# Ram Kali Devi v. State Of U.P. & Ors

- **Citation:** (2023) 9 ILRA 905
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2023-09-12
- **Case number:** Writ-C No. 3000014 of 1991
- **Bench:** Alok Mathur
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/ram-kali-devi-v-state-of-u-p-ors-50790
- **Pages:** 7

## Headnote

Civil Law - U.P. Imposition of Ceiling on
Land Holdings Act, 1960 - Section 13-A -
Scope and limitation - Recall of final order
passed on merits - Permissibility - Order
dated
16.03.1991
discharging
notice
under Section 10(2), passed after due
contest and appearance by State through
Naib Tehsildar - Application for recall filed
by St. under Section 13-A on ground of
non-appearance
of
counsel
-
Held:
Prescribed Authority becomes functus
officio after final adjudication - Section
13-A permits only rectification of mistake
apparent on face of record - No such
mistake shown - Recall not maintainable -
Proper remedy was appeal under Section
13 - Impugned order allowing recall
application quashed.

Held: Section 13-A of the Act empowers the
Prescribed
Authority
to
correct
mistakes
apparent on the face of the record within two
years, but does not vest review jurisdiction.
Where the matter had been duly contested and
decided on merits, allowing recall merely on the
ground that St. counsel was not present, despite
participation by the Naib Tehsildar, amounts to
misuse of Section 13-A. Application was in
essence a review and not a correction, hence
not maintainable.

J - Followed: Jwala Prasad Singh Vs District
Judge, Writ-C No. 965 of 1978, decided on
13.11.1978

 - Relied on: Devendra Nath Singh Vs Civil
Judge, Basti, (1999) 1 SCC 71

Writ Petition Allowed - Impugned order
dated 16.04.1991 set aside.

## Text

9 All. Ram Kali Devi Vs. State of U.P. & Ors.
905
order dated 30-07-1991, assails illegality
and infirmity.

35. Consequently, the impugned order
dated 30-07-1991 is hereby quashed. Since, the
delinquent employee has retired and therefore,
no fruitful purpose would be sub-served to remit
back the matter to proceed for a fresh enquiry,
therefore, the respondent no. 4 is hereby directed
to pay the dues including the pension considering
the period of year 1991 to 2007.

36. It is made clear that department is not
under obligation to pay back wages, under the
settled proposition of law, namely of 'no work
no pay.'

37. Consequently, the writ petition is
partly allowed.

38. No order as to costs.
----------
(2023) 9 ILRA 905
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 12.09.2023

BEFORE

THE HON'BLE ALOK MATHUR, J.

Writ-C No. 3000014 of 1991

Ram Kali Devi ...Petitioner
Versus
State Of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Govind
Saran
Nigam,
Abhisht
Saran,
Govind Saran Nigam, Nirmal Tewari, Rahul
Kumar Kashyap, V.R. Singh

Counsel for the Respondents:
C.S.C.

Civil Law - U.P. Imposition of Ceiling on
Land Holdings Act, 1960 - Section 13-A -
Scope and limitation - Recall of final order
passed on merits - Permissibility - Order
dated
16.03.1991
discharging
notice
under Section 10(2), passed after due
contest and appearance by State through
Naib Tehsildar - Application for recall filed
by St. under Section 13-A on ground of
non-appearance
of
counsel
-
Held:
Prescribed Authority becomes functus
officio after final adjudication - Section
13-A permits only rectification of mistake
apparent on face of record - No such
mistake shown - Recall not maintainable -
Proper remedy was appeal under Section
13 - Impugned order allowing recall
application quashed.

Held: Section 13-A of the Act empowers the
Prescribed
Authority
to
correct
mistakes
apparent on the face of the record within two
years, but does not vest review jurisdiction.
Where the matter had been duly contested and
decided on merits, allowing recall merely on the
ground that St. counsel was not present, despite
participation by the Naib Tehsildar, amounts to
misuse of Section 13-A. Application was in
essence a review and not a correction, hence
not maintainable.

J - Followed: Jwala Prasad Singh Vs District
Judge, Writ-C No. 965 of 1978, decided on
13.11.1978

 - Relied on: Devendra Nath Singh Vs Civil
Judge, Basti, (1999) 1 SCC 71

Writ Petition Allowed - Impugned order
dated 16.04.1991 set aside.

