STATE OF UTTAR PRADESH & ANR.versusSURESH CHANDRA TEWARI & ORS.

                [2024] 12 S.C.R. 708 : 2024 INSC 989

                     State of Uttar Pradesh & Anr.
                                    v.
                    Suresh Chandra Tewari & Ors.
                      (Civil Appeal No. 14603 of 2024)
                             17 December 2024
     [Sudhanshu Dhulia* and Ahsanuddin Amanullah, JJ.]


                           Issue for Consideration
       Issues arose as regards the declaration of land to be surplus when
       there was a family settlement regarding the said land, whereby
       each family member had a separate share duly demarcated and
       thus could not be clubbed and taken as the holding of only one
       tenure holder; and whether a fresh litigation could be allowed when
       the issue attained finality in the first round of litigation.

                                  Headnotes†
       Uttar Pradesh Imposition of Ceiling on Land Holdings
       Act, 1960 – ss.5, 9 and 10 – Imposition of ceiling – Declaration
       of land to be surplus – Case of the respondent-son of the main
       recorded land owner that there has been a family settlement
       between the parties way back in the year 1967 whereby shares
       of all the family members have already been determined,
       thus, cannot be clubbed and taken as the holding of only one
       tenure holder-respondent’s father and as such land cannot
       be declared as surplus – However, the Prescribed Authority
       held that family settlement could not be relied, and passed
       order declaring some part of land as surplus – District judge
       reduced the surplus land holding that in the view of explanation
       1 to s.5(7), since the suit was instituted after the cut-off date
       24.01.71, it would be deemed that no partition took place –
       Upon remand, the land declared surplus by the Prescribed
       Authority – Said order upheld by the High Court and Special
       Leave Petition thereagainst dismissed as withdrawn – Orders
       attaining finality in first round of litigation – However, the
       respondent moved application before the Prescribed Authority
       claiming that they were joint holders of land and were not
       given separate notice, and order of the Prescribed Authority

* Author
[2024] 12 S.C.R.                                                             709

    State of Uttar Pradesh & Anr. v. Suresh Chandra Tewari & Ors.


     be re-called – Prescribed Authority again issued notice to all
     the respondents – However, the Additional Commissioner
     held that once the matter had been settled and had attained
     finality, it should not have been raked up again – Writ petition
     by the respondent – Allowed by the High Court holding that
     since after the family partition, separate notice was not given
     to each of the tenure holder,the entire procedure initiated by
     the Prescribed Authority vitiated and set aside the order of
     the Additional Commissioner – Correctness:
     Held: Respondent’s attempt to re-open the matter is nothing short
     of abuse of process – Once the entire objection regarding the family
     settlement rejected not only by all the authorities, but also by the
     High Court and then by this Court, no occasion for starting a fresh
     round of litigation which were nothing less than an abuse of the
     process of law, apart from being barred by Res Judicata – In order
     of the Additional Commissioner, stringent comment made on the
     Prescribed Authority, that this decision by the sub-ordinate court
     also raises question on the integrity of the Prescribed Authority” –
     Views of the Additional Commissioner that the entire mischief
     has been done by the Prescribed Authority, who should not have
     interfered in this matter, is accepted – However, it is too late in
     the day to issue a notice for an order passed in the year 1985
     by the Prescribed Authority, though this is indeed a case where
     a departmental enquiry should have been instituted against the
     concerned officer – Order of the High Court set aside – District
     Magistrate directed to immediately take possession of the surplus
     land as declared surplus and let the same be distributed to the
     landless or in accordance with law. [Paras 8-12]

                                 List of Acts
     Uttar Pradesh Imposition of Ceiling on Land Holdings Act, 1960;
     Uttar Pradesh Zamindari Abolition and Land Reforms Act, 1950;
     Uttar Pradesh Imposition of Ceiling on Land Holdings (Amendment)
     Act, 1972.

                              List of Keywords
     Declaration of land to be surplus; Family settlement; Separate
     share of family member duly demarcated; Holding of only one
     tenure holder; Fresh litigation; First round of litigation; Prescribed
     Authority; Additional Commissioner; Abuse of the process of law;
710                                                           [2024] 12 S.C.R.

