# Amber Kumar Jain v. The State of U.P. and others

- **Citation:** (2009) 2 ILRA 615
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2009-07-09
- **Case number:** Civil Misc. Writ Petition No. 20282 of 1990
- **Bench:** S.U. Khan
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/amber-kumar-jain-v-the-state-of-u-p-and-others-41664
- **Pages:** 3

## Headnote

U.P. Imposition of Ceiling Act 1960
Section
38-B-Bar
of
subsequent
proceeding-principle
of
resjudicatascope and ambit explained-once the
order passed by appellate authoritybecome final-can not be subjected to
fresh notice for determination of surplus
land-held-proceeding on same ground
not maintainable.
Case law discussed:
2002 (93) R.D. 663, AIR 1999 SC 2264, AIR
2004 SC 2186.

## Text

2 All] Amber Kumar Jain V. The State of U.P. and others
615
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 09.07.2009

BEFORE
THE HON'BLE S.U. KHAN, J.

Civil Misc. Writ Petition No. 20282 of 1990

Amber Kumar Jain

...Petitioner
Versus
The State of U.P. & others ...Respondents

Counsel for the Petitioner:
Sri G.N. Verma
Sri A.N. Verma

Counsel for the Respondents:
S.C.

U.P. Imposition of Ceiling Act 1960
Section
38-B-Bar
of
subsequent
proceeding-principle
of
resjudicatascope and ambit explained-once the
order passed by appellate authoritybecome final-can not be subjected to
fresh notice for determination of surplus
land-held-proceeding on same ground
not maintainable.
Case law discussed:
2002 (93) R.D. 663, AIR 1999 SC 2264, AIR
2004 SC 2186.

(Delivered by Hon'ble S.U. Khan, J.)

Heard learned counsel for the parties.

Proceedings for determination and
declaration of surplus land with the
petitioner under U.P. Imposition of
Ceiling of Land Holding Act, 1960 were
initiated. Prescribed Authority, Jansath,
District Muzzafarnagar through order
dated 20.05.1976 held that petitioner
possessed about 23 bighas land as surplus
land. Against the said order, petitioner
filed appeal being Ceiling Appeal No. 780
of 1976. One more appeal was also filed
against the same judgment number of
which appears to be 81 of 1976 . III
Additional District Judge, Muzzafarnagar
allowed
both
the
appeals
through
judgment and order dated 27.09.1976 and
held that petitioner did not possess any
surplus land. It appears that no writ
petition was filed against the judgment
and order dated 27.09.1976.

However
thereafter
fresh
proceedings were initiated against the
petitioner. At the second stage, Prescribed
Authority through order dated 29.04.1988
declared 22 bighas land as surplus almost
on the same grounds on which earlier
order was passed by the Prescribed
Authority, which had been set aside in
appeal.
Against
the
order
dated
29.04.1988, an appeal was again filed
being Appeal No. 11 of 1987-88, which
was allowed on 27.07.1988 and matter
was
remanded
to
the
Prescribed
Authority.
After
remand,
Prescribed
Authority passed order on 18.04.1990
declaring about 21 bighas of land as
surplus land. Said order was passed in
Case No. 1 of 1988-89. Against order
dated 18.04.1990, petitioner filed appeal
being Appeal No. 2 of 1989, which was
allowed in part through judgment and
order dated 25.07.1990. The said orders
have been challenged through this writ
petition. Appellate Court instead of 21
bighas 9 biswas 10 biswancies land,
which had been declared as the surplus
land by the Prescribed Authority, declared
12 bighas and odd land as surplus.
Appellate Court held that from the
statement of Lekhpal, it was clear the Jai
Prakash son of Sukhdarshan Lal was not
doing agriculture and was not having any
agricultural tools or material and was not
residing in the village and that land was
being used by the petitioner. Petitioner
616 INDIAN LAW REPORTS ALLAHABAD SERIES [2009
had sold property to Jai Prakash on
22.06.1972 and sale deed had been found
to be quite valid and genuine through
earlier
judgment
and
order
dated
27.09.1976. Accordingly, the said land
could not be treated to belong to the
petitioner through subsequent judgment.
Subsequent judgment was completely
barred by the principle of res judicata. In
this regard, learned counsel for the
petitioner has also cited an authority of
this court reported in Lady Parassan
Kaur Charitable Educational Trust
Society, Gorakhput Vs. State of U.P.
and others, 2002 (93) R.D. 663.

