# State of U.P. & Anr v. Smt. Chandrawali & Ors

- **Citation:** (2024) 1 ILRA 209
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2024-01-19
- **Case number:** Writ C No. 1001366 of 2013
- **Bench:** Alok Mathur
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/state-of-u-p-anr-v-smt-chandrawali-ors-51115
- **Pages:** 9

## Headnote

A. Writ Petition - Appellate Order Set
Aside, Matter Remitted - The St. challenged
the order dated 04.04.2012 by the IVth
210 INDIAN LAW REPORTS ALLAHABAD SERIES
Additional District Judge, Unnao, which allowed
Civil Appeal No. 45 of 2011 and quashed the
eviction order dated 30.07.2003 under the U.P.
Public
Premises
(Eviction
of
Unauthorized
Occupants) Act, 1972 - Held, the appellate
order was arbitrary as it wrongly applied the
principle of res judicata, and the matter was
remitted for fresh adjudication on merits. (Paras
2, 25, 26)

B. Res Judicata Not Applicable - No Final
Finding in Prior Proceedings - The District
Judge held that eviction proceedings were
barred by res judicata due to prior dismissal in
1993 - Held, as per Swamy Atmananda Vs Sri
Ramakrishna Tapovanam and Arjun Singh Vs
Mohindra Kumar, res judicata requires a final
judicial determination on a specific issue, which
was absent in the prior proceedings as the
dismissal was due to lack of evidence, not a
conclusive finding on the land's status. (Paras
12, 15, 19, 23, 24)

C. Public Premises Act - Fresh Evidence
Justifies New Proceedings - The St. initiated
fresh proceedings under the 1972 Act after
obtaining a survey report in 1998 confirming
that Plot Nos. 564 and 565 were reserved forest
land - Held, the absence of a prior conclusive
finding allowed the St. to file new proceedings
with
fresh
evidence,
and
the
Prescribed
Authority's eviction order based on this evidence
required adjudication on merits. (Paras 9, 11,
24)

D. Misapplication of Res Judicata by
Appellate Court - The District Judge's finding
that the respondents' house was not on Plot
Nos. 564 or 565 was contrary to the Prescribed
Authority's 1993 order, which dismissed the case
for lack of evidence without determining the
land's status - Held, this perverse finding
rendered
the
appellate
order
arbitrary,
warranting interference. (Paras 21, 22)

E. Public Policy and Res Judicata -
Protection of Public Land - The principle of res
judicata, rooted in public policy to ensure
finality, cannot be used to shield unauthorized
occupation of public land - Held, as per Wade
and Forsyth on Administrative Law and Vaish
Aggarwal Panchayat Vs Inder Kumar, the St.'s
fresh evidence justified new proceedings to
protect public land, and the Prescribed Authority
was not bound by the earlier dismissal. (Paras
14, 20, 24)
Writ Petition Allowed.

List of Cases cited:

## Text

1 All. State of U.P. & Anr. Vs. Smt. Chandrawali & Ors.
209
Magistrate was justified in rejecting the
release application of the vehicle by the
impugned order.

29. From the perusal of the recovery
memo, it is clear that large quantity of
animal articles, parts of animal body,
animal meat and a knife having its handle
made of elephant tusk was recovered from
the house of the accused-petitioner. The
details
of
the
articles
recovered
is
mentioned in paragraph no. 2 of this
judgement. From the perusal of the
aforesaid recovery and the statement u/s
161 Cr.P.C. of co-accused Babloo, it prima
facie appears that animal articles, animal
parts and meat of such animals were stored
after hunting by the petitioner.

30. Thus, prima facie vehicle was
used in the commission of the offence
made punishable under the Act of 1972.

31. The petitioner has relied on the
judgement of the Apex Court in the case of
Sunderbhai Ambalal Desai Vs. State of
Gujarat, 2002 LawSuit (SC) 1346 and has
argued that during the pendency of trial, the
case property/vehicle should be released in
favour of the owner after obtaining
undertaking and surety and preparing
panchnama of the case property/vehicle. In
the present case, the vehicle, prima facie
being used in the commission of offence
under the Act of 1972 has become
government property. Therefore, the law
laid down by Hon'ble Apex Court in
Sunderbhai Ambalal Desai (supra) shall
not be applicable on the release application
of the vehicle.

32.

