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2012 DIGILAW 490 (UTT)

GURPRIT SINGH v. STATE OF U. P.

2012-08-21

B.S.VERMA

body2012
JUDGMENT Hon’ble B.S.Verma, J. Since the controversy involved in both these writ petitions is similar, therefore, for the sake of convenience they are being decided by this common judgment. 2. By means of Writ Petition (M/S) No.5855 of 2001, the petitioners have sought the following relief:- I. Issue a writ, order or direction in the nature of certiorari quashing the impugned orders of the opposite party no. 1 and 2 and summon the record of the case. II. Issue a writ, order or direction which this Hon’ble Court may deem fit and proper under the circumstances of the case may kindly be passed. II(a) Issue a writ, order or direction or writ in the nature of mandamus declaring the proceedings held under U.P. Imposition of Ceiling on Land Holdings Act, 1960 against the petitioners as void ab-initio. 3. By means of Writ Petition (M/S) No.5856 of 2001, the petitioners have sought the following relief:- I. Issue a writ of certiorari or any other suitable writ, direction or order and call for the record of the petitioners case and quash the impugned orders dated 29.11.82 (Annexure 1(a) and 1(b) and dated 15.2.88 (Annexure II to the petition). II. Issue a writ, order or direction, which this Hon’ble Court may deem fit and proper under the circumstances of the case may kindly be passed. II(a) Issue a writ, order or direction or writ in the nature of mandamus declaring the proceedings held under U.P. Imposition of Ceiling on Land Holdings Act, 1960 against the petitioners as void ab-initio. III Award costs of the petition. 4. Brief facts, giving rise to the writ petition no. 5855 of 2001 (Old No. 6328 of 1988), as emerges out from the record are that the petitioners are the joint tenure holders of the agricultural lands of Khatauni Khata Nos. 14 and 33 situated in village Fazalpur, Mahrola, Tehsil Kichha, district Nainital. It appears that after amendment made in the year 1973 in the U.P. Imposition of Ceilings on Land Holdings Act, 1960 (for short 1960 Act), proceedings under the said Act were initiated against the petitioner Gurpreet Singh bearing Ceiling Case No. 51/27 of 1974-75, State Vs. Gurpreet Singh. 14 and 33 situated in village Fazalpur, Mahrola, Tehsil Kichha, district Nainital. It appears that after amendment made in the year 1973 in the U.P. Imposition of Ceilings on Land Holdings Act, 1960 (for short 1960 Act), proceedings under the said Act were initiated against the petitioner Gurpreet Singh bearing Ceiling Case No. 51/27 of 1974-75, State Vs. Gurpreet Singh. The Prescribed Authority/Sub Divisional Officer Kichha issued notices to each of the petitioners under sub-section (2) of Section 10 of 1960 Act calling upon them as to why the land of their holding in excess of the ceiling limit be not declared as surplus. An objection was raised before the Prescribed Authority that the entire land of the tenure holder is unirrigated and there is grove and banjar land for which no exemption has been given. Some other persons filed their objection contending that they purchased some of the land from the tenure holder by sale deed dated 22-3-1975. The learned Prescribed Authority found that the objectors were not tenure holder on 8-6-1973 therefore they are not entitled to file their objection. Petitioner Gurpreet Singh also did not file his objection, therefore, the Prescribed Authority by his order dated 28-4-76 declared the land measuring 216 Bigha, 04 Biswa i.e. 13.69 Hectares of tenure holder Gurpreet Singh in terms of irrigated land as surplus. It also appears that a separate Ceiling Case No. 51/23 of 1974-75 was registered against Harpreet Singh son of Sri Harpal Singh (petitioner no.2 herein) and notice under Section 10(2) of the 1960 Act was issued to him. The tenure holder filed his objection on 7-11-1974 asserting that the holing in his possession is un-irrigated and there is house, grove, Ushar land for which exemption has to be given and that the tenure holder has already sold 50 acres to land from his holding to others, who are lessee over the said land. The Prescribed Authority found that the tenure holder had not disclosed the date of sale of land and the names of the purchasers. Some other persons also filed objections and contended that they have purchased the land from the tenure holder in the year 1973-74. The Prescribed Authority found that none of those persons was a tenure holder on 8-6-1973, therefore, they have no right to file objection. Some other persons also filed objections and contended that they have purchased the land from the tenure holder in the year 1973-74. The Prescribed Authority found that none of those persons was a tenure holder on 8-6-1973, therefore, they have no right to file objection. It was also observed that the tenure holder did not lead any evidence to show that the sale deeds relied upon by the objectors were bona fide and for adequate consideration, therefore, the Prescribed Authority by his order dated 30.4.1976 declared 266-11 Bigha i.e. 16-85 Hectare land in irrigated terms of the tenure holder Harpreet Singh as surplus. Aggrieved by the said orders, co-tenure holder Harpreet Singh filed appeal before the District Judge, Nainital. Ultimately, the said Ceiling appeal no. 314 of 1976 Sri Harpreet Singh Vs. State of U.P. was allowed by the Civil Judge, Nainital by his order dated 31-8-1977, the order dated 30-4-1976 passed by the Prescribed Authority was set aside on the ground that no notice under Rule 10(2) of the Rules framed under the Act which is mandatory in nature was given to co-tenure holder Sri Jagsaran Singh, and the case was remanded with a direction to decide the same afresh in accordance with law. In compliance of the appellate Court’s order, demarcation of the land was got done on the spot and the case was decided by the Prescribed Authority by his order dated 26-11-1982 afresh. By the impugned orders passed in separate cases, the land of petitioner Harpreet Singh measuring 266 Bigha, 12 Biswa i.e. 16-85 Hectare had been declared surplus in terms of irrigated land, while land measuring 216 Bigha, 04 Biswa (13-69 Hectare)of co-tenure holder Gurpreet Singh had been declared surplus. The Prescribed Authority declared 11-24 hectare land in irrigated terms of Major Harpal Singh, land measuring 38-40 Hectares of petitioner Jagsharan Singh and land measuring 22-95 Hectares of petitioner Parv Sharan Singh by passing separate orders dated 26-11-1982 in separate cases registered against them. 5. Aggrieved, the petitioners Gurpreet Singh, Harpreet Singh, Prit Jeet Kaur, Jag Saran Singh and Parv Saran Singh filed separate appeals bearing Ceiling Appeals No. 134/82/9 of 85-86, 135/82/10 of 85-86, 137/82/13 of 85-86, 136/82/14 of 85-86 and 148/82/53 of 85-86 respectively before the Commissioner Kumaun Division. 