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2022 DIGILAW 225 (ALL)

Kaushlendra Bahadur Singh v. State of U. P.

2022-02-21

MANISH MATHUR

body2022
JUDGMENT : MANISH MATHUR, J. 1. Heard learned counsel for petitioner and Sri. J.P. Maurya, learned Additional Chief Standing Counsel for opposite parties 1 to 3. No one has appeared on behalf of opposite parties 4 and 5. 2. Petition has been filed against order dated 26.02.1992 passed by the prescribed authority as well as order dated 03.08.1994 passed in appeal by the Additional Commissioner in terms of U.P. Imposition of Ceiling on land Holdings Act, 1960 (hereinafter referred to as the Act of 1960). 3. Initially, the dispute pertained only to plots numbered 572, 576 and 347 and their being irrigated or un-irrigated in terms of the provisions of Act of 1960. 4. The initially recorded tenure-holder was issued notices under Section 10(2) of Act of 1960 and in pursuance thereof, the Prescribed Authority vide order dated 27.02.1976 declared 65.108 acres of land of the tenure holder as surplus. 5. The order was challenged in appeal which was partly allowed vide order dated 27.08.1976. Against the aforesaid order, the original tenure holder filed Writ Petition No. 3043 of 1976 which was allowed vide order dated 20.12.1978 remitting the matter to Prescribed Authority for a decision afresh. In pursuance thereof, vide order dated 25.07.1979 plots numbered 572 and 576 were held un-irrigated but plot no. 347 having an area of 23.557 acres was held to be irrigated. The Prescribed Authority was not inclined to accept the choice furnished by petitioner. 6. Order dated 25.07.1979 was thereafter challenged in appeal with submission that Plot No. 347 was also un-irrigated and that compliance of Section 4-A of Act of 1960 was not made. The said appeal was dismissed vide order dated 13.11.1979, which was thereafter challenged in Writ Petition No. 1108 of 1980 which was allowed vide judgment and order dated 20.07.1984 again remanding the matter for consideration afresh by the appellate authority. 7. After remand, the Commissioner being the appellate authority thereafter again remitted the matter to the Prescribed Authority vide order dated 27.12.1988 whereafter impugned order dated 26.02.1992 was passed and has been upheld in appeal by impugned order dated 03.08.1994. 8. Learned counsel for petitioner submits that as of now the dispute pertains only to fact as to whether plot no. After remand, the Commissioner being the appellate authority thereafter again remitted the matter to the Prescribed Authority vide order dated 27.12.1988 whereafter impugned order dated 26.02.1992 was passed and has been upheld in appeal by impugned order dated 03.08.1994. 8. Learned counsel for petitioner submits that as of now the dispute pertains only to fact as to whether plot no. 347 could be held as irrigated or un-irrigated land not only in terms of remand order but also in terms of the provisions of Act of 1960 and also explanation of choice. It is submitted that in terms of Section 4-A of Act of 1960, determination of irrigated land is to be made only after examination of relevant revenue records such as Khasras for the years 1378 Fasli, 1379 Fasli and 1380 Fasli, which can be said to be the only authoritative documents to indicate whether a particular agricultural plot was under irrigation or not. It is submitted that while passing impugned orders, the authorities in question have not only ignored the provisions of Section 4-A of Act of 1960 but also the remand order of this Court specifically directing the concerned authorities to pass appropriate orders only after examination of the revenue records such as Khasras. It is also submitted that impugned orders have been passed purely on conjectures and surmises without any substance and also while brushing aside specific assertions made by petitioner. It is submitted that despite direction of this Court for examination of revenue records, a bare perusal of impugned orders will make it evident that relevant revenue records such as Khasras have not been examined by the concerned authorities. It is also submitted that the omission on part of the authorities was despite the fact that petitioner had submitted relevant extracts of Khasras for the said three years according to which the disputed property was shown to be un-irrigated. 9. Sri. J.P. Maurya, learned Additional Chief Standing Counsel for the opposite parties refuting the submissions advanced by learned counsel for petitioner has submitted that the impugned orders have been passed in keeping with the provisions of Section 4-A of Act of 1960 as well as remand order of this Court. 9. Sri. J.P. Maurya, learned Additional Chief Standing Counsel for the opposite parties refuting the submissions advanced by learned counsel for petitioner has submitted that the impugned orders have been passed in keeping with the provisions of Section 4-A of Act of 1960 as well as remand order of this Court. It is submitted that the authorities have clearly recorded a finding that abutting agricultural plots had their private irrigation work completed before 15.08.1972 and that the disputed plot was within the effective command area of the said plots in terms of explanation I to Section 4-A of Act of 1960. It is submitted that the authorities also considered the spot inspection report and the statement of Lekhpal concerned for arriving at the conclusion. It is submitted that there was no deviation effected by the authorities with regard to provisions of Section 4-A of Act of 1960 or the remand order. 