Gulzar Singh vs Prescribed Authority And Others
2019 Latest Caselaw 5443 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

A F R
 
Reserved  on 30.01.2019
 
Delivered on 03.07.2019
 
Court No. - 34
 
(1)Case :- WRIT - C No. - 2920 of 1985
 
Petitioner :- Gulzar Singh
 
Respondent :- Prescribed Authority And Others
 
Counsel for Petitioner :- Ajit  Kumar
 
Counsel for Respondent :- S.C., Devendra Kumar, Kiran Kumar Arora
 

 
(2) Case :- WRIT - C No. -3108 of 1985
 
Petitioner :- Kashmir
 
Respondent :- S.J.
 
Counsel for Petitioner :- Ajit  Kumar, Kunal Ravi Singh, Manjari Singh
 
Counsel for Respondent :- S.C., Devendra Kumar, Kiran Kumar Arora
 
Hon'ble Sudhir Agarwal,J.

1. Heard Sri Ajit Kumar, learned counsel for petitioners and learned Standing Counsel for State-respondent.

2. Writ Petition No.2920 of 1985 (hereinafter referred to as "First Petition") has been filed under Article 226 of Constitution by Gulzar Singh son of Mahendra Singh seeking a writ of certiorari for quashing order dated 01.02.1985 (Annexure-1 to writ petition) passed by Prescribed Authority, (Ceiling) Pilibhit, whereby it has rejected application dated 07.01.1985 filed by petitioner whereby a request was made to recall earlier orders passed by Ceiling Authorities under provisions of U. P. Imposition of Ceiling on Land Holdings Act, 1960 (hereinafter referred to as "Act, 1960").

3. Writ Petition No.3108 of 1985 (hereinafter referred to as "Second Petition") has been filed by Kashmir Singh, son of Ajit Singh, challenging orders dated 06.02.1984 (Annexure-4 to writ petition) passed by Prescribed Authority, (Ceiling) Pilibhit; dated 23.10.1984 (Annexure 2 to writ petition) passed by Prescribed Authority, Pilibhit and dated 05.12.1984 (Annexure-3 to writ petition) passed by Special Judge/Additional Sessions Judge, Pilibhit (hereinafter referred to as "Appellate Authority"), dismissing petitioner's appeal holding that he has no locus standi to file the said appeal.

4. The land recorded in the name of Balwinder Kaur wife of Atar Singh was clubbed with land standing in the name of Atar Singh, for determination of surplus land of Atar Singh, and proceedings were initiated in 1974 under Act 1960. Total land possessed by tenure holder, Atar Singh clubbed with land of his wife Balwinder Kaur was 37.07 acres land. Prescribed Authority passed an order dated 28.01.1975 declaring 9 acres of land surplus. Thereagainst an appeal preferred, which was partly allowed and matter was remanded to Prescribed Authority to reconsider issue of sale deed and also right of minor sons of tenure holder.

5. Thereafter Prescribed Authority (Ceiling) passed order dated 20.07.1977, declaring 11.07 acres (irrigated land) of Atar Singh as surplus. Atar Singh filed an appeal, which was dismissed on 20.12.1977. Atar Singh brought the matter before this Court in Writ Petition No.2768 of 1978 and therein a specific plea was taken that Balwinder Kaur, wife of Atar Singh, has sold about 7 acres of land to Gulzar Singh vide sale deed dated 24.01.1971, hence, the said land had to be excluded for determining surplus land under Act, 1960. However, this Court did not accept said plea and dismissed writ petition vide judgment dated 28.01.1980 wherein Prescribed Authority's order dated 20.07.1977 and Appellate Authority's order 20.12.1977 were challenged. Both said orders were upheld.

6. Gulzar Singh then moved an application on 24.09.1980 before Prescribed Authority claiming that entire proceedings, earlier undergone in respect of disputed land under Act 1960, were nullity and without jurisdiction, since, land purchased by him vide sale deed dated 17.02.1972 for a consideration of Rs.8000/- was also included in said proceedings and he was not issued any notice at all. Prescribed Authority passed an order on 10.03.1981 and scrapped earlier proceedings, treating same illegal and without jurisdiction, since, no notice was issued to Gulzar Singh.

