The petitioners claim that their descent is governed by the following pedigree:-
Samley Singh Ram Adhar Singh Janardan Singh Sheo Bali Singh Sheo Govind Singh (O.P. No.4) Sarita (daughter) Vishnu Jeet Singh Prem Jeet Singh Chandra Jeet Singh Amar Jeet Singh Sheo Jeet Singh Abhay Jeet Singh (P-1) (P-2) (P-3) Rohit Singh Ankit Singh Vikram Singh Amit Singh Sumit Singh This dispute relates to the land claimed by the petitioners to be their holding, which according to them had been wrongly clubbed with the holding of Sheo Bali Singh, and then erroneously declared surplus under the U.P. Imposition of Ceiling on Land Holdings Act, 1960.
The said issue of wrong clubbing of the land was contested by Sheo Bali Singh on the ground that the petitioners herein are holding the said land in their own capacity being the sons of Janardan Singh. This issue being Issue No. 2 was contested after oral and documentary evidence was led whereafter it was held that the petitioners are the sons of Janardan Singh. Therefore the disputed land was their holding which has been wrongly clubbed with the holding of Sheo Bali Singh. The finding recorded by the Prescribed Authority in the order dated 31.8.1976 while deciding the said issue is reproduced hereinunder:-
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Consolidation operations had intervened and the respective shares of the tenure holders which according to them was also separated under a partition decree of the competent court dated 29.3.1971 in proceedings under Section 176 of the U.P. Z.A. & L.R. Act, 1950. The chaks were carved out and they were already in possession of their respective chaks.
After a lapse of almost 31 years a notice was issued on 13th June, 2007 by which the petitioners were called upon to answer the said notice to explain as to why the Prescribed Authority may not proceed to pass an order under the provisions of Section 13-A of the Ceiling Act, 1960 readwith order 47 Rule 1 C.P.C. The petitioners contested the said notice alleging malafides and also questioning the jurisdiction of the authority to proceed to reopen the matter. The notice was challenged by the petitioners and respondent no. 4 in W.P. No. 30346 of 2007 which was disposed of vide judgment dated 19.7.2007 in the following terms:-
"Hon. Arun Tandon,J.
Heard Sri M.D. Singh "Shekhar", Advocate, on behalf of petitioner and learned Standing Counsel on behalf of respondents.
After the arguments were advanced at some length by the learned counsel for the petitioner and after examination of the original records giving rise to the proceedings subject matter of present writ petition, by the Court, learned counsel for the petitioner came up with a plea that he may be granted opportunity to file reply to the notice, which has been impugned in the present writ petition.
In view of the aforesaid, the present writ petition is dismissed with liberty to the petitioner to file reply to the notice impugned. The Authority concerned shall conclude the proceedings strictly in accordance with law after affording opportunity of hearing to the petitioner by means of a reasoned speaking order within eight weeks from the date the reply along with a certified copy of this order is filed before the authority concerned."
The Prescribed Authority entertained the application filed on behalf of the State and passed an order to the effect on 26th July, 2007 that the same was very much maintainable even though the subject matter was not one of mistake or error apparent on the face of record. The Prescribed Authority held that substantial information had been withheld by the tenure holder in relation to the status of the parentage of the petitioners in the first round of litigation and therefore it was necessary to reopen the case applying the principles of natural justice, as these facts have emerged for the first time according to the report submitted by the revenue officials that had been collected on the asking of the Prescribed Authority.
The petitioners filed their objections and contended that Section 13-A restricts the reopening of a matter as the period of limitation of two years bars the moving of any application. It was further contended that the very same issue had attained finality under the order of the Prescribed Authority dated 31.8.1976 after oral and documentary evidence had been led and an issue to the same effect had been framed. It was urged that the State had contested the said issue and as such it was no longer open to the State to rake the same issue again on the basis of some alleged material that had been collected by the revenue officials afresh.
