JUDGMENT Devi Prasad Singh, J.
1. Present writ petition has been filed by the State feeling aggrieved by the impugned order dated 31st of January, 1981, passed by the Appellate Authority in pursuance to the power conferred by Section 13 of the U.P. Imposition of Ceiling on Land Holdings Act, 1960 (in short referred as an Act) as well as the order dated 28th of February, 1979, passed by Prescribed Authority, copies of which have been filed as Annexures-5 and 4 to the writ petition.
2. The short matrix of the case is that one Kunwar Bharat Singh was having two sons namely Arun Kumar Singh and Sri Raghunandan Singh. Arun Kumar Singh was the major son having 2 hectares of land in his own name. Sri Raghunandan Singh was alleged to be minor. By the order dated 30th of October, 1976, Sri Raghunandan Singh was declared major and his holding of two hectares of land was excluded from ceiling area. According to the arguments advanced on behalf of State since both the sons were having more than two acres of land and they are the tenure holders, Sri Bharat Singh shall be entitled to get 18.038 acres of land excluding the benefit of 2 hectares of land.
3. In pursuance to the notice issued under Section 10 of the Act, earlier the Prescribed Authority had decided the controversy by the judgment and order dated 30th of October, 1976, copy of which has been filed as Armexure-1 to the writ petition declaring 41.023 acres of land as surplus land. Feeling aggrieved, the State as well as private respondents have filed two appeals under Section 13 of the Act. The appellate court vide order dated 13th of July, 1977, has allowed the appeal of private respondents partly by reducing the surplus land to 4.295 acres. However, the appeal filed by the State was dismissed. Copy of the judgment and order dated 13th of July, 1977, passed by the appellate court has been filed as Annexure-2 to the writ petition. The judgment and order was not impugned by the State In the higher forum, i.e., by preferring a writ under Article 227 of the Constitution of India, hence it attains finality.
However, at later stage, the State has moved an application dated 14th of July, 1978 before the Prescribed Authority purported to have been filed under Section 13A of the Act raising objection against reduction of surplus land and the finding given by the prescribed authority as well as appellate court relating to granting of benefit to two sons of Kunwar Bharat Singh. The private respondent has filed an objection dated 25th of July, 1978. After providing the opportunity of hearing to the parties, learned Prescribed Authority had rejected the application by the impugned order dated 28th of February, 1979. Copy of the order dated 28th of February, 1979, has been filed as Annexure-4 to the writ petition.
Feeling aggrieved with the order dated 28th of February, 1979, an appeal was preferred under Section 13 of the Act before the appellate authority which was dismissed by the appellate court by the impugned order dated 31st of January, 1981. The Prescribed Authority as well as the Appellate Authority while dismissing the application/appeal had recorded finding that application under Section 13A of the Act was not maintainable on account of the fact that it shall amount to reopen the controversy which has already attained finality in view of the appellate court's order dated 13th of July, 1977 (Annexure-2).
4. Miss Pratima Tiwari, learned standing counsel while assailing the impugned order submits that the Prescribed Authority was very well empowered to entertain the application under Section 13A of the Act and set aside the earlier finding as the error is apparent at the face of the record. The further, submission of learned standing counsel is that opposite party No. 1 was not entitled for the benefit of exemption for the land acquired by his sons namely Raghunandan Singh and Sri Arun Kumar Singh. Very vehemently, it has been argued by the Standing Counsel that the recorded tenure holder has executed the sale deed after the cut off date provided by Sub-section (1) and Sub-section (5) of the Act which provides that a sale deed executed after 24th of January, 1971, should be ignored. For convenience, subsections (1) and (6) of Section 5 is reproduced as under:
5. Imposition of Ceiling.-(1) On and from the commencement of the Uttar Pradesh Imposition of Ceiling on Land Holdings (Amendment) Act, 1972, no tenure-holder shall be entitled to hold in the aggregate throughout Uttar Pradesh, any land in excess of ceiling area applicable to him.
Explanation I.-In determining the ceiling area applicable to a tenure holder, all land held by him in his own right, whether in his own name, or ostensibly in the name of any other person, shall be taken into account.