6. 5. Aggrieved, the petitioners Gurpreet Singh, Harpreet Singh, Prit Jeet Kaur, Jag Saran Singh and Parv Saran Singh filed separate appeals bearing Ceiling Appeals No. 134/82/9 of 85-86, 135/82/10 of 85-86, 137/82/13 of 85-86, 136/82/14 of 85-86 and 148/82/53 of 85-86 respectively before the Commissioner Kumaun Division. 6. The learned appellate Court after hearing the learned counsel for the parties and on reappraisal of the evidence came to the conclusion that there is no merits in the appeals and dismissed as many as five appeals filed by Harpreet Singh, Gurpreet Singh, Prit Jeet Kaur, Jagsaran Singh and Parv Saran Singh by common judgment and order dated 15-2-1988. Further aggrieved by the said judgment and order, the present writ petition WPMS No. 6328 of 1988 (new No. 5855 of 2001) was filed before the Allahabad High Court. 7. Brief facts giving rise to the Writ Petition No. 5856 of 2001 (Old No. 6357 of 1988) as emerges from the records are that the land in question falls in village Fazalpur Mahraula within Tehsil Kichha, District Nainital (now Udham Singh Nagar) and that the petitioners are the joint tenure holders of agricultural land situated in village Fazalpur, Tehsil Kichha. Initially, proceedings under the Ceiling Act were initiated against petitioner Premjit Kaur and the by order dated 30-4-1976 passed by the Prescribed Authority Kichha, land of the petitioner Premjit Kaur was declared surplus. An appeal was filed by the petitioner Premjit Kaur which was registered as Ceiling Appeal No. 315 of 1976, Smt. Premjit Kaur Vs. State of U.P. and the only objection raised in the appeal was that one Smt. Sukhwant Kaur, who is a co-tenure holder had not been issued any notice under Section 10(2) of the 1960 Act, which is mandatory in nature. The said appeal was ultimately decided by the Civil Judge Nainital by judgment and order dated 25-8-1977 whereby the appellate court has held that the mandatory provisions of law has not been complied with and no notice was issued to co-tenure holder Smt. Sukhwant Kaur and order of the Prescribed Authority was set aside and the matter was remanded for retrial in accordance with law. Ceiling Appeal No.316 of 1976 Smt. Sukhwant Kaur Vs. Ceiling Appeal No.316 of 1976 Smt. Sukhwant Kaur Vs. State of U.P. was preferred by co-tenure holder Smt. Sukhwant Kaur and in the appeal the only ground was argued that there was non-compliance of Rule 10 of the Rules framed under the 1960 Act. a similar order was passed by the Civil Judge Nainital while allowing the appeal by order 27-5-1977 and it has been observed that separate shares of the appellant Sukhwant Kaur and Smt. Premjit Kaur should have been demarcated. After remand, the learned Prescribed Authority in compliance of both the remand orders got the land of the petitioners Premjit Kaur and Sukhwant Kaur demarcated separately and ultimately by his order dated 27-9-1978 passed separately declared 8-22 Hectare land each of the tenure holders Premjit Kaur and Sukhwant Kaur as surplus. 8. Aggrieved, the petitioner no.1 filed Ceiling Appeal No. 252 of 1978, while petitioner no. 2 filed Ceiling Appeal No. 253 of 1978, which were ultimately heard and decided by the I Additional District Judge, Nainital by his judgment and order 28-11-1979. The learned appellate Court while allowing the appeals, remanded the case to the Prescribed Authority to decide the them afresh after giving opportunity to the tenure holders to file objections under Section 10(2) of the U.P. Act No. 1 of 1961 i.e. 1960 Act. 9. After remand of the case, the Prescribed Authority again issued notice to the tenure holders and afforded reasonable opportunity to file objection. The Prescribed Authority got the compliance of Rules 10 and 11 of the Rules by the Tehsildar concerned. By his judgment and order dated 29-11-1982, the land of the tenure holders has been declared surplus as mentioned in the order. 10. Aggrieved further, the petitioners herein filed separate appeals before the Commissioner, Kumaun Division, Nainital, bearing Ceiling Appeal Nos. 147/82/12/85-86 Smt. Premjit Kaur Vs. State of U.P. and 149/82/11 (85-86), Sukhwant Kaur Vs. State of U.P. 11. An objection was taken before the appellate Court that no opportunity of filing objections under Section 10(2) of 1960 Act was given to the petitioners-appellants. It was also contended that the Prescribed Authority has failed to comply with the provisions of Rule 10(3) and 10(4) of the Rules. 12. The learned appellate Court after hearing the learned counsel for both the parties came to the conclusion that both the appellants-petitioners herein are having ½ share in the total land. It was also contended that the Prescribed Authority has failed to comply with the provisions of Rule 10(3) and 10(4) of the Rules. 12. The learned appellate Court after hearing the learned counsel for both the parties came to the conclusion that both the appellants-petitioners herein are having ½ share in the total land. It was also found that on the application of Smt. Premjit Kaur dated 10-8-1978, the land of the petitioners have been demarcated separately by the Prescribed Authority. Learned appellate Court also found that the petitioners had filed their objections and the Prescribed Authority directed the Tehsildar concerned to get the demarcation made after considering the objections of the parties. Learned appellate Court has observed in its order that in compliance of the order there is report of Patwari of the circle on record as paper no. 19/1. There is another report of demarcation as paper no. 24/2. The appellate Court on the appraisal of evidence including the demarcation report dated 8-8-1981, has held that the demarcation has been done on the basis of the objections filed by the tenure holders. The appellate court has also held that the co-tenure holder was given notice under Section 10(2) of 1960 Act and sufficient opportunity was given to file objections. Ultimately, the appeals were dismissed by a common judgment and order dated 15-2-1988, which gave rise to the present writ petition. 