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Ram Adhar v. State Of U.P. - WRIT - C No. - 21321 of 1988  RD-AH 16322 (4 October 2007)
HIGH COURT OF JUDICATURE AT ALLAHABAD
(Judgment reserved on 17.07.2007)
(Judgment delivered on 04.10.2007)
Civil Misc. Writ Petition No.21321 of 1988
Ramadhar Vs. State of U.P. and others
Hon'ble S.U. Khan, J.
Heard learned counsel for the parties.
This writ petition arises out of second ceiling proceedings initiated against the petitioner tenure-holder under Section 29 of U.P. Imposition of Ceiling on Land Holdings Act, 1960. Under the said section if unirrigated land becomes irrigated, then fresh ceiling proceedings may be initiated. In the earlier ceiling proceedings, initially an area of 11.36 acres of land was declared as surplus by Prescribed Authority, Ceiling Rath, District Hamirpur through order dated 19.06.1976 (Copy of the said order has not been annexed). Thereafter petitioner filed review petition in October, 1979 under Section 13-A of the Act, which was registered as case No.59 of 1980, State Vs. Ramadhar. Through order dated 29.08.1980 passed on review application only an area of 1.36 acres was declared as surplus. The said order was not challenged. Copy of the said order is Annexure-2 to the writ petition. Thereafter, fresh notice under Section 10(2) read with Section 29, Ceiling Act was given in 1982 and matter was registered as Case No.59/13/28 of 1976-86, State Vs. Ramadhar. Prescribed Authority decided the matter on 20.07.1987 and declared 05.07 acres land as surplus land. Against the said order, State filed appeal being appeal No.84/33/20 of 1987-88. Additional Commissioner, Jhansi Division, Jhansi allowed the appeal on 30.07.1988 and declared 38.57 acres of irrigated land belonging to the petitioner as surplus. The said order of the Appellate Court has been challenged through this writ petition. The Prescribed Authority in its order dated 20.07.1987 held that the land of Smt. Nauni Dulaiya (or Nauni Bahu) admeasuring 18.86 was wrongly included in the land of the petitioner. Appellate Court disagreed with the said finding. Appellate Court held that by order of Tehsildar dated 22.04.1974, land of Smt. Nauni Dulaiya had been mutated in the name of petitioner (Smt. Nauni Dulaiya was petitioner's uncle's wife). However, before the Prescribed Authority, petitioner pleaded that Smt. Nauni Dulaiya died on 12.01.1978 and she had executed a ''will' on 23.12.1977 in favour of sons of petitioner. In or about 1981, consolidation proceedings were going on and before Consolidation Officer petitioner and his sons entered into a compromise and on the basis of said compromise on 04.05.1981, Consolidation Officer passed an order that in respect of the land of Smt. Nauni Dulaiya, the name of petitioner should be expunged from the revenue record and the names of his sons, i.e. Seva Ram and Ganga Din should be entered. These facts are mentioned in the judgment of the Appellate Court. In Para-9 of the writ petition, it has been stated that there is no order of Tehsildar dated 22.04.1974 through which name of petitioner was recorded over the land left behind by Nauni Dulaiya and contrary observation of the Appellate Court is erroneous. However, it has not been stated in the writ petition that the observation of Appellate Court to the effect that on the basis of compromise in between petitioner and his sons, the Consolidation Officer, on 04.05.1981, passed an order that in respect of the said land name of petitioner should be expunged and names of his two sons should be entered. In Para-8 of the writ petition, the only thing which has been stated is that Consolidation Officer by its judgment dated 04.05.1981 directed mutation of the names of the sons of the petitioner. It has not been denied therein that firstly, the said order dated 04.05.1981 was passed on the basis of compromise in between petitioner and his sons as mentioned by the Appellate Court, and secondly that the Consolidation Officer directed that the name of the petitioner should be expunged and names of his two sons should be entered meaning thereby that before that order name of the petitioner was continuing in the revenue records (as mentioned in the judgment of the Appellate Court). Orders passed by consolidation courts particularly after conclusion of ceiling proceedings (in the instant case, conclusion of the first ceiling proceedings) and more particularly when the orders are passed on compromise have got no value and are not binding upon the Prescribed Authority under Ceiling Act. It is also important to note that even according to the petitioner Smt. Nauni Dulaiya had died in January, 1978 still in the review petition filed in October, 1979, no such plea was raised. In the first order of Prescribed Authority dated 19.06.1976, land left behind by Smt. Nauni Dulaiya had been treated to be the land of the petitioner. Accordingly, Prescribed Authority had no jurisdiction or authority to record a contrary finding in its judgment and order dated 20.07.1987, which was in fact third inning. Accordingly, with respect to the said findings, I do not find any error in the judgment passed by the Appellate Court.
