# Dinesh Verma & Anr v. State of U.P. & Anr

- **Citation:** (2024) 5 ILRA 1577
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2024-05-16
- **Case number:** Writ-C No. 3000053 of 2005
- **Bench:** Subhash Vidyarthi
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/dinesh-verma-anr-v-state-of-u-p-anr-51991
- **Pages:** 12

## Headnote

Civil Law -validity of notice- Section 10(2)
of the U.P. Imposition of Ceiling on Land
Holdings Act, 1960- redetermination of
surplus land-challenged-Sections 4, 5, 12
and 13 of the Act, 1960- U. P. Imposition of
Ceiling (Amendment) Act of 1972, being
U.P. Act 18 of 1973-Sections 5 and 19-U.P.
Imposition of Ceiling on Land Holdings
(Amendment) Act, 1974 (U.P. Act 2 of
1975)- U. P. Imposition of Ceiling on Land
Holdings (Amendment) Act, 1976 (U.P. Act
20 of 1976)-Sections 31 and 38-B-The Act
permits redetermination of surplus land-
only after a trial of an issue within two
years from the date of a Notification under
Section 14(4) for rectifying any mistake, as
provided in 13-A, or in circumstances
mentioned in Section 29 (a) and (b)-
redetermination of surplus land only within
a period of two years from the date of
enforcement of U.P. Act No. 20 of 1976,
i.e.10.10.1975-no
circumstances
exist
justifying the redetermination of surplus
land
of
the
petitioners-
impugned
proceedings
quashed-Petition
allowed.
(Paras 27 to 33 and 35)

HELD:
Since Section 38-B of the Act carves out an
exception to the general principle of Res Judicata,
the provisions of Section 38-B have to be
interpreted strictly, keeping in view the other
provisions contained in the Principal Act as also
U.P. Act No. 20 of 1976, through which Section
38-B was inserted. (Para 27)
1578 INDIAN LAW REPORTS ALLAHABAD SERIES
Section 38-B of the Act provides that 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 retrial
of such proceeding or issue under this Act, in
accordance with the provisions of this Act as
amended from time to time. A bare reading of the
entire Section 38-B would indicate that it where
a retrial is held in accordance with the provisions
of the Act, any finding or decision given in any
proceedings before commencement of Section
38-B would not bar the same. The exception to
the general principle of Res-Judicata will apply
only where a retrial is permissible in accordance
with the provisions of this Act. (Para 28)

The Act permits redetermination of surplus land
only after a trial of an issue within two years from
the date of a Notification under Section 14(4) for
rectifying any mistake, as provided in 13-A, or in
circumstances mentioned in Section 29 (a) and
(b). Section 38-B of the Act would be applicable
to the situations covered by the aforesaid
provisions of the Act only and it cannot be
interpreted in a such a manner as would give a
free hand to the authorities to ignore any finding
recorded in any proceedings which have attained
finality upto the Hon'ble Supreme Court and to
initiate proceedings for redetermination of
surplus land. (Para 29)

Section 19 (2) of the Amendment Act of 1972
contained a transitory provision permitting
redetermination of surplus land of any tenureholder in relation to whom the surplus land has
been
determined
finally
before
the
commencement of the Amendment Act of 1972.
(Para 30)

Section 9 of the U.P. Act No. 2 of 1975 also
contained a transitory provision which empowers
the prescribed authority to redetermine the
surplus land of a tenure-holder at any time within
a period of two years from the commencement
of Act No. 2 of 1975, determination of surplus
land in respect of whom had been made under
the principal Act before the commencement of
Act No. 2 of 1975. (Para 31)

Section 31 (3) of U.P. Act No. 20 of 1976 also
contained a transitory provision providing that
where an order determining surplus land in
relation to a tenure-holder has been made under
the principal Act before 10.10.1975, the
prescribed authority may, at any time within a
period of two years from the said date,
redetermine the surplus land in accordance with
the principal Act as amended by Act No. 20 of
1976, at any time within a period

## Text

_Characters 0–39,823 of 40,894. This is a partial read: ask again with offset=39823 for what follows._

5 All. Dinesh Verma & Anr. Vs. State of U.P. & Anr.
1577
order of cancellation had correctly been
passed against the Respondent No. 4."

18. It is relevant to note that in the
present case, after cancellation of the fair
price shop license of the respondent no. 4,
the shop was not allotted to the petitioner,
rather it was allotted to one Dharamraj.
After cancellation of the Fair Price Shop
Agreement of Dharamraj, the shop in
question was allotted to the petitioner
wherein it was specifically mentioned that
the appointment of the petitioner will be
subject to the final orders to be passed in any
case pending before the Competent Court.

19. The appeal was filed challenging
the legality of the cancellation of the order
dated 13.04.2016 and the validity of the
cancellation order dated 13.04.2016 can
very well be decided even if in absence of a
person
who
was
allotted
the
shop
subsequent cancellation of the fair price
shop agreement of another subsequent
allottee. It was open to the petitioner to have
appeared in the appeal and sought a right of
hearing, but he did not do so. In such
circumstances the impugned order dated
16.04.2024 passed by the Additional
Commissioner (Food), Ayodhya Division,
Ayodhya cannot be held to be bad in law for
want of impleadment of the petitioner as a
necessary party to the appeal.

