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2011 DIGILAW 31 (UTT)

KAPIL KUMAR v. STATE

2011-01-05

TARUN AGARWALA

body2011
JUDGMENT The facts leading to the filing of the writ petitions is, that Laxmi Narayan was the original tenure holder and died in the year 1969 and left behind his three minor sons and his widow as his heirs who inherited agricultural land measuring 234 bighas, 10 biswas, 17 biswansis and 10 kachwansis, situate in Village Chandpur and in Village Nasirpur Khurd. In the year 1975, a notice under section 10(2) of Uttar Pradesh Imposition of Ceiling on Land Holdings Act, 1960 (hereinafter referred to as the Act) was issued in the name of the three minor sons of the deceased. The widow was not issued any notice. In the notice, the petitioners were directed to show cause as to why 42 bighas, 11 biswas, 16 biswansis and 10 kachwansis should not be declared as surplus land under the Act. Objections were filed alleging that the widow of deceased had a 1/4th share and that the land in village Nasirpur Khurd, measuring 135 bighas is a grove which was planted prior to 1971 and should be treated as a grove land. In the alternative, it was also alleged that the land in Nasirpur Khurd should be treated as un-irrigated land and that the tube-well installed at one of the plots was after 15th August, 1972. The petitioners contended that the transfer of the land by various registered sale deeds in the year 1972 were bonafide transactions made in good faith and that the sale deed was executed after seeking permission from the District Judge for the upkeep of the petitioners and, therefore, such sale deeds should be excluded from the surplus land. 2. The Prescribed Authority, by its order dated 20 May, 1979 rejected the objections of the petitioners and confirmed the notice holding that 42 bighas, 11 biswas, 16 biswansis and 10 kachwansis were surplus land in the hands of the petitioners. 3. In appeal, the order of the Prescribed Authority was modified to the extent that 10 bighas, 5 biswansis of land in village Chandpur was accepted as a grove and certain plots were treated as un-irrigated land and, consequently, the surplus land was reduced from 127 bighas, 15 biswas and 16 biswansis to 119 bighas 14 biswas and 14 biswansis as per appellate order dated 22.04.1977. 4. 4. The petitioners thereafter, filed the writ petition No. 2361 of 77 before the Allahabad High Court which was allowed by a judgment dated 19 December, 1976 and the order of the Prescribed Authority as well as the Appellate Authority was set aside and the case was remitted back to the Prescribed Authority to decide the matter afresh. The High Court held that the transfer of the land by means of registered sale deeds were valid and were made in good faith after seeking permission from the District Judge and such sale deeds can not be disregarded under Section 5(6)(b) of the Act and, consequently, directed the Prescribed Authority to reconsider the question of validity of the sale deeds for the purposes of section 5(6) of the Act. 5. Pursuant to the remand, the petitioners filed fresh objections contending that the sale deeds with regard to 40 bighas of land was bonafide and was not liable to be ignored under section 5(6) of the Act and that during the interim period, pursuant to consolidation proceedings, the total area of the three petitioners was reduced by 18 bighas and that each petitioner was allotted a chak of 61 bighas against the original land of 78 bighas. The petitioner further, contended that the land in village Chandpur and in village Nasirpur Khurd measuring 10 bighas and 135 bighas respectively was a grove and, in the alternative, the petitioner pleaded that the land in village Nasirpur Khurd should be treated as un-irrigated land. In support of his submission, the petitioner placed reliance upon a certificate issued by the Tehsildar dated 25.12.1965 to indicate that the land in village Nasirpur Khurd was a grove. 6. The Prescribed Authority by its order dated 27th May, 1988, allowed the relief as granted by the Appellate Authority by its order dated 20th April, 1977, namely, that the land in village Chandpur measuring 10 bighas and odd was a grove. In addition to the aforesaid, the Prescribed Authority also held that the sale deeds regarding 40 bighas of land were valid transactions and was not liable to be ignored under section 5(6) of the Act. The Prescribed Authority also allowed relief to the petitioners on account of deduction of area of the consolidation proceedings to the extent of 6 bighas, 11 biswas and 1 biswansi. 7. The Prescribed Authority also allowed relief to the petitioners on account of deduction of area of the consolidation proceedings to the extent of 6 bighas, 11 biswas and 1 biswansi. 