# Swami Prasad v. The A.D.J., Hamirpur and others

- **Citation:** (2006) 1 ILRA 552
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2006-01-05
- **Case number:** Civil Misc. Writ Petition No. 885 of 1983
- **Bench:** S.K. Singh
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/swami-prasad-v-the-a-d-j-hamirpur-and-others-40794
- **Pages:** 4

## Headnote

Act
1961-Section
13-A-Redeteremination-ivation of Surplus landland declared surplus-upheld by the
appellate
authority-thereafter
application
under
Section
13-A
on
pretext during consolidation operation
the area of land reduced-prescribed
authority can not sit order the appellate
authority-No
material
irregularly
disclosed-claim rightly rejected.

Held: Para 7 and 8

Thus prescribed authority cannot be
permitted to go into merits and into
validity of the order passed by appellate
authority in respect to the extent of land
which was declared as surplus. The
extent
of
land
which
was
declared/varied
either
by
appellate
authority himself or by this Court being
higher forum but in no case by the
prescribed authority.

The scope of correction as permitted the
prescribed
authority
under
referred
provision cannot be extended to the
extent to sit over the judgment of
appellate authority and if it can be so
then it can be further stretched to the
confirmed order of appellate authority
even
from
this
Court
which
if
is
permitted, then that may lead to a very
unhealthy situation. If there is some
apparent error or there is such error
which can be corrected in the forum of
review, in a final judgment given by a
court
on
merits,
then
it
has
to
reviewed/correct by that very court or in
the superior forum but in no case it can
be in a reverse gear. Interference and
variance by a lower court in a final
judgment given on merits by a higher
court, in law, cannot be corrected.

## Text

552 INDIAN LAW REPORTS ALLAHABAD SERIES [2006
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 05.01.2006

BEFORE
THE HON'BLE S.K. SINGH,J.

Civil Misc. Writ Petition No. 885 of 1983

Swami Prasad

...Petitioner
Versus
The Additional District Judge, Hamirpur
and others

...Respondents

Counsel for the Petitioner:
Sri V.B. Singh
Sri P.S. Baghel
Sri U.P. Singh

Counsel for the Respondents:
Sri S.S. Sharma
S.C.

Imposition of Ceiling on Land Holdings
Act
1961-Section
13-A-Redeteremination-ivation of Surplus landland declared surplus-upheld by the
appellate
authority-thereafter
application
under
Section
13-A
on
pretext during consolidation operation
the area of land reduced-prescribed
authority can not sit order the appellate
authority-No
material
irregularly
disclosed-claim rightly rejected.

Held: Para 7 and 8

Thus prescribed authority cannot be
permitted to go into merits and into
validity of the order passed by appellate
authority in respect to the extent of land
which was declared as surplus. The
extent
of
land
which
was
declared/varied
either
by
appellate
authority himself or by this Court being
higher forum but in no case by the
prescribed authority.

The scope of correction as permitted the
prescribed
authority
under
referred
provision cannot be extended to the
extent to sit over the judgment of
appellate authority and if it can be so
then it can be further stretched to the
confirmed order of appellate authority
even
from
this
Court
which
if
is
permitted, then that may lead to a very
unhealthy situation. If there is some
apparent error or there is such error
which can be corrected in the forum of
review, in a final judgment given by a
court
on
merits,
then
it
has
to
reviewed/correct by that very court or in
the superior forum but in no case it can
be in a reverse gear. Interference and
variance by a lower court in a final
judgment given on merits by a higher
court, in law, cannot be corrected.

(Delivered by Hon'ble S.K. Singh, J.)

1. By means of this writ petition,
challenge is to the judgment of appellate
authority and that of the prescribed
authority dated 14.10.82 and 11.6.1981
(Annexures 3 and 2) respectively.

