# Ram Sahodar v. State of U.P. and another

- **Citation:** (2009) 3 ILRA 824
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2009-08-18
- **Case number:** Civil Misc. Writ Petition No. 26204 of 1992
- **Bench:** A.P. Sahi
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/ram-sahodar-v-state-of-u-p-and-another-41526
- **Pages:** 5

## Headnote

Ceiling on Land Holdings Act 1961Section
38-B-Surplus
land-prescribed
authority
by
order
dated
25.05.78
declared 1.24 acres land as surplus-after
11 years restoration Application by state
rejected
by
Prescribed
authorityappellate authority by exceeding its
jurisdiction without valid and cogent
reasons-declared 9.84 acres land as
surplus-held-not sustainable.

Held: Para 14

Apart from this, it is surprising that if the
order dated 25.05.1978 of the Prescribed
Authority in any way prejudiced the
State then the State ought to have filed a
regular appeal against the order, which
was admittedly not done. The appeal
appears to have not been filed within
time and it is for this reason that a
restoration application appears to have
been moved after 11 years so as to avoid
limitation, for which there is no plausible
reason available on record. The action of
the Naib Tehsildar after 11 years of the
order dated 25.08.1978 was actuated by
malice
in
law
and
the
prescribed
authority was fully justified in rejecting
the same on valid and cogent reasons.
Case law discussed:
2009 (5) ADJ 529.

## Text

824 INDIAN LAW REPORTS ALLAHABAD SERIES [2009

mentioned in the 1971 Act, cannot be
made subject matter of scrutiny under
Section 6 of the 1971 Act. The order
impugned is therefore unsustainable on
this ground as well.

10. There is therefore no option for
this Court except to allow the writ
petition. The impugned order dated
16.12.2006 passed by the respondent no.
4 is hereby quashed with costs on parties.
Disposed of accordingly.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 18.08.2009

BEFORE
THE HON'BLE A.P. SAHI, J.

Civil Misc. Writ Petition No. 26204 of 1992

Ram Sahodar

...Petitioner

Versus
State of U.P. and another ...Respondents

Counsel for the Petitioner:
Sri K.D. Tripathi
Sri N.K. Saxena

Counsel for the Respondents:
Sri C.B. Yadav
C.S.C.

Ceiling on Land Holdings Act 1961Section
38-B-Surplus
land-prescribed
authority
by
order
dated
25.05.78
declared 1.24 acres land as surplus-after
11 years restoration Application by state
rejected
by
Prescribed
authorityappellate authority by exceeding its
jurisdiction without valid and cogent
reasons-declared 9.84 acres land as
surplus-held-not sustainable.

Held: Para 14

Apart from this, it is surprising that if the
order dated 25.05.1978 of the Prescribed
Authority in any way prejudiced the
State then the State ought to have filed a
regular appeal against the order, which
was admittedly not done. The appeal
appears to have not been filed within
time and it is for this reason that a
restoration application appears to have
been moved after 11 years so as to avoid
limitation, for which there is no plausible
reason available on record. The action of
the Naib Tehsildar after 11 years of the
order dated 25.08.1978 was actuated by
malice
in
law
and
the
prescribed
authority was fully justified in rejecting
the same on valid and cogent reasons.
Case law discussed:
2009 (5) ADJ 529.

(Delivered by Hon'ble A.P. Sahi, J.)

1. Heard learned counsel for the
petitioner and the learned standing
counsel
for
the
respondents.
The
proceedings arise out of orders passed
under the U.P. Imposition of Ceiling on
Land Holdings Act, 1961 (hereinafter
referred to as 'the Act').

2. The present writ petition has been
preferred
against
the
order
dated
03.07.1992
passed
by
the
learned
Additional
Commissioner,
Jhansi
Division, Jhansi, whereby the appeal filed
on behalf of the State, questioning the
order of the Prescribed Authority dated
25.10.1991, has been allowed and the
land to the tune of 9.84 acres in the
irrigated sense has been declared as
surplus in the hands of the petitioner.

3. Learned counsel for the petitioner
contends that the order is erroneous,
inasmuch as, the order dated 25th May,
1978 passed by the Prescribed Authority,
whereby only an area of 1.24 acres has
been declared surplus, had become final
and there was no further land available so
3 All] Ram Sahodar V. State of U.P. and another

825
as to reopen the entire proceedings on the
principles of Section 38-B of the Act,
1960 . Learned counsel for the petitioner
contends that the proceedings were not
ex-parte and had been decided upon an
order of remand having been passed by
the then Appellate Authority on two
specific issues. It is urged that the
impugned
order
incorrectly
without
appreciating the facts on record on the
issue of ex-parte proceedings has caused
prejudice. The Appellate Authority has
proceeded to reopen the entire case,
which was impermissible in law. He
contends that the declaration of the land
as surplus in the hands of the petitioner
has attained finality and, therefore, the
authority could not have exceeded its
jurisdiction by restoring an order which
had already been set aside and had been
finalized by the Prescribed Authority on
25.05.1978.