7. The Prescribed Authority, however, gave no finding as to whether the land of village Nasirpur Khurd was a grove or not. The petitioners as well as the State being aggrieved by the order of the Prescribed Authority filed separate appeals. The appellate authority by an order dated 7 June, 1991 dismissed both the appeals of the petitioners as well as of the State. The Appellate Authority affirmed that the transfer of the land by registered sale deeds were made bonafide in good faith and were not liable to be ignored under section 5(6) of the Act. The Appellate Authority also affirmed that the petitioners were liable to be given the relief on account of reduction of area in consolidation proceedings to the extent of 6 bighas and odd. The Appellate Authority also held that the land in Village Nasirpur Khurd is an irrigated land on account of the existence of a tube-well as recorded in the Khasra No. 1380. The Appellate Authority held that the land in village Nasirpur Khurd cannot be treated as grove and is an irrigated land. 8. The petitioners, being aggrieved by the aforesaid orders, filed separate writ petitions, which have been clubbed altogether and are being decided together. For facility, the facts of writ petition no. 7119 of 2001 have been taken into consideration. 9. Heard Shri Sanjay Goswami and Shri Prabhakar Joshi, the learned counsel for the petitioners and Shri Sudhir Kumar, the learned Brief Holder for the State. 10. The learned counsel for the petitioners submitted that the authorities below have committed a manifest error in holding that the land at village Nasirpur Khurd was an irrigated land and was not a grove. The learned counsel submitted that the authorities below have not adhered to the definition of grove land as defined under section 3(8) of the Act nor have given a finding as to why the said land does not come within the ambit of a grove land. The learned counsel submitted that the authorities below have not adhered to the definition of grove land as defined under section 3(8) of the Act nor have given a finding as to why the said land does not come within the ambit of a grove land. The learned counsel submitted that the authorities have not considered the certificate of Tehsildar dated 25.12.1965 which has not been disputed by the authorities and has committed an error in relying upon the Fasli of 1380 to give a finding that it is not a grove land. The learned counsel further submitted in the alternative that in the event the court is of the opinion that the land is not a grove, in that event, the said land should be treated as un-irrigated land instead of it being treated as an irrigated land. The learned counsel submitted that reliance of Fasli 1380 was incorrect, in as much as, the tube-well was installed after 15th August, 1972 and, consequently, the installation of the tube-well could not be taken into consideration nor on that basis it could be held that the entire land was being irrigated by one tube-well. 11. Having heard the learned counsel for the parties, the entire dispute which boils down is with regard to the land situated in village Nasirpur Khurd and, the question urged is, whether the said land is a grove land or not and, in the alternative, whether the said land is irrigated or un-irrigated land. 12. In order to determine as to whether the land is irrigated land or un-irrigated land, section 4-A of the Act provides that the Prescribed Authority will examine the relevant Khasras for the year 1378 Fasli, 1379 Fasli and 1380 Fasli, and such other records as it may consider necessary. The said provision indicates that if a land is being cultivated by a private irrigation work, in that case, the Prescribed Authority shall determine such land to be irrigated land. For facility, the relevant portion of section 4-A is quoted here under : “4-A. Determination of irrigated land – The Prescribed Authority shall examine the relevant Khasras for the years 1378 Fasli, 1379 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 :- ........... 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........ then the Prescribed Authority shall determine such land to be irrigated land for the purpose of this Act.” 13. The authorities have relied upon the Fasli of 1380 in which it was recorded the existence of tube-well and, consequently, held that since the land was being irrigated by a private tube-well, the same was sufficient to treat it as an irrigated land. In the opinion of the Court, the finding of the authority on this aspect was perfectly correct and requires no interference. The submission of the learned counsel for the petitioner that the said land should be treated as un-irrigated land is patently erroneous. 