# Nand Kishore Seth v. Additional Commissioner and Ors

- **Citation:** (2013) 2 ILRA 800
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2013-05-15
- **Case number:** Civil Misc. Writ Petition No.2063 of 2006
- **Bench:** Mrs. Sunita Agarwal
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/nand-kishore-seth-v-additional-commissioner-and-ors-42603
- **Pages:** 4

## Headnote

U.P. Imposition of Ceiling Act 1960Section
10(2)-
Res-judicate
once
proceeding
in
pursuance
of
notice
became final-and 0.28 acre land declared
surplus by order dated 26.07.1976subsequent notice 14.10.1997-indicating
earlier
cut
of
date
08.06.1973-not
maintainable-unless
as
a
result
of
succession, transfer or by prescription in
adverse
possession
there-even
than
notice u/s 29/30 required and not under
section
10(2)-both
authorities
committed great illegality-quashed.

Held: Para-9 & 13

## Text

800 INDIAN LAW REPORTS ALLAHABAD SERIES [2013
conducted not to check illegalities but to
fix the liabilities as who was responsible
for such a large scale illegalities in
selection. Since evidentiary value of
inquiry report was corroborative and not
substantive, plea of petitioners is not
maintainable.

41. In view of what has been
discussed hereinabove, the writ petitions
are dismissed.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 15.05.2013

BEFORE
THE HON'BLE MRS. SUNITA AGARWAL, J.

Civil Misc. Writ Petition No.2063 of 2006

Nand Kishore Seth ...Petitioner
Versus
Additional Commissioner and Ors.

 ...Respondents

Counsel for the Petitioner:
Shri Arun Kumar Verma
Sri B.B. Jauhari

Counsel for the Respondents:
C.S.C.
U.P. Imposition of Ceiling Act 1960Section
10(2)-
Res-judicate
once
proceeding
in
pursuance
of
notice
became final-and 0.28 acre land declared
surplus by order dated 26.07.1976subsequent notice 14.10.1997-indicating
earlier
cut
of
date
08.06.1973-not
maintainable-unless
as
a
result
of
succession, transfer or by prescription in
adverse
possession
there-even
than
notice u/s 29/30 required and not under
section
10(2)-both
authorities
committed great illegality-quashed.

Held: Para-9 & 13
9. Case of the petitioner is that he had
not acquired any land after 18.12.1976
nor he is in possession of excess land.
Moreover notice dated 14.10.1997 itself
indicates
that
cut
off
date
was
mentioned
therein
is 8.6.1973.
The
Prescribed Authority as well as appellate
authority have proceeded to decide the
case afresh in the proceedings pursuant
to the notice under section 10(2) of the
Act. The issue of res judicata raised by
the petitioner was not adverted to and
both
the
authorities
below
had
proceeded on the ground that petitioner
has failed to show that land in dispute is
the same land with respect of which
proceedings were concluded earlier. This
approach of the prescribed authority as
well as appellate authority shows total
non-application
of
mind
and
non
consideration of provision of the Act.

13. For the reasons given above, the orders
passed by the ceiling authorities cannot be
sustained
on
any
count.
The
entire
proceedings reinitiated on the basis of the
second notice under section 10(2) were,
therefore, vitiated. The impugned orders
being illegal are hereby quashed. The writ
petition succeeds and is allowed.

Case Law discussed:
2007(4) AWC 3789; 2005(3) AWC 2565; 2003
(3) AWC 1876; 1979 All.L.J. 43

(Delivered by Hon'ble Mrs. Sunita
Agarwal, J.)

1. This writ petition has been
directed against the order dated 30.7.2005
passed by the Additional Commissioner,
Bareilly Mandal, Bareilly and order dated
28.2.1998 passed by the Prescribed
Authority (Ceiling) Shahjahanpur.