7. Thereafter fresh notices were issued to Atar Singh and Gulzar Singh on 15.06.1982 whereupon Atar Singh and Gulzar Singh, both filed their objections. There was no occasion for issue of notice to Balwinder Kaur as she had died in the meantime on 06.01.1981. Prescribed Authority by order dated 31.03.1983 rejected application of Gulzar Singh whereafter an appeal was preferred, which was allowed by District Judge vide order dated 30.05.1983 and matter was remanded to Prescribed Authority to consider, whether sale deed dated 17.02.1972 whereby it is claimed that 7.69 acres of land was sold to Gulzar Singh, was valid and liable to be ignored or not.

8. Thereupon, Prescribed Authority passed an order dated 06.02.1984 holding that alleged sale deed was not executed in good faith and consideration, hence, tenure holder is not entitled for any benefit in respect to aforesaid sale deed under Section 5 (6) of Act, 1960. Consequently, it declared 11.07 acres of land in terms of irrigated land as surplus.

9. Atar Singh and Gulzar Singh both preferred Appeal Nos.5 of 1984 and 7 of 1984 respectively in Court of District Judge, Pilibhit, which were dismissed vide judgment dated 31.05.1984. Appellate Court, besides other, has recorded findings of fact that Gulzar Singh, grandson of Tenure Holder, was about 11 years of age, when alleged sale deed was executed and source of income of Gulzar Singh was not disclosed at all, hence the document was nothing but a sham transaction, made for saving land from provisions of Act, 1960.

10. Kashmir Singh, son of Ajit Singh, petitioner in Second Petition, then moved an application dated 11.09.1984 before Prescribed Authority alleging that he is legal representative of Balwinder Kaur, who has executed a 'Will' in his favour and no notice was given to him, therefore, proceedings are bad. This application dated 11.09.1984 filed by Kashmir Singh, (petitioner in Second Petition), was dismissed by Prescribed Authority (Ceiling) by order dated 23.10.1984 holding that Balwinder Kaur was not an independent tenure holder, but wife of recorded tenure holder Atar Singh, and in view of definition of 'tenure holder' under Section 3 (17) of Act 1960, she was given notice, hence petitioner was not entitled for any notice whatsoever. Against order dated 23.10.1984, petitioner, Kashmir Singh, filed an appeal under Section 13 of Act, 1960 in Court of District Judge, Pilibhit as Misc. Case No.54 of 1984. Said appeal was dismissed by Special Judge/Additional Sessions Judge, Pilibhit vide judgment dated 05.12.1984. Kashmir Singh in Second Petition, therefore, has challenged orders dated 06.02.1984 (Annexure- 4 to writ petition), whereby Prescribed Authority declared 11.07 acres (in terms of irrigated land) surplus; order dated 23.10.1984 passed by Prescribed Authority dismissing petitioner Kashmir Singh's application and Appellate Order dated 05.12.1984 whereby petitioner's appeal has been rejected.

11. Gulzar Singh, petitioner in First Petition, it appears that after second round of litigation under Act 1960 and passing of the order dated 06.02.1984 by Prescribed Authority and dismissal of appeal vide order dated 23.10.1984, preferred again an application dated 07.01.1985 before Prescribed Authority for reopening the matter on the ground that ceiling proceedings were in continuance when in January 1981 Balwinder Kaur died and since, Gulzar Singh was also entitled for notices under Rule 8 and 10 of the U. P. Imposition of Ceiling on Land Holdings Rules, 1961 (hereinafter referred to as "Rules, 1961"), no such notice was given, therefore, entire proceedings are bad. Prescribed Authority held that earlier proceedings were initiated on the application of Gulzar Singh himself filed on 24.09.1980 whereupon he was made party by Prescribed Authority by order dated 18.03.1981. Notices were issued, opportunity was given to Gulzar Singh as well as Atar Singh and thereafter Gulzar Singh's application was rejected by order dated 31.03.1983. Thereagainst Gulzar Singh and Atar Singh, both filed appeal which was allowed by District Judge by order dated 30.05.1983 directing Prescribed Authority to examine question of validity of sale deed, whether it should be accepted or not, and thereafter matter was re-examined and Prescribed Authority passed order on 06.02.1984 holding the sale deed to be a sham transaction and surplus land was declared. Thereagainst Gulzar Singh's appeal along with appeal of Atar Singh have been dismissed vide District Judge's order dated 31.05.1984 and in these circumstances, application dated 07.05.1985 filed by Gulzar Singh before Prescribed Authority was not maintainable. It is this order dated 01.02.1985 passed by Prescribed Authority rejecting Gulzar Singh's application dated 07.01.1985, which has been challenged in the First Petition.