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       Res Judicata; Land reform; Redistribution of surplus land; Partition
       before cut-off date; Suit instituted after cut-off date; Deemed not
       to be partition; No notice to joint holders.

                              Case Arising From
       CIVIL APPELLATE JURISDICTION: Civil Appeal No. 14603 of 2024
       From the Judgment and Order dated 21.02.2022 of the High Court
       of Judicature at Allahabad, Lucknow Bench in WRITC No. 3000001
       of 1995

                           Appearances for Parties
       Tanmaya Agarwal, Wrick Chatterjee, Mrs. Aditi Agarwal, Advs. for
       the Appellants.
       Satpal Singh, Ms. Netasha Thukral, Govinda Chaudhary,
       V. S. Dubey, Advs. for the Respondents.

                  Judgment / Order of the Supreme Court

                                   Judgment

       Sudhanshu Dhulia, J.

1.     Leave granted.
2.     Vide The Uttar Pradesh Imposition of Ceiling on Land Holdings
       Act, 1960 in the State of Uttar Pradesh the land over and above
       a certain limit was to be declared surplus and was then to vest
       with the State. The Uttar Pradesh Imposition of Ceiling on Land
       Holdings Act, 1960 as well as the earlier Uttar Pradesh Zamindari
       Abolition and Land Reforms Act, 1950 were enacted in the State
       of U.P. immediately after the independence of the Country with this
       purpose. We must not forget that one of the main commitments of
       the leaders during the freedom struggle was that the wide disparity
       and inequality in distribution of land will be changed for the better
       and abolition of Zamindari and placing a ceiling on land, would be
       a step towards this goal towards the redistribution of land, based
       on the principles of equity and justice. Since land was in List II i.e.,
       the State List under the Seventh Schedule of the Constitution of
       India, these legislations regarding land reforms were to be made
[2024] 12 S.C.R.                                                       711

     State of Uttar Pradesh & Anr. v. Suresh Chandra Tewari & Ors.



     by the States, and this was done not just in U.P. but throughout
     the country.
     Consequently, different States brought about the legislations in their
     Sates, all aimed at land reforms and redistribution of land where
     one of the principal elements was putting a surplus on the land
     holding, the declaration of the surplus land and redistribution of this
     surplus land to those who were landless and marginalised farmers.
     The Uttar Pradesh Imposition of Ceiling on Land Holdings Act, 1960
     (hereinafter referred to as the ‘Act of 1960’) and the purpose of its
     enactment has to be seen in this context.
3.   Out of the various provisions in the 1960 Act, Section 9 and Section 10
     are important here for our purposes, which are as under :-
          “9. General notice to tenure-holders holding land in excess
          of ceiling area for submission of statement in respect
          thereof-
                — [(1)] As soon as may be, after the date of
                enforcement of this Act, the Prescribed Authority
                shall, by general notice, published in the Official
                Gazette, call upon every tenure-holder holding
                land in excess of the ceiling area applicable
                to him on the date of enforcement of this act,
                to submit to him within 30 days of the date of
                publication of the notice, a statement in respect
                of all his holdings in such form and giving such
                particulars as may be prescribed. The statement
                shall also indicate the plot or plots for which he
                claims exemption and also those which he would
                like to retain as part of the ceiling area applicable
                to him under the provisions of this Act.]
                [(2) As soon as may be after the enforcement
                of the Uttar Pradesh Imposition of Ceiling on
                Land Holdings (Amendment) Act, 1972, the
                prescribed authority shall, by like general notice,
                call upon every tenure-holder holding land in
                excess of the ceiling area applicable to him on
                the enforcement of the said Act, to submit to him
                within 50 days of publication of such notice, a
                statement referred to in sub-section (1).
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            [Provided that at any time after October 10,
            1975, the Prescribed Authority may, by notice,
            call upon any tenure-holder holding land in
            excess of the ceiling area applicable to him
            on the said date, to submit to him within thirty
            days from the date of service of such notice a
            statement referred to in sub-section (1) or any
            information pertaining thereto.]
            [(2-A) Every tenure-holder holding land in excess
            of the ceiling area on January 24, 1971, or at
            any time thereafter who has not submitted the
            statement referred to in sub-section (2) and in
            respect of whom no proceedings under this act
            is pending on October 10, 1975 shall, within
            thirty days from the said date furnish to the
            Prescribed Authority a statement containing
            particulars of all land -
            (a) held by him and the members of his family
            on January 24, 1971 ;
            (b) acquired or disposed of by him or by
            members of his family between January 24,
            1971 and October 10, 1975. ]
            (3) Where the tenure-holder’s wife holds any
            land which is liable to be aggregated with the
            land held by the tenure-holder for purposes of
            determination of the ceiling area, the tenure-holder
            shall, along with his statement referred to in sub-
            section (1), also file the consent of his wife to the
            choice in respect of the plot or plots which they
            would like to retain as part of the ceiling area
            applicable to them and where his wife’s consent
            is not so obtained, the prescribed authority shall
            cause the notice under sub-section (2) of Section
            10 to be served on her separately.]
       10. Notice to tenure holders failing to submit a statement
       or submitting an incomplete or incorrect statement -
            (1) In every case where a tenure-holder fails to
            submit a statement or submits an incomplete
[2024] 12 S.C.R.                                                        713

