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Allahabad High Court · body

2012 DIGILAW 188 (ALL)

MAHENDRA PRATAP SINGH v. STATE OF U. P.

2012-01-19

ARUN TANDON

body2012
Arun Tandon, J. No counter affidavit has been filed to the amendment application despite the order dated 22.5.1997. The amendment application is allowed. Substitution application is also allowed. Proceedings initiated against the petitioner under Section 10( 2) of the U.P. Imposition of Ceiling on Land Holding Act, 1960 ( hereinafter referred as the Act) culminated in an order of the Prescribed Authority dated 31.1.1977 whereby 53.06 acres of irrigated land was declared as surplus. Not being satisfied the petitioner filed an appeal inter se 13 of the Act. The appeal was partly allowed vide judgement and order dated 23.12.1977 and the total surplus area with the petitioner was reduced to 36.48 acres. The petitioner was not satisfied even thereafter he, therefore, filed Writ Petition No. 1660 of 1978. The writ petition was allowed vide order dated 20.7.1979 & 14.8.1980 and the matter was remanded to the appellate authority qua decision afresh in terms of the observations made by the High Court. The appellate authority in turn remanded the matter to the Prescribed Authority vide order dated 07.07.1985. On remand the Prescribed Authority having regard to the directions framed 3 issues for determination. ( a) Whether the petitioner was entitled to two hectares of additional land in respect of one major son or not? ( b) Whether the petitioner was entitled to reduction in total area shown to be possessed by him because of double entry of the plots. ( c) Whether the determination of the plots being irrigated or not, has been made in accordance with Section 4( A) of the Act, 1960 and whether the petitioner was entitled to certain area as it was grove. As per the order of remand, the Prescribed Authority issued an order for spot inspection to be done by the Sub-Divisional Officer vide order dated 31.3.1997. The spot inspection was done by the Sub-Divisional Officer in the presence of the petitioner on 18.6.1990 and a detail report was submitted before the Prescribed Authority. The Prescribed Authority after considering the evidence brought on record including the inspection report, the khasra of the relevant fasli and other material evidence proceeded to answer the aforesaid three issues as follows: ( a) The petitioner did not have any major son on the relevant date and, therefore, he was not entitled to the additional benefit of two hectares of land. Issue no. 1 was, therefore, answered against the petitioner. Issue no. 1 was, therefore, answered against the petitioner. ( b) With regard to issue no. 2, it was held that there has been no double entries in the notice issued to the petitioner and that the benefit as claimed by the petitioner in that regard, was misconceived. Issue no. 2 was also answered against the petitioner. ( c) So far as the issue no. 3 is concerned which has been pressed before this Court, it has been recorded that Plots No. 25, 29, 33, 233, 234, 279, 292, 910, 27, 700, 732, 944/22 23 and 98 of village Malakapur were within the command area of the canal and, therefore, in terms of Section 4( A), they had to be treated as irrigated land. With regard to Plots No. 722, 725 726, 727, 730 and 286, after referring to khasra in terms of 1378 fasli and 1380 fasli and the number of trees standing on the area of the respective plots, including the crop grown on the aforesaid plots, a conclusive finding has been recorded that the plots were not grove. The petitioner was not entitled to any benefit, as claimed by him in respect of the said plots being grove. Lastly, it has been recorded that Plot No. 99/21 area 1-13-4 had been shown as abadi in the earlier order of the Prescribed Authority as well as in the inspection report, however, since the petitioner has not obtained any declaration under Section 143 of U.P. Zamindari Abolition & Land Reforms Act, 1950, the benefit of such abadi cannot be granted in his favour. The Prescribed Authority accordingly proceeded to answer to all these three issues against the petitioner and recorded that he had 38.29 acres of the irrigated land as surplus. Not being satisfied the petitioner filed an appeal which has also been dismissed under order dated 09.09.1991 by the Additional Commissioner, Allahabad after affirming the findings of fact recorded by the Prescribed Authority on all the three issues. Hence, the present writ petition. Challenging the order so passed, learned counsel for the petitioner contended that since the Prescribed Authority was directed to hold and spot inspection under the order of remand, such spot inspection had to be conducted by the Prescribed Authority himself and he could not have passed an order directing the Sub-Divisional Officer to conduct spot inspection. Challenging the order so passed, learned counsel for the petitioner contended that since the Prescribed Authority was directed to hold and spot inspection under the order of remand, such spot inspection had to be conducted by the Prescribed Authority himself and he could not have passed an order directing the Sub-Divisional Officer to conduct spot inspection. It is therefore submitted that the order of remand has not been complied with. The contention so raised on behalf of the petitioner does not appeal to the Court when an authority is directed by the appellate authority to get the spot inspection done. It does not mean that the prescribed authority must itself conduct the spot inspection. It is within the competence of the Prescribed Authority to direct a competent Officer to conduct spot inspection. In that regard specific order was passed by the Prescribed Authority in the proceedings after remand on 31.3.1987. Spot inspection in fact was done in the presence of the petitioner. He neither objected to the order dated 31.3.1997 nor to the inspection done by the Sub-Divisional Officer or to his report. It is, therefore, to late in the day to permit the petitioner to question the spot inspection report on the plea that such inspection should have been done by the Prescribed Authority himself. The plea is, therefore, rejected. This Court may record that absolutely no objection exists on record with regard to the spot inspection report dated 18.6.1990. Therefore, the inspection report has rightly been relied upon by the authorities. Now on the merits of the three issues which have been decided, it may be recorded that the petitioner could not successfully assail the