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2012 DIGILAW 7 (UTT)

Prem Preet Singh v. State of U. P.

2012-01-02

B.S.VERMA

body2012
Judgment : Hon’ble B.S. Verma, J. (Oral) By means of this petition the petitioner has sought a writ in the nature of certiorari quashing the orders dated 20-10-1990 and 19-12-1990, Annexure Nos. 2 and 4 to the writ petition, passed by the Prescribed Authority, Nainital and the Commissioner, Kumaun Division, Nainital respectively. Briefly stated the facts giving rise to this writ petition, are that the petitioner is the tenure-holder of plot Nos. 2/2 and 12/2 along with other plots in village Bhauva Nagla, Tehsil Bazpur, District Udham Singh Nagar. A notice U/S 10(2) of U.P. Imposition of Ceiling on Land Holdings Act, 1960 was issued to the petitioner proposing to declare 344 Bighas 6 Biswas of land to be surplus. Against the notice detailed objection was filed by the petitioner on 13-8-1986. In the objection it was mentioned that the land of one Sri Ram Singh S/o Sri Roop Ram was included and the petitioner has no concern whatsoever with the land of Sri Ram Singh. The Prescribed Authority passed an order dated 5.1.1988 declaring certain area of land to be surplus of the petitioner, against which the petitioner filed an appeal which was allowed by the Assistant Commissioner (Administration), Nainital by the order dated 21.2.90 and the matter was remanded back to Prescribed Authority. Thereafter by order dated 20-10-90 the Prescribed Authority has declared 36 Bighas 3 Biswas of land in terms of irrigated land, as being surplus of the petitioner. Feeling aggrieved by the aforesaid order the petitioner filed an appeal before Commissioner, Kumaun Division, which was numbered as Ceiling Appeal No. 2 of 1990-91. The said appeal has been dismissed by the Commissioner vide order dated 19-12-1990. Therefore, this petition has been filed. The main grounds on which the judgments of Prescribed Authority as well as the Commissioner were assailed, are that plot Nos. 2/2 and 12/2 are un-irrigated land and the learned Prescribed Authority as well as the learned Commissioner, have wrongly held the plots as irrigated on the basis of evidence adduced by the State. According to petitioner, oral evidence cannot be read in evidence for determining the land as ‘irrigated’ in view of judgment of Jaswant Singh versus State of U.P. and others, reported in 1979 Allahabad Weekly Cases page 577and the learned Prescribed Authority as well as the appellate court have wrongly relied upon the oral evidence of Registrar Qanungo. According to petitioner, oral evidence cannot be read in evidence for determining the land as ‘irrigated’ in view of judgment of Jaswant Singh versus State of U.P. and others, reported in 1979 Allahabad Weekly Cases page 577and the learned Prescribed Authority as well as the appellate court have wrongly relied upon the oral evidence of Registrar Qanungo. The second ground taken by petitioner is that the Prescribed Authority has wrongly treated the irrigation facility by way of canal while there is no canal in the category of notified canal and the learned Commissioner has wrongly arrived at a conclusion that since the land is capable of growing two crops and there is also irrigation facility by canal and artisan tube-well and treated the land as irrigated. Counter affidavit has been filed by the respondents. In the counter affidavit the stand has been taken by the State that there are irrigation facilities by way of canal as well as artisan/private tube-well in the land in dispute, therefore, the Prescribed Authority as well as the appellate court have rightly treated the land as ‘irrigated land’. Along with Supplementary Counter affidavit Khasra of village Bhauva Nagla of 1378 Fasli to 1380 Fasli have been filed. The petitioner also filed the Khasra of 1378 Fasli to 1380 Fasli. So far as Plot No. 2/2, area 64 Bighas, is concerned, that has been shown irrigated by canal ¼ugj rksM½ and plot No. 12/2 has also been shown irrigated by canal ¼ugj rksM½ in 1378 Fasli and 1379 Fasli, but in 1380 Fasli, land of Khasra No. 12/2 has been shown irrigated by way of artisan/tubewell and in Khasra 1378 Fasli also shown two crops of paddy and wheat. I have heard learned counsel for the parties and perused the record as well as Khara 1378 Fasli to 1380 Fasli. I have heard learned counsel for the parties and perused the record as well as Khara 1378 Fasli to 1380 Fasli. To decide the controversy in this case reference to Section 4-A of U.P. Imposition of Ceiling on Land Holdings