JUDGMENT Hon’ble Sudhir Agarwal, J.—This writ petition is directed against order dated 29.1.1990 (Annexure 5 to the writ petition) passed by Prescribed Authority/Additional Collector (Finance)/, Kanpur Nagar in case No. 87 of 1989 rejecting the petitioners’ application for recall of the order dated 26.12.1989. Another order assailed in the writ petition is dated 12.4.1990 passed by Commissioner, Kanpur Division, Kanpur, rejecting petitioners’ appeal No. 10 of 1990 against above two orders dated 26.12.1989 and 29.1. 1990 passed by the Prescribed Authority. 2. It is submitted on behalf of the petitioners that 12.10.1989 was fixed for objections and evidence but due to illness of petitioner No. 1, Sri Ganga Sagar Singh who was doing pairvi of the matter, he could not appear on that date. Thereafter on 17.10.1989 petitioner No. 2 Shiv Sagar Singh who is real younger brother of petitioner No. 1 met a serious accident while driving motorcycle and was admitted in SGPGI, Lucknow. Petitioner No. 1 being engaged in looking after his younger brother could not pursue the matter for almost one and half month. When his brother showed some recovery, petitioner No. 1 came to Court on 2.1.1990 and was informed that some order had already been passed on 26.12.1989. However, he could not inspect the record on that day. The next date was holiday and, therefore, inspection could be made only on 4.1.1990 when he found that on 12.10.1989 the matter was adjourned, whereafter several dates were fixed for evidence, and ultimately on 26.12.1989 ex parte order was passed. He immediately moved an application on 4.1.1990 for recall of the order dated 26.12.1989. No objection was filed on behalf of the respondents to the said application but the Prescribed Authority observing that the order dated 26.12.1989 having been passed on merits is not an ex parte order and hence rejected the said application vide order dated 29.1.1990. 3. It is contended that the Commissioner also having failed to consider this aspect of the matter, has erred in law and, therefore, the appellate order is also liable to be set aside. Reliance has been placed on judgment of Apex Court in the case of Collector, Land Acquisition, Anantnag and another v. Mst. Katiji and others, 1987(1) ARC 288. 3. It is contended that the Commissioner also having failed to consider this aspect of the matter, has erred in law and, therefore, the appellate order is also liable to be set aside. Reliance has been placed on judgment of Apex Court in the case of Collector, Land Acquisition, Anantnag and another v. Mst. Katiji and others, 1987(1) ARC 288. Sri Singh contended that ordinarily a litigant does not stand to benefit by lodging an appeal (application in the present case) belated and there is no presumption that delay is occasioned deliberately or on account of culpable negligence or mala fide. He contended that Court must follow and adopt the approach of substantial justice by deciding matter on merit and should be ready in entertaining the application even if some delay occurs unless something crucial is found otherwise. 4. Though the aforesaid decision relates to a matter where delay had occurred in filing appeal which involved important question regarding principle of valuation of immovable property and it was belated by just 4 days but the learned counsel for the petitioners in the present case insisted that general observations of law laid down by the Apex Court applicable to all matters. The principles laid down therein as also the approach of the Court as stated therein must be followed where an ex parte decision has been given. It is submitted that Prescribed Authority passed the order on merits but it was ex parte qua the petitioners. Hence he committed a patent error by observing that since he had passed the order on merits, therefore , it cannot be said to be ex parte. It is also contended that authorities below erred in law to the extent of doing travesty of justice with the petitioners particularly in a matter where valuable property of the petitioner is involved. The authorities have failed to adopt an approach which is in furtherance of giving substantial justice. 5. Coming to merits of issue Sri Singh contended that that ex facie, both the authorities have misconstrued Section 4-A of the Uttar Pradesh Imposition of Ceiling on Land Holdings Act, 1960 (hereinafter referred as ‘1960 Act’) and misread documents while holding the land in question as “irrigated land” and, therefore, impugned orders are liable to be set aside. 6. I have heard learned counsel for the parties and perused the record. 7. Petitioners possessed plot No. 1712. 6. I have heard learned counsel for the parties and perused the record. 7. Petitioners possessed plot No. 1712. The question before the authorities was “whether aforesaid plot is irrigated land or not under Section 4-A of 1960 Act” which provides the manner of determination of irrigated land. It reads as under : “4-A. Determination of Irrigated land.