Under
these
facts
and
circumstances of the case, the learned
Magistrate has not committed any illegality
in rejecting the vehicle release application
of the petitioner. The learned revisional
court has also rightly rejected the revision
filed against the impugned order of the
learned Magistrate.

33. From the aforesaid discussion, we
are of the considered view that vehicle no.
U.K. 06 V 0044 seized in Range Case No.
6/2017-18 u/s u/s 9, 44, 49-A, 49-B, 50 and
51 of Wild Life (Protection) Act, 1972, was
prima facie used in committing the offence
under the aforesaid Act and, therefore,
under the provisions of Section 39(1)(d),
the vehicle is the property of the State
Government and is not liable to be released
during the pendency of the trial. There is no
ground to interfere in the impugned order
passed by the learned Magistrate and the
revisional court.

34. The petition is dismissed,
accordingly.
----------
(2024) 1 ILRA 209
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 19.01.2024

BEFORE

THE HON'BLE ALOK MATHUR, J.

Writ C No. 1001366 of 2013

State of U.P. & Anr. ...Petitioners
Versus
Smt. Chandrawali & Ors. ...Respondents

Counsel for the Petitioners:
C.S.C.

Counsel for the Respondents:
Manish Kumar, Ajay Kumar Sharma, Lalit
Kishore Tiwari

A. Writ Petition - Appellate Order Set
Aside, Matter Remitted - The St. challenged
the order dated 04.04.2012 by the IVth
210 INDIAN LAW REPORTS ALLAHABAD SERIES
Additional District Judge, Unnao, which allowed
Civil Appeal No. 45 of 2011 and quashed the
eviction order dated 30.07.2003 under the U.P.
Public
Premises
(Eviction
of
Unauthorized
Occupants) Act, 1972 - Held, the appellate
order was arbitrary as it wrongly applied the
principle of res judicata, and the matter was
remitted for fresh adjudication on merits. (Paras
2, 25, 26)

B. Res Judicata Not Applicable - No Final
Finding in Prior Proceedings - The District
Judge held that eviction proceedings were
barred by res judicata due to prior dismissal in
1993 - Held, as per Swamy Atmananda Vs Sri
Ramakrishna Tapovanam and Arjun Singh Vs
Mohindra Kumar, res judicata requires a final
judicial determination on a specific issue, which
was absent in the prior proceedings as the
dismissal was due to lack of evidence, not a
conclusive finding on the land's status. (Paras
12, 15, 19, 23, 24)

C. Public Premises Act - Fresh Evidence
Justifies New Proceedings - The St. initiated
fresh proceedings under the 1972 Act after
obtaining a survey report in 1998 confirming
that Plot Nos. 564 and 565 were reserved forest
land - Held, the absence of a prior conclusive
finding allowed the St. to file new proceedings
with
fresh
evidence,
and
the
Prescribed
Authority's eviction order based on this evidence
required adjudication on merits. (Paras 9, 11,
24)

D. Misapplication of Res Judicata by
Appellate Court - The District Judge's finding
that the respondents' house was not on Plot
Nos. 564 or 565 was contrary to the Prescribed
Authority's 1993 order, which dismissed the case
for lack of evidence without determining the
land's status - Held, this perverse finding
rendered
the
appellate
order
arbitrary,
warranting interference. (Paras 21, 22)

E. Public Policy and Res Judicata -
Protection of Public Land - The principle of res
judicata, rooted in public policy to ensure
finality, cannot be used to shield unauthorized
occupation of public land - Held, as per Wade
and Forsyth on Administrative Law and Vaish
Aggarwal Panchayat Vs Inder Kumar, the St.'s
fresh evidence justified new proceedings to
protect public land, and the Prescribed Authority
was not bound by the earlier dismissal. (Paras
14, 20, 24)
Writ Petition Allowed.

List of Cases cited:

1. Swamy Atmananda Vs Sri Ramakrishna
Tapovanam, (2005) 10 SCC 51

2. Ishwardas Vs St. of M.P., (1979) 4 SCC 163

3. Arnold Vs National Westminster Bank Plc.,
(1991) 3 All ER 41 : (1991) 2 AC 93

4. Arjun Singh Vs Mohindra Kumar, AIR 1964 SC
993

5. Satyadhan Ghosal Vs Smt Deorajin Debi,
(1960) 3 SCR 590

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

1. Heard Sri L.M. Khare, learned
Standing Counsel on behalf of petitioners
as well as Sri Lalit Kishore Tiwari, learned
counsel appearing for respondent no. 4 and
Sri Ravi Prakash Yadav, learned counsel
appearing on behalf of respondent nos. 1, 2
and 5.