    State of Uttar Pradesh & Anr. v. Suresh Chandra Tewari & Ors.


                or incorrect statement, required to be submitted
                under Section 9, the Prescribed Authority shall,
                after making such enquiry as he may consider
                necessary either by himself or by any person
                subordinate to him, cause to be prepared a
                statement containing such particulars as may
                be prescribed. The statement shall in particular
                indicate the land, if any, exempted under
                2[Section 6] and the plot --- proposed to be
                declared as surplus land.
                (2) the Prescribed Authority shall thereupon cause
                to be served upon every such tenure-holder
                in such manner as may be prescribed, a notice
                together with a copy of the statement prepared
                under sub-section (1) calling upon him to show
                cause within a period specified in the notice,
                why the statement be not taken as correct. The
                period specified shall not be less than ten days
                from the date of service of the notice”
     Since the respondents did not submit a statement in terms of
     Section 9, the Prescribed Authority prepared a statement taking
     into consideration the entire land of the tenure holder and then a
     notice was issued under Section 10(2) of the Act of 1960 to the main
     recorded land owner i.e., Shri Hari Shankar Tiwari on 16.03.1974
     by the Prescribed Authority as to why from his large land holding a
     portion be not declared as surplus. Late Shri Hari Shankar Tiwari
     (father of the present respondent no.1) filed his objections wherein
     he stated that there has been a family settlement which was arrived
     at between the parties way back in the year 1967 and according to
     this family settlement, shares of all the family members have already
     been determined. Moreover, this settlement has also been reduced
     to writing way back in the year 1969 and in the year 1970 one of the
     sons of Late Shri Hari Shankar Tiwari had also instituted a suit in
     the Court of Civil Judge, Junior Division in respect of non-agricultural
     properties, which were also then included in the memorandum of
     family settlement. The said suit was decreed on 02.11.1970 and on
     the basis of family settlement and memorandum dated 09.11.1969,
     the land has been divided and share of each family member is
     demarcated. A suit was also filed on 30.01.1971 for permanent
714                                                          [2024] 12 S.C.R.

