# Raj Bahadur Singh v. Ist Addl. Commissioner Lko & Ors

- **Citation:** (2023) 12 ILRA 756
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2023-11-28
- **Case number:** Writ-C No. 3000069 of 1996
- **Bench:** Alok Mathur
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/raj-bahadur-singh-v-ist-addl-commissioner-lko-ors-49524
- **Pages:** 5

## Headnote

A. Ceiling Law - UP Imposition of Ceiling
on Land Holdings Act, 1960 - Section
10(2) - Re-initiation of ceiling proceeding
through IInd notice, validity thereof -
Earlier ceiling proceeding was initiated
declaring certain portion of the land
surplus - Effect - Objection to the IInd
12 All. Raj Bahadur Singh Vs. Ist Addl. Commissioner Lko & Ors.
757
notice for its being beyond jurisdiction
raised - No consideration was made -
Held, it is only under certain specific
circumstances as stated under the Act
itself that the proceeding can be reinitiated - There was no materiel before
any of the authorities concerned to reinitiate the proceedings under the Act of
1960
when
the
proceedings
had
culminated
on
previous
occasion
by
passing order by the Prescribed Authority
on 5.2.1977 had become final - High Court
set aside the impugned orders of the
Prescribed Authority as well as of the
Appellate Authority. (Para 11 and 12)

Writ petition allowed. (E-1)

List of Cases cited:

## Text

756 INDIAN LAW REPORTS ALLAHABAD SERIES
reason sufficient on grounds, at least
analogous to those specified in the rule?.

22. In the light of the legal position
crystalized above, we now proceed to
examine the grievance raised by the
applicant.
While
dealing
with
the
submissions of the Development Authority
vis a vis possession, this Court while
allowing the writ petition has clearly held
that the petitioner is in actual physical
possession of the land in question. The
Moradabad
Development
Authority
aggrieved by the order passed by this court
preferred Special Leave Petition No. 12283
of 2012. The Apex Court called for the
report on the point of possession from the
District Judge, Moradabad, who submitted
the
report.
The
Apex
Court
after
considering the said report dismissed the
SPL filed by the Development Authority
and recorded a specific finding that actual
physical possession is with the petitioner.

23. So far as the contention of the
learned Counsel for the Development
Authority to the effect that it is the case of
peaceful delivery of possession, this court
has recorded a specific finding that ? it is
also not the case of the respondents that
after publication of the notice u/s 10 (5) of
the principal Act in the official gazette, the
petitioner had delivered the physical
possession of his surplus land to the
respondent nos.1 to 3. Thus this argument
can also not be sustained as the respondent/
applicant can not be permitted to carve out
a new case in review proceedings.

24. Thus this court in the guise of
exercising powers of review, though can
correct a mistake but not substitute the
view taken earlier merely because there is a
possibility of taking two views in a matter.
A judgment can be open to review if there
is a mistake or an error apparent on the face
of the record, but an error that has to be
detected by a process of reasoning, cannot
be described as an error apparent on the
face of the record for the Court to exercise
its powers of review. As long as the point
sought to be raised in the review
application has already been dealt with and
answered, parties are not entitled to
challenge the impugned judgment only
because an alternative view is possible.

25. For the reasons stated above the
present review application lacks merit and
is hereby dismissed.
----------
(2023) 12 ILRA 756
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 28.11.2023

BEFORE

THE HON'BLE ALOK MATHUR, J.

Writ-C No. 3000069 of 1996

Raj Bahadur Singh ...Petitioner
Versus
Ist Addl. Commissioner Lko & Ors.
 ...Respondent

Counsel for the Petitioner:
Nirmal Tewari, Ajay Kumar Singh, D.P.S.
Chauhan, Pradeep Kumar Tiwari, Ram K.
Singh, Ram Kumar Singh, Ripu Daman
Shahi

Counsel for the Respondent:
C.S.C.