2. By means of present writ petition
the petitioner has assailed the judgment and
order dated 04.04.2012, passed by IVth
Additional District Judge, Unnao whereby
he has allowed the Civil Appeal No. 45 of
2011 and quashing the order dated
30.07.2003, passed by the Prescribed
Authority under U.P. Public Premises
(Eviction of Unauthorized Occupants) Act,
1972 (hereinafter referred to as "the Act,
1972").

3. It has been submitted by learned
Standing Counsel that notification was
issued on 13.06.1961 in exercise of power
under Section 4(1) of the Indian Forest Act,
1977 declaring certain lands as mentioned
1 All. State of U.P. & Anr. Vs. Smt. Chandrawali & Ors.
211
in the schedule in district Unnao as
reserved forest. According to the petitioner
plot no. 564 measuring 0.038 hectares and
Plot No. 565 measuring 0.013 hectares,
situated at Village - Ajgain, Tehsil -
Hasanganj, District - Unnao are recorded
in the name of Forest Department as per
khatauni for fasli year 1403 - 1408.

4. It has been next submitted that one
Rajendra Singh had encroached upon the
said land situated at Gata Nos. 564 and 565
and constructed a house there upon which
according to the petitioner was illegal and
consequently a notice under Section 4(1) of
the Act, 1972 was issued on 15.01.1990.
Despite notice Rajendra Singh failed to
remove encroachment and consequently a
suit was filed by the Forest Department
before the Sub Divisional Magistrate under
Section 4 of the Act, 1972.

5. Later on legal heirs of Rajendra
Singh appeared before the Prescribed
Authority and submitted that the said land
was owned by them and was in their
possession since their ancestors and it was
further stated that a portion of the said land
has been sold to one Aniruddha Singh vide
Sale Deed dated 01.05.1988. It was further
stated that building was constructed on the
said land for which map was duly
sanctioned by the Collector and denied that
they had encroached upon the forest land of
Gata Nos. 564 and 565.

6. Before the Prescribed Authority,
the officials of Forest Department had
deposed
to
the
extent
that
alleged
respondents had constructed a house on the
said land, but neither survey report nor any
map or any other material was produced by
the petitioner to demonstrate that the said
land was reserved as forest land. In absence
of any material to show that the said land
was "public premises" as defined under
Section 2(e) of the Act, 1972, the
Prescribed Authority rejected the suit for
eviction
by
means
of
order
dated
16.08.1993.

7. Against the order dated 16.08.1993,
passed by the Prescribed Authority, the
petitioner preferred an appeal before the
District Judge, Unnao, which was also
rejected affirming the order of Prescribed
Authority and the appellate Court was also
of the view that the petitioner had been
unable to demonstrate that Gata Nos. 564
and 565 were "public premises" or part of
the Reserve Forest land as per notification
dated 13.06.1961.

8. Against both the aforesaid orders of
Prescribed Authority as well as Appellate
Authority, writ petition being Writ Petition
No. 176 (M/S) of 1997 was filed before this
Court by the State Government which was
also dismissed by means of order dated
17.01.1997.

9. It has been further stated by the
learned Standing Counsel that previous
proceedings
have
concluded
and
application of the petitioner has been
rejected solely on the ground that State was
unable to file any documents including the
Survey report or Survey map so as to
identify the said land and hence failed to
demonstrate that encroachment by the
respondents
was
made
on
"public
premises". Faced with the prospect of
losing the State land, the petitioner again
had a Survey conducted and report was
submitted on 23.09.1998 from which it has
became evident that Plot Nos. 564 and 565
were part of reserve forest land.

10. The State armed with fresh
evidence and material again proceeded
212 INDIAN LAW REPORTS ALLAHABAD SERIES
against the respondents under the Act, 1972
and notices were issued to the private
respondents. Proceedings were initiated
against three persons out of whom against
Rajendra
Prasad,
previously
against
whom the proceedings had concluded up
to the stage of High Court.