—The prescribed authority shall examine the relevant Khasras for the years 1378 Fasli, 1979 Fasli and 1380 Fasli, the latest village map and such other records as it may consider necessary, and may also make local inspection where it considers necessary and thereupon if the prescribed authority is of opinion : firstly, (a) that, irrigation facility was available for any land in respect of any crop in any one of the aforesaid years; by— (i) any canal included in Schedule No. 1 of irrigation rates notified in Notification No. 1579-W/XXIII-62-W-1946, dated March 31, 1953, as amended from time to time; or (ii) any lift irrigation canal; or (iii) any State tube-well or a private irrigation work; and (b) that at least two crops were grown in such land in any one of the aforesaid years; or Secondly, that irrigation facility became available to any land by a State Irrigation Work coming into operation subsequent to the enforcement of the Uttar Pradesh Imposition of Ceiling on Land Holdings (Amendment) Act, 1972, and at least two crops were grown in such land in any agricultural year between the date of such work coming into operation and the date of issue of notice under Section 10; or thirdly, (a) that any land is situated within the effective command area of a lift irrigation canal or a State tube-well or a private irrigation work; and (b) that the class and composition of its soil is such that it is capable of growing at least two crops in an agricultural year; then the Prescribed Authority shall determine such land to be irrigated land for the purposes of this Act.” 8. A bare perusal of above provision shows that the Prescribed Authority before forming his opinion about the irrigation facility to the land in question has to examine (i) the relevant khasra for the years 1378, 1379 and 1390 Faslis (ii) the latest village map (iii) such other records as he may consider necessary. 9. A bare perusal of above provision shows that the Prescribed Authority before forming his opinion about the irrigation facility to the land in question has to examine (i) the relevant khasra for the years 1378, 1379 and 1390 Faslis (ii) the latest village map (iii) such other records as he may consider necessary. 9. Besides, it also contemplates that Prescribed Authority can also make local inspection where he considers necessary. 10. Moreover, there should be at least two crops grown in such land in any one of the aforesaid years, meaning thereby the former part contemplating consideration of certain records is obligatory, while in respect to other records and local inspection it is for the Prescribed Authority to decide wherever he finds and considers it necessary. Therefore, it may be discretionary. 11. It brings to the situation that examination of relevant Khasra of years 1378, 1379 and 1380 Fasli and latest village map are mandatory. Besides, the opinion which has to be formed by the Prescribed Authority shall be in respect of following : (a) Irrigation facility was available for land in respect of any crop in any one of the aforesaid years by any canal included in schedule-I, the mode of irrigation notified in notification dated 31.3.1953 as amended from time to time by any lift irrigation canal or State tube-well or private tube-well. (b) At least two crops were grown in such land in any of the aforesaid years. 12. After these two conditions are satisfied, the land would qualify to be irrigated land and not otherwise. 13. In the alternative, the second aspect is that the irrigation facility became available to the land by a State Irrigation work coming into operation subsequent to the enforcement of U.P. Imposition of Ceiling on Land Holdings (Amendment) Act, 1972 and at least two crops were grown in any such agricultural years between the date of such work coming into operation and the date of issuance of notice under Section 10. To attract the third contingency, two conditions needed to be satisfied, i.e. the land is situated within the command area or lift irrigation canal or State tube-well or a private one and the class and composition of soil is such that it is capable of growing two crops in an agricultural year. If these are satisfied, the land can be determined “irrigated land” for the purpose of in 1960 Act. If these are satisfied, the land can be determined “irrigated land” for the purpose of in 1960 Act. 14. From a perusal of impugned orders it also appears that land in question is not covered by 2nd and 3rd contingencies as discussed above. The authorities have referred to first contingency i.e. availability of irrigation facility in any of aforesaid years i.e. 1378, 1379 and 1380 Fasli and two crops grown in such land in any of the aforesaid years. 15. Now I have to find out whether these two conditions are satisfied and whether the record which is mandatory to be seen by the Prescribed authority, has in fact, been considered by the Prescribed Authority or not. There is a finding showing that relevant Khasras for the years 1378, 1379 and 1380 Fasli were not considered as the same were not available. Khasra of 1383 Fasli has been considered wherein it was mentioned that land is irrigated by tube-well and there is mention of two crops in 1383 Fasli. The absence of three khasras of years 1378,1379 and 1380 Fasli has been tried to be justified by saying that since it was not available, it was not possible to the Prescribed Authority to look into the same. For this purpose, reliance has been placed on this Court’s decision in Jaswant Singh v. State of U.P. and others, 1979 ALJ 25. 