MAHENDRA PAL SINGH Vs. STATE OF UTTAR PRADESH

JUDGEMENT

(1.) IN response to notice issued under section 10 (2) of the U.P. Imposition of Ceiling on Land Holdings Act, 1960 (herein after referred to as the Act) the petitioner in his anxiety to save as much land as possible from being declared as surplus area put forward a num ber of objections and one of the plea was that Sonpal one of his sons was major on 8th of June, 1973. To substantiate the plea he produced a Medical Certificate, extract from the Kutumb Register and examined himself. The prescribed authority after considering the evidence pro duced on behalf of the petitioner returned a finding in his favour. The notice was issued in 1974 and the objection was decided on 22nd February, 1975. It is admitted that no appeal was filed against this order. Another notice under section 10 (2) was issued in 1976 which was again contested by the petitioner and apart from other objections one of the objections taken was that dispute regarding minority of Sonpal had been determined by the prescribed authority and no appeal having been filed the order has become final. The Prescribed Authority again considered the Medical Certificate, the extract from the Kutumb Register and the oral evidence produced on behalf of the petitioner but relying on the statement of Lekhpal recorded a finding that Sonpal was minor on 8th June, 1973. The reason given for not accepting the finding in the earlier proceeding is that the case of the petitioner was accepted in absence of any evidence led on behalf of the State. As pointed out above the only evidence led of the Lekhpal was that the age of Sonpal is said to be 16 or 17 years. Against this order the petitioner filed an appeal but with no result in view of section 38-B and section 13-A of the Act, The view taken by the subordinate autho rities has been severly criticized as contrary to law. It is urged that neither of the section 38-B or 13-A empowered the authorities to pass the impugned orders. The Standing Counsel on the other hand has taken through the various amendments which have been effected within a course of three years and argued that in view of legislative mandate in section 38-B the Courts are powerless and the orders are unassailable. Section 13-A was inserted by Act XVIII of 1973. It reads: "Section 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 the notification under sub-section (1) of section 14, rectify any mistake apparent on the face of the record: Provided that no such rectification which has the effect of increas ing the surplus land shall be made, unless the prescribed authority, has given notice to the tenureholder of its intention to do so and has given him a reasonable, opportunity of being heard. (2) The provisions of sections 10, 11, 12, 12-A, 13, 14, 15 and 16 mutatis mutandis apply in relation to any proceedings 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." The argument of Sri Yudhithir learned Standing Counsel is that this section is wide enough to embrace in its fold any omission or mistake on the part of State. The Prescribed Authority according to him could rectify the mistake under this section on the notice issued under section 10(2) of the Act. The provision for rectification is a common feature on the statutes. The objective is to empower courts or tribunals to correct mistakes so as to perpetrate justice. IN order to obviate multiplicity but to ensure certainty and finality the Legislature normally restricts this powers of review to mistake apparent on the face of the record. The meaning of the phrase and its scope has been laid down in numerous decisions of Supreme Court and this Court. But it is difficult to agree that where there is neither any change in law nor the interpretation of law has been altered yet merely because the statement on behalf of the State was not led in earlier proceedings the order passed become erroneous at the face of it. The evidence led by a party which was not existing on the record does not in any manner amounts to a mistake apparent on the face of the record. Even accepting that the provisions of Section 13-A applied, the notice admittedly was issued under section 10 (2) of the Act. After the publication of a notice in the official Gazette a duty is cast on a tenure-holder to file a return before the Prescribed Authority. IN case the return is incomplete or incorrect the Prescribed Authority may proceed under section 10 (1) and for that purpose issue a notice under section 10(2). Where once a notice has been issued under section 10(2) and the question has been considered in the light of the evidence adduced by parties it cannot be said that under the garb of mistake apparent on the face of the record a fresh notice can be issued. The provisions of Section 13-A were wholly inapplicable, and the contention advanced on behalf of the State is not tenable. It was then urged that by virtue of Section 31 (5) added by Act 20 of 1976 the provisions of section 13-A applied to proceedings stated for redetermination of surplus land. A bare reading of the sub-section indicates that it shall apply after redetermination is complete. It cannot apply to proceedings initiated under section 10 (2). It has been argued by the Standing Counsel that after the addition of section 38-B (By Act 20 of 1976) which came into force from 10th October, 1975, all proceedings which were decided before coming into force of the Act can be reopened as the bar of res judicata which is a rule of procedure has been removed by the Legislature. On the other hand Mr. Rishi Ram has contended that the District Judge has erroneous ly applied this section as it only empowers Prescribed Authority to deter mine ceiling area irrespective of any decision given by a competent civil or revenue Court. The Act is concerned with the determination of ceiling area and declaration of surplus land. How this shall be calculated is given in Sections 4, 4-A, and 6. It is only this matter which is governed by this Act. The finding or decision in proceeding or an issue in this regard shall not bar redetermination. This is further clear if the background in which section 38-B was enacted is examined U.P. Act No. 2 of 1975 came into force with retrospective effect from 8-6-1973. It materially altered section 5 and added a new section 4-A providing method for determination of irrigated land. Similarly U.P. Act No. 20 of 1976 came into retrospectivity from 10th October, 1975. This Act also made nume rous changes. As a result of retrospective application of these Acts deter mination of ceiling area and surplus land under the amended law was rendered erroneous. Section 9 of Act 2 of 1975 and section 31 of Act 20 of 1976 permitted redetermination of surplus land in accordance with the principal Act as amended by this Act. The power of redetermi nation would have remained incomplete unless the bar of res judicata was lifted. The objective, therefore, in enacting section 38-B was limited one. It has removed the obstacle from the way of Prescribed Authority while exercising the power of redetermination. The question then arises whether authorities were justified in this particular case to reopen the matter. Was the exercise of power, namely issuing of notice under section 10 (2) within four corners of section 31 of Act 20 of 1976. This section empowers redetermination of surplus land where determination has been done earlier up to 17-1-75. It does not however permit redetermination in every case. The redetermination should be necessitated by the amendments in the principal Act. No amend ment has been made in the principal Act regarding the age of minority. The Prescribed Authority, therefore, was not empowered to issue notice under section 10 (2) regarding land in the name of Sonpal. Even accepting that the provisions of section 10 (2) applied the view taken by the subordinate authority is not sustainable in law. The only question which arose for consideration was whether Sonpal was minor in June, 1973. The best evidence for the age of a person is the evidence of father, mother, brother or any close relation who is in a position to state with personal knowledge. This evidence could be supported by the extract maintained by public bodies such as Corporate body. Gaon Panchayat or College, absence of extracts from birth register, the oral evidence of father could not be lightly brushed aside. The petitioner took care of not only examining himself but also of filing an expert opinion. The evidence led on behalf of the petitioner was suffi cient or not is not a question which is amenable to Wait Jurisdiction. It is however, a fact that all this evidence was led on behalf of peti tioner in the earlier case and it was found that Sonpal was a minor. The Prescribed Authority not be debarred from re-examining the matter. But the only evidence of the Lekhpal was that the age of (Sonpal) is nearly 16-17 years. This was inquired in the village. The statement hardly meets the requirement of law. It is hearsay. The source of knowledge to say the least is irrelevant. The Prescribed Autho rity committed an error of law in relying on evidence which was inad missible to establish the age. For the reasons stated above the writ petition is allowed with costs. The orders passed by the opposite parties nos. 2 and 3 are quashed. The opposite party no. 2 is directed to determine the surplus area of the petitioner in the light of the observation made above.