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2012 DIGILAW 1108 (ALL)

Sohan Pal Singh v. State of U. P. and Others

2012-05-09

A.P.SAHI

body2012
Amreshwar Pratap Sahi, J.;— Heard Sri T.S.Dabas learned counsel for the petitioner and the learned standing counsel for the respondent nos. 1,2 and 3. The respondent no.4 is the sister of the petitioner and is a proforma respondent and was also an appellant before the appellate authority. As such it is not necessary to await any service of notice on the said respondent. This writ petition arises out of proceedings under the U.P. Imposition of Ceiling on Land Holdings Act, 1960. One Pothiram the grand father of the petitioner was the recorded tenure holder as on the appointed date i.e. 24.1.71. The proceedings were initiated in Ceiling Case No.266/163 of 1976 against Pothiram which culminated in an order dated 25.1.1977. The Prescribed Authority found that Pothiram had no land surplus in his holding and the ceiling proceedings were dropped. Prior to the aforesaid order Pothiram died on 15.1.1976 and was survived by his son Jairam father of the petitioner. On 7.4.1998 a fresh notice was issued to Jairam on the ground that the land held by him is in excess of the ceiling limit as prescribed on account of the fact that the land which was acquired by him is in the name of his minor son namely the petitioner, and minor daughter namely the respondent no.4 along with his wife Ramkali which deserves to be clubbed together. After contest the impugned order dated 28.2.2003 was passed proposing to declare 1.079 hectares of land in irrigated sense. While deciding the four issues as framed, the Prescribed Authority came to the conclusion that Jairam ostensibly held land in the name of his minor son and minor daughter, namely the petitioner and the respondent no.4, along with his wife, but on the issue relating to irrigated and un-irrigated land, the Prescribed Authority arrived at the conclusion that the holding was un-irrigated and therefore giving the benefit of the aforesaid fact the Prescribed Authority concluded that only 1.079 hectares of land in irrigated sense was surplus. The appeal against the order of the Prescribed Authority was preferred by the petitioner Sohan Pal Singh and respondent no.4 being Appeal No.8/14 of 2003. The appeal against the order of the Prescribed Authority was preferred by the petitioner Sohan Pal Singh and respondent no.4 being Appeal No.8/14 of 2003. The ground taken in the appeal was that the Prescribed Authority has recorded an erroneous finding with regard to the date of birth of the petitioner and therefore has wrongly concluded about the age of the respondent no.4 as such the finding is based on surmises and conjecture and the relevant evidence on record has been ignored. The contention in essence was that placing reliance on the oral testimony that too only the cross examination part was an erroneous exercise of the Prescribed Authority and therefore the order impugned deserves to be set aside. The appellate authority came to the conclusion that according to the cross examination of the witnesses it was established that the respondent no.4 was a minor and that the date of birth of the petitioner had not been established by any cogent material evidence. The appeal in so far as the claim of the petitioner was dismissed but the issue relating to the land being irrigated or un-irrigated which had been decided in favour of the petitioner was reversed invoking the principles of Order 41 Rule 22 of the C.P.C. The matter was remanded on the limited issue for re-computing the land as irrigated or un-irrigated and the Prescribed Authority was called upon to redetermine the same. Aggrieved the petitioner has come up before this Court and Sri T.S.Dabas learned counsel for the petitioner submits that both the findings on the issue of age as well as irrigated or un-irrigated land proceed on erroneous assumption of facts and therefore deserves to be set aside. Sri Dabas submits that not only oral testimony but documentary evidence in the shape of a school leaving certificate of the petitioner was filed. According to which the date of birth of the petitioner is 8th September, 1960. Further according to the oral testimony the respondent no.4 is the elder sister of the petitioner. In such circumstances if the date of birth of the petitioner is 8.9.1960 then in that event the respondent no.4 was admittedly a major as on the appointed date or even on the date when Jairam succeeded to the holding of late Pothiram. Further according to the oral testimony the respondent no.4 is the elder sister of the petitioner. In such circumstances if the date of birth of the petitioner is 8.9.1960 then in that event the respondent no.4 was admittedly a major as on the appointed date or even on the date when Jairam succeeded to the holding of late Pothiram. Learned counsel for the petitioner submits that this aspect has not been adhered to in correct perspective by the Prescribed Authority or the Appellate Authority and in such circumstances non-consideration of the school leaving