20. In view of the above discussion, I
do not find any illegality in the order dated
16.04.2024 passed by the Additional
Commissioner (Food), Ayodhya Division,
Ayodhya and hence, the writ petition is
hereby dismissed.
----------
(2024) 5 ILRA 1577
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 16.05.2024

BEFORE

THE HON'BLE SUBHASH VIDYARTHI, J.

Writ-C No. 3000053 of 2005

Dinesh Verma & Anr. ...Petitioners
Versus
State of U.P. & Anr. ...Respondents

Counsel for the Petitioners:
Mohd. Arif Khan, Mohammad Aslam Khan

Counsel for the Respondents:
C.S.C.

Civil Law -validity of notice- Section 10(2)
of the U.P. Imposition of Ceiling on Land
Holdings Act, 1960- redetermination of
surplus land-challenged-Sections 4, 5, 12
and 13 of the Act, 1960- U. P. Imposition of
Ceiling (Amendment) Act of 1972, being
U.P. Act 18 of 1973-Sections 5 and 19-U.P.
Imposition of Ceiling on Land Holdings
(Amendment) Act, 1974 (U.P. Act 2 of
1975)- U. P. Imposition of Ceiling on Land
Holdings (Amendment) Act, 1976 (U.P. Act
20 of 1976)-Sections 31 and 38-B-The Act
permits redetermination of surplus land-
only after a trial of an issue within two
years from the date of a Notification under
Section 14(4) for rectifying any mistake, as
provided in 13-A, or in circumstances
mentioned in Section 29 (a) and (b)-
redetermination of surplus land only within
a period of two years from the date of
enforcement of U.P. Act No. 20 of 1976,
i.e.10.10.1975-no
circumstances
exist
justifying the redetermination of surplus
land
of
the
petitioners-
impugned
proceedings
quashed-Petition
allowed.
(Paras 27 to 33 and 35)

HELD:
Since Section 38-B of the Act carves out an
exception to the general principle of Res Judicata,
the provisions of Section 38-B have to be
interpreted strictly, keeping in view the other
provisions contained in the Principal Act as also
U.P. Act No. 20 of 1976, through which Section
38-B was inserted. (Para 27)
1578 INDIAN LAW REPORTS ALLAHABAD SERIES
Section 38-B of the Act provides that 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 retrial
of such proceeding or issue under this Act, in
accordance with the provisions of this Act as
amended from time to time. A bare reading of the
entire Section 38-B would indicate that it where
a retrial is held in accordance with the provisions
of the Act, any finding or decision given in any
proceedings before commencement of Section
38-B would not bar the same. The exception to
the general principle of Res-Judicata will apply
only where a retrial is permissible in accordance
with the provisions of this Act. (Para 28)

The Act permits redetermination of surplus land
only after a trial of an issue within two years from
the date of a Notification under Section 14(4) for
rectifying any mistake, as provided in 13-A, or in
circumstances mentioned in Section 29 (a) and
(b). Section 38-B of the Act would be applicable
to the situations covered by the aforesaid
provisions of the Act only and it cannot be
interpreted in a such a manner as would give a
free hand to the authorities to ignore any finding
recorded in any proceedings which have attained
finality upto the Hon'ble Supreme Court and to
initiate proceedings for redetermination of
surplus land. (Para 29)

Section 19 (2) of the Amendment Act of 1972
contained a transitory provision permitting
redetermination of surplus land of any tenureholder in relation to whom the surplus land has
been
determined
finally
before
the
commencement of the Amendment Act of 1972.
(Para 30)

Section 9 of the U.P. Act No. 2 of 1975 also
contained a transitory provision which empowers
the prescribed authority to redetermine the
surplus land of a tenure-holder at any time within
a period of two years from the commencement
of Act No. 2 of 1975, determination of surplus
land in respect of whom had been made under
the principal Act before the commencement of
Act No. 2 of 1975. (Para 31)

Section 31 (3) of U.P. Act No. 20 of 1976 also
contained a transitory provision providing that
where an order determining surplus land in
relation to a tenure-holder has been made under
the principal Act before 10.10.1975, the
prescribed authority may, at any time within a
period of two years from the said date,
redetermine the surplus land in accordance with
the principal Act as amended by Act No. 20 of
1976, at any time within a period of two years
from the said date. (Para 32)

Thus it is clear that the intention of the legislature
was to permit redetermination of surplus land
only within a period of two years from the date
of enforcement of U.P. Act No. 20 of 1976,
i.e.10.10.1975 and that too, if it was necessitated
by the amendments incorporated in the Act. The
authorities under the Act have not been given
unfettered powers to ignore any finding order
passed in earlier proceedings. (Para 33)

Petition allowed. (E-14)

List of Cases cited:

1. Ram Lal Vs State of U.P.: 1978 SCC OnLine All
419 : 1978 All LJ 1197

2. Escorts Farms Ltd. Vs Commr., Kumaon
Division: (2004) 4 SCC 281

3. S. Ramachandra Rao Vs S. Nagabhushana Rao,
2022 SCC OnLine SC 1460

(Delivered by Hon'ble Subhash Vidyarthi, J.)