2. Proceedings are under section 10
(2) of U.P. Imposition of Ceiling on Land
Holdings Act, 1961 (hereinafter referred
to as the Act). Pursuant to the notice
under section 10 (2) of the Act, objection
came
from
the
side
of
petitioner
challenging correctness of the statement
as appeared in the notice. After the
objection
and
evidence,
prescribed
authority by its order dated 23.6.1976
declared an area of 8.23 acres of land as
surplus, upon which the petitioner filed
appeal in which by the judgment of the
appellate
authority
dated
25.7.1977,
surplus area was reduced and an area of
4.37 acres was declared as surplus. The
petitioner came to this Court by filing writ
petition No.3564 of 1977 which was
allowed and the matter was remanded by
order of this Court dated 12.1.1979 for a
fresh decision by appellate court. After
1 All] Swami Prasad V. The A.D.J., Hamirpur and others
553
the remand, appellate court by its
judgment dated 14.7.1980 declared an
area of 3.71 acres of land as surplus and
an option was given to the petitioner to
give his choice. Instead of giving choice,
petitioner
appears
to
have
moved
application before the prescribed authority
purported to be under section 13-A of the
Act with the prayer that declaration of
land as surplus be reviewed and recalled
as there has been some reduction in the
consolidation operation. The prescribed
authority rejected petitioner's application
by order dated 11.6.1981 and thereafter,
appeal filed by petitioner also failed as the
appeal
was
dismissed
by
appellate
authority by its order dated 14.10.1982
and thus against both judgments, this writ
petition is before this Court.

3. The only submission which has
been advanced by learned counsel during
course of argument is that the prescribed
authority
in
rejecting
petitioner's
application
for
re-considering
the
declaration of surplus land on the ground
that it will amount to review of earlier
order,
has
committed
an
error
as
according to the argument, Section 13-A
of the Act gives wide powers to the
prescribed authority for rectification of
any kind of mistake and thus application
of petitioner was liable to be dealt on
merits. In support of the aforesaid
submission, reliance has been placed on
the decision given in the case of Ompal
Singh reported in 1996 (2) AWC 2.103
(Summary of cases).

4. In response to the aforesaid,
learned state counsel submits that in view
of judgment of appellate authority dated
14.7.1980 the only option left with the
petitioner was to give his choice and in
the event, he was aggrieved with the
declaration of land as surplus, his remedy
was to file writ petition before this Court
and to get required relief and therefore, if
prescribed
authority
and
appellate
authority
have
rejected
petitioner's
application, then no exception can be
taken to it.

5. In view of aforesaid, this Court
has examined the matter.

There is no dispute about the fact
that declaration of the land having
traveled up to this Court at first inning
became final, in view of judgment of
appellate authority dated 14.7.1980 was
given by him pursuant to the remand from
this Court as directed in the writ petition
No. 3564 of 1977. There is also no
dispute about the fact that the petitioner
did not challenge the judgment of
appellate authority dated 14.7.1980 either
before appellate court by filing review
petition or before this Court by filing writ
petition. There is also no dispute about the
fact that by judgment of appellate
authority dated 14.7.1980, an area of 3.71
acres of land was declared as surplus. In
view of aforesaid, there cannot be any
quarrel to the fact that in due course from
stage to stage, land so declared as surplus
was reduced and it has come down from
8.23 to 3.71 acres now.

6. Reliance on the decision as given
in the case of Ompal Singh (supra) on
having been read by the Court is found to
be of no help to the petitioner. In that
case, it was found that plots which were
declared finally as surplus were found that
they do not belong to the tenure holder
and therefore that mistake was permitted
to be rectified by reopening the matter, in
view of Section 13-A of the Act and it has
been further held that even if no such
554 INDIAN LAW REPORTS ALLAHABAD SERIES [2006
provision could have been there, that
could have been corrected under implied
powers of the Court. Here is the case
where petitioner's land has been finally
declared as surplus to the extent of 3.71
acres by the judgment of appellate
authority dated 14.7.1980 and it is not a
case that the petitioner is not left with the
land with him for being parted towards
the final declaration of the land as surplus.
The option was given to the petitioner for
giving the land which he wants to part for
implementation of declaration of land as
surplus. If the contention of petitioner that
in spite of judgment of appellate authority
declaring the land as surplus, the
prescribed authority is to be given power
to reopen the matter on merits for varying
extent of land as surplus, is accepted to be
correct, then it will be against judicial
discipline and thus the decision on which
reliance
has
been
placed
has
no
application to the facts of present case.

Section 13-A of the Act reads as
under:

13-A Re-determination of surplus
land in certain cases-(1) The prescribed
authority may at any time, within a period
of two years from the date of notification
under sub-section (4) of Section 14,
rectify any mistake apparent on the fact of
record:

Provided that no such rectification
which has the effect of increasing the
surplus land shall be made, unless the
prescribed authority has given notice to
the tenure-holder of its intention to do so
and
has
given
him
a
reasonable
opportunity of being heard.

