Ram Sagar v. Civil Judge, Behraich — 1984 DIGILAW 485 (ALL)

ORDER K.N. Misra, J. - This writ petition is directed against the order dated 22-9-1976 of Civil Judge, Bahraich and order dated 6th of March 1976 passed by the Prescribed Authority (Ceiling) Bahraich in proceedings under Section 10(2) of the U.P. Imposition of Ceiling on Land Holdings Act (hereinafter to he referred to as 'the Act'). 2. Briefly, stated, the facts of the case are as follows : A notice under Section 10(2) of the Act was issued to the petitioner Ram Soorat, who was the recorded tenure-holder. He filed an objection contesting the notice inter alia on the ground that plot No. 210 of his holding was unirrigated land and that he had made transfers of some plots in good faith and for valuable consideration. The Prescribed Authority (Ceiling) rejected the objection filed by the petitioner and confirmed the notice under Section 10(2) of the Act declaring 11.87 acres of the land, in irrigated terms, to he surplus land with the tenure-holder Ram Soorat. Aggrieved by that order. Ram Soorat had preferred appeal. Another appeal No. 135 of 1976 was preferred by Ram Shakhar who was the transferee of the land. Civil Judge Bahraich by the impugned order dated 22nd September, 1976 dismissed both the appeals. Petitioner has challenged these orders in the present writ petition. 3. Learned counsel for the petitioner Sri B.K. Srivastava urged that learned lower court has wrongly placed burden of proof on the petitioner to establish that the aforesaid plot No. 21 was unirrigated land. He further contended that in view of the provisions contained under Section 4-A of the Act, it was mandatory for the prescribed authority to have examined Khasras for the relevant year 1378 F. 1379 F. and 1380F. and should also have made local inspection to see whether the land is irrigated or not. He further contended that the learned Civil Judge wrongly held that it was for the appellant to have filed the aforesaid relevant extracts of Khasra to show that the land was unirrigated and on this erroneous view he wrongly repelled the contention of the petitioner. Learned counsel further submitted that the Prescribed Authority had ignored the choice offered by the petitioner under Section 12-A of the Act, for declaring surplus land. His further contention was that the appellate court legally erred in not declaring the land as surplus which was indicated by the petitioner. Learned counsel further submitted that the Prescribed Authority had ignored the choice offered by the petitioner under Section 12-A of the Act, for declaring surplus land. His further contention was that the appellate court legally erred in not declaring the land as surplus which was indicated by the petitioner. In other words his contention was that the provisions of Section 12-A of the Act, have not been complied with by the Prescribed Authority while declaring surplus land of the petitioner. 4. I have carefully considered the arguments of the learned counsel for the parties and I find much substance in the arguments of the learned counsel for the petitioner. It is well settled that while computing the irrigated area, the Prescribed Authority has to consider Khasra and relevant revenue records in order to find out other irrigation facilities were available to any land in respect of any crop in 1378F, to 1379 and 1380 F. by any canal, or any State tube well or by it private irrigation work and also to find out whether two crops were grown over such land in any of the aforesaid years, see Roshan Singh v. State of U.P. 1978 All LJ 1376. 5. It is also equally well settled that the onus lies on the State to establish that the land which is mentioned in the notice is irrigated land when a challenge is made by the tenure- holder while filing objection. State Government is a party to every proceedings under Section 10(2) of the Act. In such a case there is an adversary proceedings before the Prescribed Authority between the tenure- holder and the Government. It has been held in Roshan Singh's case (supra) that in such a case what comes out is that the Government assumes the role of plaintiff and the tenure holder that of the defendant. On the basis of the statement prepared under Section 10 and the objection filed by the tenure-holder- petitioner thereto, the Prescribed Authority strikes the issue and decides the case. When it is disputed by a tenure-holder in the objection filed against a notice that any particular plot is unirrigated and that the same has been wrongly treated as irrigated land, the onus lies squarely on the State to establish that any land treated as irrigated land in the notice actually bears that character. When it is disputed by a tenure-holder in the objection filed against a notice that any particular plot is unirrigated and that the same has been wrongly treated as irrigated land, the onus lies squarely on the State to establish that any land treated as irrigated land in the notice actually bears that character. It is not for the tenure-holder to establish in negative that the land is unirrigated and that it has been wrongly treated to be irrigated land in the notice. It is incumbent upon the Prescribed Authority to examine the relevant Khasras for the years 1378, 1379 and 1380 F. in order to ascertain the nature and character of the land in question. This question cropped up for consideration before the Full Bench of this Court in 'Hareshwar Daval Seth v. Second Addl. Distt. Judge ' decided on 27-7-1981 in writ petn. No. 767 of 1977*. Reported in 1982 All CJ 207, wherein it was held that the Prescribed Authority has to summon and examine the aforesaid relevant Khasras. Thus the onus does not lie on the tenure-holder to establish that the land which has been treated to be irrigated in the notice does not bear that character because there is no presumption as to the correctness or validity of the entries which are disputed or challenged. 