2. The facts of the case as narrated
in the writ petition are that notice under
section 10(2) of U.P. Imposition of
Ceiling
on
Land
Holdings
Act,
1960(hereinafter referred to as the Act)
was served upon the petitioner along with
one Shri Laxman Swaroop Seth. By order
dated 26.7.1976 passed by the Prescribed
2 All] Nand Kishore Seth Vs. Additional Commissioner and Ors.
801
Authority(Ceiling) Sadar, 1.24 acres land
of the petitioner and 1.33 acres (irrigated)
land of the share of Shri Laxman Swaroop
Seth in the joint holdings possessed by
them was declared surplus. Both the
tenure holders separately assailed the
order of the Prescribed Authority by filing
separate appeal under section 13 of the
Act. Both the appeals were decided
together by judgment and order dated
18.12.1976 passed in Civil Appeal no.
261 of 1976(Ceiling)(Shri Nand Kishore
Seth Vs. State of U.P.).The surplus area in
the share of the petitioner Nand Kishore
Seth was declared 0.28 acres(irrigated).
After proceedings for ceiling initiated
against the petitioner came to an end by
judgment and order dated 18.12.1976
passed by the appellate authority, second
notice under section 10 (2) of the Act was
issued on 14.10.1996. Copy of the notice
has been annexed as annexure S.A.-2 to
the supplementary affidavit filed on
1.10.2006.The assertions in the notice are
to the effect that details with regard to the
surplus land possessed by the petitioner
on 8.6.1973 has been prepared under
section 10 (1) of the Act. Petitioner was
further required to explain as to why said
details be not treated as correct. He was
further required to file his objection to the
said notice. Petitioner filed his objection
on 14.7.1997 and stated therein that he
has no land beyond ceiling limit and after
decision dated 18.7.1976 in appeal no.
261 of 1976 filed by the petitioner, there
is no change in the ceiling limit of the
petitioner. He had not purchased or
acquired
any
land
thereafter.
The
petitioner further got his statement
recorded on 17.9.1997 and asserted that
he does not hold land beyond ceiling limit
after proceedings with regard to surplus
land had become final. The fresh
proceedings initiated against the petitioner
by way of notice dated 14.10.1996 is
illegal.

3.

The
prescribed
authority
registered a case no.319 and framed four
issues. Issue no. 2 whether petitioner had
land beyond ceiling limit, Issue no. 3
whether the proceedings are barred by res
judicata and issue no. 4 was as to whether
any land of the petitioner is to be declared
surplus. Issues no. 2,3 and 4 were decided
together and the prescribed authority
though recorded a finding that earlier
proceedings under the ceiling Act were
initiated against the petitioner. However
decided the issue of res judicata against
the petitioner on the ground that copy of
the
order
passed
in
the
previous
proceedings were not filed by him and
petitioner had failed to prove that
situation has not changed since after the
judgment and order dated 18.12.1976.
The issues were decided on the basis of
statement
of
Naib
Tehasildar(ceiling)recorded
and
the
Prescribed authority did not give any
independent finding of its own.

4. The order was challenged in the
appeal which was registered as appeal no.
17/98. The Appellate authority, however,
proceeded to examine the case on merit
and on issue of res judicata it has recorded
that certified copy of the order passed by
the court below in earlier proceedings
were not produced, therefore, it can not be
ascertained that land in question in both
the proceedings are same. However, it
further concluded that order passed by the
prescribed authority is incorrect to the
extent that plot no. 134 was declared
surplus though it was sold by the
appellant/petitioner in the year 1971 and
is in possession of purchaser. It has
further recorded that land already sold by
802 INDIAN LAW REPORTS ALLAHABAD SERIES [2013
the petitioner could not have been
declared
surplus.
The
appeal
was
dismissed and the matter was remanded
back to the prescribed authority to
determine the surplus land under section
12-A(D) of the Act after excluding plot
no. 134 with the direction that after
determination of surplus land, possession
of the same should be delivered to the
State Government.

5. Learned counsel for the petitioner
raises legal question before this court that
once the ceiling proceedings initiated
against him were finalised by order dated
18.7.1976,the subsequent notice dated
14.10.1996 under section 10(2) of the Act
is illegal.

6. Learned counsel for the petitioner
contended that no notice whatsoever
could have been issued under section
10(2) of the Act for reopening the ceiling
proceedings against the petitioner. He
drew attention of the court to section 13
and 13-A of the Act and submits that once
appeal is disposed of by the appellate
court the decision thereon shall be final
and conclusive and be not questioned in
any of Court of law. Redetermination of
surplus land in certain cases as provided
under section 13-A of the Act is limited to
the extent to rectify any mistake apparent
on the face of the record within a period
of two years from the date of the
notification issued under section 14(4) of
the Act. Ceiling proceedings in the
present case culminated by order dated
18.12.76
passed
by
the
appellate
authority, land declared as surplus was
duly notified in the Official gazette in
pursuance of section 14(8) of the Act.