11. The Prescribed Authority relying
upon the fresh survey report and also
taking on record the statement of the area
Lekhpal was of the view that the
respondents have encroached upon the
"public
premises"
and
accordingly
ordered their eviction and directed them
to pay Rs.6000/- as compensation by
means of order dated 30.07.2003.

12. Against order of Prescribed
Authority
dated
30.07.2003,
the
respondents preferred an appeal before
the District Judge, where they had
submitted that proceedings before the
Prescribed Authority were barred by the
principle of res-judicata inasmuch as
previously also notice was issued under
the Act, 1972 and proceedings were
concluded in favour of respondents and
again on same grounds same proceedings
cannot be initiated. The District Judge
was impressed by the arguments of the
respondents and was of the view that
previously also the State has alleged that
the respondents have encroached upon
the land situated at Gata Nos. 564 and
565, which could not be proved by them
and
consequently
proceedings
were
dropped and again on the same grounds
they cannot be permitted to raise same
plea before the Prescribed Authority and
allowed
the
appeal
holding
that
proceedings
before
the
Prescribed
Authority were barred by the provisions of
Section 11 of CPC. Against the said order
the State approached this Court assailing
the
order
of
District
Judge
dated
04.04.2012.

13. It has been submitted by the Ld
Standing Counsel that before the Prescribed
Authority on the previous occasion no issue
was decided but merely on the basis lack of
evidence the State could not demonstrate
that the respondents have encroached upon
"public premises" and consequently the suit
was rejected. It has been submitted that
firstly provisions of Section 11 of CPC are
not applicable to the proceedings under the
Act, 1972 and even if it is admitted that
principles of res judicata would be
applicable on quasi judicial proceedings
there was no issue decided by the
Prescribed Authority between the parties
from which it can be established that the
proceedings on the second occasion were
barred by the principles of res-judicata.

14. I have heard the counsel for the
parties and perused the record. The dispute
in the present case revolves around the
question as to whether proceedings under
the Act,
1972
initiated
against
the
respondent for the second time, were barred
by the principles of res judicata or not.
Reference in this regard may be made to
Wade and Forsyth on Administrative Law,
(9th Edition, page 243) wherein it is stated:

"One special variety of estoppel
is res judicata. This results from the rule
which prevents the parties to a judicial
determination from litigating the same
question over again, even though the
determination is demonstrably wrong.
Except in proceedings by way of appeal,
the parties bound by the judgment are
estopped from questioning it. As between
one another, they may neither pursue the
same cause of action again, nor may they
again litigate any issue which was an
1 All. State of U.P. & Anr. Vs. Smt. Chandrawali & Ors.
213
essential element in the decision. These two
aspects are sometimes distinguished as
'cause of action estoppel' and 'issue
estoppel'.

Law on res judicata and estoppel
is well understood in India and there are
ample authoritative pronouncements by
various courts on these subjects. As noted
above, the plea of res judicata, though
technical, is based on public policy in order
to put an end to litigation. It is, however,
different if an issue which had been decided
in an earlier litigation again arises for
determination between the same parties in
a suit based on a fresh cause of action or
where there is continuous cause of action.
The parties then may not be bound by the
determination made earlier if in the
meanwhile, law has changed or has been
interpreted differently by a higher forum.

A judicial decision is deemed
final, when it leaves nothing to be judicially
determined or ascertained thereafter, in
order to render it effective and capable of
execution, and is absolute, complete, and
certain, and when it is not lawfully subject
to
subsequent
rescission,
review,
or
modification
by
the
tribunal
which
pronounced it...."

15.

In
the
case
of
Swamy
Atmananda
v.
Sri
Ramakrishna
Tapovanam [(2005) 10 SCC 51, the
Hon'ble Supreme Court had observed as
follows:

"26. The object and purport of
the principle of res judicata as contended in
Section 11 of the Code of Civil Procedure is
to uphold the rule of conclusiveness of
judgment, as to the points decided earlier
of fact, or of law, or of fact and law, in
every subsequent suit between the same
parties. Once the matter which was the
subject-matter of lis stood determined by a
competent court, no party thereafter can be
permitted to reopen it in a subsequent
litigation. Such a rule was brought into the
statute-book with a view to bring the
litigation to an end so that the other side
may not be put to harassment.

27. The principle of res judicata
envisages that a judgment of a court of
concurrent jurisdiction directly upon a
point would create a bar as regards a plea,
between the same parties in some other
matter in another court, where the said
plea seeks to raise afresh the very point
that
was
determined
in
the
earlier
judgment."