4. Learned standing counsel, on the
other hand, contends that, as a matter of
fact, the order dated 25.05.1978 was exparte and had proceeded on an incorrect
assumption and, therefore, the Additional
Commissioner was justified in reopening
and rehearing the entire matter and restore
the earlier order of the Prescribed
Authority passed in the year 1976.

5. Having heard learned counsel for
the parties, the facts shorn of details are
that a notice was issued to the petitioner's
father late Prabhu Dayal, where after vide
order dated 29.06.1976 the Prescribed
Authority declared an area of 9.84 acres
as surplus. The petitioner's father late
Prabhu Dayal preferred an appeal bearing
Ceiling Appeal No. 877 of 1976 and the
said appeal was allowed on 03.11.1976. A
copy of the judgment in the said appeal is
annexure 5 to the writ petition. The matter
was remanded calling upon the Prescribed
Authority to ascertain the fact as to
whether Ram Sahodar was major at the
relevant date or not and further the impact
of the consolidation proceedings which
brought about the change in the nature of
the chaks that had earlier been carved
during the consolidation operation. Upon
remand, the matter was gone into by the
Prescribed Authority and vide order dated
25.05.1978
the
Prescribed
Authority
found that an area of 1.24 acres was only
surplus in the hands of the tenure holders.
This order was not challenged by the
State and as such the same became final.

6. It appears that the Nayab
Tehsildar (Ceiling) moved an application
for restoration of the said order on the
ground that it was an ex-parte order. This
application was moved on 24.02.1989
after a lapse of almost 11 years. To this,
the petitioner filed an objection and
ultimately vide order dated 25.10.1991,
the Prescribed Authority rejected the said
application
moved
by
the
Nayab
Tehsildar (Ceiling) clearly holding that
the proceedings dated 25.05.1978 were
not ex-parte and the dispute had been
decided after giving full opportunity to
the State to lead evidence.

7. Against the aforesaid order the
State filed an appeal, which has been
allowed giving rise to the present writ
petition, the Appellate Authority has held
that the order passed by the Prescribed
Authority was based on surmises and
conjectures and without putting the Nayab
Tehsildar (Ceiling) to notice about the
same.

8. Learned counsel for the petitioner
contends that a clear finding has been
recorded by the Prescribed Authority in
826 INDIAN LAW REPORTS ALLAHABAD SERIES [2009

the order dated 25.10.1991 that the order
had been passed after giving full
opportunity to the State to cross-examine
the witnesses of the tenure holder. Further
finding has been recorded by the
Prescribed Authority that one Fateh
Bahadur, the Lekhpal of the area
concerned, had also been produced and he
was also cross-examined. It is further
submitted that the finding of the learned
Commissioner that the proceedings were
ex-parte is absolutely unfounded and
based upon an erroneous assumption of
fact and, therefore, liable to be set aside.

9. Learned standing counsel, on the
other hand, contends that the order dated
25.05.1978 was ex-parte and further even
on merits the order dated 25.05.1978 did
not conform to the provisions of law. He
contends that the learned Commissioner
rightly proceeded to hear the matter on
merits and lawfully revived the orders of
the
Prescribed
Authority
dated
29.06.1976.

10. Having heard learned counsel
for the parties, the fact remains that the
ceiling proceedings initiated against the
petitioner's father was taken up to the
stage
of
the
Appellate
Authority
whereupon the order of the Prescribed
Authority was set aside and the matter
was remanded back on 03.11.1976 calling
upon the Prescribed Authority to decide
the
matter
afresh.
The
Prescribed
Authority vide order dated 25.05.1978
decided the matter holding that an area of
1.24 acres was surplus in the hands of the
tenure holder in the irrigated sense. The
said order was sought to be set aside and
proceedings restored after 11 years on the
allegation that it was ex-parte to the State.
The Prescribed Authority in the order
dated 25.10.1991 while rejecting the
restoration moved by the State clearly
found that the proceedings were not exparte and that the entire proceedings had
been
concluded
after
giving
fully
opportunity to the State to cross-examine
the witnesses. The learned Commissioner
has attempted to reverse the said finding
on the ground that the Nayab Tehsildar
(Ceiling) had not been put to notice for
the same and, therefore, it appears that
prejudice has been caused.

11. In my opinion, the aforesaid
reversal by the learned Commissioner is
perverse, inasmuch as, the said reversal
has come without upsetting the finding of
the Prescribed Authority, which was to
the effect that the matter had been heard
on merits and the State was allowed to
lead evidence and cross-examine the
witnesses of the tenure holders. This
finding having not been reversed, it was
therefore not open to the Commissioner to
have reopened the entire issues which had
on the same set of evidence been finalised
earlier. The conclusion drawn by the
learned
Commissioner
is
not
only
erroneous but is also against the weight of
evidence on record. This is also evident
from a perusal of the counter affidavit,
which has been filed on behalf of the
State.