13. The present writ petitions were preferred before the Allahabad High Court against the aforesaid orders passed by the Prescribed Authority and the appellate authority, i.e. Commissioner, Kumaun Division, Nainital on 5-4-1988, which were transferred to this Court for disposal after creation of the new State of Uttaranchal (now Uttarakhand) under Section 35 of the U.P. Reorganisation Act, 2000. It may be mentioned here that initially, the main ground of challenge raised in the writ petitions are that there is no compliance of sub-rule (2) and (3) of Rule 10 U.P. Imposition of Ceilings on Land Holdings Rules, 1961 (for short the Rules) framed under 1960 Act, but only by way of amendment sought by the petitioners, the new ground of challenge has been raised before this Court only in the year 2011, which was allowed on 22-12-2011 that the land in question is the land adjoining to Nagar Palika Rudrapur and is an urban agglomeration and relief clause of the writ petitions have also been amended. The date 5-4-1988 has been wrongly mentioned on the amended memo of writ petitions. 14. In writ petition no. 5855 of 2001, counter affidavit has been filed on behalf of the State, wherein it is stated that petitioner no.3-Preet Jit Kaur d/o Harpal Singh is not the co-tenure holder in the land in question. It is also stated that petitioner no. 5 has not got 1/4th share in Khata No.7. It has been denied that the order of remand passed by the appellate court is not on the record. It has also been stated that the demarcation of the shares of tenure holders was done. In the counter affidavit all material allegations made in the memo of writ petition have been denied. 15. The petitioners have filed rejoinder affidavit and reiterated that the provisions of sub-rule 3 of Rule 10 of the Rules framed under the Act were not adhered to and objections have not been decided. It has also been asserted that compliance of Rule 10(2) and 10(3) of the Rules have not been made. 16. On behalf of the petitioners, supplementary affidavit has been filed and along with the affidavit, copies of grounds of appeal preferred by the petitioners have been filed. 17. After transfer of the writ petition from the Allahabad High Court, again a supplementary affidavit has been filed on behalf of the petitioners and along with the supplementary affidavit, the petitioners have annexed copy of judgment dated 28-4-1976 passed by the appellate Court, copy of objection filed under Rule 10(2) dated 2-1-1981 as Annexure No. SA-2 and some other documents including copy of objection and copies of judgments passed at different stages. 18. On behalf of the respondents, an affidavit has been filed on 18.7.2011 in this Court. In reply, the petitioners have filed their affidavit. In the reply affidavit, it is inter alia asserted by the petitioners that village Fazalpur, Mehrauli came within the regulated area of Rudrapur in the year 1992 and within the ambit of Master Plan, as such the provisions of Urban Area or Regulated area would be applicable and the provisions of Urban Land (Ceiling and Regulation) Act 1976 (for short the Urban Act) would automatically apply since 1992 and it would have overriding effect on the 1960 Act. 19. On behalf of the respondents, a supplementary counter affidavit has been filed on 28-12-2011. 19. On behalf of the respondents, a supplementary counter affidavit has been filed on 28-12-2011. On behalf of the petitioners, rejoinder affidavit has been filed, which is dated 3-1-2012 20. Similarly, in Writ Petition No. 5856 of 2001 (Old No. 6357 of 1988), counter affidavit has been filed, wherein identical assertions have been made as in the WPMS No. 5855 of 2001. 21. On behalf of the petitioners, supplementary affidavit has been filed and along with the same, copy of objection filed under Section 10(2) of the 1960 Act and copy of memo of appeals have been annexed. 22. On behalf of the petitioners, rejoinder affidavit was filed in Allahabad High Court and therein, the averments made in the memo of writ petition have been reiterated. 23. On behalf of the respondents-State, compliance affidavit has been filed on 17-2-2011. The respondents again filed an affidavit on 18-7-2011. In reply, the petitioners have filed an affidavit. 24. The respondents filed supplementary counter affidavit on 28-12-2011 in this Court. In reply thereof, the petitioners have filed rejoinder affidavit dated 3-1-2012. Along with the same, the petitioners have annexed copy of sale deed dated 21-8-1999. 12 25. It is pertinent to mention here that the petitioners moved an amendment application in each of the petitions before this Court in the year 2011, which was allowed vide order dated 22-11-2011 and by way of amendment, new ground has been raised by the petitioners that the land in question is situated in village Fazalpur, Mehrauli, which is within peripheral limit of 1 km. of the town of Rudrapur and that Rudrapur was a notified town area, thereby the petitioners have taken a new stand that the land in question was an “urban agglomeration” within the definition of the Urban Land (Ceiling & Regulation) Act, 1976 and that the provisions of that Act are applicable to the land in question. The petitioners on the basis of new ground have amended the relief clause of the writ petitions. This new ground was never raised at any point of time by the petitioners before the Prescribed Authority or the appellate Court though the proceedings were stretched upto third round of litigation. 26. I have heard learned counsel for the parties at length and have perused the entire material brought before this Court including the original record, summoned in these writ petitions. 27. 26. I have heard learned counsel for the parties at length and have perused the entire material brought before this Court including the original record, summoned in these writ petitions. 27. The main grounds of challenge raised in these writ petitions are that there is a non compliance of Rule 10 of the Rules framed under 1960 Act inasmuch as demarcation of the shares of the petitioners has not been properly done; that in the cases at hand, both the courts below have lost sight of the fact that the provisions of the Urban Act are applicable as the land in question is situate adjoining to Nagar Palika Parishad area of Rudrapur and that the grove land of the petitioners have not been excluded from the ceiling land. 28. Learned counsel for the petitioners has vehemently argued that since the petitioners are co-tenure holders, the ceiling proceedings could not have been initiated by the Prescribed Authority until all the plots in co-tenancy were not demarcated in accordance with the aforesaid Rule 10. Learned counsel further submitted that demarcation had not been done before issuance of ceiling notice and no fresh notice was issued after the alleged demarcation, therefore, the entire proceedings against the petitioners stand vitiated. 