J. S. Bansal v. State Of U. P. — 1978 DIGILAW 497 (ALL)

JUDGMENT B. N. Sapru, J. 1. THE petitioner was a tenure holder of certain agricultural holdings. A notice was served on him under Section 10 (2) of the U. P. Imposition of Ceiling on Land Holdings Act (hereinafter referred to as the Act), In that notice plots Nos. 56, 57, 106 and 134 were shown as irrigated land. The petitioner in his objection claimed that the lands were unirrigated and had been wrongly shown in the statement prepared and served on him under Section 10 (1) of the Act as irrigated. 2. THE Prescribed Authority rejected the objections filed by the petitioner in this regard. The petitioner was aggrieved by this part of the order as well as some other parts. He filed an appeal. The appeal has been dismissed in so far as plots Nos. 56, 57, 126 and 134 are concerned. The Appellate Authority has held that the aforesaid plots are irrigated. Aggrieved by the order of the Appellate Authority the petitioner has filed the instant writ petition. Several questions were raised in this petition, but only one has been seriously argued before me, and this judgment deals with the objection of the petitioner in regard to the question as to whether his aforesaid plots were irrigated or not. 3. BEFORE the Appellate Authority it was conceded on behalf of the State that the land of the petitioner was not irrigated from any canal as is contemplated by Section 4-A of the Act. Therefore, the only question in issue for consideration was whether the aforesaid plots have been established to be irrigated from a private irrigation work, as defined in the Act. The relevant Khasra entries which had been filed before the authorities, have also been filed as annexure to this writ petition. 4. THE said entries disclosed that as far as the year 1378-F. is concerned, only plot No. 57 is shown to have been irrigated from a tube-well. In the khasra entries of 1380-F. only plot No. 134 is shown to have been irrigated from a tube well. The net result, therefore, is that as far as plots Nos. 56 and 126 are concerned, which are in the tenure of the petitioner, there were no khasra entries, to show that they were irrigated from a tube well or other private irrigation work. 5. The net result, therefore, is that as far as plots Nos. 56 and 126 are concerned, which are in the tenure of the petitioner, there were no khasra entries, to show that they were irrigated from a tube well or other private irrigation work. 5. THE Appellate Authority seems to have been of the view that the lands of all the aforesaid plots must be held to have been irrigated as they were shown as such in the relevant khasra extracts. As mentioned in this judgment, that finding is based on a complete misreading of the khasras. If the case was to be decided on the basis of the khasras alone, plots Nos. 56 and 126 in the tenure of the petitioner could not be held to be irrigated land. The learned Standing Counsel, Sri Upadhya, referred me to the provisions of Section 10 (2) of the Act and submitted that in view of the provisions thereof it must be held that every fact stated in the statement prepared under Section 10 (1) of the Act must be presumed to be correct unless the contrary was shown by the tenure holder. For some reason he wishes to describe his argument in other words. He says that the statement under Section 10 (1) should be taken as correct. The words of Section 10 (2) are as follows : "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." Secs. 10 (1) and 10 (2) have to be read in conjunction with Section 11 of the Act. Section 11 (1) says : "Where the Statement submitted by a tenure holder in pursuance of the notice published under Section 9 is accepted by the Prescribed Authority or where the statement prepared by the Prescribed Authority under Section 10 is not disputed within the specified period, the Prescribed Authority shall accordingly, determine the surplus land of the tenure holder." 6. THUS the statement prepared under Section 10 (1) of the Act can only be taken to be correct by the Prescribed Authority where it is not disputed within the specified period. Where the statement is disputed, the procedure is to be determined under the provisions of Section 12 of the Act. Section 12(1) says ;- "Where an objection has been filed under sub-section (2) of Section 10 or under sub-section (2) of Section 11, or because of any appellate order under Section 13, the Prescribed Authority shall, after affording the parties reasonable opportunity of being heard and producing evidence, decide the objections after recording his reasons, and determine the surplus land." It will be noticed that in Section 12 (1) there is no whisper of a suggestion that the statement prepared under Section 10 it shall be deemed to be correct or shall be taken to be correct unless the contrary be shown while the objections are being determined under the provisions of Section 12 (1) of the Act. Sri S. C. Khare appearing on behalf of the petitioner has submitted that there is no presumption as to the correctness of the entries in Khasra. He submits that in the Land Revenue Act only the Khatauni entries can be deemed to be correct. In this connection he referred me to the decision of the Board of Revenue in the case of Sukhari v. Tribeni, 1965 AWR (Rev.) 55. There, the Board of Revenue has pointed out as follows : "The presumption of correctness of entries under Section 44 of the U. P. Land Revenue Act applies to entries in the annual registers. The "annual register" has been defined under Section 33 of the Land Revenue Act and it has referred to such record of rights as are corrected annually, or such longer intervals as the State Govt., may prescribe. The Khatauni is the only record of rights in Zamindari Abolition areas which is the annual register, copy of which is maintained by the Collector. Hence, the presumption of correctness applies to entries in the khatauni only and not in the khasra which is maintained under Section 28 of the U. P. Land Revenue Act and is merely a field book." 7. Hence, the presumption of