findings recorded on Issue No. 1 as well on Issue no. 2. The findings recorded in that regard are based on appreciation of evidence being pure findings of fact cannot be interfered with under Article 226 of the Constitution of India. So far as Issue No. 3 is concerned, it is submitted on behalf of the petitioner that from the inspection report, it is nowhere clear that the plots mentioned here-in-above of village Malakapur were within the command area and therefore be treated as irrigated in view of Section 4( a) of the Act. So far as Issue No. 3 is concerned, it is submitted on behalf of the petitioner that from the inspection report, it is nowhere clear that the plots mentioned here-in-above of village Malakapur were within the command area and therefore be treated as irrigated in view of Section 4( a) of the Act. This Court may record that along with the counter affidavit, a copy of the inspection has been brought on record and in respect of the plots referred to above, it has specifically been noticed that the plots are within the command area of the canal. The petitioner had not raised any plea in his appeal qua the plots being not within the common area or that the enclosure to the report does not reflect true facts. Even in the writ petition there is no challenge to the finding that the said plots are within the common area of the canal. Section 4( A) of the Act 1960 specifically provides that any land situate within the command area of irrigation canal of the State, tube well or private irrigation work shall be treated to be irrigated for the purposes of the Act. Effective command area has been defined under explanation 1 to the Section of the said Act. It is not the case of the petitioner that any of the conditions mentioned under Section 4( A) in respect of the land which is within the command area are not satisfied nor any such plea was raised in the appeal filed by the petitioner. In view of the aforesaid, this Court finds no illegality in the order impugned declaring the said plots to be irrigated. In respect of the plots which according to the petitioner were grove. The Prescribed Authority has specifically noticed the number of trees as recorded in khasra entries of 1378 fasli and 1380 fasli with reference to the total size of the plot and thereafter it has referred to the crop which was actually grown on the plots in question during the aforesaid fasli. After evaluating the material evidence he has come to a conclusion that the plots were not grove. The facts recorded by the Prescribed Authority have not been challenged in the appeal have rightly been accepted by the appellate authority to be correct and on that basis it has rightly proceeded to affirm the findings of the Prescribed Authority. After evaluating the material evidence he has come to a conclusion that the plots were not grove. The facts recorded by the Prescribed Authority have not been challenged in the appeal have rightly been accepted by the appellate authority to be correct and on that basis it has rightly proceeded to affirm the findings of the Prescribed Authority. The findings need not be interfered with under Article 226 of the Constitution of India. This takes the Court to the contention raised with regard to Plot No. 99/21 village Shahjahanpur khasara total area 1-13-4 being abadi. The inspection report as well as the Prescribed Authority earlier had specifically recorded that the plot was in the shape of abadi . Section 6 sub-clause ( 1) provides that while determining the area applicable to tenure holder the land mentioned in various clause of Section 6 will not be taken into consideration clause 6( b) refers to land occupied for the residential house. Since the inspection report and the earlier order of the Prescribed Authority records that Plot No. 99/21 area 1-13-4 was in the nature of abadi and there being no contrary evidence on record, it has to be accepted that the plot was occupied by the residential house and, therefore, stood excluded from consideration in view of section 6( 1) of U.P. Imposition of Ceiling on Land Holding Act. This Court may clarify that so far as the bhumidhars are concerned it is not necessary for them to obtain any declaration under Section 143 for using the land of which they are the bhumidhar for the purposes other than agriculture as would be clear from simple reading of Section 142 of U.P. Zamindari Abolition & Land Reforms Act, 1950 which reads as follows: 142. Right of a Bhumidhar to the exclusive possession of all land in his holding. ( 1) A bhumidhar with transferable rights shall, subject to the provisions of this Act, have the right to exclusive possession of all land of which he is a bhumidhar and to use it for any purpose whatsoever. ( 2) A bhumidhar with non-transferable rights shall, subject to the provisions of this Act, have the right to exclusive possession of all land of which he is such bhumidhar and to use such land for any purpose connected with agriculture, horticulture or animal husbandry which includes pisciculture, poultry farming and social forestry. ( 2) A bhumidhar with non-transferable rights shall, subject to the provisions of this Act, have the right to exclusive possession of all land of which he is such bhumidhar and to use such land for any purpose connected with agriculture, horticulture or animal husbandry which includes pisciculture, poultry farming and social forestry. Accordingly, mere a non-declaration under Section 143 of U.P. Zamindari Abolition & Land Reforms Act, 1950 would not in any way defeat the rights of the petitioner to seek exclusion of Plot No. 99/21 village Shahjahanpur area 1-13-4 as it was in the nature of abadi. The appellate court misdirected itself in refusing the benefit to the petitioner in respect of the said plot only on the ground that a declaration under Section 143 of U.P. Zamindari Abolition & Land. Reforms Act, 1950 has not been issued. The order of appellate authority to that extent is hereby set aside. The order of the Prescribed Authority as well as the appellate authority are hereby affirmed subject to the direction that the surplus area available to the petitioner shall be reduced by 1-13-4 i.e. area of Plot No. 98/22 village Shahjahanpur which as recorded above is liable to be excluded in view of Section 6( 1) ( b) of U.P. Act No. 1960. The balance surplus area available with the petitioner must be taken possession of by the authorities concerned and proceeded with in accordance with the Act, 1960 immediately. Writ petition is partly allowed. Interim order is discharged.