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

1. Heard Abhisht Saran, learned
counsel for petitioner as well as learned
Standing Counsel for respondents.

2. By means of the present writ
petition the petitioner has challenged the
order
dated
16.04.1991
passed
by
Additional District Magistrate/prescribed
Authority under the Ceiling Act whereby
he has allowed the application preferred by
906 INDIAN LAW REPORTS ALLAHABAD SERIES
the State for recalling of his previous order
dated 16.03.1991.

3. It has been submitted by learned
counsel for petitioner that present dispute
was initiated on issuance of a notice under
Section 10 (2) of Uttar Pradesh Imposition
of Ceiling on Land Holdings Act, 1960 on
the petitioner.

4. The petitioner had filed her
objections to the said notice and had stated
that the lands in issue which are sought to
be declared to be surplus under the Act of
1960 were in fact previously owned by her
son, namely, Shreeprakash @ Munna. It
was
further
stated
that
her
son
Shreeprakash had executed a will in favour
of his sisters on 05.01.1978 which was duly
registered on 27.12.1980 and the said
property having been devolved on the
legaties of the said will and the said land
held after the said alienation would not be
subjected to Ceiling Act 1960, and cannot
be clubbed with the holding of the
petitioner.

5. The objections submitted by the
petitioner were duly considered by the
Prescribed Authority and in this regard, an
order was passed on 16.03.1991 where the
version of the petitioner was accepted and
the notices under Section 10(2) of the Act
of 1960 were discharged.

6. A month thereafter, an application
for recall of the order dated 16.03.1991 was
filed by the State, stating that they were not
given adequate opportunity of hearing by
the Prescribed Authority and consequently
in exercise of powers under Section 13 (A)
of Uttar Pradesh Imposition of Ceiling on
Land Holdings Act, 1960, the order dated
16.03.1991 deserves to be recalled and the
matter to be re-heard on merits.

7. It is the application preferred by the
State which has been allowed by means of
impugned order dated 16.04.1991 which
has been assailed in the present writ
petition.

8. Learned counsel for petitioner
while assailing the said order has submitted
that as per provisions contained in Section
13(A) of the Act of 1960, it only provides
for rectification of any mistake apparent on
the fact of record.

9. It is submitted that a perusal of the
order dated 16.04.1991 would indicate that
though the counsel for the State was not
present but the matter was duly prosecuted
by the Tehsildar who was present on the
occasion and has led all the submissions on
behalf of the State. He further submits that
entire records were perused by the
Prescribed Authority and all the evidences
which were adduced were duly considered
before passing of the said order. He also
submits that in this regard, it cannot be said
that there was any mistake or any error
apparent on the face of record necessitating
rectification as sought by the State.

10. He further submits that in fact the
application filed by the State is under the
garb of review which is not permissible
under Section 13(a) of the Act of 1960.

11. Learned counsel for petitioner has
also relied upon the judgment of this Court
in the case of Jwala Prasad Singh Vs.
District Judge passed in Writ Petition
No. 965 of 1978 decided on 13.11.1978.

12. Learned Standing Counsel on the
other hand has opposed the writ petition
and has submitted that no adequate
representation was made on behalf of the
State before the Prescribed Authority and
9 All. Ram Kali Devi Vs. State of U.P. & Ors.
907
consequently there has been miscarriage of
justice inasmuch as the relevant arguments
on behalf of the State could not be
advanced which would be within the
meaning of mistake or apparent on the face
of record for which the Prescribed
Authority record its previous order and
there is no infirmity with the same.

13. I have heard the learned counsels
for the parties and perused the record.

14. The petitioner Ram Kali is the
mother of Shri Prakash. Shri Prakash was
initially given the notice under section 10
(2) of the Uttar Pradesh on Ceiling on Land
Holding Act, 1960, and after considering
his objections, 19 Bhighas 7 Biswa, 2
biswansi land out of the agricultural plot
was declared surplus. The proceedings
became final and the said order was
incorporated in the revenue records.

