# Lakhan Lal Mishra & Another v. State Of U.P. Thru' Agricultural & Revenue Secretary & Ors

- **Citation:** (2013) 1 ILRA 237
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2013-02-22
- **Case number:** Civil Misc. Writ Petition No. 13889 of 2003
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/lakhan-lal-mishra-another-v-state-of-u-p-thru-agricultural-revenue-secretary-ors-42452
- **Pages:** 5

## Headnote

Holding Act 1960 Section 10(2)-second
notice
ignoring
earlier
order
dated
25.11.1976
by which the proceeding
between same tender holder in respect of
same plot in absence of additional fact
under section 13-A of the Act-second
notice not maintainable-petition allowed.

Held: Para-7

 From a perusal of the impugned notice
dated 4.3.2003, it is not indicated as to
what fresh grounds have been taken by the
Authority for reopening the case for
declaration of land of the petitioner tenure
holder or his heirs as surplus and therefore
it is not a case whether the respondent
could have resorted to proceedings under
Section 13 -A of the Act, 1960. This fact has
not been disputed by the learned Standing
Counsel either.
238 INDIAN LAW REPORTS ALLAHABAD SERIES [2013
Case Law discussed:
(1999) 1 SCC 71; 2012 (4) ADJ 613; 2012 (5)
ADJ 441

## Text

1 All] Priyanka Pandey And Anr. Vs. State of U.P. Thru. Secy. & Ors.
237
visibly
practiced
before
youngsters
between the age of 5 and 12, is to add to
their mental misery that is already beset
with pitfalls of daily television viewing at
home. It might have an adverse effect
added and topped up with the parents and
guardians contributing to this exercise.
Modern advances in life, like the freedom
of choice of a life partner, is too serious a
subject matter to be made a gossip
between children of an unripe and
premature age.

5. The discretion exercised by the
District Magistrate in the matter of
Sunaina Devi was in 2009 when the
Scheme
of
Shiksha Mitra
was
in
existence. The scheme has now been
abandoned on 2.6.2010. No doubt the
petitioner may have a case to press into
service
on
the
alleged
ground
of
discrimination but the same does not
appear to be a legal ground. The
background of a romantic runaway
marriage may have been condoned by the
District Magistrate treating the period of
absence as a honeymoon holiday, but it
does not have any lawful foundation so as
to draw a similar inference. The claim
appears to be more of a movie script than
a genuine legal pursuit. If the petitioners
gave up their source of livelihood by
abandoning it for some bigger sacrifice,
the law cannot prevent them from doing
so or extend any benevolence. The
petitioners are therefore not entitled to
any sympathy. A reunion on the post of
Shiksha
Mitra
in
this
cinematic
background after a lapse of several
months through a writ petition filed after
more than two years, on a discovery of a
similar theatrical incident, does not raise a
legal ground to examine discrimination.

6. The scheme of Shiksha Mitra
having been abandoned the claim of the
petitioners cannot succeed.

7. The writ petition lacks merit and
is accordingly dismissed.
---------
 ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 22.02.2013

BEFORE
THE HON'BLE B. AMIT STHALEKAR,J.

Civil Misc. Writ Petition No. 13889 of 2003

Lakhan Lal Mishra & Another...Petitioner
Versus
State Of U.P. Thru' Agricultural & Revenue
Secretary & Ors ....Respondents

Counsel for the Petitioner:
Sri Indra Raj Singh
Sri Pradeep Upadhyay

Counsel for the Respondents:
C.S.C.

U.P. Imposition of Ceiling and Land
Holding Act 1960 Section 10(2)-second
notice
ignoring
earlier
order
dated
25.11.1976
by which the proceeding
between same tender holder in respect of
same plot in absence of additional fact
under section 13-A of the Act-second
notice not maintainable-petition allowed.