16. In my view, respondents authorities have miserably failed in discharge of their statutory duties. The impugned orders cannot sustain for the reason that it has been stated in impugned orders that Khasra of 1378, 1379 and 1380 Fasli were not available though in the counter affidavit respondents have explained non-availability of above khasras stating that same was lying with Consolidation Authorities since consolidation proceedings in the area in question were in progress. In para 4 of counter affidavit respondents have stated as under : “The Khasra relating to year 1378, 1379 and 1380 Fasli were not available on account of Consolidation operation during that period in the area and the Khasra relating to 1982 Fasli which was available was on record before the Prescribed Authority. Keeping in view all the provisions of law. The Prescribed Authority declared 3 Bigha, 3 Biswa, 4 Biswansi area of plot No. 1712-A as surplus.” 17. Keeping in view all the provisions of law. The Prescribed Authority declared 3 Bigha, 3 Biswa, 4 Biswansi area of plot No. 1712-A as surplus.” 17. An impression has been given in impugned orders as if khasra of three relevant years were not available, meaning thereby it was not available at all for having lost or untraceable and in such situation authorities had no option but to look into other records. But the fact is that record was well in existence and available in another office. It could have been obtained by the authority concerned from the office of Consolidation Authorities. There is nothing on record to show that any such attempt was made by authority concerned to obtain such record and thereafter to consider whether land in question qualify as “irrigated land” in accordance with Section 4-A of 1960 Act. 18. Moreover, requirement of two crops grown in such land has to be seen in three years namely 1378,1379 and 1380 Fasli if the first condition of Section 4-A of 1960 Act has to be applied. The authorities have said that in khasra of 1383 Fasli two crops were mentioned. That would not necessarily prove that two crops were actually grown at land in question in any of the relevant years, namely 1378, 1379 and 1380 Fasli. 19. In the counter affidavit, respondents have also said that land in question is within the command area of class concerned. Here also, explanation to third contingency makes it clear that land must have been irrigated in any of the years 1378, 1379 and 1380 Fasli or in any agricultural year referring to in the class. No such aspect appears to have been considered by authority and it is also not mentioned in entire counter affidavit or in the impugned order. This defence appears to be an afterthought. 20. Further It also appears from record that no spot inspection was made by authorities concerned. No doubt, the inspection is not mandatory but when the record of relevant years was not available, authorities concerned ought to have made spot inspection also. However, I am not recording any final opinion on this aspect since irregularity or illegality committed by respondents as noticed above is sufficient for non-sustainability of impugned orders. 21. Now, I come to second aspect whether petitioners’ application for recall of ex parte order dated 26.12.1989 has been rejected rightly or not. However, I am not recording any final opinion on this aspect since irregularity or illegality committed by respondents as noticed above is sufficient for non-sustainability of impugned orders. 21. Now, I come to second aspect whether petitioners’ application for recall of ex parte order dated 26.12.1989 has been rejected rightly or not. The petitioners have given reasons for their non-appearance i.e. younger brother Shiv Sagar Singh petitioner No. 2 met with an accident and was hospitalised and petitioner No. 1 was busy in taking care of his younger brother hence could not appear. Prescribed Authority has not recorded any findings that the said explanation given by petitioners was incorrect. It had rejected the request for recall of application dated 26.12.1989 only on the ground that they did not appear subsequently. This aspect has also not been appreciated by the appellate authority. In my view, approach of respondent-authorities on this aspect cannot be sustained in view of what has been said by Apex Court in Collector, Land Acquisition Anantnag (supra). 22. In the result, writ petition is allowed. Impugned orders dated 29.1.1990, 12.4.1990 and 26.12.1989 are set aside. The matter is remanded back to respondent No. 2 to reconsider in accordance with observations made above and in consonance with law, and to determine the nature of land whether “irrigated” or not and pass a fresh order. This exercise shall be completed by the Prescribed Authority within three months from the date a certified copy of this order is filed before him, after giving opportunity of hearing to all the concerned parties. 23. No costs. —————