10. Upon consideration of submissions advanced by learned counsel for the parties and perusal of record, it is apparent that the relevant revenue extracts such as Khasras for the relevant years are not on record of the proceedings of this Writ Petition However, the appellate authority in its order has indicated that the petitioner had brought the extracts of relevant Khasras for the said three years on record of the proceedings of appeal. 11. For the said purposes of determination of agricultural plot to be irrigated, the provisions of Section 4-A is relevant in which it has been specifically stated that the prescribed authority shall examine the relevant Khasras for the years 1378 Fasli, 1379 Fasli and 1380 Fasli along with the latest village map and such other records as it may consider necessary, and may also make local inspection where it is considered necessary The provisions of Section 4-A of Act of 1960 are as follows: “4A. 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: (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. (ii) any lift irrigation canal. (iii) any State tube-well or a private irrigation work. (b) that at least two crops were grown in such land in any one of the aforesaid years. 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. 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: (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. (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 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 any of these years and that the land is capable of growing two crops in an agricultural year.” 12. 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 any of these years and that the land is capable of growing two crops in an agricultural year.” 12. Since the impugned orders have been passed after remand by this Court, necessarily the impugned orders are bound to be proscribed by the conditions of remand as indicated by this Court in its judgment and order dated 20.07.1984. 13. The said remand order clearly indicates that the Prescribed Authority has failed to examine the relevant Khasras for the three years indicated herein above in terms of Section 4-A of Act of 1960. The primary purpose of examination of relevant revenue record such as Khasras for the said three years is relevant primarily on account of fact that they record the fact of the plot in question to be irrigated or otherwise. The said indication in the Khasras is supposed to be conclusive proof, subject to rebuttal by evidence. It is for this reason that this court while passing the earlier order of remand had made a specific direction to authorities concerned to examine the Khasras for the relevant years. 14. However, on examination of impugned order passed by the Prescribed Authority as well as order passed by appellate authority, there is nothing to indicate that the relevant revenue records such as Khasras for the said three years have been considered by the authority concerned. Such a basic activity not having been done by the authorities concerned renders the impugned orders not only against provisions of Section 4-A of Act of 1960 but also against the terms of the remand order of this court dated 20.07.1984. 15. It is also seen from a perusal of impugned order passed by Prescribed Authority that Plot No. 347 has been taken to be irrigated on account of the fact that a neighbouring Gata no. 369 had its private irrigation system installed prior to cut off date i.e. 15.08.1972. It is on this basis that the Prescribed Authority has recorded a finding that since Plot No. 347 comes within the effective command area of Pot No. 369, it therefore could be held to be irrigated. 16. 369 had its private irrigation system installed prior to cut off date i.e. 15.08.1972. It is on this basis that the Prescribed Authority has recorded a finding that since Plot No. 347 comes within the effective command area of Pot No. 369, it therefore could be held to be irrigated. 16. With regard to aforesaid reasoning of the Prescribed Authority, it is clear that the term “private irrigation work” has been defined in Section 3(14) of Act of 1960 and means a private tube-well, or a private lift irrigation work operated by diesel or electric power for the supply of water from a perennial water source, completed before August 15, 1972. 17. Expression “effective command area” has been defined in explanation (i) to Section 4-A of Act of 1960 and means an area, the farthest field whereof in any direction was irrigated in any of the three years 1378 Fasli, 1379 Fasli and 1380 Fasli; or in any agricultural year referred to in the clause “secondly.” Explanation II states that the ownership and location of a private irrigation work shall not be relevant for the purpose of this section. 18. From a conjoint reading of Section 3(14) and Explanation I to Section 4-A of Act of 1960, it is evident that for an agricultural plot to come within the effective command area of a private irrigation work, it is necessary that the farthest field was irrigated in any of the three Fasli years referred to herein above or in any agricultural year whereof the irrigation facility became available to any land by a State irrigation work coming into operation subsequent to enforcement of the amendment Act of 1972 and where 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. 