7. Thus prescribed authority cannot
be permitted to go into merits and into
validity of the order passed by appellate
authority in respect to the extent of land
which was declared as surplus. The extent
of land which was declared/varied either
by appellate authority himself or by this
Court being higher forum but in no case
by
the
prescribed
authority.
The
contention of petitioner can only be
stretched to a case where there can be
error apparent on record or such kind of
error which is not to reopen declaration of
land as surplus at the level of appellate
authority or further higher forum. As the
appellate authority has already reduced
declaration of land as surplus which was
made from 8.23 Acres to 3.71 acres, if on
merit for any reason, as argued, the
judgment was faulty and land was not to
be declared as surplus, remedy of
petitioner if any, was to file application
before the appellate authority or he would
have challenged the order of appellate
authority before this Court by filing writ
petition as it was earlier done by him and
thus, this Court is of the considered view
that rejection of petitioner's application
for review, by both courts which was
moved in the garb of moving application
under Section 13-A of the Act is legally
sound.

8. The scope of correction as
permitted the prescribed authority under
referred provision cannot be extended to
the extent to sit over the judgment of
appellate authority and if it can be so then
it can be further stretched to the
confirmed order of appellate authority
even from this Court which if is
permitted, then that may lead to a very
unhealthy situation. If there is some
apparent error or there is such error which
can be corrected in the forum of review,
in a final judgment given by a court on
merits, then it has to reviewed/correct by
that very court or in the superior forum
1 All] Uma Shanker Mishra V. The General Manager, N.E.R., Gorakhpur and others
555
but in no case it can be in a reverse gear.
Interference and variance by a lower court
in a final judgment given on merits by a
higher court, in law, cannot be corrected.

9. For the reasons recorded above,
this Court is not satisfied that the courts
below in rejecting petitioner's application
have committed any error calling for any
interference in exercise of jurisdiction
under Article 226 of the Constitution.

10. Writ petition accordingly fails
and is dismissed.
 Petition dismissed.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 14.09.2005

BEFORE
THE HON'BLE DR. B.S. CHAUHAN, J.
THE HON'BLE SHISHIR KUMAR, J.

Civil Misc. Writ Petition No. 33258 of 1992

Uma Shanker Mishra

...Petitioner
Versus
The General Manager, N.E.R. Gorakhpur
and others

 ...Respondents

Counsel for the Petitioner:
Sri I.R. Singh
Sri Siddharth Shukla
Sri Alok Dwivedi
Sri J.P. Pandey

Counsel for the Respondents:
Sri Lal Ji Sinha

Constitution of India, Art. 226-Penal
Rent- recovery from gratuity-petitioner
retained Railway Quarter-unauthorised
way-even on transfer from Gorakhpur to
Varanasi on 8.9.99-house rent allowance
drawn during this period-by notice dated
14.8.90
petitioner
was
required
to
vacate
the
premises-denial
by
petitioners on the ground that after
reposting at Gorakhpur-allotment stored
in his faour-No statutory Rule, executive
instruction or G.O.-placed by which penal
rent
not
chargeable-recovery-held
proper-dispite of notice neither vacated
the premises nor, nor refused the draw
the H.R.A. for 12 months-not entitled to
seek eqvaitable-discretionary relief.

Held: Para 8 & 9

In Jarnail Singh Vs. Secy., Ministry of
Home Affairs, (1993) 1 SCC 47, wherein
interpreting the provisions of the Central
Civil Services (Pension) Rules, 1972, it
was held that definition of "pension"
included gratuity under Rule 3. Rule 9
conferred on the President right to
withhold or withdraw pension in certain
circumstances. The order was passed
against
the
employee
withholding
pension and the entire amount of deathcum-retirement
gratuity
otherwise
admissible to him. The direction was
given on serious irregularities found to
have been committed by him. The Apex
Court held that the power to withhold
gratuity was conferred on the President
under the relevant rules and hence, such
action could not be said to be illegal.
According to the Court, there could be
adjustment of government dues against
the amount of death-cum-retirement
gratuity payable to government servant.

In Wazir Chand Vs. Union of India & Ors.
(2001) 6 SCC 596, the Apex Court held
that unauthorised occupancy of the
government quarters by an employee
amounts to misconduct, therefore, the
employee who retains the residential
accommodation, is liable to pay the
penal rent in accordance with the rules,
and there can be no illegality in those
dues being adjusted against the deathcum-retiral dues of the employee.
Case law discussed:
AIR 1985 SC-356
(1994) 6 SCC-589
AIR 2001 CSC-2433
(1993) 1 SCC-47