1. Heard Sri Mohd. Arif Khan, Senior
Advocate assisted by Sri Abhishek Mishra,
Advocate, the learned counsel for the
petitioners and Sri Krishna Kumar Singh,
the learned Standing Counsel.

2. By means of the instant petition filed
under Article 226 of the Constitution of
India, the petitioners have challenged the
validity of a notice under Section 10(2) of
the U.P. Imposition of Ceiling On Land
Holdings Act, 1960 (herein after referred to
as 'the Ceiling Act'), issued by the
Prescribed Authority/Additional Collector
(Administration), Lucknow on 06.01.1999,
5 All. Dinesh Verma & Anr. Vs. State of U.P. & Anr.
1579
order dated 14.02.2005 passed by the
prescribed
authority
rejecting
the
petitioners' objection against the aforesaid
notice, an order dated 31.08.2005 passed by
the prescribed authority as well as the entire
proceedings instituted by the notice issued
under Section 10(2) of the Ceiling Act.

3. Briefly stated, facts of the case are
that Bindra Prasad, grand father of the
petitioners was tenure holder having
separate Khata, whereas Randhir Verma,
father of the petitioners, was also having his
separate holdings. Bindra Prasad had
executed various sale-deeds in the year,
1957 transferring an area of 842 Bihgas 18
Biswa 3 Biswansi 9 Kachwansi. The
proceedings under the Ceiling Act were
initiated against Randhir Verma by issuing a
notice under Section 10(2) of the Act to him.
Randhir Verma filed objections and by
means of an order dated 24.12.1979, the
prescribed authority declared 20 Bigha 5
Biswa 10 Biswansi land of Randhir Verma
as surplus land.

4. Randhir Verma has filed an appeal
against the order dated 24.12.1979 inter alia
on the ground that considering the size of his
family, he was entitled to retain 44.67
Bighas land and further that he had
transferred 10 Bigha 2 Biswa 7 Biswansi
land by means of a registered sale-deed
executed in favour of his daughter prior to
24.01.1971 and it could not be included in
his holdings while determining the ceiling
area. The sale-deed executed by Randhir
Verma, in favour of his daughter excluded
the area of 10 Bigha, 2 Biswa 7 Biswansi
from his holdings and, accordingly, the
ceiling area was determined and the surplus
land was declared.

5. Subsequently, another notice under
Section 10(2) of the Ceiling Act was issued
to Sri Randhir Verma on 16.12.1979 by
clubbing the holdings which have already
been transferred by Bindra Prasad through
various sale-deeds executed in the year,
1957. By means of an order dated
05.04.1982,
the
Prescribed
Authority
declared an area of 842 Bighas 18 Biswa 3
Biswansi 9 Kachwansi in terms of irrigated
land to be surplus land of the petitioners'
father Randhir Verma.

6.

Randhir
Verma
filed
a
Miscellaneous Civil Appeal No. 176 of 1982
against
the
aforesaid
order
dated
05.04.1982. The appeal was allowed by
means of an order dated 11.01.1983 passed
by IInd Additional District Judge, Lucknow.
The order dated 05.04.1982 passed by the
Prescribed Authority was set aside and the
matter was remanded for re-determination
of surplus land, after giving opportunity of
hearing to the transferees of Sri Bindra
Prasad. The State of U.P. filed a Writ
Petition No. 407 of 1983 against the
aforesaid order dated 11.01.1983, which
was dismissed in limine by means of an
order dated 25.01.1983.

7. The petitioners' father Randhir
Verma filed a Writ Petition No. 431 of 1983
and the transferees, who had purchased the
land from Bindra Prasad in the year, 1957,
filed Writ Petition No.2323 of 1983. Both
the writ petitions were decided by a common
judgment dated 10.10.1984, whereby both
the writ petitions were allowed. The notice
dated 26.12.1979 issued by the Prescribed
Authority under Section 10(2) of the Ceiling
Act and all the proceedings arising
therefrom, were quashed. A mandamus was
issued commanding the opposite parties to
restore the entries in the revenue records in
favour of the persons who had purchased the
land from Sri Bindra Prasad, as they existed
immediately before the passing of the order
1580 INDIAN LAW REPORTS ALLAHABAD SERIES
dated
05.04.1982
by
the
Prescribed
Authority in the proceedings arising from
the notice dated 26.12.1979 issued to
Randhir Verma under Section 10(2) of the
Ceiling Act.

8. The State filed a Special Leave
Petition (Civil) No. 2128 of 1985 changing
the aforesaid order dated 10.10.1984 and the
aforesaid SLP was dismissed by means of an
order dated 12.08.1985.