16. In Swamy Atmananda v. Sri
Ramakrishna Tapovanam (supra) the
Apex Court further noticed:

"42. In Ishwardas v. State of
M.P., 1979) 4 SCC 163

'In order to sustain the plea of res
judicata it is not necessary that all the
parties to the two litigations must be
common. All that is necessary is that the
issue should be between the same parties or
between parties under whom they or any of
them claim."

17. Yet again in Arnold v. National
Westminster Bank Plc. [(1991) 3 All ER
41 : (1991) 2 AC 93 : (1991) 2 WLR 1177]
the House of Lords noticed the distinction
between cause of action estoppel and issue
estoppel:

"Cause of action estoppel arises
where the cause of action in the later
proceedings is identical to that in the
earlier proceedings, the latter having been
litigated between the same parties or their
privies and having involved the same
subject-matter. In such a case, the bar is
absolute in relation to all points decided
214 INDIAN LAW REPORTS ALLAHABAD SERIES
unless fraud or collusion is alleged, such as
to justify setting aside the earlier judgment.
The discovery of new factual matter which
could not have been found out by
reasonable diligence for use in the earlier
proceedings does not, according to the law
of England, permit the latter to be
reopened. ... Issue estoppel may arise
where a particular issue forming a
necessary ingredient in a cause of action
has been litigated and decided and in
subsequent proceedings between the same
parties involving a different cause of action
to which the same issue is relevant, one of
the parties seeks to reopen that issue."

18. Here also the bar is complete to
re-litigation but its operation can be
thwarted under certain circumstances. The
House then finally observed:

"But there is room for the view
that the underlying principles upon which
estoppel is based, public policy and justice
have greater force in cause of action
estoppel, the subject-matter of the two
proceedings being identical, than they do in
issue estoppel, where the subject-matter is
different. Once it is accepted that different
considerations apply to issue estoppel, it is
hard to perceive any logical distinction
between a point which was previously
raised and decided and one which might
have been but was not. Given that the
further material which would have put an
entirely different complexion on the point
was at the earlier stage unknown to the
party and could not by reasonable
diligence have been discovered by him, it is
hard to see why there should be a different
result according to whether he decided not
to take the point, thinking it hopeless, or
argue it faintly without any real hope of
success."

19. The Apex Court in the case of
Arjun Singh v. Mohindra Kumar, AIR
1964 SC 993, as observed as under :

"11. That the question of fact
which arose in the two proceedings was
identical would not be in doubt. Of
course, they were not in successive suits
so as to make the provisions Section 11 of
the Civil Procedure Code, applicable in
terms. That the scope of the principle of
res judicata is not confined to what, is
contained in Section 11 but is of more
general application is also not in dispute.
Again, res judicata could be as much
applicable to different stages of the same
suit as to findings on issues in different
suits. In this connection we were 'referred
to what this Court said in Satyadhan
Ghosal v. Smt Deorajin Debi [(1960) 3
SCR 590] where Das Gupta, J. speaking
for the Court expressed himself thus:

"The principle of res judicata-is
based on the need of giving a finality, to
judicial decisions. What it says is that once
resjudicata, it shall not be adjudged again.
Primarily it applies as between past litigation
and future litigation. When a matter -
whether on a question, of fact or on a
question of law - has been decided between
two parties in one suit or proceeding and the
decision is final, either because no appeal
was taken to a higher court or because the
appeal was dismissed, or no appeal lies,
neither party will be allowed in a future suit
or proceeding between the same parties to
canvass the matter again.... The principle of
res judicata applies also as between the two
stages in the same litigation to this extent that
a court, whether the trial court or a higher
court having at an earlier stage decided a
matter in one way will not allow the parties
to re-agitate the matter again at a subsequent
stage of the same proceedings."
1 All. State of U.P. & Anr. Vs. Smt. Chandrawali & Ors.
215

Mr Pathak - laid great stress on
this passage as supporting him in the two
submissions that he made : (1) that an issue
of fact or law decided even in an
interlocutory proceeding could operate as
res judicata in a later proceeding, and next
(2) that in order to attract the principle of
res judicata the order or decision first
rendered and which is pleaded as res
judicata need not be capable of being
appealed against."