6. In view of the above, I find that the Prescribed Authority as well as the lower appellate court have erred in repelling the contention of the petitioner. The lower appellate court in its order has mentioned that "the Prescribed Authority had summarily observed that the issue is decided in negative for want of evidence. The oral evidence adduced by the appellant was not at all discussed. The Prescribed Authority should have discussed the oral evidence and discarded and the manner the issue was approached is incorrect, but the contention of the appellant has no substance in it. There will be a presumption of following the procedure by the Prescribed Authority and simply because the extracts of Khasras are not on record, it does not mean that they were not perused by the Prescribed Authority as contemplated by Section 4-A referred above. The appellant has not filed any extract of Khasra of the relevant years to show that the land is unirrigated and, as such, this point of the appellant has no force." 7. The appellant has not filed any extract of Khasra of the relevant years to show that the land is unirrigated and, as such, this point of the appellant has no force." 7. Although the lower appellate court has observed that the Prescribed Authority has wrongly decided the issue and the manner in which the issue was approached and dealt with is incorrect, but in spite of this finding he has quite apparently erred in repelling the contention of the petitioner. As already observed above it was incumbent upon the Prescribed Authority to have summoned and perused the relevant Khasras for the years 1378, 1379 and 1380F. While recording a finding as to whether plot No. 210 is irrigated or unirrigated. The Prescribed Authority has not mentioned that the aforesaid Khasras were perused by him while deciding the said issue. When the extracts of the Khasras were not on record it is difficult to hold that the prescribed authority should have looked to the entries in the said relevant Khasras, and, as such, no presumption could be drawn in the matter that he had perused those Khasras referred to in Section 4-A of the Act. The onus lay on the State to establish that the plot in question was rightly treated as irrigated land in the notice served on the tenure-holder and as such, either the extracts of the aforesaid relevant Khasras should have been filed by it or the original record should have been summoned and perused by the Prescribed Authority itself. 8. In order to bring the land within the definition of the 'irrigated land', a finding has got to be recorded that the land falls within the terms of 'irrigated land', as defined under the Act. There is no such finding recorded by the Prescribed Authority or by the lower appellate court. In order to bring the land within the category of irrigated land, the Prescribed Authority has to record a finding in accordance with the provisions of Section 4-A, of the Act. No such finding has been recorded in this case with regard to plot No. 210 belonging to the petitioner's original holding. The impugned orders passed by the opposite parties 1 and 2 are, therefore, unsustainable in law and on the facts of the case. 9. No such finding has been recorded in this case with regard to plot No. 210 belonging to the petitioner's original holding. The impugned orders passed by the opposite parties 1 and 2 are, therefore, unsustainable in law and on the facts of the case. 9. So far as the question of the violation of provisions of Section 12-A of the Act is concerned, I find that the Prescribed Authority as well as the lower appellate Court have misconstrued the said provisions. According to Sec, 12-A while determining surplus land under Section 11 or 12, the Prescribed Authority shall, as far as possible accept the choice given by the tenure-holder to the plot or plots which he and other members of his family, if any, would like to retain as part of the ceiling area applicable to him or them under the provisions of this Act, whether indicated by him in his statement under Section 9 or in any subsequent proceedings. 10. Learned counsel for the petitioner contended that the choice indicated by the petitioner was wrongly ignored by the Prescribed Authority as well as by the lower appellate Court. I find much substance in the argument. The Prescribed Authority should have considered choice given by the petitioner in accordance with the provisions contained in Section 12-A of the Act. The impugned orders passed by the opposite parties 1 and 2 are not sustainable on this ground as well. 11. So far as the question of bona fide character of the transfer made by the petitioner of certain land of his holding is concerned, I find no substance in the argument of the learned counsel for the petitioner. The Prescribed Authority, in my opinion, has rightly repelled the contention of the petitioner and has correctly treated the land which was. transferred by the petitioner to the transferees as part of the holding of the petitioner while declaring his surplus land. 12. In the result the writ petition succeeds and is hereby allowed and the impugned orders dated 22-9-1976 passed by the Civil Judge Baharaich and order dated 6-3-1976 passed by the Prescribed Authority, Bahraich, are quashed and the case is remanded to the Prescribed Authority (Ceiling), Bahraich who shall restore the case to its original number and decide the question whether aforesaid plot No. 210 is irrigated or unirrigated land in the light of the observations made above. The other findings recorded by the Prescribed Authority are confirmed. The Prescribed Authority would however, also consider the choice indicated by the petitioner in respect of plots which he wants to retain in his ceiling area and pass appropriate orders in that behalf in accordance with the provisions of Section 12-A, of the Act and would make necessary alteration in the declared surplus land. The petitioner would, however, be not entitled to occupy the land already declared surplus land until any alteration, if any, is ultimately made by the Prescribed Authority in the already declared surplus land hereinafter while deciding the case in the light of the observations made above No order as to coast.