The State also led evidence and the Statement of the revenue officials as well as the witnesses on behalf of the petitioners was recorded. The Prescribed Authority after having considered the said material came to the conclusion that since this was a matter relating to withholding of relevant and vital information, therefore, the power of review could be invoked keeping in view the principles of Order 47 Rule 1 C.P.C. and even otherwise the evidence on record indicated that the petitioners had manipulated evidence in their favour in the earlier proceedings as such the bar of res-judicata would not apply.
The Prescribed Authority held that the decree of partition in a suit under Section 176 of the U.P. Z.A. & L.R. Act, 1950 dated 29th march, 1971 as relied upon by the petitioners was a collusive decree and as such the petitioners could not take any advantage or benefit thereof.
The Prescribed Authority further on the basis of the report that had been collected during the said proceedings held that the School Certificate indicated that the parentage of the petitioners was Sheo Bali Singh, and not Janardan Singh, and accordingly the petitioners had succeeded in avoiding the ceiling proceedings by altering their parentage.
In the background of the said facts the Prescribed Authority found justification for reopening the case and then proceeded to review the earlier order passed whereby the issue had been decided in favour of the petitioners.
Aggrieved by the said order of the Prescribed Authority an appeal was filed by the petitioners which has been dismissed affirming the findings recorded by the Prescribed Authority and reiterating the same reasons as given by the Prescribed Authority itself. The appellate authority further held that the bar of limitation would not operate as an impediment under Section 13-A, inasmuch as, on the facts found, the review was permissible and the order of the Prescribed Authority was justified. The other findings of the Prescribed Authority were affirmed on the ground that the earlier order dated 31st August, 1976 had been obtained by collusion and fraud. The impugned orders have been challenged and this Court passed an interim order on 23.5.2008.
The petitioners have assailed the order of the Prescribed Authority as well as the affirmance thereof by the appellate authority on the ground, that the issue relating to the fact that the petitioners were sons of Janardan Singh was decided after recording evidence and also after recording the statement of the Lekhpal Ram Ashrey, who was a witness on behalf of the State in the earlier proceedings. It was found that the petitioners were the sons of Janardan Singh and as such the land in the name of the petitioners was wrongly clubbed in the holding of Sheo Bali Singh. Learned Senior Counsel, Sri M.D. Singh 'Shekhar' submits that the said finding on Issue No. 2 in the judgment dated 31.8.1976 categorically records the sifting of the evidence for arriving at that conclusion. The finding has already been extracted hereinabove as relied upon by the learned counsel for the petitioners.
Sri Singh further submits that in view of the law laid down by the Apex Court in the case of Devendra Nath Singh & Ors. Vs. Civil Judge & Ors., which is a three judges decision of the Supreme Court reported in 2000 (91) RD Pg. 28 and the decision of the learned Single Judge to the same effect in the case of Yashpal Singh Vs. State of U.P. & another, 2007 (102) RD 839, the Prescribed Authority had no power to reopen the issue under the garb of Section 13-A of the 1960 Act. He contends that as a matter of fact the Prescribed Authority itself has come to the conclusion that this was not a case of error or mistake as recited in the order dated 26th July, 2007, and in view of this conclusion it is apparent that the Prescribed Authority did not proceed to correct any error under Section 13-A, but has exercised powers of review on the general principles of order 47 Rule 1 C.P.C. He submits that the 1960 Act does not confer any power on the Prescribed Authority to review any earlier order passed in the proceedings under the Ceiling Act.
Coming to the merits of the case also Sri Shekhar submits that according to the Prescribed Authority a School Certificate was allegedly obtained from the Head Master of a Junior High School Sri Tulsi Ram during the course of the alleged enquiry to indicate that the petitioners' father name was Sheo Bali Singh and not Janardan Singh. It is this certificate which was made the basis for the alleged enquiry that had led to the reopening of the case at the instance of Ex M.L.A. Gaya Charan Dinkar.
