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Sheo Ram Singh v. Addl. Commissioner - WRIT - C No. 13211 of 1988 [2007] RD-AH 7344 (22 April 2007)


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(Court No. 28)

Civil Misc. Writ Petition No. 13211 of 1988

Sheo Ram Singh Versus Additional Commissioner , Jhansi Division , Jhansi and others.

Hon'ble S.U.Khan J

Earlier ceiling proceedings were finalised in favour of the petitioner and through order dated 25.4.1977 passed by the appellate court/ ADJ Hamirpur in ceiling Appeal No. 691 of 1976, it was held that petitioner did not possess any surplus land. After more than 5 years second notice was issued to the petitioner under section 10(2) of U.P Imposition of Ceiling on Land Holdings Act. In the said notice, it was proposed to declare that petitioner possessed about 24 acres of land as surplus land. The said notice was issued on 26.8.1982. Matter was decided by the prescribed authority against the petitioner which was challenged by the petitioner through ceiling Appeal No. 73 of 1984. Civil Judge Hamirpur decided the appeal on 12.3.1985 copy of the said judgement is Annexure 3 to the writ petition. Matter was remanded by the appellate court to the prescribed authority. After remand prescribed authority through order dated 27.1.1987 copy of which is Annexure 4 to the writ petition held that petitioner did not possess any surplus land. In the said judgement it is mentioned that prescribed authority himself inspected the spot. Against order dated 27.1.1987, State filed appeal being appeal No. 63/50/3/86-87. Additional Commissioner Jhansi division Jhansi allowed the appeal on 26.5.1988 and again remanded the matter to the prescribed authority after setting aside the order of prescribed authority dated 27.1.1987. Appellate court mentioned about the position prevailing in 1386 fasli regarding irrigated or unirrigated nature of land and the produce of the land. Khasra of the said year was also perused by the appellate court. It is also mentioned that there is a well in plot No. 546. Under Ceiling Act well has got no importance. Appellate court held that at the time of inspection no naksha nazri was prepared and no information was given to the State of the inspection. Matter was remanded for fresh inspection. Khasra of 1386 fasli or position of plot in  1386 fasli is wholly irrelevant, unless proceedings under section 29 and 30 read with section 4-A, secondly of Ceiling Act are initiated according to which if after 8.6.1973 (i.e almost conclusion of 380 fasli) any State irrigation work has come into existence then fresh ceiling proceedings may be initiated. In the judgement of the prescribed authority dated 27.1.1987 it is mentioned that fresh proceedings were initiated on fresh notice under section 10(2) dated 26.8.1982. The Supreme Court in D.N.Singh Versus Civil Judge AIR 1999 SC 2264 has held that the point already decided in the earlier ceiling proceedings  can not be reopened. However nomenclature of notice is not decisive. The notice could be treated to be under section 29/ 30 of the Act.

As the question of different plots being irrigated or unirrigated had already become final hence fresh notice could be issued and fresh proceedings could be taken only under section 29 of the Act. The relevant portion of the said section is quoted below:

"29. Subsequent declaration of further land as surplus lands- Where after the date of enforcement of the Uttar Pradesh  Imposition of Ceiling on Land Holdings (Amendment) Act 1972 (i.e. 8.6.1973) any unirrigated land becomes irrigated land as a result of irrigation from  a State irrigation work, the ceiling area shall be liable to be redetermined."

From the above section it is quite clear that fresh proceedings may be initiated only if State irrigation work comes into operation subsequent to 8.6.1973. This position is further clarified by section 4-A, secondly of the Act. Section 4-A 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. 1570-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."

thirdly, (a) that any land is situated within the effective command area of a lift irrigation canal of 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 [ 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 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 [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.]

If any land becomes irrigated after 1380 fasli by availing facility from a State irrigation work which was already there, then the said land can not be treated to be irrigated under any of the provision of Ceiling Act.

In the order passed by the appellate court there is absolutely no mention that any State irrigation work came into existence after 8.6.1973. Even in the grounds of appeal, copy of which is annexure 7 to the writ petition there is no mention that any State irrigation work came into existence after 8.6.1973. Even prior to that before the prescribed authority it was not the case of State that any State irrigation work came into existence after 8.7.1973 due to which plot in dispute became irrigated. The first order of prescribed authority in consequence of fresh notice dated 26.8.1982 which was against petitioner also did not mention that any fresh State irrigation facility came into existence which could irrigate the plots. In view of this absolutely no purpose will be served  by permitting the proceedings to continue. As there is no allegation that after 8.6.1973 any State irrigation work came into existence which could irrigate the plot in dispute hence nothing remains to be decided. Khasras of 1386 to 1389 fasli are wholly irrelevant for the purposes of section 29 unless the allegation is that after 1380 fasli any State irrigation work came into existence from which lands in dispute could be irrigated.

Accordingly, writ petition is allowed. Impugned order by the appellate court is set-aside. Order passed by the prescribed authority dated 27.1.1987 holding that the petitioner did not possess any surplus land is restored.




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