A. Ceiling Law - UP Imposition of Ceiling
on Land Holdings Act, 1960 - Section
10(2) - Re-initiation of ceiling proceeding
through IInd notice, validity thereof -
Earlier ceiling proceeding was initiated
declaring certain portion of the land
surplus - Effect - Objection to the IInd
12 All. Raj Bahadur Singh Vs. Ist Addl. Commissioner Lko & Ors.
757
notice for its being beyond jurisdiction
raised - No consideration was made -
Held, it is only under certain specific
circumstances as stated under the Act
itself that the proceeding can be reinitiated - There was no materiel before
any of the authorities concerned to reinitiate the proceedings under the Act of
1960
when
the
proceedings
had
culminated
on
previous
occasion
by
passing order by the Prescribed Authority
on 5.2.1977 had become final - High Court
set aside the impugned orders of the
Prescribed Authority as well as of the
Appellate Authority. (Para 11 and 12)

Writ petition allowed. (E-1)

List of Cases cited:

1. St. of U.P. through Collector Vs Additional
Commissioner(J), Varanasi Division, Varanasi &
ors.; 2009 (27) LCD 71

2. Prakash Singh Vs Prescribed Authority,
Bilaspur & anr.; 1985 (11) ALR 772 (FB)

(Delivered by Hon'ble Alok Mathur, J.)

1. Heard Sri R. P. Shahi, learned
counsel for the petitioner as well as learned
Standing
counsel
appearing
for
the
respondents.

2. The moot question which has
arisen for consideration before this Court in
the present writ petition is as to whether the
proceedings
under
Uttar
Pradesh
Imposition of Ceiling on Land Holdings
Act, 1960 (hereinafter referred to as the Act
of 1960) can be commenced once on
previous occasion the land has already been
declared surplus.

3. In the present case, it has been
submitted by learned counsel for the
petitioner that notice under Section 10 (2)
of the Act of 1960 was issued to the
petitioner i.e. Raj Bahadur Singh on
24.1.1985. The petitioner had submitted his
objections. He submitted that on previous
occasion also notice under Section 10 (2) of
the Act of 1960 was issued to him and the
order was passed by the prescribed
authority on 5.2.1977 and certain portion of
his land was declared surplus which had
become final. Consequentlysecond notice
in this regard cannot be issued to him.

4. The prescribed authority rejected
his objections and categorically stated that
second notice can be issued to him. He also
recorded the fact that various sale deeds
have been executed by the original tenure
holder.

5. Aggrieved by the order of the
prescribed authority the petitioner preferred
an appeal before the appellate authority
where also the petitioner contended that the
proceedings initiated by the prescribed
authority were without jurisdiction as on
previous occasion ceiling proceedings had
already been concluded and had become
final and certain portion of his land has
already been declared to be surplus. The
appellate authority also by means of his
order
dated
31.7.1996
rejected
the
contentions
of
the
petitioner
merely
reaffirming the order of the prescribed
authority stating that ceiling proceedings
can be commenced even if they have been
concluded.

6. Learned counsel for the petitioner
submits that the ceiling proceedings in the
present
case
could
not
have
been
commenced after their conclusion on
previous occasion by means of order dated
5.2.1977. He submits that neither was there
any rectification or error in the previous
proceedings which required any correction
in exercise of the powers under Section 13
(a) of the Act of 1960. Even if that is
758 INDIAN LAW REPORTS ALLAHABAD SERIES
required, the same can be done within two
years from the date of notification. Present
proceedings have been initiated after expiry
of more than nine years and consequently
in any view of the matter the said
proceedings were illegal and arbitrary. He
further submits that under Section 29 of the
Act of 1960 the proceedings can be reinitiated only when some other land has
come into the hands of the original holder
or nature of the land has changed from unirrigated to irrigated. Neither the aforesaid
fact exists in the present case nor has any
such situation which has been mentioned or
considered
either
by
the
prescribed
authority or appellate authority and, hence
such exercise of power is arbitrary and not
envisaged under the Act of 1960.

7. Learned Standing counsel, on the
other hand, has opposed the writ petition
and supported both the impugned orders.
He submits that there is provision under
Section 31 for re-determination of land
which has been previously declared surplus
but
could
not demonstrate
that
the
conditions prescribed in Section 31 of the
Act of 1960 exists in the present case.