Held: Para-7

 From a perusal of the impugned notice
dated 4.3.2003, it is not indicated as to
what fresh grounds have been taken by the
Authority for reopening the case for
declaration of land of the petitioner tenure
holder or his heirs as surplus and therefore
it is not a case whether the respondent
could have resorted to proceedings under
Section 13 -A of the Act, 1960. This fact has
not been disputed by the learned Standing
Counsel either.
238 INDIAN LAW REPORTS ALLAHABAD SERIES [2013
Case Law discussed:
(1999) 1 SCC 71; 2012 (4) ADJ 613; 2012 (5)
ADJ 441

(Delivered by Hon'ble B. Amit Sthalekar, J.)

1. In this writ petition the petitioners
are challenging the impugned notice dated
4.3.2003 issued under Section 10(2) of the
U.P. Imposition of Ceiling on Land
Holdings Act, 1960 (hereinafter referred
to as 'the Act) for declaring of the land of
the petitioners as surplus.

2. The contention of the petitioner is
that in respect of the same plots of the
tenure holder the same authority had
earlier issued notices and proceedings
were commenced under Section 10 of the
Act, 1960 and those proceedings had
concluded by the order dated 25.11.1976
passed by the Prescribed Authority filed
as Annexure-1 to the writ petition.
Therefore, second proceedings on the
same ground cannot be resorted too.

3. I have heard Sri Indra Raj Singh,
learned counsel for the petitioners and
learned Addl. Chief Standing Counsel for
the State-respondents.

4. From a perusal of the Annexure-1
to the writ petition, there is absolutely no
dispute
regarding
the
fact
that
proceedings in respects of the same plots
and between the same tenure holder had
already been concluded by the order dated
25.11.1976 and those proceedings have
become final between the parties and
therefore, the second notice under Section
10(2) by the impugned notice dated
4.3.2003 could not have been issued. This
controversy had come up before the
Supreme Court in the case reported in
(1999) 1 SCC 71 (Devendra Nath Singh
(dead) through L.Rs. and others Vs.
Civil Judge and others), wherein the
Supreme Court interpreting the provisions
of Section 10 (2) read with Section 14-8
(B) of the Act, 1960 has held that once
proceedings
have
been
concluded
between the parties no fresh notices could
have been issued by the Prescribed
Authority under Section 10 (2) in respect
of the same plots on the question relating
to the majority of the two sons of the
tenure holder. Para 1 and 2 of the said
judgment read as follows:

"1.
The
sole
question
for
consideration in this appeal is whether
the Prescribed Authority in exercise of his
powers under Section 13-A of the U.P.
Imposition of Ceiling on Land holdings
Act, 1960 can reopen a matter already
decided and readjudicate the question
whether the two sons of the original land
holder, deceased Devendra Nath Singh,
namely, Hamendra and Shailendra were
major or minor. On a proceeding being
initiated, pursuance to notice under
Section 10(2) of the Act, the Prescribed
Authority by his order dated 30th
January, 1975 came to the conclusion
that the deceased Devendra Nath Singh
had no surplus land in his possession
inasmuch
as
the
two
major
sons
Hamendra And Shailendra were entitled
to their share in the property. Shortly
thereafter a fresh notice was issued by the
said Prescribed Authority in purported
exercise of his power under Section 13-A
of the Act, intimating thereunder that
some other land has not been taken into
account. In course of the subsequent
proceeding which stood initiated, the
Prescribed
Authority
came
to
the
conclusion that the two sons of the
deceased
Devendra
Nath,
namely,
Shailendra And Hamendra were not
1 All] Lakhan Lal Mishra & Another Vs. State of U.P. Thru. Agrucultural & Revenue Secretary & Ors. 239
major on the appointed date and,
therefore, they would not be entitled to
any share while computing the surplus
land in the hands of deceased Devendra
Nath Singh, the land holder contested the
proceeding on several grounds including
the grounds that the Prescribed Authority
had no jurisdiction to reopen the question
of majority of the two sons, in exercise of
his power under Section 13-A of the Act.
The said contention, however, was
negatived by the Authorities under the Act
as well as by the High Court on the
ground that Section 38-B clearly indicates
that no finding or decision given before
the commencement of the said section can
be treated as bar against the principle of
res judicate and, therefore, the Prescribed
Authority
could
annual
its
earlier
decision on the question of majority of the
two sons, Hamendra and Shailendra.