12. During pendency of these writ petitions, an Impleadment Application no.305237 of 2016 was filed by Malook Singh and six others through their counsel Sri K. K. Arora, stating that land already declared surplus has vested in State, after possession was taken and thereafter has been allocated to landless labourers including applicants. Therefore, now these landless labourers including applicants have got substantial interest in the land in dispute, therefore, they should be impleaded as respondents 6 to 12 in the Second Petition.

13. Record shows that this application was allowed on 02.05.2017 and impleadment was directed to be incorporated within a week, but Office report dated 18.05.2017 shows that said impleadment was not carried out. This impleadment is not carried out even till the date when the matter was heard by this Court and judgment was reserved.

14. In First Petition, learned counsel for petitioner has advanced his submission contending that notice under Section 10 (2) of Act 1960 was mandatory and on this aspect, placed reliance on a Single Judge Judgment of this Court in Rajjan Singh and Another vs. State of U. P. and others, 2012 (1) ADJ 18. He further contended that sale deed executed in good faith and on adequate consideration has to be upheld and could not have been ignored and on this aspect placed reliance on a Single Judge judgment in Ram Sewak vs. State of U. P. and others, 1979 All.L.J. 219. Then he contended that transfer by tenure holder under Section 5(6) of Act 1960 and not transfer by any other person of family and on this aspect placed reliance on a Single Judge Judgment in Smt. Raj Kumari Gopika vs. State of U. P., 1981 (7) ALJ 473. It is also submitted that inheritance by way of 'Will' is not barred under Section 8 of Act, 1960, therefore, Balwinder Kaur had rightly executed 'Will' and the person in whose favour 'Will' is executed is entitled for the succession as per "Will" and thereafter also entitled for notice under Section 10 of Act, 1960. On this aspect reliance is placed on a Single Judge judgment in Jog Raj Singh vs. State of U. P., 2007 (6) AWC 5511.

15. The facts disclosed above show that repeated round of litigation has been carried out by petitioners so that ceiling proceedings which have already attained finality, technically, may remain pending and subjudice. In the present case, Gulzar Singh, petitioner in First Petition, has pleaded in para 2 that land was initially owned by Balwinder Kaur and she transferred land measuring 7.69 acres to Gulzar Singh, (petitioner in First Petition), by sale deed dated 17.02.1972. Similarly, Kashmir Singh, (petitioner in Second Petition), has also stated in para 1 of writ petition that land of Balwinder Kaur was clubbed with that of Atar Singh and proceedings under Act, 1960 were initiated in 1974. However, orders passed by Ceiling Authorities clearly show that in Revenue Record Atar Singh was recorded as tenure holder of entire land and ceiling proceedings were not initiated individually against Balwinder Kaur, treating her status as an independent tenure holder, but her land was clubbed with land of her husband in view of definition of 'Tenure Holder' under section 3 (17) of Act, 1960.

16. In my view, there is no reason to stress upon all these aspects for the reason that proceedings were initiated in 1974 under Act 1960. It is admitted case that notices were issued to Balwinder Kaur and Atar Singh, both. Gulzar Singh, son of Mahendra Singh is admittedly grandson of Atar Singh and Balwinder Kaur. Mahendra Singh was already dead. Gulzar Singh was minor and in guardianship of Atar Singh and Balwinder Kaur, in 1972 when he claims that sale deed was executed. Appellate Court has recorded findings of fact that he was about 11 years of age. This finding has been recorded in Para 13 of judgment dated 31.05.1984 passed by District Judge, Pilibhit and I may reproduce relevant extract hereinunder :

"13. The most important point which appears on the record is that Gulzar Singh appears to have been aged about 11 years of age when the sale-deed was executed. His affidavit dated 24.9.80 (paper no.31/3) gives his age as 19 years. Gulzar Singh was examined in this case on 31.1.1983 and there he gave his age as 30 years. This in inconsistent with his own affidavit given on 24.9.80. From the statement made on 31.1.83, it appears that the age of Gulzar Singh was about 19 years when the sale-deed was taken by him. Gulzar Singh has not disclosed the source of his income from which he purchased the land. He is admittedly grand-son of Atar Singh and Smt. Balvendra Kaur, being son of Mahendra Singh. Therefore, it appears that the sale-deed was not executed in good faith. It is a sham and benami transaction made to save the plot from the provisions of the Act. It was also for the deferred benefit of the tenure holder's family members."

