JWALA PRASAD SINGH Vs. DISTRICT JUDGE

JUDGEMENT

(1.) THIS petition arises out of proceedings under the U. P. Imposition of Ceiling on Land Holdings Act. The facts in brief, are these: The petitioner No. 1 Sri Jwala Prasad Singh was issued a notice under section 10 (2) of the Act and he filed objections. The notice was issued some time in 1974 and the Prescribed Authority decided the objections by his order dated 24.3.1975 and the said authority held that 7 bighas and odd land in the hand of the petitioner was surplus. It seems that the petitioner was co-sharer and, therefore, proceedings were taken against all the co-sharers also in accordance with the determination made by the Prescribed Authority in the case of the petitioner by the order dated 24th March, 1975. By the order dated 31st December, 1975, the objections of the other co-sharers were also decided. Thereafter the Prescribed Authority issued a fresh notice u/s 10 (2) of the Act to the petitioner and he purported to do so in view of the provisions contained in section 31 (3) of the t). P. Act XX of 1976, namely, the U. P. Imposition of Ceiling on Land Holdings (Amendment) Act, 1976. Section 31 of the said Amending Act lays down transitory provision and sub-section (3) thereof is in the following words: "31 (3) Where an order determining surplus land in relation to a tenure-holder has been made under the Principal Act before the tenth day of October, 1975, the Prescribed Authority (as defined in the Principal Act) may, at any time within a period of two years from the said date re-determine the surplus land in accordance with the Principal Act as amended by this Act, whether or not any appeal was filed against such order and notwithstanding any appeal (whether pending or decided) against the original order of determination of surplus land." By this notice the petitioner was informed that 31 bighas and odd were surplus in his hand. However, when he filed objections the same were accepted and the notice was discharged by the Prescribed Authority by his order dated 3ist January, 1977. By a subsequent order dated 14th February, 1977 the Prescribed Authority directed that the order dated 31st January, 1977, whereby the notice had been discharged should be given effect to. Thereafter the State Government moved two applications, one dated 23rd June, 1977 and the other dated 12th July, 1977, whereby a review was sought of the order dated 31st January, 1977, and the prayer was made that the said order should be reviewed and the subsequent order dated 14th February, 1977 should be countermanded. The said applications were purported to have been moved under section 13-A of the Act. True copies of the said applica tions are annexures '4' and '5', respectively. The Prescribed Authority allowed the said applications and in the appeal the order of the Prescribed Authority was maintained. Now the petitioner has come up in the instant petition and in support thereof, I have heard Sri Sankatha Rai, learned counsel for the petitioner. The learned Standing Counsel has been heard in opposition. Counsel for the petitioner contended that section 13-A was really not attracted, inasmuch as there was no mistake apparent on the face of the record. He has further contended that the Prescribed Authority and the Appellate Court below were wrong in holding that the order dated 24th March, 1975 had become final because no appeal had been filed against the said order. Counsel has placed reliance on Section 31 (3) for his contention that inasmuch as the order was passed before the tenth day of October, 1975 but after January 17, 1975, therefore, it was open to the Prescribed Authority to re- determine the surplus land in accordance with the Principal Act as amended by the said Amending Act within a period of two years from the relevant date. The learned Standing Counsel, on the other hand, has contended that there was no occasion to issue a fresh notice under section 10(2) inasmuch as the amend ment in the U. P. Act XX of 1976 did not in any manner affect the original determination and, therefore, there was no occasion for taking proceeding by recourse to section 31 (3) of the said Amending Act. I should like to observe here that this contention of the learned Standing Counsel is nowhere to be found in the order of the Prescribed Authority and in the judgment of the lower appellate court. The real point which weighed with them was that because there was no appeal filed against the order dated 24th March, 1975, therefore, the same had become final and no fresh notice u/s 10 (2) could be issued. THIS is undoubtedly contrary to the requirement of section 31 (3) which has been re-produced above and which clearly says that even though no appeal was filed against the first order, fresh proceedings could be initiated under the Amended Act. It has seemed to me that, therefore, the second notice under section 10 (2) could not be said to be without jurisdiction. In any case, I do not think that the order dated 31.3.1977 passed by the Prescribed Authority in consequence of the second notice u/s 10 (2) could be said to contain 'any mistake apparent on the face of the record even if there was any mistake in issuing a second notice u/s 10 (2) of the Act it could not be said to be a mistake apparent on the face of the record and the same needed to be established after a long-drawn out process and by invoking in aid controversial aspects of the matter. Therefore, I accept the contention of the learned counsel for the petitioner that there was no occasion for entertaining any application under section 13-A of the Act and the subsequent order passed by the Prescribed Authority and the lower appellate court, allowing the applications of the State moved u/s 13-A should be treated to be without jurisdiction. The writ petition is allowed and the order of the Prescribed Authority and the judgment of the lower appellate court are accordingly quashed and the Prescribed Authority is directed to treat its subsequent order dated 31st January, 1977 and the following order dated 14th February, 1977 as valid and effective order and to give effect to the same. In the circumstances there will be order as to costs.