29. In reply, learned Brief Holder appearing on behalf of the respondents has submitted that Section 9 of the 1960 Act makes it obligatory on all tenure holders to submit return of their holdings in prescribed form along with their choice of plots, which they would like to retain. Section 10 of the said Act empowers the Prescribed Authority to prepare a return of the holdings of tenure holders and to indicate which of the holdings is proposed to be declared surplus. Under the scheme of the 1960 Act, it can be visualized that the demarcation required to be made under Rule 10 of the Rules is to be followed when share or part thereof the joint holding is declared surplus or when a specific portion of a plot is to be determined as surplus land. 30. Learned Brief Holder has emphasised that demarcation is not required to be made before issuing notice under Section 10 of 1960 Act and that demarcation is not to be made when the tenure holder is in separate possession of the joint Khata. 30. Learned Brief Holder has emphasised that demarcation is not required to be made before issuing notice under Section 10 of 1960 Act and that demarcation is not to be made when the tenure holder is in separate possession of the joint Khata. According to the State counsel demarcation will become necessary only when the tenure holder disputes his share in the joint Khata, but in the cases at hand, there is no dispute regarding shares of the tenure holders, rather it is the admitted case of the petitioners that the land has been partitioned and the parties are in possession of their respective shares. The petitioners have also not disputed that their share has been shown either less or in excess of their actual share. 31. For a just decision of the writ petitions, a reference to Rule 10 of the Rules is necessary, which reads as under:- “10. Section 44.- (1) Where a tenure-holder has opted to declare his share or part thereof in one or more of his holdings, held jointly by him along with others, as surplus land or where the Prescribed Authority proposes to declare any such share or part thereof as surplus land in Part C of C.L.H Form 3, the Prescribed Authority shall, except where the tenure-holder is in separate possession of his share in such holding, proceed to demarcate the same before determining the surplus land of the tenure holder. (2) For the purpose of sub-rule(1), the Prescribed Authority shall cause to be served on the tenure-holder and all the co-tenure holders of the joint holding, a statement giving rental value of each plot, comprised in the joint holding (by multiplying its area with the rent-rate applicable) and the share of the tenure holder, calling upon them to appear and file objections, if any, on a date to be specified in the notice in regard to the share or separate possession of the tenure-holder. (3) After hearing and considering the objections, if any, the Prescribed Authority shall, in case of joint possession or in case separate possession of the tenure holder is disputed, demarcate the plot or plots which fall within the share of tenure-holder having due regard to the following principles- (a) the valuation of the portion allotted to the tenure-holder shall be proportionate to his share in the holding; (b) the portion allotted to the tenure-holder shall as far as may be compact; (c) the tenure-holder shall, as far as may be possible, be given his proportionate share of inferior and superior classes of land; (d) the existing plot numbers shall not, as far as may be possible, be split up; and (e) plots which are in separate possession under some private arrangement, shall, as far as may be possible, be allotted to the tenure-holder to the extent of his share in the holding. (4) The Prescribed Authority shall prepare and place on record, a map showing the plots allotted to the share of the tenure-holder and, if any field has been sub-divided he shall demarcate the portion thereof which falls in the share of the tenure-holder.” 32. Whenever surplus land is proposed to be taken from a joint Khata, the Prescribed Authority has to get the same demarcated in accordance with Rule 10 of the Rules. 33. In the cases at hand, the original record has been summoned by this Court through the State Counsel. 34. Learned Brief Holder appearing on behalf of the State has made a reference to the statement of the manager examined on behalf of the petitioners and submitted that this witness has categorically stated that the land has been partitioned and the parties are in possession of their respective shares. 35. Thus from a bare perusal of the provisions of the 1960 Act vis-à-vis Rule 10 of the Rules, it is crystal clear that demarcation of holdings of a tenure holder in a joint Khata has to be made when the tenure holder had opted to declare his share or part thereof. 35. Thus from a bare perusal of the provisions of the 1960 Act vis-à-vis Rule 10 of the Rules, it is crystal clear that demarcation of holdings of a tenure holder in a joint Khata has to be made when the tenure holder had opted to declare his share or part thereof. I find force in the argument of the learned State Counsel that demarcation required to be made under Rule 10 is to be followed only when the stage of giving choice under Section 12-A of the 1960 Act is arrived and not at the time of issuance of notice as prescribed under Section 10 thereof. 36. Now, it has to be examined whether necessary compliance of Rule 10 of the Rules had been carried out or not in the case at hand. 37. From a bare perusal of the judgment passed by the appellate court, it comes out that in the second round of litigation started on the direction of the appellate court, the Prescribed Authority has got the demarcation of the holdings of the petitioners done by the Patwari concerned and map and rental value chart were prepared and produced before the Prescribed Authority through the revenue officers i.e. Supervisor Kanungo and Tehsildar concerned. 38. From a perusal of the original record placed before this Court by the learned State counsel, it is obvious that the learned Prescribed Authority in the cases of Harpreet Singh, Parvsharan Singh, Gurpreet Singh, Jag Sharan Singh and Major Harpal Singh arising out of the Ceiling Case Nos. 51/23, 51/25, 51/27, 51/22 and 51/24 of the year 1974-75 directed the Tehsildar Kichha to get the demarcation proceedings and to prepare the desired map/forms etc. and in compliance of the directions of the Prescribed Authority, the demarcation was made in all those matter and compliance was reported to the Prescribed Authority by letter dated 11.7.1980. The original record bears the reports of the revenue authorites in the matter of demarcation and map has also been annexed to the reports furnished by them. On the face of the original record it cannot be said that the impugned orders were passed without adhering to the compliance of Rule 10 of the Rules. The contention of the learned counsel for the petitioners that there is no compliance of Rule 10 of the Rules is not tenable. 