JUDGMENT
S.U. Khan, J.
1. List revised. No one appears for the respondents. Heard learned Standing Counsel for the petitioner.
2. This writ petition is directed against the judgement and order dated 30.8.1985 passed by Additional District Judge / Special Judge, Azamgarh in three Ceiling Appeals i.e. Miscellaneous Ceiling Appeal No. 265 of 1982, 266 of 1982 and 18 of 1984. First Ceiling Appeal was filed i by Shrimati Kalawati Devi, the second by Surya Prasad and the third by State. All the three appeals were directed against the same order of the Prescribed Authority under U.P. Imposition of Ceiling on Land Holdings Act, 1960, hence all the three appeals were decided by a common judgement.
3. The appellate Court considered the following three points:
The first point was whether a particular sale deed executed after 24.1.1971 in good faith and for adequate consideration was to be ignored or not. So far as this point is concerned, the Appellate Court remanded the matter to the Prescribed Authority.
4. The second point was as to whether Kalawati devi was wife of Surya Prasad Singh or not The Appellate Court held that she was not wife of Surya Prasad and in this regard decision of the Prescribed Authority was reversed by the Appellate Court.
5. The last question decided by the Appellate Court was as to whether Om Prakash son of Surya Prasad had equal share in the agricultural land of his father or not. Appellate Court held that from the oral evidence on record and extract of Kutumb Register it was proved that Om Prakash was born before Zamindari Abolition, hence he had equal share along with his father in the agricultural land, which was sir and khudkasht of His father immediately before the date of vesting i.e. 1.7.1952.
6. Earlier ceiling proceedings had been initiated against Surya Prasad. Prescribed Authority through order dated 28.1.1975 had held that he had 9.72 acres surplus land. However, the said order was set aside in appeal on 3.5.1975 and the Appellate Court had held that Surya Prasad had no surplus land.
7. There after fresh notice was issued against Surya Prasad on 53.1980. In pursuance of the said notice Prescribed Authority decided the matter on 24.9.1982,which was reversed in appeal No. 265 and 266 of 1982 in part by the A.DJ. / Special Judge on 30.8.1985 and matter was remanded to the Prescribed Authority. Against the said order of the Appellate Court dated 30.8.1985 this writ petition has been filed.
8. The first and foremost question to be decided in this writ petition is as to whether ceiling proceedings could be re-initiated? In this regard two things are essential to be decided. By U.P. Act No. 2 of 1975 certain provisions were added in the Ceiling Act ( U.P. Imposition of Ceiling on Land Holdings Act, 1960) and through Section 9 of the said Amending Act, termed as transitory provision, it was provided that if before commencement of; the said amending Act, an order determining the surplus land had been made, the Prescribed Authority, might at any time within a period of two years from the commencement of the said amending Act ,re-determine the surplus land in accordance with the provisions as amended by the said Amending Act. Similarly by U.P. Act No. 20 of 1976 Ceiling Act was further amended and Section 27 (termed as transitory provision), of the said amending Act of 1976provided under its Sub-section (3) as follows:
Where in order to determine surplus land in relation to a tenure holder has been made under Principal Act, before 10.10.1975, the Prescribed Authority (as defined in the Principal Act) may at any time within a period of two years from the said date redetermine 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).
9. In the instant case, as mentioned in the order of Prescribed Authority, fresh notice was issued on 5.3.1980 i.e. much beyond two years from 10.10.1975. Whether re-initiation of proceedings after 10.10.1977 is permissible or not, is one of the questions to be decided.
10. The second question is that in case proceedings are to be re- initiated, findings recorded in the earlier orders will be binding upon the Prescribed Authority or not. By U.P. Act No. 20 of 1976 itself, Section 38 -B was added to the Ceiling Act, which is quoted below:
38.B. BAR AGAINST RES JUDICATA: No finding the commencement of this section or on any issue ( including any order, not) by any court, tribunal or authority in governed by this Act shall bar the dings or issue under this Act, in the provisions of this Act, as amended or decision given before in any proceeding decree or judgement) respect of any matter retrial such proceeding accordance with the from time to time.
11. The Supreme Court in D.N. Singh v. Civil Judge has held that questions earlier decided in ceiling proceedings are not permitted to be re-opened by virtue of Section 38-B of the Ceiling Act. Copies of the earlier orders have not been annexed along with the writ petition. It is not clear as to whether on the above three points any finding was given by the Appellate Court on the earlier occasion or not.
12. As the Appellate Court has remanded the matter to the Prescribed Authority, hence the Prescribed Authority shall decide this question of jurisdiction to re-open the proceedings and effect of findings in the earlier orders of the Appellate Court dated 3.5.1975 on the instant proceedings.
13. The Appellate Court has held that Kalawati Devi was not the wife of Surya Prasad. The said finding is not correct in law. While reversing the contrary finding of the Prescribed Authority in that regard Appellate Court has basically placed reliance upon the corrected Voter List. Prescribed Authority held that in the initial voter list of 1975 Kalawati was shown to be wife of Surya Prasad. However, subsequently in the year 1979 in order to get benefit in ceiling proceedings, the voter list was got amended and Kalawati was shown to be daughter of Subba. Some evidence was also adduced by the respondent to the effect that Kalawati Devi was married to! some person in Faizabad. After marriage of ladies the names their husbands are mentioned and not of their father. Even if the husband has died, the lady is shown to be widow of her husband. This aspect has not been considered. Moreover, in the amended voter list, Annexure ‘6’, Kalawati was shown to be resident of House No. 64-Aa while in the original voter list of 1975 (Annexure ‘5’) Surya Prasad and Kalawati wife of Surya Prasad were shown to be resident of House No. 64 Ka. In the said voter list in the said house 64-Aa Ram Bharose Singh son of Umanath was shown to be residing and voter there from. In the amended Voter list Ram Bharose was not shown to be voter from any other house. All these important aspects have not been considered by the Appellate Court. Accordingly, Prescribed Authority shall also reconsider the said aspects provided that the status of Shrimati Kalawati was not decided In the earlier proceedings culminating in the judgement of the Appellate Court dated 3.5.1975.
14. As far as the last point decided by the appellate court is concerned, it appears that Om Prakash was High School pass but he did not file his High School certificate. In respect of proof of age, High School certificate is authentic document having paramount force. So far as Kutumb Register is concerned, much reliance could not be placed thereon as Surya Prasad himself was Pradhan.
15. Further, it was also essential to ascertain as to whether Consolidation proceedings had intervened or not. In case Consolidation proceedings had taken placed and such objection was not raised, then it was barred by Section 49 of U.P. Consolidation of Holdings Act, as held by the Supreme Court in Narendra Singh v. Bhagwan . I have also discussed this aspect in Kailash Chandra v. State of U.P. (Writ Petition No. 11606 of 1987 decided on 9.1.2007).
16. However, it is clarified that this question must also be decided by the Prescribed Authority only if it was not decided in earlier ceiling proceedings.
17. Accordingly, writ petition is allowed. Prescribed Authority’ is directed to decide all the three points in the light of the observations made in the body of this judgement.
18. As no one has appeared on behalf of respondents, hence before proceeding further prescribed Authority shall issue notice to the contesting respondents i.e. Surya Prasad, Smt. Kalawati Devi, Om Prakash and Saroj Rani.