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2022 DIGILAW 253 (ALL)

Sita Ram v. State of U. P.

2022-02-25

DINESH KUMAR SINGH

body2022
JUDGMENT : Dinesh Kumar Singh, J. 1. The present writ petition has been filed by the petitioners, who are the sons of Lodhey Ram, the original tenure holder, impugning the order dated 31.8.1995 and 30.9.1997 passed by the prescribed authority and the appellate authority under the provisions of the U.P. Imposition of Ceiling on Land Holdings Act, 1960 (For short 'the Act, 1960'). 2. Notice under Section 10(2) of the Act, 1960 was issued to the father of the petitioners. In CLH Form-3 annexed with the notice, area of 7.25 acres in terms of the irrigated land was proposed to be declared as surplus. Father of the petitioners filed objection against the said notice. One of the prime objection was that land of the father of the petitioners was un-irrigated and it was not an irrigated land and in respect of Plot Nos.306, 307, 308, 321, 328 and 329, it was wrongly shown as irrigated land. 3. During the pendency of the proceedings before the prescribed authority, father of the petitioners died. Thereafter, the petitioners entered into the proceedings and filed other documentary evidence and also adduced oral evidence to prove their contention that land in Plot Nos.306, 307, 308, 321, 328 and 329 was an un-irrigated land. 4. The prescribed authority, however, vide order dated 7.2.1975 declared the area of 7.25 acres land of the petitioners in terms of irrigated land as surplus. Feeling aggrieved by the said order passed by the prescribed authority dated 7.2.1975, petitioners filed an appeal in the court of the District Judge. However, the appeal was allowed vide order dated 7.8.1975 and the matter was remanded back to the prescribed authority for deciding the case of the petitioners afresh. 5. The prescribed authority again vide order dated 31.3.1976, on remand, declared area of 7.25 acres land in terms of irrigated land as surplus. Against the said order passed by the prescribed authority, petitioners preferred an appeal. The appellate court, however, vide order dated 27.9.1976 again directed the prescribed authority to declare the surplus land taking account the choice given by the petitioners under Section 11(C) of the Act, 1960 and dismissed the appeal on merit. 6. The petitioners again filed objection 11(2) of the Act, 1960 before the prescribed authority and the same was rejected vide order dated 21.5.1980. Against the said order, the petitioners again preferred an appeal before the District Judge. 6. The petitioners again filed objection 11(2) of the Act, 1960 before the prescribed authority and the same was rejected vide order dated 21.5.1980. Against the said order, the petitioners again preferred an appeal before the District Judge. However, the appellate court dismissed the appeal vide order dated 30.8.1980. 7. Aggrieved by the said order dated 30.8.1990 passed by the appellate court, petitioners filed Writ Petition No.3359 of 1980 before this Court. This Court vide order dated 4.9.1984 allowed the writ petition and remanded the matter back to the appellate court with certain directions. 8. From perusal of the order dated 4.9.1984 passed by this Court in Writ Petition no.3359 of 1980, the only point, which was to be considered by the appellate court, was about the nature of the land, whether the land in question was within the provisions of the Act, 1960 and whether it was un-irrigated land. The appellate court vide order dated 23.2.1995, on remand, remanded the matter back to the prescribed authority for decision in the matter in accordance with law keeping in view the observation/directions of this Court in the order dated 4.9.1984 passed in Writ Petition No.3359 of 1980. 9. The prescribed authority himself made spot inspection on 8.1.1990. It was said that no notice was given to the petitioners regarding spot inspection and the report was prepared by the prescribed authority behind the back of the petitioners. On the basis of the spot inspection, the prescribed authority decided the petitioners’ objection vide order dated 31.8.1995 and rejected the claim of the petitioners for the land being un-irrigated. Against the said order passed by the prescribed authority, the petitioners have preferred an appeal before the appellate court. However, the appellate authority dismissed the appeal vide impugned order dated 30.9.1997. 10. Sri R.P. Singh, Learned counsel for the petitioners submits that provision for determining the nature of the land (irrigated and unirrigated) is provided in Section 4(A) of the Act, 1960. He further submits that to determine whether the land is irrigated or un-irrigated, the relevant khasra for the Fasli Years 1378, 1379 and 1380 were required to be seen. He also submits that in all the above Fasli years, the petitioners' land has been shown as un-irrigated and single crop land. He further submits that to determine whether the land is irrigated or un-irrigated, the relevant khasra for the Fasli Years 1378, 1379 and 1380 were required to be seen. He also submits that in all the above Fasli years, the petitioners' land has been shown as un-irrigated and single crop land. It is submitted that when the documentary evidence provides that the land was un-irrigated, which is the mandate of the statute under Section 4(A) of the Act, 1960 to determine the nature of the land, the prescribed authority was not well within the power to make spot inspection to determine the nature of the land. If there was no documentary evidence in respect of the three Fasli years i.e. 1378, 1379 and 1380, then only the prescribed authority could have made spot inspection or appointed a commission for determining the nature of the land. He, therefore, submits that the prescribed authority and the appellate authority have grossly erred in dismissing the objection of the petitioners so far the determination of the nature of the land of the petitioners in Gata Nos.306, 307, 308, 321, 328 and 329 is concerned. 