correctness applies to entries in the khatauni only and not in the khasra which is maintained under Section 28 of the U. P. Land Revenue Act and is merely a field book." 7. THE reason given by the Board of Revenue of attaching a presumption of correctness of entries under the provisions of the Land Revenue Act in regard to the entries in the khatauni appears to be sound and I see no reason to differ from it. 8. THE provisions of Section 4-A of the Act which requires the Prescribed Authority to examine the khasras of 13/8-F. 1379-F. and 1380-F. do not lay down any presumption in regard to the correctness of the entries found therein. In fact, the Legislature made a specific provision that the Prescribed Authority shall also examine the latest map and such other record as it may consider necessary and may also make local inspection where it consider necessary while determining whether a particular piece of land is irrigated or not. In this particular case only plot No. 57 has been found to be irrigated in 1378-F. and plot No. 134 in 1380 Fasii. In the objections filed by the petitioner he had pleaded that there was no source of irrigation for his aforesaid two plots and had prayed that the Prescribed Authority may make a local inspection. The Prescribed Authority thereupon passed an order that the lekhpal of the area in question should be produced. The lekhpal appeared. A copy of his evidence has been filed as annexure in this case in his statement in the examination in chief he said that plots Nos. 56, 57, 126 and 134 were according to the khasras of 1378, 1379 and 1380 Fasli irrigated by tube-well and also by a canal. It has been found as a fact that they do not disclose that plots Nos. 56 and 126 were irrigated from a tube well. This discrepancy between the records and the statement of the lekhpal has not been noticed by either the Prescribed Authority or by the Appellate Authority. 9. SRI S. C. Khare further argues that before Section 4-A thirdly can be applied the Prescribed Authority should find that the class and composition of the soil is such that it is capable of growing at least two crops in an agricultural year. 9. SRI S. C. Khare further argues that before Section 4-A thirdly can be applied the Prescribed Authority should find that the class and composition of the soil is such that it is capable of growing at least two crops in an agricultural year. The evidence of the lekhpal has been found to be thoroughly unsatisfactory. The only other evidence on which the Appellate Authority has based his decision is that the khasras disclose that two crops were grown over the land. The mere fact that the khasra entries disclose that two crops were grown over a piece of land would not necessarily and invariably lead to the conclusion that the class and composition of the soil is such that it is capable of growing at least two crops in an agricultural year, if the Legislature intended to provide that wherever there is a source of irrigation as mentioned in clause thirdly (a) and the fact of the growing of two crops was sufficient, it could have said so. A reference to the class and composition of the soil would not have been neccisary. Some meaning has to be given to language of the Legislature in this regard, the Appellate Authority has not determined whether on the basis of any other factor the class and composition of the soil is such that two crops can be grown on the land in one agricultural year. 10. MR. Khare also argued that before a tube well can be treated as a private irrigation work, it must be shown that it is operated either by electricity or by diesel. The petitioner never raised a plea that he was getting water from a tube well operated by a source other than electrical energy or diesel power. The petitioner's case was that there was no such source from which he crew water for the irrigation of his plots. In this situation the petitioner cannot be permitted to urge this ground in support of the writ petition. The petitioner's case was that there was no such source from which he crew water for the irrigation of his plots. In this situation the petitioner cannot be permitted to urge this ground in support of the writ petition. Explanation II to Section 4-A thirdly provides that the location of a private irrigation work is not relevant for the purposes of this case, what is relevant is whether this land is within the effective command area of any particular private irrigation work, in this case the location of the tube well from where the petitioner is supposed to have irrigated the two plots which have been found to have been irrigated in one of the 1378-F., 1379-F. and 1380-F. has not been determined. However, it is not necessary on the facts of this case to determine this question at the present stage. 11. IN the result, the writ petition is allowed. The entries as far as plots Nos. 56, 57 and 126 is concerned, on the facts as found and as established from the record, disclose that the said plots are not irrigated land. As far as plot Nos. 5 and 134 are concerned, the Khasra entries alone show that they have been irrigated. As far as plots Nos. 57 in 1378-F. and plot No. 134 in 1380-F. are concerned, the petitioner's case is that the entries in the khasra are wrong, The appeal will now be decided by the Appellate Court in accordance with law as explained in this order, The petitioner as well as the State will have an opportunity to demonstrate whether the entries of the khasra in 1378-F. to 1380-F. were correctly made, if they are found to have been incorrectly made, the impact of such a finding would be determined by the Appellate Authority. The Appellate Authority will again work out the extent of surplus land possessed by the petitioner. 12. NO other question has been pressed before me in this writ petition. In view of the divided success of the parties, they will bear their own costs. If any money has been deposited by the petitioner in pursuance of the interim order of this Court dated 22-9-1976 it shall be refunded to him on a proper application being made. Petition allowed.