15. The proceedings which are the
subject matter of the present writ petition
have been initiated by issuance of a notice
under section under section 10 (2) read
with section 29/30 of the act of 1960 issued
to the petitioner Ramkali after death of her
son Shri Prakash. Shreeprakash during his
lifetime had executed a will on 05/01/1978.
After execution of the will he had died, but
the same was got registered on 27/12/1980.
By means of the said will Shreeprakash has
bequeathed his property in favour of his 3
sisters,
namely,
Krishna
Trivedi,
Shakuntala Dubey and Susheela Tripathi.
After his death, a probate was obtained
from the court of District Judge Kanpur,
and
necessary
entries
were
also
incorporated in the revenue records. On the
basis of the report of the Sub-Divisional
Officer, Unnao ,notice under section 10(2)
was given to the petitioner which included
the lands of Sri Prakash, which had been
transferred in favour of the sisters. The
petitioner filed objections stating that the
lands held by late Shri Prakash have been
wrongly clubbed with the petitioner's land
as Shri Prakash during his lifetime had
executed a will whereby his lands devolved
upon his sisters after his death, and after
obtaining a probate from the court of
District Judge Kanpur the said land are in
possession of the sisters, and the notice
given under political influence and village
rivalry is illegal and arbitrary and deserves
to be set aside. It was further informed that
the mutation has already been carried out
and the lands are no longer in the name of
Shreeprakash.

16. The said case was conducted by
Shri Rajesh Kumar Sirvastava, the Naib
Tahsildar incharge of ceiling litigation. The
said
Niab-Tehsildar
had
also
filed
objections to the reply submitted by the
petitioner to the notice issued to her, and
contested the matter before the prescribed
authority. By means of order and judgment
dated 16/03/1991 accepted the contention
of the petitioner and held the land have
been wrongly clubbed with the holding of
the petitioner, as the said land had already
been alienated and devolved upon the
sisters of Shreeprakash under a will
executive by him in their favour, which had
already been probated by the District Judge
Kanpur. He further recorded that such a
right vested in Shreeprakash in terms of
provisions contained in section 171 of the
UPZA&LR
Act,
and
accordingly
discharged the notices.

17. The state moved an application on
10/04/1991 for recall of the order dated
16/03/1991 stating that the matter had been
contested by the Niab-Tehsildar on behalf
of the state and no Counsel could appear.
Therefore they assailed the findings of the
908 INDIAN LAW REPORTS ALLAHABAD SERIES
prescribed authority stating that the transfer
of property by Shreeprakash was not legal
and the same has been done only to evade
the ceiling proceedings.

18. By means of the impugned order
dated 16/04/1991 the application for the
State was allowed and the order dated
16/03/1991 was recalled on the ground that
the Naib-Tehsildar was not given an
opportunity of hearing.

19. The main issue to be decided in
the present case is as to whether in exercise
of power under Section 13 A of the Act of
1960, an order which has been passed after
duly considering the detail submissions of
either parties on merits can be recalled
without recording that there is any apparent
on the face of record or the order requires
any correction as prescribed under Section
13A of the Act of 1960.

21. The order dated 16.03.1991 was
passed after hearing learned counsel for
petitioner as well as Naib Tehsildar. The
said order indicates that all the contentions
have been dealt in detail and the Naib
Tehsildar has effectively defended the State
and raised all the objections. At no point of
time during the said proceedings, it has
been recorded that the matter was sought to
be adjourned on the non-appearance for
counsel for the State. Even in the
application for recall the name of the
counsel is not mentioned.

22. It has been informed that in all
such matters the Naib Tehsildar who is well
versed in all the ceiling laws appears and
contest the matter on behalf of the State
and in this case too he appeared and
effectively argued the case on behalf of the
State which is evident from the order dated
16.03.1991 itself.

23. A bare reading of Section 13(2) of
the Act of 1960 indicates that once an order
has been passed by the prescribed authority
he becomes functus officio and the order
passed by him disposing of all the
objections filed by the tenure holder, the
order becomes final subject to any order
passed in appeal filed under section 13 of
the Act of 1960.

24. The only manner in which any
order under Section 13(A) can be reopened
is only on account of any correction or
mistake which is sought to be rectified
within a time period of two years from the
date of said order.

25. The said view hasd also been
taken by this Court in case of Jwala
Prasad Singh Vs. District Judge (Writ
Petition No. 965 of 1978) decided on
13.11.1978 whereIin this Court has held as
under:-