8. I have heard learned counsel for the
parties and perused the record.

9. We have also perused the order
dated 5.2.1977 passed by the Prescribed
Authority in remand proceedings where on
the previous occasion the same land was
subjected to ceiling operations and the
Prescribed Authority was directed to
consider as to whether the land was a grove
and also in case the said land is excluded,
the remaining land would be within the
ceiling limits or otherwise. The Prescribed
Authority has finalized the proceedings by
passing order on 5.2.1977. Once the
proceedings had culminated a fresh notice
was issued to the petitioner who is the
original tenure holder under Section 10(2)
of the Act of 1960.

10. The petitioner had raised
preliminary objection assailing the validity
of the proceedings at the outset before the
Prescribed Authority, who rejected his
objections but did not record any reasons
for such rejection merely stating that he is
duly
empowered
to
re
initiate
the
proceedings under the act of 1960 with
regard to the land in dispute even where on
previous occasion had been subjected to
ceiling operations. When the same aspect
was raised before the appellate authority he
also rejected the same holding that there is
sufficient
power
to
re-initiate
the
proceedings. The appellate authority also
did not consider it necessary to consider the
statutory provisions of the Act of 1960 and
to discuss with regard to the facts of the
present case as to whether there was any
sufficient acquisition or accretion of land
which may necessitate re initiation of the
proceedings under Section 29 or Section 31
of the Act of 1960. The only other
provision by which proceedings could be
re-initiated is under Section 13 (a) where
limitation of two years from the date of
notification under Section 14 is provided.

11. From a bare perusal of the order
of the Prescribed Authority as well as
appellate authority it is clear that there was
no such fact for proceeding under Section
13 or 29 or 31 existing in the present case
which may necessitate reopening of the
proceedings. In case there was any
accretion of the land then it was necessary
for the same to be indicated in the notice
under Section 10 (2). Even when the
Prescribed Authority passing the impugned
order was mandated to discuss as to
12 All. Raj Bahadur Singh Vs. Ist Addl. Commissioner Lko & Ors.
759
whether there was any fresh accretion of
land at the hands of the tenure holder for
which fresh proceedings could have been
initiated under the Act of 1960. A perusal
of the entire record clearly shows that there
was no materiel before any of the
authorities concerned to re-initiate the
proceedings under the Act of 1960 when
the
proceedings
had
culminated
on
previous occasion by passing order by the
Prescribed Authority on 5.2.1977 had
become final. This aspect has also been
considered by a coordinate Bench of this
Court in the case of State of U.P. through
Collector,
Mirzapur
Vs.
Additional
Commissioner(J),
Varanasi
Division,
Varanasi and others, 2009 (27) LCD 71
the relevant portion of which is quoted as
under:-

"8. From the perusal of the Act it
also appears that there is no provision for
second notice under Section 10 (2) of the
Act and for the re-determination of surplus
land except Section 13-A, 29, 30 and 31 of
the Act. The scope of Section 13-A came to
be considered before the Apex Court in
Devenddra Nath Singh and others v. civil
Judge and others (2000 (91) RD 28 (SC).
In the aforesaid case the Apex Court has
held as under:-

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
mater within two years from the date of the
notification under sub-section (4) of
Section 14 to ratify 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 indicate that if any
finding or decision was there by any
ancillary forum prior to the commencement
of the said sections in respect of a matter
which is governed by the Ceiling Act, then
such findings will not operate as resjudicata 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 mater we have no hesitation to come to
the
conclusion
that
the
Prescribed
Authority has 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
the learned Counsel for respondent.

In the aforesaid premises, the
impugned order of the Prescribed Authority
as well as that of the High Court are st
aside and it is held that in the computation
of the ceiling Hamendra and Shailendra
will be treated as two major sons."