17. Obviously when final order was passed by Prescribed Authority initially on 20.07.1977 even then Gulzar Singh was not major. Sale deed was executed by grandmother to grandson after cut off date of 24.01.1971. This issue of sale deed was specifically raised in initial proceedings also, and writ petition was dismissed by this Court in 1980. I fail to understand as to how Prescribed Authority, thereafter, on application dated 24.09.1980 filed by Gulzar Singh, could have reopened the matter despite that his order dated 20.07.1977, merged in Appellate Order dated 20.12.1977 passed by District Judge, Pilibhit dismissing the appeal, and both the said orders attained finality after dismissal of Writ Petition No.2768 of 1978 vide judgment dated 28.01.1980.

18. It is true that even a transferee would be entitled for notice. But in the present case, alleged transferee was a minor in the guardianship of recorded Tenure Holder, and recorded tenure holder was given notice. Even the question of sale deed was examined in earlier matter and it attained finality up to this Court when Writ Petition No.2768 of 1978 was dismissed. The concept of merger of judgment of Lower Court to Superior Court excludes authority of Prescribed Authority for reopening an issue which had attained finality up to this Court. The order of Prescribed Authority had merged in Appellate Order and thereafter when writ petition was dismissed, the issue attained finality up to the High Court.

19. I may refer to Supreme Court's judgment in Gojer Bros. Pvt. Ltd vs Ratan Lal Singh, 1974 (2)SCC 453, wherein Court said :

"The juristic justification of the doctrine of merger may be sought in the principle that there cannot be, at one and the same time, more than one operative order governing the same subject-matter. Therefore the judgment of an inferior court, if subjected to an examination by the superior court, ceases to have existence in the eye of law and is treated as being superseded by the judgment of the superior court. In other words, the judgment of the inferior court loses its identity by its merger with the judgment of the superior court." (emphasis added)

20. Again in Kunhayammed & Ors vs State Of Kerala & Anr, 2000 (6) SCC 359, Court said:

"The logic underlying the doctrine of merger is that there cannot be more than one decree or operative orders governing the same subject-matter at a given point of time. When a decree or order passed by inferior court, tribunal or authority was subjected to a remedy available under the law before a superior forum then, though the decree or order under challenge continues to be effective and binding, nevertheless its finality is put in jeopardy. Once the superior court has disposed of the lis before it either way - whether the decree or order under appeal is set aside or modified or simply confirmed, it is the decree or order of the superior court, tribunal or authority which is the final, binding and operative decree or order wherein merges the decree or order passed by the court, tribunal or the authority below......." (emphasis added)

21. In same judgment Court further said :

"Where an appeal or revision is provided against an order passed by a court, tribunal or any other authority before superior forum and such superior forum modifies, reverses or affirms the decision put in issue before it, the decision by the subordinate forum merges in the decision by the superior forum and it is the latter which subsists, remains operative and is capable of enforcement in the eye of law."

(emphasis added)

22. Above authorities have been followed in Omprakash Verma & Ors vs State Of A.P. & Ors, 2010 (13) SCC 158.

23. In the present case, order of Prescribed Authority was subjected to appeal before District Judge who dismissed appeal and confirmed order of Prescribed Authority. Therefore, order of Prescribed Authority dated 20.07.1977 merged in Appellate Order dated 20.12.1977. Thereafter, Writ Petition No.2768 of 1978 was filed before this Court and ultimately said writ petition was also dismissed. Hence, order of Prescribed Authority attained finality up to this Court and having merged in orders of Superior Court it was not open to Prescribed Authority to reopen the issue. It had no jurisdiction to nullify orders of Superior Courts. Remedy to petitioner Gulzar Singh, if any, was in superior forum itself for recall or review of its order, but Prescribed Authority erred in law in reopening an issue covered by orders of superior Courts, which it could not have done. Therefore, in my view ceiling proceedings, in the case in hand, stood final after dismissal of Writ Petition No. 2768 of 1978 and thereafter it was not open to Prescribed Authority to reopen the issue on an application filed by Gulzar Singh, (petitioner in First Petition), which was filed after dismissal of writ petition by this Court.