39. On the face of the original record it cannot be said that the impugned orders were passed without adhering to the compliance of Rule 10 of the Rules. The contention of the learned counsel for the petitioners that there is no compliance of Rule 10 of the Rules is not tenable. 39. Even otherwise, again notice under Section 10(2) of the 1960 Act was issued to the petitioners and they were given opportunity of filing their objections in the matter. Therefore, in any view of the matter it does not lie in the mouth of the petitioners that compliance of Rule 10 of the Rules had not been adhered to by the Prescribed Authority. The argument of the learned counsel for the petitioners that there is non-compliance of Rule 10 of the Rules framed under 1960 Act is not acceptable and falls to the ground. 40. Learned counsel for the petitioners have submitted that the town of Rudrapur is an urban Agglomeration within the definitions of Urban Act and that the land in question being situated within one kilometre therefrom, the provisions of Urban Act are applicable to the land in question. In support of their contention, the learned counsel for the petitioners have placed reliance upon judgment of the Apex Court in Civil Appeal No. 627 of 2007 State of U.P. and others Vs. Saraya Sugar Mills Pvt. Ltd. And another. That appeal has arisen out of the decision dated 23-12-1999 of the Allahabad High Court. The subject matter in that case was in respect of district Gorakhpur, which finds mention in Schedule I, at serial no. 9 in respect of entries of the State of Uttar Pradesh. The learned Single Judge in view of a notification dated 11th August 1954 published under exercise of powers conferred under Section 117-A of the U.P. Zamindari Abolition and Land Reforms Act, has held that it cannot be said that Mahadeo Jharkhandi Tukra No.2 was not included in the Municipality of Gorakhpur in the year 1954, therefore, it is well established now that on 11-8-1954 Mahadeo Jharkhandi Turka No.2 became the part of Municipality Gorakhpur. 41. In that case, the Apex Court had an occasion to consider the provisions of the Urban Land (Ceiling and Regulation) Act as well as that of 1960 Act. 41. In that case, the Apex Court had an occasion to consider the provisions of the Urban Land (Ceiling and Regulation) Act as well as that of 1960 Act. The order passed by the learned Single Judge of the High Court of Judicature at Allahabad was under challenge before the Apex Court. The core question that arose before the learned Single Judge was whether Urban Land (Ceiling and Regulation) Act, 1976 would override the provisions of Uttar Pradesh Imposition of Ceiling on Land Holdings Act. Learned Single Judge had come to the conclusion that once the Central Act was repealed with effect from 18.3.1999, the State Act will have no application. The Apex Court has observed that materials produced clearly spelt out that now even an inch is not available where the State Government can take action of recovery of open land. Ultimately, the Apex Court has held that “even otherwise looking to the aims and objects of both the Act, it is clear that the State is only interested to put ceiling on the land so that the tenure holder may not hold more than the prescribed limit, then surplus is to be given by the Government to others as per its own policy. The same purpose, to a very great extent has been achieved as large extent of land is not held by one tenure holder.” 42. In reply, learned Brief Holder has drawn attention of this Court to the judgment rendered by the Allahabad High Court on 23-12-1999, the main controversy to the decided by the Allahabad High Court was whether the land in question is an urban agglomeration and whether the same is out of the purview of the 1960 Act or not and whether the provisions of Urban Act would prevail over the State Act i.e. 1960 Act. Learned Brief Holder further submitted that in the case at hand, it was not the case of the petitioners before the Prescribed Authority or the appellate authority that the land in question is the land under urban agglomeration and for the first time, the issue of urban agglomeration has been raised by way of an amendment moved in the year 2011 which was ultimately allowed by this Court. learned Brief Holder has further submitted that in the case before the Apex Court, the provisions of Urban Act were made applicable, while in the case at hand, the facts are entirely distinct and that the Urban Act has not application to the land in question. Learned Brief Holder has vehemently submitted that Section 3 of Urban Act provides that no person shall be entitled to hold any vacant land in excess of ceiling limit in the territories to which the Act applies under sub-section (2) of Section 1 of the Urban Act. Section 4 of the Urban Act provides the ceiling limit of the vacant land which can be held by any person. The ceiling limits have been prescribed only for the urban agglomeration as mentioned in Schedule I of the said Act. Entry 14 of the Schedule I of the Urban Act relates to the State of Uttar Pradesh in which no town of district Nainital is mentioned. 43. Undisputedly, district Udham Singh Nagar came into existence in the year 1995 and till then, the land in question fell within the territory of district Nainital. 44. Entry 14 of the Schedule I of the Urban Act relates to the State of Uttar Pradesh in which no town of district Nainital is mentioned. 43. Undisputedly, district Udham Singh Nagar came into existence in the year 1995 and till then, the land in question fell within the territory of district Nainital. 