9.
In
Prakash
Singh
v.
Prescribed Authority , Bilaspur and
another, 1985 (11) ALR 772 (FB), this
Court has observed as under:-

"It is only in those cases where
the amendments require the Prescribed
Authority to redetermine surplus land that
the notice under Section 10 (2) be issued. It
is, therefore, obvious that there may be
cases where the earlier decision as a whole
may not require modification at all, or
there may be cases where only partial
modification may become necessary. For
example, if the question is as to whether a
particular plot of land is irrigated or not
has been determined and does not call for
760 INDIAN LAW REPORTS ALLAHABAD SERIES
any fresh decision. Since there is no
amendment to the relevant provisions in
this regard by the 1976 Amendment there
would be no necessity of the Prescribed
Authority embarking on a fresh enquiry as
to whether the said plots are irrigated or
not. In such an event the previous order of
the Prescribed Authority made before 10th
October, 1975 will neither stand annulled
nor be non-est."

12. Even form the aforesaid judgment
it is clear that it is only under certain
specific circumstances as stated under the
Act itself that the proceeding can be reinitiated and in the present case none of
these facts exist for re initiation of the
proceedings.
Both
the
orders
are
accordingly illegal and deserve to be set
aside.

13. Accordingly the order dated
22.7.1991
passed
by
the
Prescribed
Authority and the order dated 31.7.1996
passed
by
the
Ist
Additional
Commissioner,
Lucknow
Division,
Lucknow are set aside.

14. The writ petition is allowed.
----------
(2023) 12 ILRA 760
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: LUCKNOW 05.12.2023

BEFORE

THE HON'BLE KARUNESH SINGH PAWAR, J.

Criminal Appeal No. 19 of 2000

Sushil Phari ...Appellant
Versus
State of U.P. ...Respondent

Counsel for the Appellant:
S. Pradhan, Ram Mohan Mishra
Counsel for the Respondent:
G.A.

Criminal Law - Indian Penal Code, 1860 -
Section 307 - Arms Act, 1959 - Section 25
- Evidence Act, 1872 - Section 27 -
Attempt to Murder - Firearm Injury - Recovery
Memo - Independent Witnesses - Proof Beyond
Reasonable Doubt

The appellant, Sushil Phari, challenged his
conviction under Section 307 IPC and sentence
of 7 years rigorous imprisonment with a fine of
Rs.2,000/-, imposed by the Special/Additional
Sessions Judge, Rae Bareli, vide judgment dated
03.01.2000,
arising
from
an
incident
on
09.12.1997 where he allegedly fired at Station
House Officer F.S. Jafri at Bachhrawan bus stop,
causing a lacerated wound on his forehead. The
prosecution alleged the appellant, a suspected
robber, fired a country-made 12-bore pistol,
leading to his arrest, recovery of the pistol, live
and empty cartridges, and a stampede in the
market.
The
prosecution
relied
on
the
testimonies of PW-1 (injured SHO), PW-2
(Constable Mahesh Singh), PW-3 (independent
witness Ajay Singh, who turned hostile), PW-4
(Investigating Officer), and PW-5 (Dr. Suresh
Kapoor), along with the injury report and
recovery memo. The appellant denied the
incident, claiming he was arrested while having
tea. Held: (1) The appeal was allowed, and the
conviction was set aside. (2) The prosecution
failed to prove beyond reasonable doubt that
the injury sustained by PW-1 was a firearm
injury, as PW-5 (doctor) could not confirm the
cause of the lacerated wound, and no forensic
evidence or X-ray report was produced. (3) The
recovery memo was doubtful, as independent
witnesses (PW-3 and Mohan) did not sign it,
PW-3 turned hostile and denied the incident,
and Mohan was withheld, warranting adverse
inference
against
the
prosecution.
(4)
Contradictions in PW-1 and PW-2's testimonies,
such as the appellant's location (standing near
the road or in a jeep) and the improbability of
no other injuries in a crowded market despite
alleged indiscriminate firing, rendered the
prosecution story unreliable. (5) The trial court
erred in convicting the appellant without
discussing
PW-5's
testimony
and
without
evidence that the injury was caused by a