2. The learned counsel appearing for
the appellants contends that the power
under Section 38-B will not enlarge the
power of redetermination of surplus land
conferred on the Prescribed Authority
under Section 13-A of the Act and,
therefore, the Prescribed Authority did
not have the jurisdiction to reopen the
question of the majority of the two sons.
The learned counsel appearing for the
respondent on the other hand contended
that the land holder having subjected
himself
to
the
jurisdiction
of
the
Prescribed Authority and having lead
evidence in the proceeding after the
matter was reopened, is not entitled to
challenge the jurisdiction of the authority
and, therefore, the findings arrived at by
those authorities cannot be annulled at
this point of time."

5. This judgment subsequently has
been followed by this Court in the case
reported in 2012 (4) ADJ 613 (Kailash
Babu
Vs.
Commissioner,
Kanpur
Division
Kanpur
and
Another),
wherein, also this Court has held that once
the proceedings under Section 10 (2) have
been initiated against the tenure holder
and have been concluded and attained
finality between the parties the second
notice cannot be issued. Similar view has
been taken by this Court in another case
reported in 2012 (5) ADJ 441 (Amar
Jeet Singh and others Vs. Upper
Ayukta,
Chitrakoot
Dham,
Banda
Mandal, Banda and others). Paras 21
and 22 of the said judgment read as
follows:

"21. Having heard learned counsel
for the parties and having considered the
submissions raised the issue relating to
the power of the Prescribed Authority to
reopen a matter has to be considered in
the light of the provisions of Section 13-A
of the 1960 Act. The provisions of the said
Act make it more than clear that it is only
an empowerment to correct or rectify any
error apparent on the fact of record and
not a power of review. It is for this reason
that the provisions for issuing a notice to
the tenure holder is contained therein
with a recital that such a notice should be
issued only if the declared surplus land is
sought to be increased. In such a
situation, it would be in the nature of a
fresh objection and for the said reason
Sub Section (2) of Section 13-A provides
for applicability of the other provisions
mutatis mutandis. In that event, it will not
be an exercise of review but a fresh
decision of any future objections in the
light of Section 29 of the 1960 Act.

22. In the instant case the same
objection on the same issue had already
been decided vide order dated 31st
240 INDIAN LAW REPORTS ALLAHABAD SERIES [2013
August, 1976. The issue relating to the
parentage of the petitioners was very
much raised and decided after giving
opportunity of leading evidence to the
petitioners and to the State. In such a
situation, the question is, can that issue be
permitted to be re-agitated under the garb
of Section 13-A. The answer on the basis
of the reasoning already given by the
Apex Court in the case of Devendra Nath
Singh (supra) would be in the negative.
The State will have no power to re-agitate
or re-examine the question which has
been finally decided as held by the Apex
Court in paragraph 3 of the aforesaid
judgment.

Not only this the same has been
relied by a learned Single Judge in the
case of Yashpal Singh (supra) and I see
no reason or any novel argument raised
by the respondent, to disagree from the
view so taken. Accordingly, it is held that
the Prescribed

Authority had no power to invoke the
provisions of Section 13-A and review the
decision dated 31.8.1976.

Not only this, it appears that the
Prescribed Authority had realized this
legal impediment and had itself in the
order dated 26.7.2007 indicated that this
was not a case of error. Once the
Prescribed Authority had admitted that it
was not a case of any rectification or
error then powers under Section 13-A
could not have been invoked. Apart from
this, the bar of limitation as prescribed
under Section 13-A also stares on the face
of it. The power under the aforesaid
section can be exercised only within two
years of the passing of the order. In the
instant case, it is obvious that the said
power was sought to be exercised after 31
years. This according to the Section itself
was impermissible."