9. After the SLP had been dismissed by
Hon'ble the Supreme Court and the matter
attained finality and after Bindra Prasad,
grand-father of the petitioners had died and
thereafter their father Randhir Verma had
also died on 19.05.1996, the notice dated
06.01.1999 was issued to the petitioners
under Section 10(2) of the Ceiling Act.

10. After a lapse of about 4 years, the
State filed an application dated 10.04.2003,
under Order 6 Rule 17 of CPC alleging that
the land that had already been transferred by
the predecessors of the petitioners, was
being held by them as 'Benamidar' and,
therefore, the land that had been transferred
should also be included in the proceedings
and the said application was allowed by
means of order dated 17.04.2003.

11. The petitioners filed an application
dated 10.04.2003 for recall of the ex-parte
order dated 17.04.2003, which was rejected
by means of an order dated 14.02.2005.

12. The petitioners again filed an
application dated 16.07.2005 for rejection of
application under Order 6 Rule 17 of CPC,
which too was dismissed by means of an
order dated 14.02.2004.

13. Submission of learned counsel
for the petitioners is that when the
proceedings under the Ceiling Act have
been initiated against the petitioners'
father Randhir Verma and the same
attained finality by dismissal of SLP filed
by the State, fresh proceedings could only
be initiated under Section 27(3) of the U.P.
Imposition of Ceiling on Land Holdings
(amendment)
Act,
1975.
After
the
proceedings had attained finality, no fresh
notice could be issued under Section 10(2)
of
the Ceiling
Act
and no
fresh
proceedings could be drawn against the
petitioners.

14. The learned Counsel for the
petitioner also submitted that the names of
the persons who had purchased various
parts of lands from the petitioner's grandfather, had been recorded in revenue
records even before commencement of the
Ceiling Act and there would be a
presumption regarding correctness of the
settlement entries and the continuance of
long standing entries cannot be rejected
without any solid rebutting evidence and
good grounds, as has been held by this
Court in Lal Behari and others versus
Ram Adhar and others: 1987 RD 206 :
1985 SCC OnLine All 1197.

15. The U. P. Imposition of Ceiling of
Land Holdings Act, 1960 Act is an Act to
provide for the imposition of ceiling on land
holdings in the State of Uttar Pradesh. A
general notice was to be given to the tenureholders holding land in excess of the ceiling
area so that they could submit a statement in
respect
thereof.
A
quasi-judicial
determination is then to be made of the
surplus land, where objections are filed and
the prescribed authority, after affording the
parties a reasonable opportunity of being
heard, and of producing evidence, is then to
decide their objections after recording
reasons, and then determine the extent of
5 All. Dinesh Verma & Anr. Vs. State of U.P. & Anr.
1581
surplus land. Some relevant provisions of
the aforesaid Act, as enacted originally, are
being reproduced below: -

"4. Ceiling area.-(1) 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 person.
* * *

5. Imposition of ceiling on
existing land holdings.-(1) As and from
the date of enforcement of this Act, no
tenure-holder shall, except as otherwise
provided by this Act, be entitled to hold an
area in excess of the ceiling area applicable
to him, anything contained in any other law,
custom, or usage for the time being in force,
or
agreement,
to
the
contrary
notwithstanding.

(2) In determining the ceiling area
applicable to a tenure-holder at the
commencement of this Act, any transfer or
partition of land made after the twentieth
day of August, 1959, which, but for the
transfer or partition would have been
declared surplus land under the provisions
of this Act, shall be ignored and not taken
into account.

(3) The provisions of sub-section
(2) shall have no application to-

(a) a transfer in favour of the State
Government;

(b) a partition under the U.P.
Consolidation of Holdings Act, 1953, or

(c) a partition of the holding of a
joint Hindu family made by a suit or
proceeding pending on twentieth day of
August, 1959.
* * *

12. Determination of the surplus
land by the prescribed authority where an
objection is filed.-(1) Where an objection
has been filed under sub-section (2) of
Section 10 or under sub-section (2) of
Section 11, or because of any appellate
order under Section 13, the prescribed
authority shall, after affording the parties
reasonable opportunity of being heard and
of producing evidence, decide the objections
after recording his reasons, and determine
the surplus land.

(2) Subject to any appellate order
under Section 13, the order of the prescribed
authority under sub-section (1) shall be final
and conclusive and be not questioned in any
court of law.

13. Appeals.-(1) Any party
aggrieved by an order under sub-section (2)
of Section 11 or Section 12, may, within
thirty days of the date of the order, prefer an
appeal to the District Judge within whose
jurisdiction the land or any part thereof is
situate.

(2) The District Judge shall
dispose of the appeal as expeditiously as
possible and his decision thereon shall be
final and conclusive and be not questioned
in any court of law.

(3) Where an appeal is preferred
under this section, the District Judge may
stay enforcement of the order appealed
against for such time and on such conditions
as may be considered just and proper."