"3. The petitioner No. 1 Sri Jwala
Prasad Singh was issued a notice under
section 10(2) of the Act and he filed
objections. The notice was issued some
time in 1974 and the Prescribed Authority
decided the objections by his order dated
24.3.1975 and the said authority held that 7
bighas and odd land in the hand of the
petitioner was surplus. It seems that the
petitioner was co-sharer and, therefore,
proceedings were taken against all the cosharers also in accordance with the
determination made by the Prescribed
Authority in the case of the petitioner by
the order dated 24th March, 1975. By the
order dated 31st December, 1975, the
objections of the other co-sharers were
also decided. Thereafter the Prescribed
Authority issued a fresh notice u/s 10(2) of
the Act to the petitioner and he purported
to do so in view of the provisions contained
9 All. Ram Kali Devi Vs. State of U.P. & Ors.
909
in section 31(3) of the U.P. Act XX of 1976,
namely, the U.P. Imposition of Ceiling on
Land Holdings (Amendment) Act, 1976.
Section 31 of the said Amending Act lays
down transitory provision and sub-section
(3) thereof is in the following words:
"31(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 re-determine 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. By this notice the petitioner
was informed that 31 bighas and odd were
surplus in his hand. However, when he filed
objections the same were accepted and the
notice was discharged by the Prescribed
Authority by his order dated 31st January,
1977. By a subsequent order dated 14th
February, 1977 the Prescribed Authority
directed that the order dated 31st January,
1977, whereby the notice had been
discharged should be given effect to.
Thereafter the State Government moved
two applications, one dated 23rd June,
1977 and the other dated 12th July, 1977,
whereby a review was sought of the order
dated 31st January, 1977, and the prayer
was made that the said order should be
reviewed and the subsequent order dated
14th
February,
1977
should
be
countermanded. The said applications were
purported to have been moved under
section 13-A of the Act. True copies of the
said applications are annexures '4' and
'5', respectively. The Prescribed Authority
allowed the said applications and in the
appeal the order of the Prescribed
Authority was maintained.

5. Now the petitioner has come
up in the instant petition and in support
thereof, I have heard Sri Sankatha Rai,
learned counsel for the petitioner. The
learned Standing Counsel has been heard
in opposition. Counsel for the petitioner
contended that section 13-A was really not
attracted, inasmuch as there was no
mistake apparent on the face of the record.
He
has
further
contended
that
the
Prescribed Authority and the Appellate
Court below were wrong in holding that the
order dated 24th March, 1975 had become
final because no appeal had been filed
against the said order. Counsel has placed
reliance on Section 31(3) for his contention
that inasmuch as the order was passed
before the tenth day of October, 1975 but
after January 17, 1975, therefore, it was
open to the Prescribed Authority to redetermine the surplus land in accordance
with the Principal Act as amended by the
said Amending Act within a period of two
years from the relevant date. The learned
Standing Counsel, on the other hand, has
contended that there was no occasion to
issue a fresh notice under section 10(2)
inasmuch as the amendment in the U.P. Act
XX of 1976 did not in any manner affect the
original determination and, therefore, there
was no occasion for taking proceeding by
recourse to section 31(3) of the said
Amending Act. I should like to observe here
that this contention of the learned Standing
Counsel is nowhere to be found in the
order of the Prescribed Authority and in
the judgment of the lower appellate court.
The real point which weighed with them
was that because there was no appeal filed
against the order dated 24th March, 1975,
therefore, the same had become final and
910 INDIAN LAW REPORTS ALLAHABAD SERIES
no fresh notice u/s 10(2) could be issued.
This is undoubtedly contrary to the
requirement of section 31(3) which has
been re-produced above and which clearly
says that even though no appeal was filed
against the first order, fresh proceedings
could be initiated under the Amended Act.
It has seemed to me that, therefore, the
second notice under section 10(2) could not
be said to be without jurisdiction. In any
case, I do not think that the order dated
31.3.1977
passed
by
the
Prescribed
Authority in consequence of the second
notice u/s 10(2) could be said to contain
any mistake apparent on the face of the
record even if there was any mistake in
issuing a second notice u/s 10(2) of the Act
it could not be said to be a mistake
apparent on the face of the record and the
same needed to be established after a longdrawn out process and by invoking in aid
controversial
aspects
of
the
matter.
Therefore, I accept the contention of the
learned counsel for the petitioner that there
was no occasion for entertaining any
application under section 13-A of the Act
and the subsequent order passed by the
Prescribed
Authority
and
the
lower
appellate court, allowing the applications
of the State moved u/s 13-A should be
treated to be without jurisdiction.

The writ petition is allowed and the
order of the prescribed Authority and the
judgment of the lower appellate court are
accordingly quashed and the Prescribed
Authority is directed to treat its subsequent
order dated 31st January, 1977 and the
following order dated 14th February, 1977
as valid and effective order and to give effect
to the same. In the circumstances there will
be rder as to costs."