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       injunction for restraining Late Shri Hari Shankar Tiwari (father of the
       respondent no.1) from interfering in the agricultural lands on the basis
       of the family settlement. The suit was decreed on 09.08.1971. In
       other words, what was projected through family settlement and court
       cases was that now each family member has a separate share duly
       demarcated and therefore all of this cannot be clubbed and taken
       as the holding of only one tenure holder i.e. Hari Shankar Tiwari for
       the purpose of declaration of surplus land.
       The Prescribed Authority, however, after hearing all the objections
       came to the conclusion that the family settlement cannot be relied
       upon and passed an order in the year 1974 declaring 37 Bigha
       5 Biswa and 17.8 Biswansi on Late Hari Shankar Tiwari (father
       of the respondent no.1) as surplus under the provisions of the
       Act of 1960.
4.     Against the said order of the year 1974, an appeal was filed by Late
       Shri Hari Shankar Tiwari before the District Judge Hardoi, which was
       partly allowed by reducing the surplus land of late Hari Shankar Tiwari
       to 33 bigha 8 biswa and 14.8 biswansi and the file was sent back to
       the Prescribed Authority by an order dated 24.09.1975. What weighed
       in with the District Judge, Hardoi was the fact that even though the
       land had been partitioned vide a Decree dated 09.08.1971 passed
       by the Ld. Munsiff, Hardoi, the partition was liable to be ignored and
       not taken into account for the purposes of imposition of ceiling in
       view of Explanation I to sub-section 7 of Section 5 of the 1960 Act,
       which reads as under:
            [5. Imposition of ceiling- (1) On and from the commencement
            of the Uttar Pradesh Imposition of Ceiling on Land Holdings
            (Amendment) Act, 1972, no tenure-holder shall be entitled
            to hold in the aggregate, throughout Uttar Pradesh, any
            land in excess of the ceiling area applicable to him.
            ………………………………………………………
            ………………………………………………………
            (7) In determining the ceiling area applicable to a tenure-
            holder, any partition of land made after the twenty-fourth
            day of January, 1971 which but for the partition would
            have been declared surplus land under this Act shall be
            ignored and not taken into account:
[2024] 12 S.C.R.                                                         715

    State of Uttar Pradesh & Anr. v. Suresh Chandra Tewari & Ors.


          Provided that nothing in this sub-section shall apply to
          (a) [ * * * * ]
          (b) a partition of a holding made in a suit or a proceeding
          pending on the said date :
          Provided further that notwithstanding anything contained
          in the preceding proviso, the prescribed authority, if it is
          of opinion that by collusion between the tenure-holder
          and any other party to the partition, such other party has
          been given a share which he was no entitled to, or a larger
          share than he was entitled to, may ignore such partition.
          [Explanation I- If a suit is instituted after the said date
          for declaration that a partition of land has taken place
          on or before the said date, then such declaration shall
          be ignored and not be taken into account, and it shall
          be deemed that no partition has taken place on or
          before the said date.]
                                                  (emphasis provided)
     The institution of the Suit by Late Hari Shankar Tiwari was on
     30.01.1971 i.e. after the cut-off date of 24.01.1971. This would mean
     that in spite of the decree dated 09.08.1971, it is to be deemed that
     no partition took place at all, in terms of sub-section (7) of Section 5,
     read with the proviso and the explanation.
     Upon remand, again by the order of the Prescribed Authority, the
     land was declared as surplus. Against the declaration of this surplus
     land, a writ petition was filed before the High Court of Judicature at
     Allahabad, which was dismissed by the High Court on 07.08.1978.
     The High Court reiterated the finding of the District Judge that since
     the partition suit was instituted after the cut-off date of 24.01.1971,
     the decree dated 09.08.1971 is liable to be ignored. Against the
     judgment of the High Court, the father of the respondent no.1 Late
     Shri Hari Shankar Tiwari preferred a Special Leave Petition before
     this Court which was subsequently dismissed as withdrawn. In other
     words, in the first round of litigation the respondents had lost from
     all courts including this Court (albeit by withdrawal of petition), and
     thus claim based on family settlement, etc. stood rejected, and these
     orders had attained a finality.
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       Late Shri Hari Shankar Tiwari (father of the respondent no.1) in fact
       gave his option on 23.07.1981 before the Prescribed Authority which
       was accepted by the Prescribed Authority and 33 Biswa 8 Bigha and
       14.8 Biswansi was declared as a surplus area out of plot no.1353.
5.     Meanwhile, not satisfied with the dismissal of the case right up to
       the Apex Court, an innovative ploy was devised, which is nothing
       short of an abuse of the process and has thus reached now to
       this Court. The present respondent no.1 (son of Late Hari Shankar
       Tiwari) moved an application on 23.04.1981 under Section 11 of the
       Act of 1960 stating that they were joint holders of the land and they
       were not given any notice by the Prescribed Authority. It was said
       that the order passed by the Prescribed Authority in 1974 should be
       recalled, however, this objection of the respondent no.1 was rejected
       by the Prescribed Authority vide its order dated 14.09.1981. The
       said order dated 14.09.1981 was challenged by the respondent no.1
       in an Appeal which was pending before the IVth Additional District
       Judge Hardoi and vide order dated 16.11.1981 the IVth Additional
       District Judge Hardoi accepted the appeal and set aside the order
       of the Prescribed Authority and remanded the matter back to the
       Prescribed Authority.
6.     Now on this remand, the Prescribed Authority again issued a notice
       under Section 10(2) of the Act of 1960 to all the respondents and
       therefore, passed an order dated 23.09.1985 holding that prior to
       cut off date, entire land shown in the notice belonged to Late Shri
       Hari Shankar Tiwari which had been partitioned through a private
       party settlement reduced to writing and through this family settlement
       the entire joint family, agricultural and non-agricultural land and
       property was divided by metes and bounds and since then each
       of the members of the erstwhile joint family have got their share
       separated, they ought to have been given a separate notice, which
       has not been given, as each of them were in exclusive possession
       of the property.
7.     Against the above order of the Prescribed Authority, the State filed
       an Appeal under Section 13 of the Act of 1960 before the District
       Judge, Hardoi and due to the subsequent amendment in the Act
       of 1960, the Appeal was transferred to the Court of Additional
       Commissioner (Judicial), Lucknow Division, Lucknow for decision in
       Appeal. The Additional Commissioner (Judicial), Lucknow Division,
[2024] 12 S.C.R.                                                        717