14. Coming to the main dispute as to whether the land in village Nasirpur Khurd should be treated as a grove land or not, the relevant provision is section 3(8) of the Act which defines a grove land as under :- “3(8) ‘grove land’ means any specific piece of land in a holding having trees not including ]guava, papaya, banana or vine plants] planted thereon before January 24, 1971, in such numbers that they preclude, or when full grown will preclude, the land or any considerable portion thereof from being used primarily for any other purpose, and the trees on such land constitute a grove.” 15. A perusal of the aforesaid definition of the grove land indicates that a specific piece of land should have trees planted before 24th January 1971, in such numbers that they would preclude the land or any considerable portion thereof from being used primarily for any other purpose. Consequently, merely because some trees are existing on a land would not qualify the said land to be a grove land unless a specific finding is recorded, namely, that the number of trees on the land precludes the land from being used primarily for any other purpose and only then the land could be treated as grove land. 16. In the present case, there are two documents on records. The State authorities have relied upon the Fasli of 1380, which denotes that the land in village Nasirpur Khurd is “Bag Mazruba” which means that the land is a grove and is also under cultivation. 16. In the present case, there are two documents on records. The State authorities have relied upon the Fasli of 1380, which denotes that the land in village Nasirpur Khurd is “Bag Mazruba” which means that the land is a grove and is also under cultivation. The Brief Holder submitted that a perusal of 1380 Fasli would indicate the existence of following trees :- Mango - 55 Guava - 861 Ambla - 1 Jamun - 2 Goolar - 1 Bel - 5 Peepal - 1 Sheesham - 21 Dhak - 2 Shahtut - 12 Ber - 1 Tun - 1 Lemon - 9 Peach - 1 Misc. - 13 17. The learned Brief Holder submitted that a perusal of 1380 Fasli would indicate that there were not enough trees to hold that the land was a grove land and that, in any case, the majority of the trees were guava trees numbering 738 which, in any case, was precluded from a grove land under section 3(8) of the Act. Learned Brief Holder submitted that in view of 1380 Fasli, it is clear that the land cannot be treated as a grove land. 18. On the other hand, the learned counsel for the petitioners has relief upon a certificate of Tehsildar dated 25.12.1965 which indicates the existence of 3317 trees, out of which 2089 were mango trees and there were other trees which have not been considered by the Authorities. 19. Having heard the learned counsel for the parties, the Court finds that 1380 Fasli records the land of village Nasirpur Khurd as a grove land as well as cultivable land. Further, the petitioners have relied upon the certified of Tehsildar dated 25.12.1965 indicating the existence of a large number of trees on that land. Consequently, the Court is of the opinion that there appears to be a grove land in village Nasirpur Khurd as is clear from the certificate of the Tehsildar and the Fasli of 1380 but whether such grove land would constitute a grove land for the purposes of the Act, the Court finds that no specific finding has been given either by the Prescribed Authority or by the Appellate Authority. A specific finding is required to be given, namely, that the existence of the trees on the land in question, precludes the land from being used primarily for any other purpose. A specific finding is required to be given, namely, that the existence of the trees on the land in question, precludes the land from being used primarily for any other purpose. If such a finding is given, then the land would constitute a grove land otherwise, it would not. Since, no specific finding has been given on this aspect, the court is of the opinion that treating the land of village Narispur Khurd as irrigated land and not as a grove land is not correct and, to that extent, the order of the Prescribed Authority as well as of the Appellate Authority can not be sustained and are quashed. 20. In view of the aforesaid, the writ petitions are partly allowed and the matter is remitted to the Prescribed Authority only for a limited purpose to give a finding as to whether the land at village Nasirpur Khurd is a grove land or not as contemplated under section 3(8) of the Act. The Prescribed Authority after giving the aforesaid finding will accordingly recalculate the surplus land. The Court further directs the Prescribed Authority to pass a fresh order within six months from the date of the production of a certified copy of the order.