11. On the other hand, Sri J.P. Maurya, learned Additional Chief Standing Counsel, has submitted that there is no bar for the prescribed authority to make spot inspection even if there is entry in the khasra of 1378 to 1380 Fasli for determining nature of the land being unirrigated and single crop land. He further submits that the land of two villages, which is the subject matter of the proceedings, comes within the command area and irrigation facility was provided by the State. Therefore, neither the appellate authority nor the prescribed authority has committed any error of law. 12. I have considered the submissions advanced by the learned counsel for the petitioners as well as by the learned Additional Chief Standing Counsel for the State-opposite parties. 13. The Legislature has amended the Act, 1960 by U.P. Act No.2 of 1975 with retrospective effect w.e.f. 8.6.1973. Section 4(A) has been inserted in the said legislation for determination of the irrigated land, which reads as under:- "4A. Determination of irrigated land. 13. The Legislature has amended the Act, 1960 by U.P. Act No.2 of 1975 with retrospective effect w.e.f. 8.6.1973. Section 4(A) has been inserted in the said legislation for determination of the irrigated land, which reads as under:- "4A. Determination of irrigated land. - The prescribed authority shall examine the relevant Khasras for the years 1378 Fasli, 1979 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 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 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'.” 14. 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'.” 14. From perusal of Section 4(A) of the Act, 1960, it is clear that besides examining khasras of 1378 to 1380 Fasli, the prescribed authority is required to examine the latest village map and such other records which may be considered necessary for the purpose and, may also make local inspection, if it considers necessary and, thereafter, the prescribed authority may proceed to determine the nature of land whether it is un-irrigated or irrigated considering the factors as mentioned in the sub-sections. 15. In view of the aforesaid, I find substance in the submission of Sri J.P. Maurya, learned Additional Chief Standing Counsel that the prescribed authority was well within the power to make spot inspection besides considering the khasras of 1378-1380 Fasli, as it is provided in the Act, 1960 itself. 16. This Court in the case of Ram Autar Singh vs. Addl. Commissioner (Administration) and another, 1995 (2) AWC 1115 has held that under the provisions of Section 4(A) of the Act, 1960, the onus of burden of proof not only lies with the tenure holder, but at the same time, it also lies with the prescribed authority, when such dispute is raised by the tenure holder in respect of the nature of the land. The prescribed authority is required to examine the relevant khasras of respective years. If the prescribed authority does not discharge such duty of examining the relevant khasras, the order passed by the prescribed authority is bad in law. Paragraphs 16 to 18 of the aforesaid judgement are extracted herein below:- "16. The prescribed authority is required to examine the relevant khasras of respective years. If the prescribed authority does not discharge such duty of examining the relevant khasras, the order passed by the prescribed authority is bad in law. Paragraphs 16 to 18 of the aforesaid judgement are extracted herein below:- "16. I have carefully gone through the facts of the writ petition, respective submissions of the learned counsel for the parties, and, meticulously to the provisions of Section 4A of the Act, and, am of the opinion that the onus of burden of proof not only lies with the writ petitioners, but, at the same time, it also lies with the prescribed authority, when such dispute has been raised by the petitioners to examine the relevant khasras of respective years, which has not been discharged, either by the prescribed authority, or, by the appellate authority. 17. That being the factual and legal position, this Court is of the view that the impugned orders passed by the prescribed authority dated February 29, 1988 and of the appellate authority dated July 28, 1988 contained in Annexures 1 and 2, respectively to the writ petition are liable to be set aside. 18. Accordingly, in view of what has been stated above, the impugned orders dated February 29, 1988 passed by the prescribed authority and dated July 28, 1988 passed by the appellate authority are quashed. The entire matter is remanded back to the prescribed authority for taking afresh decision, after examining the relevant khasras (referred to above). Such determination has to be made as quickly as possible, preferably within a period of two months from the date of production of a certified copy of this order. Petitioner is also entitled to produce any evidence, and, or, fact available with him, in support of his case, at the resume hearing of the matter after remand of the case. Petitioner is further detected to take note of the next date of hearing so that there may not be any communication gap. Pending fresh decision before the prescribed authority, regarding possession of land, as on today, parties are directed to maintain status quo.” 17. Petitioner is further detected to take note of the next date of hearing so that there may not be any communication gap. Pending fresh decision before the prescribed authority, regarding possession of land, as on today, parties are directed to maintain status quo.” 17. From perusal of the orders passed by the prescribed authority and the appellate authority, it is apparent that neither the prescribed authority nor the appellate authority has considered the khasras of relevant years i.e. 1378 to 1380 Fasli, which is required to be considered under the provisions of the Act, 1960 and as has been held by this Court in the case of Ram Autar Singh (supra). 18. In view thereof, the present writ petition is allowed and the impugned orders dated 31.8.1995 and 30.9.1997 passed by opposite party nos.2 and 3 are hereby quashed. The matter is remanded back to the prescribed authority to take a fresh decision regarding nature of the land after considering the khasras of 1378 to 1380 Fasli. The prescribed authority should proceed with the matter and determine the said question regarding nature of the land, preferably, within a period of four months. Petitioners are directed to fully cooperate in the proceedings. 19. Let a copy of this order be submitted by the learned counsel for the petitioners before the prescribed authority within a period of fifteen days from today for compliance.