6. Learned Standing Counsel has
raised an objection that the notice under
Section 10(2) is not required to state all
the new facts and ground on which the
second show cause notice is being issued.
This submission is absolutely fallacious
inasmuch as by the second notice under
Section 10 (2) an explanation has been
called for from the tenure-holder/tenureholders and unless they are informed of
the fact of which they have to submit an
explanation how would they submit their
explanation. Even otherwise, it is not
possible to give an explanation to a vague
notice. Besides the earlier adjudication
proceedings have attained finality in the
year 1996, and the second show cause
notice of 2003 would be barred by
limitation prescribed under Section 13(A)
of the Act, 1960.

7. From a perusal of the impugned
notice dated 4.3.2003, it is not indicated
as to what fresh grounds have been taken
by the Authority for reopening the case
for declaration of land of the petitioner
tenure holder or his heirs as surplus and
therefore it is not a case whether the
respondent
could
have
resorted
to
proceedings under Section 13 -A of the
Act, 1960. This fact has not been disputed
by the learned Standing Counsel either.

8. In this view of the matter the
impugned show cause notice dated
4.3.2003 is quashed.

9. The writ petition is allowed.
There shall be no order as to cost.
---------
1 All] Ganga Ram Vs. Labour Court, Allahabad and Others
241
 ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 06.02.2013

BEFORE
THE HON'BLE TARUN AGARWALA,J.

CIVIL MISC. WRIT PETITION NO. 20576
of 2009

Ganga Ram

...Petitioner
Versus
Labour Court, Allahabad and others

 ...Respondents

Counsel for the Petitioner:
Sri Rajesh Kumar Singh

Counsel for the Respondents:
Sri Pramod Kumar Srivastava

Industrial Dispute Act 1947, Section 6-Nretirement
of
workman/petitioner
without following principle of "First
Came
last
go"-before
Labor
Court
workman
filed
resolution
by
which
engaged-completed
240
days-filed
application
to
summon
the
original
record-employer failed to produce-Labor
Court
committed
great
illegality
by
saying
workman
nor
discharge
its
burden to proof-whereas in plaint-in
examination in chief supported with
document
stated
about
240
days
working -not controverted in crossexamination-it
is
for
employer
to
discharge the burden of proof-order
quashed
-matter
remitted
back
for
reconsideration within 4 month

Held: Para-11

 In the light of the aforesaid, the Court
finds, that the initial burden to prove a
fact, was upon the petitioner, which had
been done substantially and thereafter
the onus shifted upon the employer,
which,
in
the
instance
case,
an
opportunity was given and which the
employers
failed
to
discharge.
Consequently, the finding of the Labour
Court, that the burden to prove the fact
was not discharged by the petitioner was
patently erroneous. The best evidence,
namely, the resolutions of the Nagar
Panchayat
and
the
Payment
and
Attendance
Register
was
with
the
employers. The petitioner had no access
to it. If the employer failed to produce
the documents, which are in their
custody, adverse inference had to be
drawn against the employers.

(Delivered by Hon'ble Tarun Agarwala,J.)

1. List has been revised. The learned
counsel for the respondent is not present.

2. Heard Sri Rajesh Kumar Singh,
the learned counsel for the petitioner.

3. The petitioner is a workman,
appointed as an electrician, in the Nagar
Panchayat, Handia and his services were
arbitrarily dispensed with on 1.7.2001.
Accordingly, the petitioner raised an
Industrial Dispute, which was referred to
the
Labour
Court,
Allahabad
for
adjudication. The terms of the reference
order was whether the employers were
justified in terminating the services of the
workman w.e.f. 1.7.2001 ? If not, to what
relief the workman was entitled to.

4. Before the Labour Court the
petitioner
contended
that
he
was
appointed on 27.1.1998 and had worked
continuously without any break in service
till he was removed on 1.7.2001. The
petitioner categorically stated that he had
completed 240 days of continuous service
in a calendar year and that while
dispensing his services, the provisions of
Section 6-N of the U.P. Industrial
Disputes Act had not been complied with.
Further, juniors to the petitioner, who
were similarly situated, were continuing
in
service
and
that
the
principle