Act, 1960, is relevant, which is quoted below:- “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 of the aforesaid years; or secondly, that irrigation facility became available to any land by a State Irrigation Work coming into operation subsequent to the enforcement of the Uttar Pradesh Imposition of Ceiling on Land Holdings (Amendment) Act, 1972, and at least two crops were grown in such land in any agricultural year between the date of such work coming into operation and the date of issue of notice under Section 10; or thirdly, (a) that any land is situated within the effective command area of a lift irrigation canal or a State tube-well or a private irrigation work; and (b) that the class and composition of its soil is such that it is capable of growing at least two crops in an agricultural year; then the Prescribed Authority shall determine such land to be irrigated land for the purpose of this Act. Explanation I. For the purpose 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 year 1378 Fasli, 1379 Fasly and 1380 Fasly; 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 any agricultural year.” Therefore, from perusal of above quoted provision of Section 4-A, it emerges out that pre-condition to treat the land ‘irrigated’ has been mentioned under the clause ‘firstly’ sub- clause (a) and (b). In sub-clause (a) the sources of irrigation have been given and in sub-clause (b) it has been mentioned that at least two crops were grown in such land in any one of the aforesaid years i.e. 1378 Fasli, 1379 Fasly ad 1380 Fasli, and to determine the above mentioned factors the prescribed authority shall consider the latest village map and such other records as it may consider necessary and may also make local inspection, where it considers necessary. The Division Bench of Allahabad High in the Case of Kallu Versus State of U.P. reported in 1979 A.W.C. page 579, has held for the purpose of ceiling, both the conditions of sub-clause (a) and (b) of clause ‘firstly’ should be fulfilled. Para-17 of the aforesaid judgment is quoted below:- 17. For the reasons given, our answer to question No.1 posed by the learned single Judge is as follows:- “If in any portion of an area of plot or plots to which during the Fasli years 1378 to 1380 irrigation facilities were available and over any portion of such area double crop had in fact been sown the entire area of the plot to which irrigation facilities were available will be covered by clause ‘firstly’ of Section 4-A since both the conditions laid down in sub-clauses (a) and (b) will be complied with.” Apart from this, the language of Section 4-A itself is clear. In sub-clause (iii) of clause ‘firstly’(a) of Section 4-A, at the end of ‘any state tube-well or a private irrigation work’ word ‘and’ has been used and thereafter clause (b) has been written ‘that at least two crops were grown in such land in any of the aforesaid years’ mentioned in Section 4-A, i.e. 1378, 1379 and 1380 Fasli. In sub-clause (iii) of clause ‘firstly’(a) of Section 4-A, at the end of ‘any state tube-well or a private irrigation work’ word ‘and’ has been used and thereafter clause (b) has been written ‘that at least two crops were grown in such land in any of the aforesaid years’ mentioned in Section 4-A, i.e. 1378, 1379 and 1380 Fasli. If the word ‘and’ is used at the end of sub-clause (iii) of clause ‘firstly’(a), then clause-(b) would be read conjunctly along with clause ‘firstly’ (a) and not disjunctly. I am fortified in my view by the above-cited judgment. Therefore, so far as the finding of learned Commissioner in respect of Khasra No. 2/2, area 64 Bighas is concerned, that is perverse finding and not based on documentary evidence. However, in respect of Khasra No. 12/2, there is entry of artisan/tube-well in the entry of 1380 Fasli and two crops have also been shown in the relevant columns. Thus, the finding in respect of Khasra No. 2/2 is liable to be set aside. The tenure holder/petitioner is entitled to get benefit in respect of land of Khasra No. 2/2, area 64 Bighas and the said land is treated as un-irrigated land. The writ petition is partly allowed. The finding of courts below in respect of Khasra No. 2/2, area 64 Bighas, treating the same as ‘irrigated’ land, is set aside and finding in respect of Khara No. 12/2 is maintained. The Prescribed Authority is directed to re-determine the surplus area on the basis of finding of this Court. The petitioner would be at liberty for giving his choice in respect of the surplus land. The interim order dated 29-1-1991 is vacated.