Daulat Ram (deceased) v. State

Brief facts of the case are that a notice u/s 10(2) of U.P. Imposition of Ceiling on Land Holdings Act (for short, the Act) was issued to the petitioner stating as to why his 32.68 acres land in irrigated terms in Village Shivlalpur Dallu be not declared surplus. Objections were filed by the petitioner stating that the land of other tenure holders, i.e., Vinod Kumar, Raghuveer Kumar and Satish Kumar, was wrongly included in the land. The land was transferred to these tenure holders with consideration 2 and the land is in their possession. The tenure holder also filed objections to the effect that his all the four sons are major. The land 18.72 acres was sold out to Raghuveer Kumar on 3.9.1970 with a consideration of Rs.37,500/- by way of registered sale deed and he further sold out the said land to Dalip Singh, Bishan Singh and Surendra Singh. They are not relative of tenure holder. In the objection it was alleged that since his son Santosh Kumar was serving in Military and he was not having any land therefore 18.60 acres of land was gifted to him on

13.6.1970 and since then the land is in his possession and therefore the land cannot be clubbed with the land of tenure holder. So far as the land which was sold to Raghuveer Singh on 3.9.1970 and was gifted to Santosh Kumar on 13.6.190 have been excluded from the land of tenure holder Daulat Ram. In the earlier round of litigation, the Prescribed Authority had declared 7.26 acres irrigated land and 3.82 acres of unirrigated land as surplus vide order dated 30.3.1976. An appeal against this order was also dismissed on 10.5.1977 but subsequently the Allahabad High Court remanded the case to the appellate authority to determine as to whether irrigated or unirrigated. The appellate authority also remanded the case to the prescribed authority vide its order dated 12.1.1990. After the remand of the case, by the impugned order dated 19.11.1990, the Prescribed Authority, upheld its earlier order and declared the 9.26 acres land surplus. The petitioner thereafter approached the Commissioner, Kumaun Division, Nainital, by filing an appeal, which was also dismissed by an order dated 5.11.1991. Feeling 3 aggrieved by the judgment and order of the Prescribed Authority dated 19.11.1990 and that of Commissioner, Kumaun Division, Nainital dated 5.11.1991, petitioner has preferred the present writ petition. Learned counsel for the petitioner has contended that after perusal of 1380 F Khasra, the learned Prescribed Authority treated the land irrigated inspite of the fact that no source of irrigation was mentioned in col. 6 of the said Khasra. As per section 4-A of the Act, there are two conditions precedent which must be satisfied to treat the land irrigated. Firstly, that the irrigation facility should be available and, secondly two crops must have been grown in 1380 F. It is contended by the learned counsel that since no source of irrigation was available therefore the findings of the courts below is perverse. Counter affidavit has been filed by the State in which same averments has been reiterated that the land is irrigated and that the finding is based on evidence and this is finding of fact. It is well settled that the Court in a writ jurisdiction cannot re-appreciate the evidence like an appeal but if the evidence was misread by the courts below then the Court can see whether the impugned order was passed by the court by a wrong appraisal of evidence. I have heard the learned counsel for the parties and also perused the original record of the trial court which was summoned through the learned Standing Counsel. 4 While determining as to whether the land is irrigated or unirrigated, the Prescribed Authority has to determine the same in view of provision given in Section 4-A of the Act, which reads as under:- (cid:147)4-A. Determination of irrigated land (cid:150) 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 (cid:150) (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 ; (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 5 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 purposes of this section expression (cid:145)effective command area(cid:146) means an area, the farthest field whereof in any direction was irrigated (cid:150) (a) in any of the years 1378 Fasli, 1378 Fasli and 1380 Fasli ; or (b) in any agricultural year referred to in the clause (cid:145)secondly(cid:146). 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.(cid:148) By a perusal of the provisions of section 4-A, firstly (a) (iii) and (b) it goes to show that irrigation facility was available in any of land in respect of any crop in any of the aforesaid years i.e. 1378 Fasli, 1379 Fasli and 1380 Fasli by way of any lift irrigation or any State Tube Well or a private irrigation and that at least two crops were grown in such land in any one of the aforesaid Fasli years, to treat the land irrigated. 6 True interpretation of Section 4-A of the Act is that both the conditions must be satisfied together for treating the land irrigated, that is to say, the land should have source of irrigation as has been mentioned above and at least two crops must have been grown in any of 1378 Fasli, 1379 Fasli or 1380 Fasli years. By a perusal of certified copy of Khasra, which is on record, it transpires that the finding of the courts below is perverse, as no source of irrigation has been shown in 1380F on the basis of which the appellate authority as well as the prescribed authority treated the land irrigated. On this ground, the writ petition is liable to be allowed and the finding that the land is irrigated is liable to be set aside. In view of the discussions made in the foregoing paragraphs, the writ petition is partly allowed. Impugned order dated 19.11.1990 passed by Prescribed Authority, Nainital and judgment and order dated 5.4.1991 passed by the Commissioner, Kumaun Division, Nainital, are set aside. Since the tenure holder is having 27.93 acres of land equal to 11.31 Hectares, he is entitled to hold 11.30 Hectares only. The surplus land is 0.01 Hectare equals to

0.03 acres of land. The Prescribed Authority can take this land as per choice of tenure holder. Rajni (B.S.Verma,J.) 27.11.2012