- (1.) S. U. Khan, J. Heard learned Counsel for the parties.
(2.) THIS writ petition arises out of proceedings under U. P. Imposition of Ceiling on Land Holdings Act, 1960. Initially Prescribed Authority on 29-3-1976 declared an area of about 49 bighas land as surplus land held by the petitioner tenure-holder. Thereafter, petitioner filed Revenue Appeal No. 143 of 1976. In the said appeal on 7-5-1976, three issues were remitted to the Prescribed Authority one of which was regarding ancestral character of several plots. Thereafter appeal was remanded to the Prescribed Authority and it was specifically directed that partition decree dated 26-7-1972 should be taken as correct and on the basis of the same surplus land shall be determined by the Prescribed Authority. The said order was passed on 18-7-1977 by District Judge, Banda, copy of which is Annexure-1 to the writ petition. It was further directed that other points need not be decided by the Prescribed Authority. Thereafter, Prescribed Authority decided the matter on 14-2-1979, which decision was reversed in appeal again and matter was again remanded. Thereafter, Prescribed Authority/s. D. O. Baberu, District Banda decided the matter on 17-12-1981 completely in favour of the tenure-holder holding that he did not possess any surplus land. The said decision was given in case No. 5. Appeal filed against the said order was dismissed on 20-12-1982. Thereafter, State filed Writ Petition No. 3939 of 1983. THIS Court dismissed the writ petition on 7-9-1983. However, in the judgment, a copy of which is Annexure-5 to the writ petition, it was noticed that the learned Standing Counsel had argued that there was an error of calculation in the orders passed by the Courts below. The Court held that if there was any such error as alleged so far as the figure of 160 Bighas mentioned by the Standing Counsel for the State-petitioner was concerned, the petitioner (i. e. State) should approach the Appellate Court for the ratification of such inadvertent error. Thereafter, application under Section 13-A of the Ceiling Act for correction of error was filed by the State. Sometime was consumed in deciding as to whether the application was to be decided by the Prescribed Authority or the Appellate Court. Ultimately, Appellate Court directed the Prescribed Authority to decide the said question. Thereafter, Prescribed Authority through order dated 10-3-1986 declared that tenure-holder petitioner possessed 22 bighas 6 biswas 10 biswancies land as surplus land. Copy of the said order is Annexure-9 to the writ petition. Against the said order, the petitioner filed Appeal No. 88/90 of 1985-86. It appears that State's correction application was also pending before the Appellate Court. Appellate Court decided both the matters on 5-10-1987 and approved the order of Prescribed Authority dated 10-3-1986. Copy of the judgment of Appellate Court is Annexure-10 to the writ petition. Through, this writ petition, the orders contained in Annexures 9 and 10, have been challenged. First of all, the question of res judicata in ceiling proceedings is to be decided. Section 38-B of Ceiling Act deals with this matter, which is quoted below : "no finding or decision given before the commencement of this Section in any proceedings or on any issue (including any order, decree or judgment) by any Court, Tribunal or Authority in respect of any matter governed by this Act shall bar the retrial of such proceedings or issue under this Act in accordance with provisions of this Act as amended from time to time. " The said Section was added w. e. f. 10-10-1975.
(3.) THE said Section has been considered by two authorities of the Supreme Court reported in D. N. Singh v. Civil Judge, AIR 1999 SC 2264, by three Hon'ble Judges and Escorts Farms Ltd. v. Commissioner, Kumanon Division, Nainital & Ors. , 2004 (1) JCLR 887 (SC) : AIR 2004 SC 2186, by two Hon'ble Judges. Unfortunately, in the 2004 authority, the 1999 authority has not been considered. In the 1999 authority, it has been held that under Section 38-B, the questions decided by the authorities do not operate as res judicata. However, earlier decisions of ceiling authorities cannot be re-opened by them as they operate as res judicata. In the authority of 2004, it has been held that proceedings under the Ceiling Act are not adversarial as are proceedings in suit, hence all principles of res judicata contained in Section 11, C. P. C. , cannot be strictly and rigorously made applicable to ceiling proceedings (Para-52 ). It was further held therein that a plea of res judicata is also not available where there is no contest on an issue between the parties and there is no conscious adjudication of an issue (Para-53 ). Both the above authorities may be reconciled. By virtue of 1999 authority, if a point or an issue has specifically been decided in earlier ceiling proceedings by reference to evidence led and arguments raised by both the parties then the said decision operates as res judicata in subsequent ceiling proceedings and cannot be re-opened. However, if in earlier ceiling proceedings, a point was presumed by the ceiling authorities then even though under general principle of res judicata, the same cannot be tried again as it would be a point which might and ought to have been raised, however, under the U. P. Ceiling Act, such question can be specifically decided in the subsequent proceedings. In Para 53 of the aforesaid authority of 2004, it was held by Supreme Court that : "the Prescribed Authority, it appears, by an inadvertent mistake, instead of considering the claim of the holder Company for exemption of land under Clause (ix) of Section 6, as it stood then, excluded the land as belonging to the school as separate legal entity. This exclusion of 250 acres of land of the school from the extent of holding of the holder company was not a decision or a finding on an issue arising between the parties but it was a clear mistake which is apparent from the fact that this land was throughout treated by the holder Company as its own land. . . . . ";