consider whether the sale deed was executed bona fide and for valid consideration or not. Explanation to Section 5(6) of the Act 1960 would have no application in such a case.

12. In the result, on these two aspects only, this Court is of the view that the matter require reconsideration by the authorities below.

13. In the result, the writ petition is allowed partly. The impugned orders to the extent as said above as also the operative part thereof determining surplus land, are hereby set aside. The matter is remanded to Prescribed Authority to reconsider only on these two issues and thereafter to determine whether there is any surplus land and, if so, to what extent and proceed accordingly.

14. The proceedings as directed above shall be concluded expeditiously and in any case within six months from the date of production of a certified copy of this order before the Prescribed Authority but only after giving due opportunity of hearing to all concerned parties.

15. No order as to costs.

Order Date :- 17.5.2012

KA