44. In the definition clause as mentioned in Section 2(n), “urban agglomeration” is defined in the Urban Act, which reads as under:- “(n) “urban Agglomeration”,- (A) in relation to any State dor Union territory specified in column (1) of Schedule I, means,- (i) the urban agglomeration specified in the corresponding entry in column (2) thereof and includes the peripheral area specified in the corresponding entry in column (3) thereof; and (ii) any other area which the State Government may, with the previous approval of the Central Government, having regard to its location, population (population being more than one lakh) and such other relevant factors as the circumstances of the case may require, by notification in the Official Gazette, declare to be an urban agglomeration and any agglomeration so declared shall be deemed to belong to category D in that Schedule and the peripheral area therefor shall be one kilometre; (B) in relation to any other State or Union territory, means any area which the State Government may, with the previous approval of the Central Government, having regard to its location, population(population being more than one lakh) and such other relevant factors as the circumstances of the case may require, by notification in the Official Gazette, declare to be an urban agglomeration and any agglomeration so declared shall be deemed to belong to category D in that Schedule and the peripheral area therefor shall be one kilometre;” 45. From a bare perusal of the Schedule I appended to the Urban Act, it is obvious that the name of State of Uttar Pradesh finds mention in Schedule I. It is abundantly clear that the provisions of the Urban Act were made applicable to an urban area having a population of not less than one lakh and the same either being included in Schedule I of the said Act or so declared by the State Government in the manner prescribed in Section 2(n) aforesaid. It is the admitted case of the petitioners that no town of the then district Nainital was mentioned in Schedule I of the Urban Act. It is the admitted case of the petitioners that no town of the then district Nainital was mentioned in Schedule I of the Urban Act. Moreover, it is not the case of the petitioners that any notification had been ever issued by the State Government declaring Rudrapur town as urban agglomeration. No such notification has been placed on record. In any view of the matter it cannot be said that provisions of Urban Act were ever enforced in the area in respect of the land in question. The petitioners have also not placed any evidence on record to indicate that the provisions of the Urban Act had ever been invoked and proceedings for determination of surplus area had ever commenced in the area. 46. In the above facts and circumstances, I find force in the argument of the learned Brief Holder that the facts of the case before the Allahabad High Court, which gave rise to Civil Appeal No. 627 of 2007, State of U.P. and others Vs. Saraya Sugar Mills Pvt Ltd. And another before the Apex Court are quite distinguishable and the case law relied upon by the petitioners does not help them. The contention of the learned counsel for the petitioners that there was municipality in Rudrapur town when the Urban Act was enforced and the land in question is within one kilometre from the limits of Rudrapur Municipal Limits, therefore, the land in question shall be deemed to be urban agglomeration is not acceptable. It is pertinent to mention here that the definition of urban land and vacant land read with Section 4 of the Urban Act makes it clear that agricultural land is not covered by the Urban Act. The land in question are indisputably agricultural land and are mainly used for agricultural purposes and it is so recorded in the revenue records. 47. Now, the question arises whether transfer of land made through the sale deeds executed after the cut off date i.e. 24-1-1971 shall be considered for exclusion of such land from the holdings of the tenure holder. 47. Now, the question arises whether transfer of land made through the sale deeds executed after the cut off date i.e. 24-1-1971 shall be considered for exclusion of such land from the holdings of the tenure holder. Sub-section (6) of Section 5 of the 1960 Act provides that all transfers made after 24-1-1971 shall be ignored and not taken into account, unless their bona fide is proved by the tenure holders to the satisfaction of the Prescribed Authority, relevant extract of which is reproduced as under:- “(6) In determining the ceiling area applicable to a tenure-holder, any transfer of land made after the twenty-fourth day of January, 1971, which but for the transfer would have been declared surplus land under this Act, shall be ignored and not taken into account: Provided that nothing in this sub-section shall apply to- (a) a transfer in favour of any person (including Government) referred to in sub-section (2); (b) a transfer proved to the satisfaction of the prescribed authority to be in good faith and for adequate consideration and under an irrevocable instrument not being a benami transaction or for immediate or deferred benefit of the tenure-holder or other members of his family.” 48. Learned counsel for the petitioners has further contended that in view of the judgment of the Apex Court passed in Civil Appeal No. 627 of 2007 (supra), it shall be deemed that the transfers made in the case at hand after the 24th day of January, 1971 shall have to be taken into consideration for exclusion of the transferred land from the surplus land of the tenure holders. 49. In reply, learned Brief Holder appearing for the State has submitted that the Apex Court in the cited case, which arose out of the judgment passed by the Allahabad High Court, had no occasion to consider the question whether the transfers made after the cut off date as prescribed under sub-section (6) of Section 5 of the 1960 Act shall be ignored or not. Learned Brief Holder further submitted that in the case before the Apex Court in Civil Appeal No. 627 of 2007, by an interim order dated 19-8-2010, the State Government was directed to file an affidavit mentioning the ground realities of the concerned land with the master plan and further individual detailed affidavit in relation to the nature of developments on the lands in question. 50. 50. In the case at hand, this Court by order dated 5-9-2008 directed the Additional District Magistrate Ceiling Rudrapur to make a spot inspection of the land in dispute for which the exemption has been claimed by the petitioners on the ground that the land now falls within a master plan and since a portion of the land being used for the industrial purpose. 