     State of Uttar Pradesh & Anr. v. Suresh Chandra Tewari & Ors.


     Lucknow passed an order on 18.10.1994 holding that once the
     matter had been settled and had attained finality, it should not have
     been raked up again. The entire case of the respondents rests on a
     family settlement which has been disbelieved in the earlier round of
     litigation. This finding as we know was upheld right up to Supreme
     Court, or at least till the High Court, as we have seen the petition
     was withdrawn in the Supreme Court in the first round of litigation. In
     other words, the matter had attained finality. No benefit ought to have
     been given of this family settlement and therefore the appeal of the
     State was allowed. The order of the Prescribed Authority declaring
     the land to be surplus was upheld. Against this Order, respondent
     filed a Writ Petition before the High Court which has been allowed
     vide impugned order dated 21.02.2022 on the ground that after the
     family partition separate notice ought to have been given to each
     of the tenure holder and since it has not been given, the entire
     procedure initiated by the Prescribed Authority are vitiated and the
     High Court thus has set aside the order dated 18.10.1994 of the
     Additional Commissioner (Judicial), Lucknow Division, Lucknow.
8.   According to us, the learned Single Judge of the High Court has not
     appreciated either the position of law or the facts in the case as were
     required. Once the entire objection of Late Shri Hari Shankar Tiwari
     regarding the family settlement, etc. were rejected not only by all
     the authorities,but also by the High Court and then ultimately by this
     Court, where the Special Leave Petition itself was withdrawn, there
     was absolutely no occasion for starting a fresh round of litigation
     which were nothing less than a ruse and an abuse of the process
     of law, apart from being barred by Res Judicata.
9.   We are not surprised therefore that the order of the Additional
     Commissioner (Judicial), Lucknow Division, Lucknow in its order
     dated 18.10.1994 while allowing the appeal of the State had made
     a stringent comment on the Prescribed Authority, who ought not to
     have passed an order on 23.09.1985. The Additional Commissioner
     (Judicial) in his order has said that “this decision by the sub-ordinate
     court also raises question on the integrity of the learned Prescribed
     Authority”.
10. In fact, we totally agree with the views of the Additional Commissioner
    that the entire mischief has been done by the Prescribed Authority in
    this matter, who should not have interfered in this matter. Now it is
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       too late in the day to issue a notice for an order which was passed
       in the year 1985 by the Prescribed Authority, though this is indeed
       a case where a departmental enquiry should have been instituted
       against the concerned officer.
11. Be that as it may, the appeal is allowed and the order of the High
    Court dated 21.02.2022 is set aside.
12. The District Magistrate, Hardoi is directed to immediately take
    possession of the surplus land as declared surplus (33 Biswa 8 Bigha
    and 14.8 Biswansi) and let the same be distributed to the landless
    or in accordance with law and process which is now to be followed
    in such cases.

       Result of the case: Appeal allowed.



       †
           Headnotes prepared by: Nidhi Jain