Explanation II.-If on or before January 24, 1971, any land was held by a person who continues to be in its actual cultivatory possession and the name of any other person is entered in the annual register after the said date either in addition to or to the exclusion of the former and whether on the basis of a deed of transfer or licence or on the basis of a decree, it shall be presumed, unless the contrary is proved to the satisfaction of the prescribed authority, that the first mentioned person continues to hold the land and that it is so held by him ostensibly in the name of the second mentioned person.
(6) In determining the ceiling area applicable to a tenure holder, any transfer of land made after the twenty fourth day of January, 1971, which but for the transfer would have been declared surplus land under this Act, shall be ignored and not taken into account:
Provided that nothing in this sub-section shall apply to:
(a) a transfer in favour of any person (including Government) referred to in Sub-section (2);
(b) a transfer proved to the satisfaction of the prescribed authority to be in good faith and for adequate consideration and under an irrevocable instrument not being a benami transaction or for immediate or deferred benefit of the tenure holder or other members of his family.
Explanation I.-For the purposes of this sub-section, the expression transfer of land made after the twenty-four day of January, 1971, includes:
(a) a declaration of a person as a co-tenure-holder made after the twenty fourth day of January, 1971, in a suit or proceeding irrespective of whether such suit or proceeding was pending on or was instituted after the twenty fourth day of January, 1971;
(b) any admission, acknowledgement, relinquishment or declaration in favour of a person to the like effect, made in any other deed or instrument or in any other manner.
Explanation II.-The burden of providing that a case falls within Clause (b) of the proviso shall rest with the party claiming its benefit.
However, Sub-section (6) of Section 5 of Act provides that in case, a land is transferred even after the cut off date, the Prescribed Authority will have got power to accept its gunineness, in case transfer was done bona fidely.
5. In view of the provisions contained in Sub-section (6) of Section 5 of the Act, while exercising jurisdiction, the appellate court had extended the benefit of land acquired by two sons of Sri Bharat Singh and surplus land was reduced from 41.023 acres to 4.295 acres while deciding the appeals by the judgment and order dated 13th of July, 1977. However the question involved in the present writ petition is as to whether while exercising power under Section 13A of the Act, the prescribed Authority has got jurisdiction to reopen the issue and give finding which may amount to rescind or modify the appellate judgment and order dated 13th of July, 1977, which has attained finality. For convenience, Section 13A of the Act is reproduced as under:
13A. 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 face of the 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.
(2) The provisions of Sections 10, 11, 12, 12A, 13, 14, 15 and 16 shall mutatis mutandis apply in relation to any proceeding under Sub-section (1), and for purposes of application of Section 10, the notice under the proviso to Sub-section (1), shall be deemed to be a notice under Section 9.
A plain reading of Section 13A of the Act shows that the Prescribed Authority has got power to rectify the error apparent at the face of the record within period of two years from the date of notification issued under Sub-section (4) of Section 14 of the Act. Whether doing so, the Prescribed Authority can enter into the arena which has been filed between the parties by the appellate court in pursuance to power conferred by Section 13 of the Act. It has been submitted by the learned standing counsel that the Prescribed Authority has got power to rectify the error apparent at the face of the record on the basis of material on record.
6. I have considered the arguments advanced by the learned Counsel for the parties at length. Whether the Prescribed Authority has got power to encroach upon the jurisdiction provided to the appellate court in pursuance to the power conferred by Section 13 of the Act? Whether an issue which has been finally adjudicated upon by the appellate court in pursuance to the power conferred by Section 13 of the Act can be looked into by the Prescribed Authority by reopening the issue?