Sri Shekhar submits that during the course of the proceedings the Head Master came as a witness who failed to prove the said certificate by producing the original register on the basis whereof the said certificate had been allegedly issued. He therefore contends that even this fresh evidence which was sought to be introduced was not proved in accordance with the provisions of the Indian Evidence Act. The contention therefore is that the Prescribed Authority proceeded to reopen the issue on the basis of surmises and conjectures without there being any solid foundation of evidence.
On the matter relating to the judgment and decree of the trial court of partition dated 29th March, 1971, Sri Shekhar submits that the said decree was between the family members and even if it is assumed for the sake of arguments that the shares were not correctly reflected, then it is a dispute which is inter-se between the tenure holders of which no advantage can be taken of by the authorities. He submits that the share-holders can even by way of a compromise either reduce or increase their shares as such the decree on that basis cannot be held to be collusive. He further contends that the suit itself had been filed in 1970 prior to the appointed date under the Ceiling Act i.e. 24th January, 1971, and as such it cannot be said that the suit had been instituted in order to avoid ceiling proceedings. The contention therefore is that the said suit was decreed by a court of competent jurisdiction and the Gaon Sabha representing the interest of the State was a party to the said suit which decree had become final and no challenge was raised to the same. In the circumstances, the decree was binding on the State and it could not have been said even otherwise that it was collusive for the purpose of avoiding the rigours of the Ceiling Act.
Sri Shekhar has further taken the Court through the submissions of the witnesses including the statement of the Lekhpal Brijesh Kumar who was a witness on behalf of the State to contend that there is no denial of the parentage and the Lekhpal has admitted that the petitioners are accepted as as the sons of Janardan Singh in the village. The contention further is that not only the statement of the witnesses but the voter list was also produced to indicate that the they have been throughout shown to be the sons of Janardan Singh and as such, this overwhelming evidence which was also in existence at the time of the first proceedings ending in the order dated 31.8.1976, leaves no room for doubt that the entire story was set up on the basis of an evidence which was allegedly collected at the instance of the Ex M.L.A. Gaya Charan and the revenue officials from Tulsi Ram the Head Master of the local school, which evidence was never proved. He therefore submits that looking to the entire facts and circumstances of the case the moving of the application was barred by limitation and even otherwise the same was not maintainable on merits. The Prescribed Authority therefore has committed a manifest error by proceeding to reopen the entire case and recorded findings against the weight of evidence on record. His submission in short is that the impugned order proceeds on erroneous assumptions of facts and law.
Replying to the aforesaid submissions raised, learned Standing Counsel for the State contends that the this is a power which is inherent in every authority to review in case new facts have been brought to the notice of the authority and which run counter to the evidence that was earlier led. He contends that the petitioners were not the sons of Janardan Singh and that this new fact came to the notice of the Prescribed Authority, therefore, it was always open to him to reopen the entire dispute in order to decide it afresh on the basis of evidence received. He contends that this is within the general powers of the Prescribed Authority under Order 47 Rule 1 C.P.C., hence, no error has been committed by the Prescribed Authority to proceed to decide the same issue again. He submits that neither the judgment and decree of partition dated 29th March, 1971 is binding nor any finding arrived at in the earlier proceedings will operate as res-judicata in the background of the present case. The contention therefore is that neither the order of the Prescribed Authority nor the order of the appellate authority requires any interference by this Court as on facts it has been found that the petitioners are not the sons of Janardan Singh but of Sheo Bali Singh.
Sri Raj Karan Yadav learned counsel was given opportunity to advance his submissions on behalf of the proposed applicants in terms of Chapter XXII Rule 5-A of the Allahabad High Court Rules. He represents the alleged allottees of the land which according to the State was declared surplus and was allotted to these applicants. Need less to say that the allottees can assume a right provided the land is surplus. The allottees therefore cannot claim any independent right from that of the State. The allottees can only claim the land provided the land vests in the State after being declared surplus in the hands of the petitioners. Nonetheless even in spite of the aforesaid position of having no locus, Sri Yadav has been heard who has adopted the same arguments as the learned Standing Counsel.