19. For the purposes of Explanation I and determination of effective command area, it is thus imperative that the relevant revenue record such as Khasra for the said three years should be examined since, in the present case, it is not the contention of the opposite parties that any State irrigation work came into operation and was effective over the plot in question. 20. 20. From a perusal of the provisions of the Act, it is thus clear that the authorities concerned should have taken into account the relevant records such as Khasras for the aforementioned three years. That apparently was also the basis of remand order of this Court dated 20.08.1984. As would be evident from the impugned orders, the authorities having not examined the Khasra for the three years clearly vitiates the impugned orders on that score alone, particularly when extracts of Khasras have already been brought on record in proceedings of appeal as evident from the appellate order. 21. A reading of the impugned orders will also make it evident that the disputed plot has been held to be irrigated on the basis of statement of Lekhpal. Much emphasis has been laid by the authorities on the statement made by the Lekhpal to the effect that the plot in question was irrigated. The Lekhpal in turn has made a statement on the basis of alleged spot inspection that was carried out. 22. Learned State counsel has also emphasized the fact that the impugned orders have been passed taking into account the spot inspection which could have been resorted to in terms of Section 4-A of Act of 1960. 23. It is no doubt correct that Section 4-A of Act of 1960 leaves a discretion upon the authorities concerned to direct local inspection to be made wherever it considers necessary. However, it is also apparent from a reading of Section 4-A of Act of 1960 that it is the statutory mandate that the Prescribed Authority is first required to examine the relevant Khasras for the said three years. Local inspection as such is meant merely to be corroborative and cannot form the basis for determination of irrigated land, keeping in view the specific provisions of Section 4-A of Act of 1960. Thus, the Prescribed Authority could not have made local inspection and the statement of Lekhpal at best is merely corroborative. 24. It is also evident from a perusal of order passed by the Prescribed Authority that the petitioner had raised a specific plea that although plot no. 369 may be irrigated but it is not on the same plane as plot no. 347 which is on a higher plane than plot no. 369. 24. It is also evident from a perusal of order passed by the Prescribed Authority that the petitioner had raised a specific plea that although plot no. 369 may be irrigated but it is not on the same plane as plot no. 347 which is on a higher plane than plot no. 369. Although the Prescribed Authority had noted such objections in the order but has not specifically dealt with such a pleading and has merely rejected the same on the ground that it is not borne out by the statement of Lekhpal. 25. The aspect of matter whether a plot can be held to be irrigated or otherwise under Section 4-A of Act of 1960 has been dealt with by a judgment of this Court in State of U.P. vs. District Judge and Others, 2007 (4) AWC 3700 (All.) in which it has been held that for determination of irrigated land under Section 4-A of Act of 1960, it is essential that there must be irrigation facility and decision regarding irrigation facility and growing of crops is required to be taken on the basis of Khasras of 1378 to 1380 Faslis. It is held that for the aforesaid determination, the examination of the said Khasras is imperative since there is a specific column indicating the source of irrigation. 26. Similar is the view taken in the decision of this Court in State of U.P. through Collector vs. Mukh Ram Singh and Another, 1991 RD 312 whereunder it has been held that simply because there are two tube-wells near the disputed plot, it cannot be held that in view of Section 4-A and clause thirdly of that Section, to record that it is an irrigated plot unless and until there is a finding based on appreciation of evidence including entries in Khasras that it come within the zone of command area. 27. While passing the impugned orders, the authorities have also placed reliance on the fact that two crops were shown to have been produced on the plot in question. Much reliance has been placed on the aforesaid aspect. However upon reading of Section 4-A of Act of 1960, it is evident that the said factor is also merely corroborative and has to be seen in juxtaposition with other aspects of the matters, particularly with regard to entries made in the Khasras of the relevant years. 28. Much reliance has been placed on the aforesaid aspect. However upon reading of Section 4-A of Act of 1960, it is evident that the said factor is also merely corroborative and has to be seen in juxtaposition with other aspects of the matters, particularly with regard to entries made in the Khasras of the relevant years. 28. In view of the fact that the impugned orders having been passed against the dictum of this Court vide judgment dated 20.07.1984 and the provisions of Section 4-A of Act of 1960, are clearly vitiated and are therefore set aside only with regard to findings pertaining to Gata No. 347 situate in Village Indur, P.O. Fakarpur, Tehsil Kaisharganj, District Bahraich by issuance of a writ in the nature of Certiorari. 29. The writ petition consequently stands allowed. Parties to bear their own costs.