24. Now the second aspect is that even otherwise, I do not find that Gulzar Singh's Writ Petition has any merit for the reason that on his application dated 24.09.1980, Prescribed Authority scrapped earlier proceedings and made him party by order dated 18.03.1981. Assuming that these proceedings reopened by Prescribed Authority are valid, on the application of Gulzar Singh, himself, matter was heard again and Prescribed Authority rejected Gulzar Singh's application on 31.03.1984 after hearing him whereagainst he as well as Atar Singh preferred appeal, which were allowed by District Judge vide judgment dated 30.05.1983 and matter was remanded to Prescribed Authority to re-examine acceptability of sale deed dated 17.02.1972. On re-examination thereof, Prescribed Authority found the sale deed to be a sham transaction and again passed an order on 06.02.1984 redetermining surplus land of tenure holder, Atar Singh. Gulzar Singh and Atar Singh both preferred appeal before District Judge and both were dismissed vide judgment dated 31.05.1984. Gulzar Singh and Atar Singh, none of them thereafter challenged Appellate Order dated 31.05.1984 before this Court or before any other superior court. These orders, therefore, attained finality. Infact in the First Petition filed by Gulzar Singh, what has been done is that after dismissal of appeal by District Judge vide judgment dated 31.05.1984, he again filed an application dated 07.01.1985 before Prescribed Authority re-agitating same issue and it is this application which has been rejected by Prescribed Authority vide order dated 01.02.1985, which has been challenged in First Petition. Firstly on the ground of doctrine of merger as already noticed, Prescribed Authority's order dated 06.02.1984 also attained finality and merged with Appellate Order dated 31.05.1984, therefore, no further application could have been entertained by Prescribed Authority; and secondly, order of Ceiling Authorities declaring land surplus after reopening the matter on the application of Gulzar Singh, having not been challenged at all, the same orders having attained finality, hence, application dated 07.01.1985 filed by Gulzar Singh was not maintainable in law and thoroughly misconceived and ill advised. Hence, it has rightly been rejected by Prescribed Authority. Therefore, I find no merit in First Petition.

25. In fact, various authorities cited by learned counsel for petitioner with regard to necessity of notice etc are not applicable to the facts of this case. I may also notice at this stage that findings recorded by Ceiling Authority, in the orders dated 06.02.1984 and 31.05.1984 and particularly Appellate Authority that Gulzar Singh was just 11 years of age when alleged sale deed was executed by his grandmother in his favour and he had not disclosed any source of income, therefore, document of sale was a sham transaction, has not been challenged on the ground that findings recorded by District Judge in the order dated 31.05.1984 are perverse, illegal or contrary to record. In fact petitioner of First Petition has chosen not to challenge the said order at all. Therefore, various authorities cited at bar by learned counsel for petitioner in First Petition, in the facts of present case, are not applicable at all.

26. Now I come to Second Petition. Here petitioner Kashmir Singh has set up his claim on the basis of alleged 'Will' executed on 25.02.1980 by Balwinder Kaur who died on 06.01.1981. I find that my discussion on first issue which I have decided in the First Petition, and consequence of earlier litigation, would apply to this case also. Admittedly, when alleged 'Will' was executed on 25.02.1980, earlier litigation was already over upto this Court, inasmuch as, writ was already dismissed on 28.01.1980 in respect of disputed land. Ceiling proceedings qua Balwinder Kaur had already attained finality upto this Court. Therefore, with respect of property in dispute, she had no right to execute any 'Will' and in any case, subsequent execution of 'Will' will not invalidate earlier final proceedings, in any manner. Moreover, Authorities have also recorded a finding that Balwinder Kaur was not issued notice with independent status of tenure holder but it was in view of definition of tenure holder under Section 3 (17) of Act, 1960 and on this aspect, I find no material on record is available to show that aforesaid findings recorded by Ceiling Authorities are illegal or contrary to record. Even if, it is assumed that in subsequent proceedings which commenced after reopening of case after application of Gulzar Singh, Ceiling Authorities, having no knowledge of death of Balwinder Kaur, issued her notice, but it cannot be disputed that Atar Singh and Gulzar Singh, both were issued notices. They were heard, given opportunity and they carried the matter upto Appellate Authority also. Petitioner in Second Petition had not matured any right to property in dispute, since, ceiling proceedings qua Balwinder Kaur were already complete and stood confirmed upto this Court after dismissal of Writ Petition No.2768 of 1978.

27. In view thereof, even petitioner of Second Petition, in my view, is not entitled for any relief and writ petition is thoroughly misconceived.

28. Both the writ petitions, therefore, are dismissed. Interim order, if any, stands vacated.

Order Date : 03.07.2019

Manish Himwan