The second point decided by the Prescribed Authority in favour of the petitioner was that some land was inherited by him from his father who died before Zamindari Abolition and the said land was ''sir' and ''khudkasht' of the father of the petitioner, hence two of sons had share in the property, even though their names were never recorded. I have held in Kailash Chand Vs. State, 2007 (102) RD 301 that such a plea is not open if consolidation has taken place and such plea is not raised during consolidation operations.
Even otherwise it appears that this point was not raised, when matter was first decided by Prescribed Authority. This point was also not raised in the review petition. However, it is directed that in case this point was raised and decided in favour of the petitioner in the first judgment of the Prescribed Authority dated 19.06.1976, then the said decision on the said point shall be treated to be binding and shall not be reopened. However, if this question was not decided in the first judgment of Prescribed Authority dated 19.06.1976, then no benefit shall be given to the petitioner on the ground that some land was ''Sir' land of petitioner and petitioner's sons were born before Zamindari Abolition.
The last argument is regarding irrigated or unirrigated nature of the land. In this regard, I find that the appellate court placed the burden to prove that the land was not irrigated upon the tenure-holder, which was wrong. Said burden lies upon the State particularly when fresh proceedings under Section 29 of the Act are initiated. Appellate Court observed that tenure-holder could say anything to avoid ceiling and similarly could persuade his witnesses to say anything. This is not the way of deciding a case judicially. Evidence of both the parties is to be judged by the Court. Appellate Court observed that C.H. Form No.41 was filed wherein the land was shown to be unirrigated, however the said form was prepared on the basis of position prevailing in 1385 Fasli while State tube-wells had been installed in the villages in question thereafter. Character of land being irrigated or unirrigated in proceedings under Section 29 of the Act is to be judged on the basis of Section 4-A particularly secondly portion of the said section, which is quoted below:-
"4-A. Determination of irrigated land.- The prescribed authority shall examine the relevant khasras [such years as the State Government may notify in this behalf], 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 und6 S. 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 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 [such years as the State Government may notify in this behalf] or
(b) in any agricultural year referred to in the clause ''secondly'.
Explanation II.- The ownership and location of a priate 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 [such years as the State Government may notify in this behalf], 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.]"
Accordingly, matter requires remand for decision on this point. The character of land being irrigated or unirrigated shall be decided strictly in accordance with aforesaid said section. All relevant Khasras shall be perused for the said purpose.
However, petitioner is clearly liable to surrender 5.07 acres of land in terms of order of Prescribed Authority dated 20.07.1987 which was not challenged by the petitioner.
Accordingly, it is directed that within three months from today, petitioner shall surrender 5.07 acres of land (in terms of irrigated land) and thereafter matter must be re-heard by the Appellate Court. However, if within three months 5.07 acres of land (in terms of irrigated land) is not surrendered, then this order shall stand automatically vacated and writ petition shall be deemed to have been dismissed.
Writ petition is accordingly allowed. Judgment passed by the Appellate Court is set aside to the above extent and matter is remanded to the Appellate Court to decide the question of irrigated or unirrigated nature of land and the question of birth right of sons of original petitioner in his ''Sir' land.
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