20. The Apex Court in the case of
Vaish Aggarwal Panchayat vs Inder
Kumar & Ors has observed as follows :

"11. In this context, we may
profitably refer to the decision in V.
Rajeshwari v. T.C. Saravanabava. In the
said case, a two-Judge Bench while dealing
with the concept of resjudicata has held:-
"11. The rule of res judicata does not strike
at the root of the jurisdiction of the court
trying the subsequent suit. It is a rule of
estoppel by judgment based on the public
policy that there should be a finality to
litigation and no one should be vexed twice
for the same cause.

12. The plea of res judicata is
founded on proof of certain facts and then
by applying the law to the facts so found. It
is, therefore, necessary that the foundation
for the plea must be laid in the pleadings
and then an issue must be framed and tried.
A plea not properly raised in the pleadings
or in issues at the stage of the trial, would
not be permitted to be raised for the first
time at the stage of appeal.

After so stating, the Court further
observed that:-

"Not only the plea has to be
taken, it has to be substantiated by
producing the copies of the pleadings,
issues and judgment in the previous case.
Maybe, in a given case only copy of
judgment in previous suit is filed in proof of
plea of res judicata and the judgment
contains exhaustive or in requisite details
the statement of pleadings and the issues
which may be taken as enough proof. But
as pointed out in Syed Mohd. Salie Labbai
v. Mohd. Hanifa the basic method to decide
the question of res judicata is first to
determine the case of the parties as put
forward in their respective pleadings of
their previous suit and then to find out as to
what had been decided by the judgment
which operates as res judicata."

21. By means of the impugned
judgement
dated
for
04/04/2012
the
Learned District Judge noticed that on the
previous occasion also a suit was filed by
the State against the respondent for eviction
from the premises situated at Plot No. 564
measuring 0.038 hectares. situated at
Village - Ajgain, District Unnao on the
ground that the said land belonging to the
U.P. Forest Corporation and the decision to
convert it into reserve forest has also been
taken by issuance of a notification under
Section 4 of the Indian Forest Act. When
the proceedings were initiated against the
respondent under the Act 1972, before the
Prescribed Authority, the officers who
appeared on behalf of the petitioner to
prove their case could not produce the
survey report or the survey map from
which it could be established that the
disputed house made by the respondents
was on plot No. 564 or 565, while on the
other hand the respondent had disputed the
fact that as house was built on plot No. 564
or 565 which have been declared to be a
reserve forest land. The respondent himself
never files any documents or disclosed the
details and location of his land on which
his house had been built, and in the
aforesaid circumstances the Prescribed
Authority discharged the notice after
216 INDIAN LAW REPORTS ALLAHABAD SERIES
recording his satisfaction that the petitioner
was not able to establish beyond doubt that
the house of the respondent was built on
the forest land, and on the other hand the
respondent had built the house after
obtaining due approval of the authorities.

22. A perusal of the impugned
appellate order dated 04/04/2012 would
indicate that the District Judge while
allowing the appeal of the respondent has
recorded a finding that "the house of
Rajendra Prasad has not been constructed
on plot No. 564 or 565". He was of the
view that once a finding has been returned
in favour of the respondents then the
proceedings cannot be re-initiated again to
re-agitate the same issue which has once
already been concluded by the Prescribed
Authority in his order dated 16/08/1993. To
test the aforesaid reasons recorded in the
order
of
the
District
Judge
dated
04/04/2012, we have gone through the
order of the Prescribed Authority dated
16/08/1993 and find that no such finding
was returned by him in favour of the
respondents to the effect that their house
was existing on the plot No. 564 or 565. On
the contrary the Prescribed Authority has
rejected the case filed by the petitioner as
they were unable to prove that the
respondents have constructed the house on
plot No. 564 or 565 as neither the survey
report nor the survey map was filed. The
findings of the District Judge are clearly
contrary to the record and is accordingly
perverse and consequently the impugned
order is clearly arbitrary and deserves
interference on this ground alone.

The principles of res judicata is a
principle of public policy based on the
principle of giving finality to judicial
decisions. The principle would have
application in quasi judicial matters also
subject to the condition that the question of
fact or on law should have been decided
between the parties, and the plea has to be
substantiated by producing the copy of the
pleadings, showing judgement in the
previous case.

