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2010 DIGILAW 3080 (ALL)

Shiv Ram Tiwari v. State of U. P. and others

2010-10-04

ARUN TANDON

body2010
Arun Tandon, J.- Proceedings under Section 10 (2) of the U. P. Imposition of Ceiling on Land Holdings Act, 1960 (hereinafter referred to as 'Act, 1960') were initiated against the present petitioner under a notice issued after the enforcement of Act No. 18 of 1973 in view of amended Section 4A read with Section 29 of the Act, 1960. The petitioner filed his objections to the notice so issued. The objections were considered and the Prescribed Authority vide order dated 30.7.1983 held that the petitioner had 1.04 acres of irrigated land as surplus. Not being satisfied with the order so passed by the Prescribed Authority, the recorded tenure holder filed an appeal under Section 13 of the Act, 1960. The appeal was allowed under order of the appellate authority dated 18.12.1986 and the matter was remanded to the Prescribed Authority to issue notice under Section 8 of the Act, 1960 to one Prem Narayan and to decide the matter afresh. Accordingly, notices were issued to Prem Narayan on 23.3.1987, to which he responded. 2. In the proceedings after remand the Prescribed Authority considered the objections raised on behalf of the petitioner pertaining to plot No. 4 (total area 1.63 acre). According to the petitioner the same was subject-matter of sale deed dated 5.8.1959, the authenticity whereof has been upheld by the ceiling appellate authority vide his order dated 27.8.1977 passed in Ceiling Appeal No. 311 of 1976. Therefore, this land could not be included in the holding of the petitioner. The second objection raised on behalf of the petitioner was with regard to Gata No. 167 (total area 9.71 acres) being wrongly treated as irrigated. 3. So far as the first objection raised on behalf of the petitioner is concerned, the same was granted and the Prescribed Authority held that in view of the order of the appellate authority dated 27.8.1977, passed in Appeal No. 311 of 1976, the sale transaction has been found to be bona fide. Accordingly, the land covered by the sale deed was directed to be excluded from the total land holding of the petitioner. 4. So far as the second objection raised on behalf of the petitioner was concerned, it was held that plot No. 167 comprises of various plots, the land whereof was categorized in revenue records as Kawar Awwal/Maad. Accordingly, the land covered by the sale deed was directed to be excluded from the total land holding of the petitioner. 4. So far as the second objection raised on behalf of the petitioner was concerned, it was held that plot No. 167 comprises of various plots, the land whereof was categorized in revenue records as Kawar Awwal/Maad. It has been recorded that such category of lands are to be treated as good quality of agricultural land. The plot was within the command area of the State canal and, therefore, in accordance with Section 4A the land has to be treated as irrigated. Khatau.nl entries for the purpose have also been referred to. The Prescribed Authority after considering the objection raised, determined that the petitioner had 0.71 acre of land in irrigated terms as surplus. 5. Not being satisfied the petitioner preferred an appeal under Section 13 of the Act, 1960 and for the first time it was contended before the appellate authority that since in the proceedings culminating in the order passed in' Appeal No. 311 of 1976 he was also a party, the order passed therein will be binding. In the said order it was held that the recorded tenure holder did not have any surplus land. 6. This objection of the petitioner has been rejected by the appellate authority under the impugned order after recording that the earlier proceedings referred to by the petitioner were initiated against his father and that too prior to the amendments introduced in the Ceiling Act through Act No. 18 of 1973. Such order will not operate as res judicata so far as the petitioner is concerned, and therefore the proceedings under Section 10 (2) of the Act, 1960 have been rightly initiated against him. 7. The other contention raised on behalf of the petitioner qua Gata No. 167 being unirrigated has also been rejected. The appellate authority, after taking into consideration the evidence brought on records, has affirmed the finding of the Prescribed Authority in that regard and has held that the land has to be treated as irrigated. 8. Petitioner lastly contended that one of his son has become major on 27.8.1987 and therefore 2.00 hectare of additional land be provided for the purpose. 9. 8. Petitioner lastly contended that one of his son has become major on 27.8.1987 and therefore 2.00 hectare of additional land be provided for the purpose. 9. This contention of the petitioner has also been rejected under the impugned order after recording that the rights of the tenure holder to retain the land had to be determined with reference to the date on which the notice has been issued/8th June, 1973 and since on the said date he did not have a major son, the beneul claimed has to be refused. 10. I have heard learned counsel for the petitioner and have gone through the records of the writ petition. 11. I am of the considered opinion that the finding recorded by the authorities on the issue of res judicata is based on true and correct application of law on the subject. Reference may also be made to Section 38B of the Act, 1960, which specifically provides that no finding or decision given before the commencement of this section in any proceeding or on any issue (including any order, decree or judgment) by any Court, Tribunal or authority in respect of any matter governed by this Act, shall bar the retrial of such proceeding or issue under this Act, in accordance with the provisions of this Act as amended from time to time. 12. From the records it is apparent that the proceedings against the petitioner were initiated in terms of the amendment introduced in Section 4A read with Section 29 of the Act, 1960, as amended vide Act No. 2 of 1975 w.e.f. 8th June, 1973. 13. So far as the issue of a son having become major in the year 1987 is concerned, the authorities have rightly held that such subsequent development has no bearing qua the proceedings- initiated under Section 10 (2) with reference to the relevant date. 14. So far as the last issue canvased by the petitioner qua plot No. 167 being unirrigated is concerned, this Court may record that Section 4A lays down the criteria for determining a particular plot of land to be irrigated/unirrigated. 14. So far as the last issue canvased by the petitioner qua plot No. 167 being unirrigated is concerned, this Court may record that Section 4A lays down the criteria for determining a particular plot of land to be irrigated/unirrigated. Clause 4A thirdly provides that any land situated within the effective command area of a lift irrigation canal or a State tube-well or a private irrigation work ; with the composition of its soil being such as is capable of growing two crops in an agricultural year ; then the Prescribed Authority shall determine such land to be irrigated land for the purposes of this Act. 15. In the facts of the case there is categorical finding that plot No. 167 is situate within the command area of a canal and that the composition of its soil was recorded in revenue records as Awwal/Maad, which category is a very good quality of soil capable of growing two crops in a year. The plot has, therefore, been rightly held to be irrigated, 16. There is no merit in the writ petition. It is dismissed. Interim order, if any, stands discharged.