16. By U. P. Imposition of Ceiling
(Amendment) Act of 1972, being U.P. Act
18 of 1973, which came into force on
08.06.1973,
various
Sections
of
the
principal Act were substituted. Section 5 of
the Principal Act was substituted by the
following new Section 5: -

5. Imposition of ceiling on existing
land holdings (1) As and form the date of
enforcement of this Act no tenure-holder
shall, except as otherwise provided by this
Act, be entitled to hold an area in excess of
1582 INDIAN LAW REPORTS ALLAHABAD SERIES
the ceiling area applicable to him, anything
contained in any other law, custom, or usage
for the time being in force, or agreement, to
the contrary notwithstanding.

(2) In determining the ceiling area
applicable to a tenure-holder at the
commencement of this Act any transfer or
partition of land made after the twentieth
day of August, 1959, which but for the
transfer or action would have been declared
surplus land under the provisions of this Act,
shall be ignored and not taken into account.

(3) The provisions of sub-section
(2) shall have no application to

(a) a transfer in favour of the State
Government,

(b) a partition under the U. P.
Consolidation of Holdings Act, 1953 ; or

(c) a partition of the holding of a
Joint Hindu Family made by a suit or
proceeding pending on twentieth day of
August, 1959."

17. The transitory provision contained
in Section 19 of the Amendment Act of 1972
provided as follows: -

"19. Transitory provisions.-(1)
All proceedings for the determination of
surplus land under Section 9, Section 10,
Section 11, Section 12, Section 13 or Section
30 of the principal Act, pending before any
court or authority at the time of the
commencement of this Act, shall abate and
the prescribed authority shall start the
proceedings for determination of the ceiling
area under that Act afresh by issue of a
notice under sub-section (2) of Section 9 of
that Act as inserted by this Act:

Provided that the ceiling area in
such cases shall be determined in the
following manner-

(a) firstly, the ceiling area shall be
determined in accordance with the principal
Act, as it stood before its amendment by this
Act;

(b) thereafter, the ceiling area
shall be redetermined in accordance with
the provisions of the principal Act as
amended by this Act.

(2) Notwithstanding, anything in
sub-section (1), any proceeding under
Section 14 or under Chapter III or Chapter
IV of the principal Act, in respect of any
tenure-holder in relation to whom the
surplus land has been determined finally
before the commencement of this Act, may
be continued and concluded in accordance
with the provisions of the principal Act,
without prejudice to the applicability of the
provisions of sub-section (2) of Section 9
and Section 13-A of that Act, as inserted by
this Act, in respect of such land."

18. The U.P. Imposition of Ceiling on
Land Holdings (Amendment) Act, 1974
(U.P. Act 2 of 1975), came into being on
17.01.1975. This 1974 Amendment Act
only added to the new substituted scheme
the concept of "single crop land". U.P. Act
2 of 1975 amended Section 5 of the
Principal Act and the relevant part of the Act
reads as follows: -

"Imposition of ceiling- (1) - On
and from the commencement of the Uttar
Pradesh Imposition of Ceiling on Land
Holdings (Amendment) Act, 1972, no
tenure-holder shall be entitled to hold in the
aggregate, throughout Uttar Pradesh, any
land in excess of the ceiling area applicable
to him.

Explanation I- 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.
5 All. Dinesh Verma & Anr. Vs. State of U.P. & Anr.
1583
* * *

19. U.P. Act No. 2 of 1975 also
contained a transitory provision in Section 9,
which is being reproduced below: -

"9. Transitory provision.-Where
an order determining the surplus land in
relation to a tenure-holder has been made
under the principal Act, before the
commencement of this Act, the prescribed
authority may, at any time within a period of
two years from the commencement of this
Act, redetermine the surplus land in
accordance with the principal Act as
amended by this Act."

20. An Ordinance, which further
amended the Principal Act, came into force
on 10.10.1975. After the said Ordinance
lapsed, the U. P. Imposition of Ceiling on
Land Holdings (Amendment) Act, 1976
(U.P. Act 20 of 1976) was enacted with
effect from the date of the Ordinance,10-101975. In this Amendment, various other
changes were made with which we are not
directly concerned, except that the following
Explanation II was added to Section 5(1) by
Subs. by sec. 6(a) of U.P. Act No. 20, 1976
(deemed to have been substitute from
January 17, 1975): -

"Explanation II- If on or before
January 24, 1971, any land was held by a
person who continues to be in its actual
cultivatory possessions and the name of any
other person is entered in the annual
register after the said date either in addition
to or to the exclusion of the former and
whether on the basis of deed of transfer or
license or on the basis of a decree, it shall
be presumed, unless the contrary is proved
to the satisfaction of the prescribed
authority, that the first mentioned person
continues to hold the land and that it is so
held by him ostensibly in the name of the
second mentioned person."

21. Section 19 of U.P. Act No. 20 of
1976 inserted the following Section 38-B in
the Principal Act: -

"38-B. 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 retrial of such proceeding or issue under
this Act, in accordance with the provisions
of this Act as amended from time to time."

22. Section 31 of U.P. Act No. 20 of
1976 contains the following transitory
provision: -.

"31. Transitory provisions.-(1)
All proceedings under sub-sections (3) to (7)
of Section 14 of the principal Act, as it stood
immediately before the commencement of
the Uttar Pradesh Imposition of Ceiling on
Land Holdings (Amendment) Ordinance,
1976 (U.P. Ordinance 11 of 1976), pending
before any court or authority immediately
before the date of such commencement shall
be deemed to have abated on such date.