7. He further submits that only
course open for the authorities concerned
to issue notice under section 29/30 of the
Act that too on the ground of any
subsequent acquisition of land by the
petitioner mentioned in section 29/30 of
the Act. The cut off date for issuance of
notice under section 29/30 of the Act
cannot be 8.6.1973. The cut off date in the
notice issued under section 29/30 of the
Act would be the date on which the tenure
holder subsequently acquired the land due
to any of the reason mentioned therein.

8. Having heard learned counsel for
the parties and perused the record.

9. Case of the petitioner is that he
had
not
acquired
any
land
after
18.12.1976 nor he is in possession of
excess land. Moreover notice dated
14.10.1997 itself indicates that cut off
date was mentioned therein is 8.6.1973.
The Prescribed Authority as well as
appellate authority have proceeded to
decide the case afresh in the proceedings
pursuant to the notice under section 10(2)
of the Act. The issue of res judicata raised
by the petitioner was not adverted to and
both the authorities below had proceeded
on the ground that petitioner has failed to
show that land in dispute is the same land
with respect of which proceedings were
concluded earlier. This approach of the
prescribed authority as well as appellate
authority shows total non-application of
mind and non consideration of provision
of the Act.

10. A combined reading of sections
13, 13-A, 14, 29 and30 of the Act makes
it
clear
that
provisions
regarding
redetermination of ceiling area of tenure
holders is clear,once the ceiling areas of
tenure holders is determined by issuing
notice under section 10 (1) of the Act, it
can only be redetermined by issuing
2 All] L.K. Tripathi Vs. State of U.P. and Ors.
803
notice under section 29/30 of the Act on
the grounds mentioned in the said
provision. The condition as laid down
under section 29/30 of the Act of which
notice could have been issued to the
petitioner, if he has come to hold any land
under a decree or order of any court, or as
a result of succession or transfer or by
prescription in consequence of adverse
possession after 8.6.1973 and the land so
acquired by him together with the land
earlier held by him exceeds the ceiling
limit.

11. On the other hand, in the present
case subsequent notice issued under
section 10(2) of the Act dated 14.10.1996
i.e. after period of almost 20 years after
culmination of earlier proceedings itself is
bad as authorities below proceeded to
determine the land on 8.6.1973.

12. Moreover there is no finding in
the order passed by the prescribed
authority as also the appellate authority
with regard to any of ingredients and
circumstances enumerated under section
29 of the Act. Reference may be taken in
decision
in
2007
(4)
AWC
3789(Noorullah
Vs.
Additional
Commissioner, Meerut Division, Meerut
and others), 2005(3) AWC 2565 (Indra
Pal Mishra alias Raju Vs. Special
Judge(E.C. Act), Banda and others),
2003 (3) AWC 1876 (Udai Raj Vs. State
of U.P. and others) and 1979 ALL.L.J.
43 ( Bija Vs. State of U.P. and others )
wherein this court held that after previous
ceiling proceedings had culminated by the
order of the ceiling authority determining
the surplus areas of the petitioner, ceiling
authority cannot ignore the order passed
by them and proceed by giving second
notice under section 10(2) of the Act. The
bar against the res judicata as provided
under section 38 (B) of the Act will be
only after enforcement of the said section.
Section 38 (B) provides that any order
passed before the enforcement of said
section shall be ignored and shall have no
effect upon the rights of the parties.
Section 38-B has been inserted by the
U.P. Act No. 20 of 1976 with effect from
10th October, 1975. In the present case
order dated 18.6.1976 was passed by the
appellate authority. Thus the said order
operates as res-judicata between the
parties.

13. For the reasons given above, the
orders passed by the ceiling authorities
cannot be sustained on any count. The
entire proceedings reinitiated on the basis
of the second notice under section 10(2)
were, therefore, vitiated. The impugned
orders being illegal are hereby quashed.
The writ petition succeeds and is allowed.

14. It shall however be open for the
authorities to proceed in accordance with
the provisions of Act by issuing fresh
notice under section 29/30 of the Act, if
any of the conditions mentioned therein
exist.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 10.05.2013

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

Civil Misc. Writ Petition No.2553 of 2013

L.K. Tripathi

 ...Petitioner
Versus
State of U.P. and Ors.
 ...Respondents

Counsel for the Petitioner:
Sri G.K. Singh
Sri V.K. Singh