23. For application of the principle of
res judicata in the present case it is to be
ascertained as to whether on a question, of
fact or a question of law has been decided
between the parties in the proceeding
before the Prescribed Authority which can
be said to be final and conclusive. As
already dealt by us, the Prescribed
Authority while deciding the proceedings
initiated by the petitioner previously, had
dismissed the case as the petitioner as he
could not demonstrate that the respondent
had constructed the house on plot No. 564
or 565 which was notified as a reserve
forest. No finding could be returned in this
regard in favour of the petitioner, and even
otherwise there was no assertion by the
respondents with regard to the plot on
which
their
house
was
made.
The
respondents only said that the house was
not made on plot No. 564 or 565.
Accordingly,
the
Prescribed Authority
could not determine the plot on which the
house of the respondents was made and
therefore had dismissed the case instituted
by the petitioner.

24. In the aforesaid circumstances of
the present case, this Court of the
considered view that no finding was
recorded either in favour of the petitioner
of the respondent, and merely in absence of
cogent material and evidence, the location
of the disputed house could not be
ascertained, which led to dismissal of the
application preferred by the petitioner.
Therefore, no finding of fact was recorded
by the Prescribed Authority in the previous
1 All. Bachchoo Vs. State of U.P.
217
proceedings, with regard to the location of
the disputed property and therefore, in our
considered opinion the principle of res
judicata would not be applicable, in as
much as there is no previous decision of
the
Prescribed Authority
which
has
attained finality which can be binding
between the parties. In absence of any
finality given to any issue between the
parties, the subsequent proceedings are not
hit by the principles of res Judicata. Even
otherwise the principle of the res Judicata
is a principle of public policy that there
should be an end to litigation. The
principle of public policy cannot be
utilised to its detriment and to take
possession of public lands. The petitioner
was unable to produce relevant records
and documents in support of the claim that
the respondent was encroacher upon the
public lands. The second application was
filed along with the survey report and
survey map to demonstrate that the
respondent was encroaching upon public
land, and consequently it was incumbent
upon
the
Prescribed
Authority
to
adjudicate the said case based on merits
and consider the evidence filed by the
petitioner. In absence of any categorical
finding
recorded
previously,
the
Prescribed Authority could not be bound
by the previous finding order, hence it was
open for him to have heard and decide the
case on merits.

25. In light of the above discussion
this Court is of the considered view that
the
order
of
District
Judge
dated
04/04/2012 is arbitrary and requires
interference and is accordingly set aside.
The matter is remitted to the District Judge
to decide the appeal on merits.

26. The writ petition is allowed.
----------
(2024) 1 ILRA 217
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 06.12.2023

BEFORE

THE HON'BLE ALOK MATHUR, J.

Writ C No. 3000059 of 1992

Bachchoo ...Petitioner
Versus
State of U.P. ...Respondent

Counsel for the Petitioner:
Shafiz Mirza, Shafiz Mirza, Syed Ahmad
Jamal, Vishnu Srivastava

Counsel for the Respondent:
Umesh Kumar Srivastava

A Writ Petition - U.P. Imposition of Ceiling on
Land Holdings Act, 1960 - Section 12 5(6) &
5(7) -A(d) - The petitioner challenged the
order dated 18.08.1992 by the Commissioner,
Faizabad Division, which allowed the St.'s
appeal and rejected the petitioner's claim to
exclude land from surplus under the U.P.
Imposition of Ceiling on Land Holdings Act,
1960 - Held, the appellate order was upheld as
the petitioner failed to demonstrate eligibility for
exclusion under Sections 5(6) and 5(7) of the
Act, 1960. (Paras 2, 9, 20)

B. Section 12-A(d) - Limited to Tenure
Holder's Choice - The petitioner, claiming
adverse possession, sought exclusion of land
under Section 12-A(d) of the Act, 1960 - Held,
Section 12-A(d) allows only the recorded tenure
holder to choose land to retain within the ceiling
limit, and the petitioner, not being the recorded
tenure holder, could not invoke this provision.
(Paras 10, 14, 15)

C. Sections 5(6) and 5(7) - Conditions for
Exclusion Not Met - The petitioner relied on a
decree dated 22.05.1973 declaring him 'Sirdar'
under Section 229-B of the U.P. Z.A. & L.R. Act
- Held, exclusion under Section 12-A(d) requires
compliance with Sections 5(6) and 5(7), which