(2) Where an order determining
the surplus land in relation to a tenureholder has been made under the principal
Act before 17-1-1975 and the prescribed
authority is required to redetermine the
surplus land under Section 9 of the Uttar
Pradesh Imposition of Ceiling on Land
Holdings (Amendment) Act, 1974 (U.P. Act
2 of 1975), then notwithstanding anything
contained in sub-section (2) of Section 19 of
the Uttar Pradesh Imposition of Ceiling on
Land Holdings (Amendment) Act, 1972
(U.P. Act 17 of 1973), every appeal under
Section 13 of the principal Act or other
1584 INDIAN LAW REPORTS ALLAHABAD SERIES
proceedings in relation to such appeal,
preferred against the said order, and
pending immediately before the tenth day of
October, 1975, shall be deemed to have
abated on the said date.

(3) Where an order determining
surplus land in relation to a tenure-holder
has been made under the principal Act
before the tenth day of October, 1975, the
prescribed authority (as defined in the
principal Act) may, at any time within a
period of two years from the said date,
redetermine
the
surplus
land
in
accordance with the principal Act as
amended by this Act, whether or not any
appeal was filed against such order and
notwithstanding any appeal (whether
pending or decided) against the original
order of determination of surplus land.

(4) The provisions of Section 13 of
the principal Act shall mutatis mutandis
apply to every order redetermining surplus
land under sub-section (3) of this section or
Section 9 of the Uttar Pradesh Imposition of
Ceiling on Land Holdings (Amendment) Act,
1974:

Provided that the period of thirty
days shall, in the case of an appeal against
the order referred to in Section 9 of the Uttar
Pradesh Imposition of Ceiling on Land
Holdings (Amendment) Act, 1974, be
computed from the date of such order or 1010-1975, whichever is later.

(5) The provisions of Section 13-A
of the principal Act shall mutatis mutandis
apply to every redetermination of surplus
land under the section or under Section 9 of
the Uttar Pradesh Imposition of Ceiling on
Land Holdings (Amendment) Act, 1974.

(6) Where any assessment roll has
become final under sub-section (4) of
Section 21 before the sixteenth day of
February, 1976, the same shall not be
reopened, notwithstanding any amendment
made in Chapter III of the principal Act read
with the Schedule thereof by this Act."

23. The effect and scope of Section 38B was explained by this Court in Ram Lal
v. State of U.P.: 1978 SCC OnLine All 419
: 1978 All LJ 1197 in the following words: -

"21. This provision to our mind
was introduced to achieve the object of the
various amendments introduced in the
principal Act and to give effect to them.
Section 38-B, in our view, contemplates that
if by the amendments made in the principal
Act a certain findings or decisions had
become contrary to law, those findings or
decisions could be reopened and the
principle of res judicata would not bar a
retrial of those issues in accordance with the
provisions of the principal Act as amended.
This provision, in our opinion, did not
authorise the Ceiling authorities to ignore
the decisions rendered or decrees passed by
competent courts, tribunals or authorities in
respect of matters which were not affected
by the changes made in the principal Act.
Such decisions, in our opinion, would
continue to be binding on the parties and
would operate as res judicata between
them...."

24. The principle of Res-Judicata is a
long standing basic principle of general
application in civil proceedings. In Escorts
Farms
Ltd.
v.
Commr.,
Kumaon
Division: (2004) 4 SCC 281, the Hon'ble
Supreme Court held that: -

"51. Res judicata is a plea
available in civil proceedings in accordance
with Section 11 of the Code of Civil
Procedure. It is a doctrine applied to give
finality to "lis" in original or appellate
proceedings. The doctrine in substance
means that an issue or a point decided and
5 All. Dinesh Verma & Anr. Vs. State of U.P. & Anr.
1585
attaining finality should not be allowed to be
reopened and reagitated twice over. The
literal meaning of res is "everything that
may form an object of rights and includes an
object, subject-matter or status" and res
judicata
literally
means:
"a
matter
adjudged; a thing judicially acted upon or
decided; a thing or matter settled by
judgment". Section 11 CPC engrafts this
doctrine with a purpose that

"a final judgment rendered by a
court of competent jurisdiction on the merits
is conclusive as to the rights of the parties
and their privies, and, as to them, constitutes
an absolute bar to a subsequent action
involving the same claim, demand or cause
of action". (See Black's Law Dictionary at
pp. 1304-05.)