certificate and other evidence vitiates the impugned order. Sri Dabas learned counsel for the petitioner to substantiate his submission has invited the attention of the Court to Para 9 of the writ petition and a reply thereto in para 7 of the counter affidavit to contend that there is no denial of the filing of the said document before the Prescribed Authority. On the issue relating to the land being irrigated or un-irrigated, he submits that there was no occasion for remand of the case inasmuch as the Prescribed Authority on the basis of the evidence on record and oral testimony rightly came to the conclusion that the land was un-irrigated and therefore the matter could not have been remitted back to fill up any lacuna without there being any cross appeal or separate appeal being filed by the State against the order of the Prescribed Authority. Replying to the aforesaid contentions Sri Nagaich learned standing counsel submits that the oral testimony adduced by the petitioner and the other objectors as well as cross examination leave no room for doubt that the petitioner himself was a minor, particularly in view of the fact that there was no other evidence contrary to that. He further submits that no cogent evidence was led by the petitioner to contradict the oral testimony which was on record. There is no occasion for this court to interfere with the aforesaid finding of facts. On the issue relating to the land being irrigated or un-irrigated he submits that Khasra 1378 F to 1380 F indicated that it was irrigated land and therefore this evidence was sufficient to set aside the finding recorded by the Prescribed Authority which the appellate authority was empowered to do so. On the issue relating to the land being irrigated or un-irrigated he submits that Khasra 1378 F to 1380 F indicated that it was irrigated land and therefore this evidence was sufficient to set aside the finding recorded by the Prescribed Authority which the appellate authority was empowered to do so. Having heard learned counsel for the parties so far as as the issue with regard to the age of the petitioner or his sister respondent no.4 being minor is concerned, the petitioner has come up with a clear case with a school leaving certificate that had been filed as evidence on record before the Prescribed Authority. This school leaving certificate of the petitioner indicates the date of birth as 8.9.1960. This fact has been categorically stated in para 9 of the writ petition. There is no denial in the counter affidavit to the aforesaid averment contained in the writ petition. The aforesaid document was on record before the Prescribed Authority which does not find mention in the impugned order or even in the order of the appellate authority affirming the same. In the aforesaid, circumstances in the opinion of the Court there was a material piece of evidence which has not been taken into consideration and without assessing the same the Prescribed Authority as well as the appellate authority were not justified in proceeding to record a finding on the said issue. So far as irrigated or un-irrigated land is concerned the Prescribed Authority has recorded a categorical finding treating the land to be unirrigated based on the evidence that was led. One relevant statement which was essential for consideration was the statement of Ziledar of the Irrigation Department Vinod Kumar Saxena who stated that Village Pandri does not have any source of irrigation. The Prescribed Authority believed the said statement and declared the land to be unirrigated. A perusal of Section 4-A of the U.P. Imposition of Ceiling on Land Holdings Act, 1960 indicates that if the Khasra is available the same has to be taken into account and even otherwise the said provision indicates about other material which can be taken into consideration. In the instant case additional material other than the Khasra was on record. A perusal of Section 4-A of the U.P. Imposition of Ceiling on Land Holdings Act, 1960 indicates that if the Khasra is available the same has to be taken into account and even otherwise the said provision indicates about other material which can be taken into consideration. In the instant case additional material other than the Khasra was on record. In such circumstances without there being any cross appeal or separate appeal being filed by the State for reversing the order on the said issue, the order does not appear to be justified. The appellate authority can not ignore or discard the oral testimony only on the basis of Khasra entries. Accordingly the appellate order dated 30.3.2007 cannot be sustained on both these counts. It is hereby set aside. The matter is remanded back to the learned Commissioner, Bareilly for deciding the matter afresh in the light of the observations made herein above. It is made clear that the petitioner shall not be dispossessed till any decision is taken in accordance with law. The direction of this Court to make deposits under the interim order dated 30.10.2007 is hereby discharged. The writ petition is allowed. No order as to costs. _____________