Sri Yatindra has put in appearance as counsel on behalf of the respondent no. 4 Sheo Bali Singh and he contends that the order dated 31st August, 1976 has attained finality and since the notification had already been made under Section 14 of the Act way back prior to 1980, the said order has attained finality and the Prescribed Authority had no occasion to reopen and review the same issue. He contends that the petitioners are the sons of Janardan Singh and ample evidence was on record to demonstrate the same as such there was no material before the Prescribed Authority to club the land of the petitioners with the answering respondent or to treat it to be his holding. Moreso, when a categorical finding on this issue had already been recorded in the order dated 31.8.1976. He submits that the power of review does not exist at all under the Ceiling Act and as such the impugned orders deserve to be set aside. In short the said respondent has supported the cause of the petitioners.
Having heard learned counsel for the parties and having considered the submissions raised the issue relating to the power of the Prescribed Authority to reopen a matter has to be considered in the light of the provisions of Section 13-A of the 1960 Act. The provisions of the said Act make it more than clear that it is only an empowerment to correct or rectify any error apparent on the fact of record and not a power of review. It is for this reason that the provisions for issuing a notice to the tenure holder is contained therein with a recital that such a notice should be issued only if the declared surplus land is sought to be increased. In such a situation, it would be in the nature of a fresh objection and for the said reason Sub Section (2) of Section 13-A provides for applicability of the other provisions mutatis mutandis. In that event, it will not be an exercise of review but a fresh decision of any future objections in the light of Section 29 of the 1960 Act.
In the instant case the same objection on the same issue had already been decided vide order dated 31st August, 1976. The issue relating to the parentage of the petitioners was very much raised and decided after giving opportunity of leading evidence to the petitioners and to the State. In such a situation, the question is, can that issue be permitted to be re-agitated under the garb of Section 13-A. The answer on the basis of the reasoning already given by the Apex Court in the case of Devendra Nath Singh (supra) would be in the negative. The State will have no power to re-agitate or re-examine the question which has been finally decided as held by the Apex Court in paragraph 3 of the aforesaid judgment.
Not only this the same has been relied by a learned Single Judge in the case of Yashpal Singh (supra) and I see no reason or any novel argument raised by the respondent, to disagree from the view so taken. Accordingly, it is held that the Prescribed Authority had no power to invoke the provisions of Section 13-A and review the decision dated 31.8.1976.
Not only this, it appears that the Prescribed Authority had realized this legal impediment and had itself in the order dated 26.7.2007 indicated that this was not a case of error. Once the Prescribed Authority had admitted that it was not a case of any rectification or error then powers under Section 13-A could not have been invoked. Apart from this, the bar of limitation as prescribed under Section 13-A also stares on the face of it. The power under the aforesaid section can be exercised only within two years of the passing of the order. In the instant case, it is obvious that the said power was sought to be exercised after 31 years. This according to the Section itself was impermissible.
The main ground taken by the Prescribed Authority to reopen the case is the general power of review under Order 47 Rule 1 C.P.C. Learned Standing Counsel and Sri Yadav for the proposed applicants were at vain to point out any provision under the 1960 Act to allow the Prescribed Authority to review the order dated 31.8.1976. Apart from this, it is evident that fresh evidence was sought to be obtained in the shape of an alleged school certificate from a local school to establish that the petitioners were the sons of Sheo Bali Singh. This school certificate was admittedly not proved by the production of the original register about which a stand was taken that the said register was lost and was stolen. It is therefore evident that no original document or any supporting or corroborative evidence was led to demonstrate that the said certificate was of any probative value.