25. However, the Hon'ble Supreme
Court held in Escorts (Supra) that: -

"52.
Proceedings
under
the
Ceiling Act are not adversarial as are
proceedings in suit. The Ceiling Act is a
legislation to give effect to the directive
principles contained in clauses (b) and (c) of
Article 39 of the Constitution. The State is
advised by the directive principles contained
in the Constitution to take necessary
legislative measures so as to ensure social
justice
by
equitable
distribution
of
ownership and control of material resources
and avoid concentration of wealth and
means of production in a few hands. The
laudable social objective sought to be
achieved by the ceiling legislation is to take
surplus land from the holders and distribute
the same to the landless agricultural
labourers and peasants surviving on
agriculture. In applying the principles of res
judicata,
therefore,
to
the
ceiling
proceedings, the object of the Act cannot be
lost sight of. All principles of res judicata
contained in Section 11 CPC cannot be
strictly and rigorously made applicable to
ceiling
proceedings.
Section
38-B
introduced by the Amendment Act of 1976
with the transitory provisions made both in
Amendment Act 18 of 1973 and Act 20 of
1976 is a departure from the provisions of
Section 11 of the Code of Civil Procedure
and indicates non-applicability of bar of res
judicata in ceiling proceedings under the
Act."

26. In S. Ramachandra Rao v. S.
Nagabhushana Rao, 2022 SCC OnLine SC
1460, the Hon'ble Supreme Court explained
the principles of Res Judicata as follows: -

22. The doctrine of res judicata,
having a very ancient history, embodies a
rule of universal law and is a sum total of
public policy reflected in various maxims
like 'res judicata pro veritate occipitur',
which means that a judicial decision must be
accepted as correct; and ' nemo debet bis
vexari pro una et eadem causa', which
means that no man should be vexed twice for
the same cause. The ancient history of this
doctrine and its consistent recognition could
well be underscored with reference to the
following statement of law in the case of
Sheoparsan Singh v. Ramnandan Prasad
Narayan Singh, AIR 1916 PC 78:-

"...But in view of the arguments
addressed to them, their Lordships desire to
emphasise that the rule of res judicata, while
founded on ancient precedent, is dictated by
a wisdom which is for all time.

"'It has been well said,' declared
Lord Coke, 'interest reipublicoe ut sit finis
litium, otherwise great oppression might be
done under colour and pretence of law' ".-
(6 Coke, 9 A.)

Though the rule of the Code may
be traced to an English source, it embodies
a doctrine in no way opposed to the spirit of
the law as expounded by the Hindu
1586 INDIAN LAW REPORTS ALLAHABAD SERIES
commentators.
Vijnanesvara
and
Nilakantha include the plea of a former
judgment among those allowed by law, each
citing for this purpose the text of Katyayana,
who escribes the plea thus:"If a person
though defeated at law sue again he should
be answered, 'You were defeated formerly.
This is called the plea of former judgment."
[See "The Mitakshara(Vyavahara)," Bk. II,
ch. I, edited by J. R. Gharpure, p. 14, and
"The Mayuka," Ch. I, sec. 1, p. 11 of
Mandlik's edition.] And so the application
of the rule by the Courts in India should be
influenced by no technical consideration of
form, but by matter of substance within the
limits allowed by law."

(emphasis in original)
* * *

25. It hardly needs any overemphasis that but for this doctrine of res
judicata, the rights of the persons would
remain entangled in endless confusion and
the very foundation of maintaining the rule
of law would be in jeopardy. Even if this
doctrine carries some technical aspects, as
explained by this Court in Daryao (supra),
it is in the interest of public at large that a
finality should attached to the binding
decisions of the Courts of competent
jurisdiction; and it is also in public interest
that individual should not be vexed twice
with the same kind of litigation. As noticed,
the Constitution Bench has placed this
doctrine on a high pedestal, treating it to be
a part of rule of law."

27. Since Section 38-B of the Act
carves out an exception to the general
principle of Res Judicata, the provisions of
Section 38-B have to be interpreted strictly,
keeping in view the other provisions
contained in the Principal Act as also U.P.
Act No. 20 of 1976, through which Section
38-B was inserted.

28. Section 38-B of the Act provides
that 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 retrial of
such proceeding or issue under this Act, in
accordance with the provisions of this Act
as amended from time to time. A bare
reading of the entire Section 38-B would
indicate that it where a retrial is held in
accordance with the provisions of the Act,
any finding or decision given in any
proceedings before commencement of
Section 38-B would not bar the same. The
exception to the general principle of ResJudicata will apply only where a retrial is
permissible
in
accordance
with
the
provisions of this Act.

29. The Act permits redetermination of
surplus land only after a trial of an issue
within two years from the date of a
Notification under Section 14(4) for
rectifying any mistake, as provided in 13-A,
or in circumstances mentioned in Section 29
(a) and (b). Section 38-B of the Act would
be applicable to the situations covered by the
aforesaid provisions of the Act only and it
cannot be interpreted in a such a manner as
would give a free hand to the authorities to
ignore any finding recorded in any
proceedings which have attained finality
upto the Hon'ble Supreme Court and to
initiate proceedings for redetermination of
surplus land.

30. Section 19 (2) of the Amendment
Act of 1972 contained a transitory provision
permitting redetermination of surplus land
of any tenure-holder in relation to whom the
surplus land has been determined finally
before
the
commencement
of
the
Amendment Act of 1972.
5 All. Dinesh Verma & Anr. Vs. State of U.P. & Anr.
1587

31. Section 9 of the U.P. Act No. 2 of
1975 also contained a transitory provision
which empowers the prescribed authority to
redetermine the surplus land of a tenureholder at any time within a period of two
years from the commencement of Act No. 2
of 1975, determination of surplus land in
respect of whom had been made under the
principal Act before the commencement of
Act No. 2 of 1975.

