S.U.Khan, J. - (1.) HEARD learned counsel for the parties.
(2.) PROCEEDINGS for determination and declaration of surplus land with the petitioner under U. P. Imposition of Ceiling on Land Holdings Act, 1960 were initiated. Prescribed Authority, Jansath, district Muzaffarnagar through order dated 20.5.1976 held that petitioner possessed about 23 bighas land as surplus land. Against the said order, petitioner filed appeal being Ceiling Appeal No. 780 of 1976. One more appeal was also filed against the same judgment number of which appears to be 81 of 1976. III Additional District Judge, Muzaffarnagar allowed both the appeals through judgment and order dated 27.9.1976 and held that petitioner did not possess any surplus land. It appears that no writ petition was filed against the judgment and order dated 27.9.1976. However thereafter fresh proceedings were initiated against the petitioner. At the second stage, Prescribed Authority through order dated 29.4.1988 declared 22 bighas land as surplus almost on the same grounds on which earlier order was passed by the Prescribed Authority, which had been set aside in appeal. Against the order dated 29.4.1988, an appeal was again filed being Appeal No. 11 of 1987-88, which was allowed on 27.7.1988 and matter was remanded to the Prescribed Authority. After remand, Prescribed Authority passed order on 18.4.1990 declaring about 21 bighas of land as surplus land. Said order was passed in Case No. 1 of 1988-89. Against order dated 18.4.1990, petitioner filed appeal being Appeal No. 2 of 1989, which was allowed in part through judgment and order dated 25.7.1990. The said orders have been challenged through this writ petition. Appellate court instead of 21 bighas 9 biswas 10 biswancies land, which had been declared as the surplus land by the Prescribed Authority, declared 12 bighas and odd land as surplus. appellate court held that from the statement of Lekhpal, it was clear that Jai Prakash son of Sukhdarshan Lal was not doing agriculture and was not having any agriculture tools or material and was not residing in the village and that land was being used by the petitioner. Petitioner had sold property to Jai Prakash on 22.6.1972 and sale deed had been found to be quite valid and genuine through earlier judgment and order dated 27.9.1976. Accordingly, the said land could not be treated to belong to the petitioner through subsequent judgment. Subsequent judgment was completely barred by the principle of res judicata. In this regard, learned counsel for the petitioner has also cited an authority of this Court in Lady Parassan Kaur Charitable Educational Trust Society, Gorakhpur v. State of U. P. and others, 2002 (93) RD 663 : 2001 (3) AWC 1801. A three Judges authority of the Supreme Court in Devendra Nath Singh v. Civil Judge and others, AIR 1999 SC 2264, has held that Section 38B of Ceiling Act, which deals with bar against res judicata is not applicable to the decision taken in ceiling proceedings itself and the only scope of Section 38B of the Ceiling Act is that any finding recorded in ancillary proceedings will not operate as res judicata in proceedings under Ceiling Act. Para 3 of the said authority is quoted below : "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 the 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 reexamine 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 proceedings under the Act. That would not cover the case where findings have already reached its 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 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 respondent."
(3.) UNFORTUNATELY, without noticing the above authority Supreme Court in Escorts Farms Ltd. v. Commr., Kumanon Division, Nainital, AIR 2004 SC 2186, which is a two Judges authority, held otherwise. However, in the authority of Escort Farms a particular point had been assumed without determination in earlier ceiling proceedings. In that background Supreme Court held that earlier proceedings will not operate as res judicata. In the instant case, there was no assumption in the earlier proceedings. It was a clear cut decision on merit after discussion of evidence and the arguments of both the parties. There is one more aspect of the matter which requires consideration. Apart from the doctrine of res judicata, the doctrine of binding nature of judgments of higher Courts is also applicable. The judgment dated 27.9.1976 was passed by the appellate authority. Accordingly, Prescribed Authority under the Ceiling Act could not go against the said judgment, hence fresh proceedings on the same point were not maintainable. Accordingly, writ petition is allowed. Impugned orders are set aside.;