Accordingly, in the opinion of the Court, the Prescribed Authority committed a manifest error by placing reliance on an evidence which had already been successfully rebutted by the petitioners, not only through oral statement of the witnesses of the petitioners but also according to the statement of the revenue officials who had been produced as witnesses on behalf of the State. It would be appropriate to refer to the statement of the Lekhpal Brijesh Kumar which statement was recorded on 4.8.2007 Annexure 13-A to the writ petition. This Lekhpal has also clearly stated that according to the records which are available with him the petitioners are the sons of Janardan Singh. Not only this, the earlier Lekhpal Sri Ram Ahsrey who had been produced before the Prescribed Authority in the proceedings that had culminated on 31st August, 1976 had already admitted the petitioners to be the sons of Janardan. In such a situation, the oral evidence of the State also supports the cause of the petitioners. The other State witness, namely Tulsi Ram, the Head Master in his cross-examination admitted having prepared the vote list where the parentage of the petitioners was recorded as Janardan Singh.
Coming to the other issues what appears is that the entire matter was wrecked up at the instance of one Gaya Charan Dinkar the Ex-M.L.A. who appears to have exercised his undue influence on the D.G.C. (Revenue) to move the application. In the opinion of the Court, the Prescribed Authority and the Appellate Authority both have overlooked this important aspect of the matter, inasmuch as, this was a malafidely motivated approach and as such the power having been exercised at the behest of some local political leader amount to malice in law. The Prescribed Authority and the appellate authority, therefore, could not have by a long drawn process of newly created evidence arrived at a different conclusion to upset the order passed on 31st August, 1976.
The finding recorded by the Prescribed Authority that the decree of partition dated 29th March, 1971 was collusive is also based on no cogent material. This inference has been drawn only on the ground that the shares reflected are not correct. It is not open to the State at all to question the shares, inasmuch as, the partition suit is a declaration of shares between the share holders themselves. If they had decided to allocate their own shares according to the claim made in the suit itself then it is not open to any third party to dispute the same. Moreso, in this case a decree was passed after arraying the Gaon Sabha as a party which is a necessary party in such proceedings relating to partition of holdings under the U.P. Z.A. & L.R. Act, 1950. Neither the Gaon Sabha nor the State raised any dispute or challenged to the said decree before any higher court and as such the decree had become final between the share holders themselves as against the Gaon Sabha representing the State. The suit itself had been filed in the year 1970 prior to 24th January, 1971, and as such it cannot be necessarily inferred that it was a suit filed for any collusive purpose. The finding of the prescribed authority therefore on this ground is also based on surmises and conjectures and the inference drawn is unacceptable and unsustainable in law. The appellate authority while affirming the same has also committed the same error.
The other contention relating to the fact that any fraud was committed while obtaining the order dated 31.8.1976 was obviously not established on the basis of the fresh evidence which had been collected by the State. As indicated hereinabove, the statement of the own witnesses of the respondent had clearly indicated that the petitioners were the sons of Janardan Singh. The conclusion drawn by the Prescribed Authority adversely against the petitioners was therefore unfounded on without any basis, thus, rendering the aforesaid finding as perverse. The perversity is further reflected in the fact that the Prescribed Authority while proceeding afresh, failed to take into account the evidence which had been led earlier in the proceedings which had culminated in the judgment dated 31.8.1976 as well as the Family Register Extract, Revenue Record and Voters List reflecting Janardan as the father of the petitioners. In Paragraph 19 of the petition it has been averred that this evidence was on record to which there is no denial in Paragraph 18 of the counter affidavit of the State.
Accordingly, non-consideration of this relevant material also renders the finding recorded by the Prescribed Authority as perverse in view of the law laid down in the case of Nanha and another Vs. Deputy Director of Consolidation Kanpur and others, 1975 AWC Page 1. Thus, on all scores the orders of the Prescribed Authority and the Appellate Authority are unsustainable. Accordingly, the impugned orders dated 26.7.2007 and 7.9.2007 passed by the Prescribed Authority and the Appellate order dated 7.3.2008 are quashed. The order dated 31st August, 1976 is upheld. Any consequential action of allotting the land held by the petitioners shall also stand quashed and the entries shall stand restored in favour of the petitioners.
The writ petition is allowed.
Dt. 6.4.2012 Sahu