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2007 DIGILAW 3009 (ALL)

GAYA PRASAD v. DISTRICT JUDGE, HAMIRPUR

2007-12-14

SHISHIR KUMAR

body2007
JUDGMENT Hon’ble Shishir Kumar, J.—I have heard Sri Anil Sharma, learned Counsel for the petitioner and learned Standing Counsel for the respondents. 2. The present writ petition has been filed for quashing the orders dated 29.1.1985 and 2.7.1985 passed by the respondent Nos. 1 and 2 (Annexures 1 and 2 respectively). 3. The fact arising out of the writ petition are that the petitioner who was a tenure holder a notice under Section 10(2) of the Act was issued declaring an area of 8.79 acres of the irrigated land. Upon receipt of the aforesaid notice, the petitioner filed an objection before the Prescribed Authority, Rath, District Hamirpur, stating therein that the irrigated land mentioned in the notice is not correct and there is no facility of irrigation and the land belonging to the petitioner is not capable of two crops in the area. Thereafter the petitioner has not received any notice and in the first week of February, 1985. The petitioner heard a rumour in the village that the case against the petitioner has been decided ex-parte on 28.1.1985 and 29.1.1985. The petitioner inquired from his Counsel who informed him that he is also not aware regarding the decision. Then the petitioner has made an inquiry and then he came to know that the said case has been decided by the Prescribed Authority Kulpahar. Then the petitioner filed an application to set aside the ex-parte order but the Prescribed Authority vide its order dated 6th February, 1985 had rejected the said application. 4. Aggrieved by the aforesaid order, the petitioner filed a regular appeal before the Appellate Authority. A specific ground in the appeal was taken which is being quoted below : ^^;g fd mDr okn igys fu;r izkf/kdkjh jkB ds U;k;ky; esa py jgk Fkk tks fd lquokbZ ds fy, fu;r izkf/kdkjh dqyigkM+ ds U;k;ky; esa izLrqr fd;k x;k fu;r izkf/kdkjh dqyigkM+ us vihyk.V dks fcuk lwfpr fd, gq, fnukad 29-1-1985 dks mDr okn dk fu.kZ; dj fn;k vihyk.V us ml vknsk dks fujLr djk; tkus dk fnukad 6-2-1995 dks izkFkZuk i= Hkh fn;k ysfdu og Hkh fujLr dj fn;k x;kA** 5. In spite of the aforesaid fact, the Appellate Authority vide its order dated 2.7.1985 has rejected the appeal filed by the petitioner without recording a finding regarding the fact that whether the notice was ever served after filing an objection to the petitioner or not. In spite of the aforesaid fact, the Appellate Authority vide its order dated 2.7.1985 has rejected the appeal filed by the petitioner without recording a finding regarding the fact that whether the notice was ever served after filing an objection to the petitioner or not. A specific ground was taken before the Appellate Authority that the notice was issued by the Prescribed Authority sitting at Rath but the Prescribed Authority sitting at Kulpahar has decided the objection of the petitioner. The Appellate Authority has recorded a finding that it appears that no order of transfer on record was there. The appeal filed by the petitioner was rejected only on the ground that the order has been signed by the Prescribed Authority mentioning is as Rath/Kulpahar. Therefore, it will be presumed that the order has been passed by the authority sitting at Rath. 6. Further submission has been made by Sri Anil Sharma, learned Counsel for the petitioner that judgment and order passed by the authorities below are not in confirmity of Section 4-A of the U.P. Imposition of Ceiling on Land Holdings Act, 1960. A finding to this effect has to be recorded on the basis of the relevant khasra of such year as the State Government may notify the latest village map and such other records as may be considered necessary and local inspection to that effect has to be made. As regards, the finding recorded by the Prescribed Authority regarding finding in judgments, it is not in consonance of Section 4-A sub-clause (I). If there is no finding, land of the petitioner cannot be treated to be irrigated having facility of two crops. The reliance has been placed by the learned Counsel for the petitioner upon a judgment of the Apex Court reported in (1981) 3 SCC 93 , Kartar Singh v. State of Uttar Pradesh and others. The operative portion of this order is being quoted below : “For these reasons, therefore, we will allow this appeal on this point only and remit the case to the prescribed authority to determine the exact area of the land with respect to the plots mentioned above only which is irrigated or has irrigational facilities. The operative portion of this order is being quoted below : “For these reasons, therefore, we will allow this