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1984 DIGILAW 65 (ALL)

RAM SAGAR v. Civil Judge, Bahraich Others

1984-01-17

K.N.MISRA

body1984
JUDGMENT 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 Ceilings on Land Holdings Act (hereinafter to be 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 tenureholder. He filed an objection contesting the notice, interalia, 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 be surplus land with the tenureholder Ram Soorat. Aggrieved by that order, Ram Soorat had preferred appeal. Another Appeal No. 435 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. 210 was unirrigated land. He further contended that in view of the provisions contained under Section 4A of the 'Act', it was mandatory for the Prescribed Authority to have examined Khasras for the relevant year 1378' F., 1379 F., and 1380 F. 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 12A 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 12A 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 12A 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 whether irrigation facilities were available to any land ih respect of any crop in 1378 F. to 1379 and 1380 F. by any canal, or any State tubewell or by a 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 ALJ, 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 tenureholder while filing objectionState 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 tenureholder 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 therole of plaintiff and the tenureholder that of the defendant. On the basis of the statement prepared under Section 10 and the objection filed by the tenureholderpetitioner thereto, the Prescribed Authority strikes the issue and decides the ease. When it is disputed by a tenureholder 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 tenureholder 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 tenureholder 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 Fs. in order to ascertain the nature and character of the land in question. This question cropped up for consideration before the Fall Bench of this Court in 'Hareshwar Daya Seth v. Second Addittional District Judge and Others, decided on 27.7.1981 in Writ Petition No. 767, of 1977 wherein it was held that the Prescribed Authority has to summon and examine the aforesaid relevant Khasras. Thus the onus does riot lie on the tenureholder 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 so 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 in 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 4A 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 inspite 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. 2l0 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 he said relevant khasras, and as such, no presumption could be drawn in the matter that he had perused those Khasras referred to in Section 4A 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 tenureholder 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 denned 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 4A, 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 jaw 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 jaw and on the facts of the case. 9. So far as the question of the violation of provisions of Section 12A 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 Section 12A; while determining surplus land under Section 11 or 12, the Prescribed Authority shall, as far as possible accept the choice given by the tenureholder 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 the choice given by the petitioner in accordance with the provisions contained in Section 12A of the 'Act'. The impugned orders passerby 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, Bahraich 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. (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 provisions of Section 12A 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 costs. (Petition allowed)