32. Section 31 (3) of U.P. Act No. 20
of 1976 also contained a transitory provision
providing that where an order determining
surplus land in relation to a tenure-holder
has been made under the principal Act
before 10.10.1975, the prescribed authority
may, at any time within a period of two years
from the said date, redetermine the surplus
land in accordance with the principal Act as
amended by Act No. 20 of 1976, at any time
within a period of two years from the said
date.

33. Thus it is clear that the intention of
the legislature was to permit redetermination
of surplus land only within a period of two
years from the date of enforcement of U.P.
Act No. 20 of 1976, i.e.10.10.1975 and that
too,
if
it
was
necessitated
by
the
amendments incorporated in the Act. The
authorities under the Act have not been
given unfettered powers to ignore any
finding order passed in earlier proceedings

34. The notice under Section 10(2) of
the Ceiling Act was issued to Sri Randhir
Verma on 16.12.1979 by clubbing the
holdings which had already been transferred
by his father Bindra Prasad through various
sale-deeds executed in the year, 1957. By
means of an order dated 05.04.1982, the
Prescribed Authority declared an area of 842
Bighas 18 Biswa 3 Biswansi 9 Kachwansi in
terms of irrigated land to be surplus land of
the petitioners' father Randhir Verma, but
that order passed by the Prescribed
Authority was set aside by an order dated
11.01.1983 passed by II Additional District
Judge, Lucknow in Miscellaneous Civil
Appeal No. 176 of 1982. The State of U.P.
filed a Writ Petition No. 407 of 1983 against
the aforesaid order dated 11.01.1983, which
was dismissed in limine by means of an
order dated 25.01.1983. The petitioners'
father Randhir Verma filed Writ Petition
No. 431 of 1983 and the transferees, who
had purchased the land from Bindra Prasad
in the year, 1957, filed Writ Petition
No.2323 of 1983. Both the writ petitions
were allowed by a common judgment dated
10.10.1984, the notice dated 26.12.1979
issued by the Prescribed Authority under
Section 10(2) of the Ceiling Act and all the
proceedings
arising
therefrom,
were
quashed and a mandamus was issued
commanding the opposite parties to restore
the entries in the revenue records in favour
of the persons who had purchased the land
from Sri Bindra Prasad. The State filed a
Special Leave Petition (Civil) No. 2128 of
1985 changing the aforesaid order dated
10.10.1984 and the aforesaid SLP was
dismissed by means of an order dated
12.08.1985.

35.

In
the
present
case,
no
circumstances
exist
justifying
the
redetermination of surplus land of the
petitioners.
The
proceedings
for
redetermination of the surplus land of the
petitioners has been initiated on 06.01.1999,
i.e. long after the period of two years
mentioned in Section 31 (3) of U.P. Act No.
20 of 1976, which is not permissible in law.
Now it is not open to the State to ignore the
aforesaid order dated 11.01.1983 passed by
II Additional District Judge, Lucknow in
Miscellaneous Civil Appeal No. 176 of
1982, which was affirmed by this Court and
1588 INDIAN LAW REPORTS ALLAHABAD SERIES
by the Hon'ble Supreme Court and this is
not permissible by Section 38-B of the Act.

36. Therefore, the initiation of fresh
proceedings and the order for fresh
determination is unsustainable in law.

37. Accordingly, the Writ Petition is
allowed. The notice dated 06.01.1999
issued
by
the
Prescribed
Authority/Additional
Collector
(Administration), Lucknow under Section
10(2) of the Ceiling Act and the entire
proceedings initiated by the aforesaid notice
are hereby quashed. The parties will bear
their own costs of litigation.
----------
(2024) 5 ILRA 1588
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 23.05.2024

BEFORE

THE HON'BLE SHREE PRAKASH SINGH, J.

Writ C No. 2553 of 2024

C/M Ram Dularey Yadav Higher Secondary
School & Anr. ...Petitioners
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioners:
Dileep Kumar Mishra

Counsel for the Respondents:
C.S.C., Suresh Chandra Tiwari

Civil Law - Impugned order renewing the
registration certificate-at the behest of
respondent-no opportunity of hearing to
the petitioner-principles of natural justice
violated-opportunity of hearing-major and
essential ingredient-test of any decision of
an authority-principle of audi alteram
partem-applicable on all administrative,
judicial or quasi-judicial actions-person
affected by it-must be heard before a
decision is taken-principle not followedimpugned order quashed-petition allowed.
(Paras 21, 22 and 23)

HELD:
The Hon'ble Apex Court, time and again has held
that the opportunity of hearing is one of the
major and essential ingredients so as to make a
test of any decision of an authority. The decision
might be administrative, judicial or quasi-judicial,
but person affected must be heard before a
decision is taken. (Para 21)