26. Hon'ble the Supreme Court in the
case of Devendra Nath Singh Vs. Civil
Judge, Basti, (1999) 1 SCC 71, held as
under:-

"3.
Having
examined
the
provisions of Section 13-A and Section 38B of the Act, we are of the considered
opinion that under Section 13-A, the
prescribed authority has the power to
reopen the matter within two years form the
date of the notification under sub-section
(4) of Section 14 to rectify any apparent
mistake which was there on the face of the
record. That power will certainly not
include the power to entertain fresh
evidence and re-examine question as to
whether the two sons, namely, Hamendra
and Shailendra were major or not. The
power under Section 38-B merely indicates
that if any finding or decision was there by
any
ancillary
forum
prior
to
the
commencement of the said section in
respect of a matter which is governed by
the Ceiling Act then such findings will not
operate as res judicata in a proceeding
under the Act. That would not cover the
case where findings have already reached
their finality in the very case under the Act.
In this view of the matter, we have no
hesitation to come to the conclusion that
the prescribed authority had no jurisdiction
to reopen the question of the majority of the
two sons in purported exercise of the power
under Section 13-A. If the authority had no
jurisdiction,
question
of
waiver
of
jurisdiction does not arise. As contended by
learned counsel for the respondent."

27. In the present case, just because
the counsel for the State did not appear, the
entire order has been sought to be recalled
and in fact the application for recall further
indicates that the findings recorded by the
prescribed authority has already been
assailed holding the said findings to be
incorrect and it has been stated that the
9 All. Sharda Singh Vs. Vijay Kumar Rastogi
911
execution of will was itself fraudulent. This
indicates that the intention of the State
authorities was to reopen the entire matter
and reheared it on merits & re-examined all
the evidences.

28. The application for recall was in
fact an application for review of the order
of prescribed authority dated 16.03.1991
rather than an application for correction. It
is undoubtedly clear that the prescribed
authority does not have any power of
review as the same is not prescribed in the
Act of 1960 and under the garb of review
the application for recall was preferred on
the ground that the State counsel did not
appear to contest the matter.

29. It is further noticed that in case
the State was aggrieved by the order dated
16.03.1991 passed by the prescribed
authority, it was always open for them to
prefer an appeal under Section 13 of the
Act of 1960 before the Commissioner but
instead of filing an appeal the application
for recall was preferred.

30. In light of the above, this Court is
of the considered view that the jurisdiction
exercised by the prescribed authority
purportedly exercised under Section 13(A)
of the Act of 1960 is not vested in him and
hence the impugned order is illegal and
arbitrary and is accordingly set aside.

31. With the above observations, the
writ petition stands allowed.
----------
(2023) 9 ILRA 911
REVISIONAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 12.07.2023

BEFORE

THE HON'BLE SARAL SRIVASTAVA, J.
Civil Revision No. 44 of 2023

Sharda Singh ...Revisionist
Versus
Vijay Kumar Rastogi ...Opposite Party

Counsel for the Revisionist:
Sri Rajesh Kumar Singh, Sri Krishna Kant
Vishwakarma

Counsel for the Opposite Party:
G.A.

Civil Law - Code of Civil Procedure, 1908 -
Order 37- Rule 3(5), Rule 4 - Constitution
of India, 1950 -Article 227 - Grant of
Unconditional Leave to Defend - Revisionist
challenged the order dated 03.03.2023, granting
unconditional leave to the respondent to contest
a summary suit under Order 37 C.P.C. for
recovery of Rs. 68,55,000/-, allegedly lent
through cheques, with only Rs. 1,20,000/-
repaid. Revisionist claimed the respondent's
defence was malicious and lacked bona fide
triable issues, citing dishonoured cheques and
relying on B.L. Kashyap. Respondent denied
taking any loan, alleging payment of Rs.
31,80,000/-
for
property
purchase
and
collusion by the revisionist's husband. Court
held that the respondent raised a triable issue,
denying the loan and asserting payments,
which did not fall under the fourth eventuality
of B.L. Kashyap (plausible but improbable
defence requiring conditions). Neither party
provided material evidence to support their
claims. The defence was not frivolous or
vexatious,
entitling
the
respondent
to
unconditional leave under Order 37 Rule 3(5).
The
trial
court's
order
was
free
from
jurisdictional
error
or
illegality.
Revision
dismissed. (Paras 12, 16-19)

Revision dismissed.
List of Cases cited:
B.L. Kashyap & Sons td. Vs JMS Steels &d
Power Corporation & anr., (2022) 3 SCC 294
(Delivered by Hon'ble Saral Srivastava, J.)