ATMA SINGH Vs. A.D.J.

JUDGEMENT

(1.) This petition arises out of the proceedings under the U. P. Imposition of Ceiling on Land Holdings Act, 1960.

(2.) The facts, in brief, are these: The petitioner was issued notice under Sec. 10 (2) in the earlier ceiling proceedings and he filed objections. They were decided by the Prescribed Authority by his order dated 31st March, 1975, a true copy whereof is annexure A to the petition. An appeal was filed against this order and the same was decided by Shri D. N. Shukla, Additional District Judge of Nainital by his judgment dated 15th Feb., 1977 in Appeal No. 443 of 1975, a true copy whereof is annexure B to the petition. It seems that in the meanwhile a fresh notice under Sec. 10 (2) had been issued to the petitioner under the amended provisions of the ceiling law and the Prescribed Authority decided the same by his order dated 30th Oct., 1976. A true copy of the said order is annexure C to the petition. Thereafter an appeal was filed against this order and the same was numbered as Ceiling Appeal No. 1186 of 1976 and the same was heard and decided by Shri R. N. Sharma, the IIIrd Additional District Judge, Nainital and a true copy of his judgment is annexure D to the petition. The judgment is dated 28th May, 1977. Now, the petitioner has come up in the instant petition and in support thereof I have heard Shri N. Chandra, learned counsel for the petitioner. Counsel contended that when the Prescribed Authority had issued a fresh notice then the earlier proceedings should be deemed to have become infructuous and, therefore, the appellate court of Shri D. N. Shukla in the appeal arising out of the first order of the Prescribed Authority should have dismissed the appeal as having become infructuous. In any case, learned counsel contends, the Prescribed Authority and the appellate court in the subsequent proceedings should not have treated the judgment of Shri D. N. Shukla as res judicata. It seems to me that this contention is correct. Obviously, there can be no two parallel proceedings at the same time. When the Prescribed Authority issued a fresh notice under the amending ceiling law, he obviously did it under Sec. 31 (3) of the U. P. Imposition of Ceiling on Land Holdings (Amendment) Act, 1976. The said sub-section clearly says that the Prescribed Authority may issue a fresh notice irrespective of whether an appeal is pending against the earlier decision of the Prescribed Authority and irrespective of the fact whether some such appeal has already been disposed of. In this view of the matter, the appellate court in the subsequent appeal should not have felt itself bound by the decision of Shri D. N. Shukla in the earlier appeal. The appellate court should have recorded its own independent finding in respect of the controversy about the petitioners allegation that his two wives Smt. Gurdayal Kaur and Smt. Basant Kaur were- judicially separated wives and, therefore, the holding in the name of each of the said two wives could not be included in the holding of the petitioner. I find that this allegation was disbelieved by the Prescribed Authority in the earlier order which was passed on 31-3-1975 and in the appeal Shri D. N. Shukla affirmed the finding of the Prescribed Authority. The Prescribed Authority after issuing the fresh notice again disbelieved this allegation of the petitioner. It was open to the appellate court to have affirmed the finding of the Prescribed Authority or to have reversed the said finding on the basis of the evidence and the material on the record but the appellate court in the appeal which was decided on 28-5-1977 merely referred to the earlier appellate order and left the matter there. This could not have been done and the appellate court should have independently considered the said controversy, namely, whether the said two wives could be said to be judicially separated wives under the law.

(3.) Accordingly, this petition is allowed in the manner that the judgment of the appellate court dated 28th May, 1977, a true copy whereof is annexure D to the petition, shall stand quashed to the extent it has dealt with the said controversy in respect of the said two ladies having been treated as not judicially separated wives of the petitioner and on the said basis having included their lands in the holding of the petitioner. The appellate court shall now consider the said controversy in its own independent judgment and irrespective of the finding given in the earlier appeal by Shri D. N. Shukla. Of course, it is open to the appellate Court to affirm the finding which had been given earlier on several occasions by the authorities that the two ladies were not judicially separated wives. The appellate court, however, can also reverse the said finding if it thinks that from the record the earlier finding was not sustainable. Obviously I cannot say anything in this matter. I make it clear that no other controversy shall be ; allowed to be raised before the appellate court apart from the said controversy which is being remanded for a fresh decision. In the circumstances, there will be no order as to costs. Petition allowed.