appeal on this point only and remit the case to the prescribed authority to determine the exact area of the land with respect to the plots mentioned above only which is irrigated or has irrigational facilities. The prescribed authority will also find if two crops are grown in one of the years as required by Section 4-A. If on determining the question he finds that irrigation facilities are not available to the entire plots, he will determine the surplus area accordingly and give a choice to the tenure holder under the Act.” 7. The learned Counsel for the petitioner has further placed reliance upon a judgment of Ghansi Ram v. State of U.P., 1977 (3) ALR 428. This Court has held that unless and until the ingredients of Section 4-A is complied with, it cannot be treated that the land belonging to a tenure holder is irrigated land. 8. After hearing Counsel for the parties and after perusal of the record, it is clear that no finding in consonance of Section 4-A has been recorded by the authority below. Section 4-A contemplates three types of situation when land can be said to be irrigated. They do not over-lap. In the first category irrigation facility and growing of two crops in any of three years (i.e. 1378 to 1380). The second category is where irrigation facilities became available by State Irrigation work after 1972 and growing of two crops were shown in any agricultural years between date of work and issue of notice under Section 10 and for the last category, land should be situated within an effective command area of lift irrigation canal, tubewell a private irrigation work and class and composition of soil may be such that it may be capable of growing two crops. Category third is attracted only if the land is found to be situated in effective command area. There is no such finding. The mere statement in the counter affidavit falls short of the requirement contemplated in the section. Sub-section (2) of Section 3 defines ceiling area. The Act uses the word area, land and holding. Even Section 4-A provides that only that land shall be considered as irrigated land regarding which irrigation facilities are available and at least two crops were grown. The mere statement in the counter affidavit falls short of the requirement contemplated in the section. Sub-section (2) of Section 3 defines ceiling area. The Act uses the word area, land and holding. Even Section 4-A provides that only that land shall be considered as irrigated land regarding which irrigation facilities are available and at least two crops were grown. Land and plot are not synonymous. Even in the khasra there is a column for each plot. In different columns area, etc., nature of land, irrigated or un-irrigated is shown. What is to be ascertained is how much land is irrigated. It may be that a plot may have a very large area but only a portion of it the irrigation facilities may be available and crops may be grown. In order to avoid hardship in such cases, the legislature used the word ‘land’ and not ‘plot’ or ‘holding’. In view of the aforesaid fact and in view of Ghansi Ram judgment (supra) it is clear that no such finding has been recorded by any authority in the present case. 9. Further it has also to be seen that admittedly judgment and order passed by the Prescribed Authority was an ex-parte without affording an opportunity to the petitioner. The Prescribed Authority sitting at Kulpahar has decided the case against the petitioner. Though a notice under Section 10(2), an objection was filed by the petitioner before the Prescribed Authority, Rath, District Hamirpur. There is no finding recorded by the authorities below that the notice was ever served regarding the date by any of the authority to the petitioner. 10. In view of the aforesaid fact, I am of the opinion that the judgment and order passed by the authorities below is not sustainable in the eye of law, as such are liable to be quashed. The orders dated 29.1.1985 and 2.7.1985 passed by the respondent Nos. 1 and 2 (Annexures 1 and 2 respectively) are hereby quashed. The writ petition is allowed. The matter is remanded back to the Prescribed Authority to decide as afresh after affording full opportunity to the petitioner and in view of observation made above. The petitioner will be at liberty to lead evidence to that effect. As the matter is very old, as such, it may be decided within a period of six months from the date of production of the certified copy of this order. The petitioner will be at liberty to lead evidence to that effect. As the matter is very old, as such, it may be decided within a period of six months from the date of production of the certified copy of this order. 11. No order as to cost. ————