12. Further the ceiling proceedings
are not a pandoras box to be opened on
the whims of an official at any stage. The
proceedings had become final in the year
1978. The Nayab Tehsildar (Ceiling) had
no legally available foundation to move a
restoration application after 11 years in a
proceeding that had become final on the
same set of evidence and same issues
without there being any new discovery.
Reference may be had to the decision in
the case of Mahmood Rais and others Vs.
3 All] Ram Sahodar V. State of U.P. and another

827
State of U.P. and others reported in 2009
(5) ADJ 529. The relevant paragraphs 12,
16 and 17 of the said decision are being
quoted below:

"12. In view of the aforesaid
circumstances, it is clear that neither the
family settlement was overturned by this
Court nor was the theory of any fraud or
misrepresentation on the part of the
petitioners believed by this Court. In such
a situation, there was no occasion for the
Prescribed Authority to have re-opened
the issue which had already became final
after contest and after having led
evidence in this regard. The appellate
order dated 27.9.77 has attained finality
almost in all respects and no room was
left for the Prescribed Authority to travel
beyond it keeping in view of the
provisions of Section 38-B of the Act
which has been explained by the Court in
the case of D.N. Singh v. State of U.P.,
AIR 1999 SC 2264 and in the case of Ram
Bhau Singh v. Addl. Commissioner, 2007
(5) ADJ 593.
16. The authorities therefore have to
keep in mind that they are no magicians
to draw out some evidence from a
magical hat nor they have unlimited
powers to re-agitate issues already settled
upon evidence having been taken. The
proceedings have not to be placed at par
with a Pandoras Box as they are very
near to judicial adjudication. They do not
have to repeat the same performance for
a better result. This would be against law
and against public policy. It is only where
some new acquisitions have been made or
some new fact which may come into
existence later on, that the provisions of
38-B rescue the State against resjudicata. This is only to ensure any escape
from assessment by the authorities that
was
otherwise
capable
of
being
considered.
17. There is yet another aspect which
has to be dealt with in such matters. The
provisions of the Act do not altogether
throw away over board the doctrine
relating to finality. The question of issue
estoppel and its distinction from resjudicata and constructive res-judicata has
been dealt with in paras 39 and 40 of the
judgment in the case of Dadu Dayal
Maha Sabha reported in 2008 (11) SCC
753. It is true that these general doctrines
may not over ride a statutory provision
yet the principles enshrined therein
cannot be construed to have been whittled
down in law. The provisions contained
under the Ceiling Act cannot be construed
to the extent of diluting the impact of the
said principles when the matter has been
decided between the same parties on the
same set of evidence without there being
anything new. It is akin to the principles
employed while dealing with the doctrine
of precedents which also finds mentioned
in Ambika Prasad v. State of U.P., AIR
1980 SC 1762 and in the Full Bench
decision of our Court in the decision of
Rana Pratap Singh v. State, 1995 ACJ
200. The doctrine of finality has also been
discussed as being a doctrine which is to
promote public interest. Reference may be
had to the case of Krit Kumar Chaman v.
Union of India, 1981 (2) SCC 436 and in
the matter of taxation in the case of Devi
Lal Modi v. Sales Tax Officer, AIR 1965
SC 1150. In the instant case after the
order of the appellate authority was
pronounced on 27.9.77 regarding a
finding on the issue of family settlement,
and the State did not choose to file any
writ petition questioning the said order,
then in the opinion of this court to
doctrine of finality would be attracted in
such a situation."
828 INDIAN LAW REPORTS ALLAHABAD SERIES [2009

13. The reason given that the
proceedings
were
ex-parte
are
not
founded
on
any
material
and
the
prescribed authority was therefore right in
concluding that the proceedings that had
been
finalized
after
giving
full
opportunity to the State. The proceedings
could have been reopened on the
principles as referred to under Section 38B of the Act. However, there was no new
material before the authority to invoke the
said provision and, therefore, they could
not have proceeded under the garb of the
restoration application after 11 years that
there was an incorrect calculation made
by the Prescribed Authority in the order
dated
25.05.1978.
The
learned
Commissioner erred in entering into the
merits of the claim when the State had
failed to file any appeal within time
against the order dated 25.05.1978.

14. Apart from this, it is surprising
that if the order dated 25.05.1978 of the
Prescribed
Authority
in
any
way
prejudiced the State then the State ought
to have filed a regular appeal against the
order, which was admittedly not done.
The appeal appears to have not been filed
within time and it is for this reason that a
restoration application appears to have
been moved after 11 years so as to avoid
limitation, for which there is no plausible
reason available on record. The action of
the Naib Tehsildar after 11 years of the
order dated 25.08.1978 was actuated by
malice in law and the prescribed authority
was fully justified in rejecting the same
on valid and cogent reasons.

15. The learned Commissioner
appears to have overlooked the aforesaid
aspects of the matter and has thus arrived
at a conclusion which is erroneous in law
as well as on facts. The impugned order
dated
03.07.1992
is
not
legally
sustainable and is hereby quashed.

With the aforesaid observations, the
writ petition is allowed.
---------