51. In compliance of the direction of this Court the respondents have filed affidavit duly sworn in the then Additonal District Magistrate/Additional Collector, District Udham Singh Nagar. Para No. 3 of the affidavit is relevant, which reads as under:- “3. That the deponent has inspected the land of the above cases. The situation as found on site as on the date is as follows: A. That total land involved in all the cases is 177.675 hectares. All the tenure holders are closed related to each other and are recorded jointly over several plots but are doing separatge cultivation. B. That over an area of 16.254 hectares, industries have been set up since 1985-90. C. That an area of 110.108 hectares of land is either grove land or is being used for growing crops. D. That remaining area of 51.313 hectares is being used as abadi, river, road, institutions etc. The residences and institutions have also been established after 1985. E. That the lands in question are situated within the Regulated Area, Rudrapur since 6.12.1991 but no master plan in respect thereto has so far been notified by the State Government.” 52. The Additional District Magistrate/Additional Collector Udham Singh Nagar has filed his affidavit in compliance of this Court’s order. The affidavit as has been filed by the Additional District Magistrate concerned does not help the petitioners for the simple reason that the industries are said to have been set up since 1985 onwards and not upto the cut off date of 8th June, 1973. The grove standing over the disputed land as mentioned in the said affidavit also does not refer back to the cut off date, therefore, no benefit can be given to the petitioners unless grove are mentioned in the Khasara of the relevant Fasli years, which shall be examined hereinafter at appropriate place. The grove standing over the disputed land as mentioned in the said affidavit also does not refer back to the cut off date, therefore, no benefit can be given to the petitioners unless grove are mentioned in the Khasara of the relevant Fasli years, which shall be examined hereinafter at appropriate place. So far as the contention of the petitioners that lands in dispute are situated within the Regulated Area, Rudrapur since 6.12.1991, but no master plan has been notified by the State Government. Moreover, as has been observed earlier, no such notification has ever been issued by the State Government declaring Rudrapur town as urban agglomeration. Admittedly, the land in question is not situated within municipal limits, rather it is situated in rural area. As such, the provisions of the U.P. Z.A. and L.R. Act and that of 1960 Act are applicable to the land in question. The contention of the petitioners that the provisions of Urban Act are applicable is too far from the truth and falls to the ground. 53. In the case at hand, both the writ petitions were filed before the Allahabad High Court in the year 1988. In the unamended memo of writ petition, no such ground was taken by the petitioners that the land which is subject matter of these two writ petitions is the land of urban agglomeration as defined under the Urban Act. There was therefore no question of raising any such ground or objection before the Prescribed Authority or the appellate authority that the land in question is an urban agglomeration and therefore, the provisions of the Urban Act are applicable to the case at hand. 54. It also finds place to mention here that the Prescribed Authority has held in the impugned order that it was the burden of the petitioners to prove that the sale made after 24-1-1971 were made bona fidely with consideration, which the petitioners failed to discharge and thus, the sale deeds, which were executed after 24-1-1971 and relied upon by the petitioners were rightly ignored and treated to be void and in appeals, no challenge has been made to the findings of the Prescribed Authority on this count. To that extent, it cannot be said that the Prescribed Authority or the learned appellate Court has committed any error of law in not giving benefit of the transactions made after the cut off date. 55. To that extent, it cannot be said that the Prescribed Authority or the learned appellate Court has committed any error of law in not giving benefit of the transactions made after the cut off date. 55. From a perusal of the entire material placed before this Court including the judgment and orders passed by the Prescribed Authority and the appellate authority, it is not at all spelt out that any transfers made after 24th January, 1971 were bona fide transactions to the satisfaction of the Prescribed Authority. It has already been held earlier that the provisions of Urban Land Ceiling & Regulation Act 1976 are not at all attracted to the land, which is subject matter of the present writ petitions. 56. So far as the question that the entire land in question, which has been declared surplus by the Prescribed Authority is irrigated land is concerned, the petitioners have stated in the memo of writ petitions that the authorities below have wrongly treated the land of the petitioners as irrigated land. 57. By a perusal of the original record, it shows that a direction was also given by the Prescribed Authority to Tehsildar Kichha to furnish copy of Khasra of 1378 Fasli, 1379 Fasli and 1380 Fasli of the land in question in the Court upto 3-9-1982, which has been shown in CLH Form No. 3C. It is well settled that revenue authorities are the custodian of records. The Presiding Officer at one place has observed that it was the burden of the objectors to file such documents to show whether the land is irrigated or unirrigated. When direction was given by the Prescribed Authority to Tehsildar to file the documents, the finding of the Prescribed Authority on the point whether the land is irrigated or unirrigated as mentioned in the impugned order is perverse. It was the duty of the Prescribed Authority to see whether the land is irrigated or unirrigated. 58. In the case at hand, certified copies of Khasra of 1378 Fasli, 1379 Fasli and 1380 Fasli have been filed before this Court and these documents were placed on record to see the perversity of the orders and the statement of Lekhpal concerned to examine whether how much land is irrigated and how much land is unirrigated in the relevant years i.e. 1378 Fasli, 1379 Fasli and 1380 Fasli. 59. 59. At this juncture, a reference to Section 4-A of 1960 Act as well as Rule 3 of the Rules is necessary. Section 4-A of 1960 Act reads as 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:- 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 year; 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. Explanation I.- For the purposes of this section the expression ‘effective command area’ means an area, the farthest field whereof in any direction was irrigated- (a) in any of the years 1378 Fasli, 1379 Fasli and 1380 Fasli; or (b) in any agricultural year referred to in the clause ‘secondly’. Explanation II.- The ownership and location of a private irrigation work shall not be relevant for the purpose of this section. Explanation II.- The ownership and location of a private irrigation work shall not be relevant for the purpose of this section. Explanation III.