A three judges authority of the
Supreme Court reported in Devendra
Nath Singh Vs. Civil Judge and others,
AIR 1999 SC 2264 has held that Section
38-B of Ceiling Act, which deals with bar
against res judicata is not applicable to
the decision taken in ceiling proceedings
itself and the only scope of Section 38-B
of the Ceiling Act is that any finding
recorded in ancillary proceedings will not
operate as res judicata in proceedings
under Ceiling Act. Para 3 of the said
authority is quoted below:-

"3. Having examined the provisions
of Section 13-A and Section 38-B of the
Act, we are of the considered opinion that
under Section 13-A the Prescribed
Authority has the power to reopen the
matter within two years from the date of
the notification under sub-section (4) of
Section 14 to rectify any apparent mistake
which was there on the face of the record.
That power will certainly not include the
power to entertain fresh evidence and reexamine the question as to whether the
two
sons,
namely,
Hamendra
and
Shailendra were major or not. 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
its 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."

Unfortunately, without noticing the
above authority Supreme Court in AIR
2004 SC 2186 "Escorts Farms Ltd. v.
Commr., Kumanon Division, Nainital",
which is a two judges authority, held
otherwise. However, in the authority of
Escort Farms a particular point had been
assumed without determination in earlier
ceiling proceedings. In that background
Supreme
Court
held
that
earlier
proceedings will not operate as res
judicata. In the instant case, there was no
assumption in the earlier proceedings. It
was a clear cut decision on merit after
discussion of evidence and the arguments
of both the parties.

There is one more aspect of the
matter
which
requires
consideration.
Apart from the doctrine of res judicata,
the
doctrine
of
binding
nature
of
judgments of higher courts is also
applicable.
The
judgment
dated
27.09.1976 was passed by the appellate
authority.
Accordingly,
Prescribed
2 All] Smt. Raj Bala Sharma V. State of U.P. and others
617
Authority under the Ceiling Act could not
go against the said judgment, hence fresh
proceedings on the same point were not
maintainable.

Accordingly, writ petition is allowed.
Impugned orders are set aside.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 23.07.2009

BEFORE
THE HON'BLE RAKESH SHARMA, J.

Civil Misc. Writ Petition No. 27963 of
2007.

Smt. Raj Bala Sharma
...Petitioner
Versus
State of U.P. and others ...Respondents

Counsel for the Petitioner:
Sri Ram Shiromani Mishra

Counsel for the Respondents:
Sri V.K. Nagaich
S.C.

U.P. Government Servant Conduct Rules
1956-Rule 29 (3) (1) and (2)-Dismissal
from Service-petitioner being widow
working as S.I. (M) on compassionate
ground-got married with one Mr. Ajeet
Singh (Constable)-marriage slenderized
before Court-during enquiry was found
that Ajeet Singh already married having
his first wife alive-never disclosed this
fact-no misconduct pointed out in any
manner-petitioner having one daughter
of marriageable age and burden to settle
two
sons-except
minor
no
major
punishment
could
be
inflictedperformance of petitioner found through
and expellant-punishment of dismissalheld-harsh-direction for reinstatement
with full salary issued.

Held: Para 19

This Court has also taken note of two
decisions of this Court in which similar
controversy has been set at rest. In 1997
All.L.J 1714 (Supra), this Court has held
that no major penalty could be awarded
to
a
government
servant
on
contravention of provisions contained in
rule 29 of the U.P. Govt. Servant Conduct
Rules, 1956. Only a minor penalty as
indicated in the rules could have been
imposed. The punishment of dismissal in
the present case is not proportionate to
the
charges
levelled
against
the
petitioner. The misconduct which has
been imputed to the petitioner is not in
any manner affecting the discharge of
her official duty. No such finding has
been
recorded
by
the
competent
authority in this regard. The punishment
of dismissal from service awarded to the
petitioner appears to be harsh and it
does not commensurate to the gravity of
charge
proved
against
her.
The
petitioner's case is squarely covered by
the above said decision of this Court as
well as in the light of the decision
rendered by Hon'ble Apex Court in the
case of Ranjit Thakur Vs. Union of India
(AIR 1987 SC 2386) and other cases
cited in the aforementioned judgment of
this Court.
Case law discussed:
1977 ALJ 1714, AIR 1987 SC 2386.

(Delivered by Hon'ble Rakesh Sharma, J.)

1. Heard Sri Ram Siromani Misra,
learned counsel for the petitioner and
learned Standing Counsel representing the
State.

2. The petitioner, an erstwhile
Assistant Sub Inspector (Ministerial)
working
in
41st
battalion
P.A.C.,
Ghaziabad has assailed the order of
removal dated 13.1.2006 passed by the
D.I.G., P.A.C., Meerut Range, Meerut and
subsequent orders passed by the appellate
and revisional authorities. It was a case of
a lady police official who was a widow