7. After considering the provisions contained in Section 13A of the Act as referred hereinabove, it can be safely inferred that power vested in the Prescribed Authority is limited to a decision taken by him and not by the appellate court or a court of higher forum. Even, if the arguments advanced by the learned Counsel for the petitioner is treated to be correct that the power vested under Section 13A is analogous to power conferred by Section 114 of the Code of Civil Procedure relating to the power of review, then it shall always be applicable to a decision rendered by the same court. Though the provision contained under Section 13A of the Act is silent on the point, but while interpreting the statutory provisions which empoweres the Court to correct or rectify the error apparent at the face of record, shall be related to the jurisdiction of the same court. Meaning thereby the prescribed authority has got power to correct the mistake or error apparent at the face of the record of his own court and not the higher court. In case, Section 13A of the Act is interpreted in a different manner then, it shall amount to giving the power to the prescribed authority which has not been provided by the Legislature to the prescribed authority under the original jurisdiction provided by Sections 11 and 12 of the Act. Under Section 11 of the Act, the Prescribed Authority has got original jurisdiction to decide the surplus area of land. Accordingly, while interpretating the provisions contained in Section 13A of the Act, the provisions contained under Sections 11 and 12 of the Act should also be kept in mind. For convenience, Sections 11 and 12 of the Act are reproduced as under:
11. Determination of surplus land where no objection is filed.- (1) Where the statement submitted by a tenure holder in pursuance of the notice published under Section 9, is accepted by the Prescribed Authority or whether the statement prepared by the Prescribed Authority under Section 10 is not disputed within the specified period, the Prescribed Authority shall accordingly, determine the surplus land of the tenure holder.
(2) The Prescribed Authority shall, on application made within thirty days from the date of the order under Sub-section (1) by a tenure holder aggrieved by such order passed in his absence and on sufficient cause being shown for his absence set aside the order and allow such tenure holder to file objection against the statement prepared under Section 10 and proceed to decide the same in accordance with the provisions of Section 12.
(3) Subject to the provisions of Section 13, the order of the Prescribed Authority shall be final and conclusive and be not questioned in any court of law.
12. Determination of surplus land by the Prescribed Authority where an objection is filed.-(1) Where an objection has been filed under Sub-section (2) of Section 10 or under Sub-section (2) of Section 11, or because of any appellate order under Section 13, the Prescribed Authority shall, after affording the parties reasonable opportunity of being heard and of producing evidence, decide the objections after recording his reasons, and determine the surplus land.
(2) Subject to any appellate order under Section 13, the order of the Prescribed Authority under Sub-section (1) shall be final and conclusive and be not questioned in any court of law.
In view of the above, the provisions contained in Section 13A of the Act can be held to be a power which empowers the prescribed authority to correct the error apparent at the face of the record of own court.
8. Sri R. P. Singh, learned Counsel for the respondents has relied upon a case in Devendra Nath Singh (Dead) through L.Rs. and Ors. v. Civil Judge, Basti and Ors. . In the case of Devendra Nath Singh's case (supra), Hon'ble Supreme Court while interpretating the provisions contained in Section 13A of the Act, ruled out that the prescribed authority while entertain an application under Section 13A has got no power to reopen the controversy which has been already settled by the competent authority in pursuance to the provisions contained in the Act. For convenience, paras 2 and 3 of the judgment of Apex Court in Devendra Nath Singh's case (supra) is reproduced as under:
2. The leaned counsel appearing for the appellants contends that the power under Section 38B will not enlarge the power of redetermination of surplus land conferred on the prescribed authority under Section 13A of the Act and, therefore, the prescribed authority did not have the jurisdiction to reopen the question of the majority of the two sons. The learned Counsel appearing for the respondent on the other hand contended that the land holder having subjected himself to the jurisdiction of the prescribed authority and having led evidence in the proceeding after the matter was reopened, is not entitled to challenge the jurisdiction of the authority and, therefore, the findings arrived at by those authorities cannot be annulled at this point of time.
3. Having examined the provisions of Section 13A and Section 38B of the Act, we are of the considered opinion that under Section 13A, the prescribed authority has the power to reopen the matter within two years from the date of 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 the question as to whether the two sons, namely, Hamendra and Shailendra were major or not. The power under Section 38B 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 13A. If the authority had no jurisdiction, question of waiver of jurisdiction does not arise, as contended by learned Counsel for the respondents.
No doubt, in case, the Prescribed Authority is permitted to exercise power while deciding an application under Section 13A of the Act in a manner which may amount to enter into the merit of a controversy which has already been settled by the appellate court or the High Court under writ jurisdiction, shall amount to reopen the controversy which seems to be not permissible.
In view of the above, the impugned order passed by the learned appellate court as well as Prescribed Authority does not suffer from any impropriety or illegality. The writ petition is devoid of merit. Accordingly, dismissed. No order as to costs.