- Where sugarcane crop was grown on any land in any of the years 1378 Fasli, 1379 Fasli and 1380 Fasli it shall be deemed that two crops were grown on it in any of these years, and that the land is capable of growing two crops in an agricultural year.” 60. Rule 3 of the U.P. Imposition of Ceiling on Land Holdings Rules, 1961 reads as follows:- “3. In areas where due to consolidation operations or record operations or for any other reason no Khasras were prepared during the years mentioned in Section 4-A, the Prescribed Authority while examining other records may also examine available Khasras for the three latest years preceding the year in which the Khasra was not prepared.” 61. From a bare perusal impugned orders passed by the Prescribed Authority, it appears that the Prescribed Authority has failed to consider the above provision of Section 4-A of 1960 Act and has given only one line finding that because the land in question has been shown irrgigated in the Ceiling Proformas, therefore, the entire land of the tenure holders has been held irrigated and land has been declared surplus in terms of irrigated land. This finding of the learned Prescribed Authority is not tenable on the face of extract of Khasra filed on record for the relevant years, i.e. 1378 Fasli, 1379 Fasli and 1380 Fasli. 62. So far as the case of petitioners Gurpreet Singh, Harprit Singh, Prit Jeet Singh Kaur, Jag Saran Singh and Prabha Saran Singh is concerned, by a perusal of the extract of aforesaid Khasra, it is evident that in respect of plot no. 77, source of irrigation has been mentioned tubewell and in 1378 Fasli, maize and mustard (Lahi) crops were grown in Rabi and Khareef season. Over plot No. 85, tubewell is the source of irrigation and maize in Rabi and Wheat and Gram in Khareef seasons were grown in 1380 Fasli. In plot no. 77/182 canal and tube-well have been shown as source of irrigation and paddy and wheat were grown in Rabi and Khareef respectively in 1380 Fasli. Over plot nos. 118A and 118B, tube-well is the source of irrigation and two crops namely paddy and wheat respectively were grown in 1380 Fasli. Over plot no. In plot no. 77/182 canal and tube-well have been shown as source of irrigation and paddy and wheat were grown in Rabi and Khareef respectively in 1380 Fasli. Over plot nos. 118A and 118B, tube-well is the source of irrigation and two crops namely paddy and wheat respectively were grown in 1380 Fasli. Over plot no. 123A, tubewell is the source of irrigation and paddy and wheat respectively were grown in 1380 Fasli and over plot no. 124 A tube-well is the source of irrigation and paddy and wheat respectively were grown in 138 Fasli as well as in 1380 Fasli. Therefore, considering the provision of Section 4-A of 1960 Act, I find that the holding of the petitioner Gurpreet Singh pertaining to plot no. 77, 85, 77/182, 102C, 118A, 118B, 123A and 124A shall be treated to be irrigated as irrigation facility was there and at least two crops were grown in any of the years 1378 Fasli, 1379 Fasli and 1380 Fasli. Rest of the holding of the petitioners has to be treated as un-irrigated land. 63. So far as the case of Paramjeet Kaur and Sukhwant Kaur, who are petitioner in WPMS No. 5856 of 2001 is concerned, over plot no. 101A tube-well is the source of irrigation and paddy and wheat were grown respectively in the year 1378 Fasli and 1380 Fasli. In plot no. 102A, tube well is the source of irrigation and paddy and maize were grown in Rabi and wheat in Khareef seasons of 1378 Fasli and two crops paddy and wheat were also grown in 1380 Fasli. Thus, it is obvious that only in respect of her holding pertaining to plot no. 101A and 102A, irrigation facility was there and two crops were grown in any of the relevant years as referred to above, therefore, her holding of plot nos. 101A and 102A shall be treated as irrigated and rest of the holdings of these petitioners has to be treated as unirrigated land. 64. To the above extent, the benefit of unirrigated land has to be given to the aforesaid two tenure holders. 65. So far as the benefit of grove is concerned, by a perusal of the Khasra for 1378 Fasli, 1379 Fasli and 1380 Fasli, there was no grove at that time, therefore, benefit on that count was not rightly extended to the petitioners. 65. So far as the benefit of grove is concerned, by a perusal of the Khasra for 1378 Fasli, 1379 Fasli and 1380 Fasli, there was no grove at that time, therefore, benefit on that count was not rightly extended to the petitioners. If the grove of the petitioners are there, they were grown after the cut off date i.e. 8-6-1973, hence they were rightly ignored by the Prescribed Authority as well as the appellate Court. 66. In view of the discussion made in the preceding paragraphs, the writ petitions deserves to partly allowed. The findings of recorded by the Prescribed Authority in so far as it relates to declaration of entire holdings of the petitioners as irrigated is liable to be modified to be above extent and rest of the findings are liable to be upheld. 67. The writ petitions are partly allowed. The impugned orders passed by the Prescribed Authority are modified to the extent that the holding of the petitioners Gurpreet Singh, Harprit Singh, Prit Jeet Singh Kaur, Jag Saran Singh and Parv Saran Singh pertaining to plot no. 77, 85, 77/182, 102C, 118A, 118B, 123A and 124A shall be treated to be irrigated and rest of the holding of the petitioners shall be treated as un-irrigated land. It is also directed that the holding of plot nos. 101A and 102A shall be treated as irrigated and rest of the holdings of petitioner Paramjeet Kaur and Sukhwant Kaur shall be treated as unirrigated land and rest of the findings recorded by the Prescribed Authority are upheld. Accordingly, the impugned judgment and orders passed by the appellate court stands modified to the above extent. 68. The Prescribed Authority is directed that after giving the benefit of the land/holdings, which has been held un-irrigated to the tenure holders, the Prescribed Authority can take possession of the surplus land. Since the possession was not taken so far, therefore, the tenure holders be given an opportunity for making their choice as provided under Section 12-A of the U.P. Imposition of Ceiling on Land Holdings Act, 1960. 69. Interim order dated 17-1-1989 passed in these writ petition is vacated. 70. The Registry is directed to return the Lower Court Record, which was made available before this Court, to the Prescribed Authority Kichha through the Collector/District Magistrate Udham Singh Nagar.