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SMT.ASHARFI DEVI versus STATE

High Court of Judicature at Allahabad

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Smt.Asharfi Devi v. State - WRIT - C No. 12764 of 1986 [2007] RD-AH 7437 (23 April 2007)

 

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HIGH COURT OF JUDICATURE OF ALLAHABAD

AFR

Judgement Reserved on 18.1.2007

Judgement Delivered on 23.4.2007

(Reserved)

Civil Misc. Writ Petition No. 12764 of 1986

Smt Asharfi Devi Versus State of U.P and others.

Hon'ble S.U.Khan J

Heard learned counsel for the parties.

The following orders passed under U.P Imposition of Ceiling on Land Holdings Act 1960, (Hereinafter referred to as "The Act") have been challenged through this writ petition.

1Order dated 29.1.1981 passed by the prescribed authority Ceiling / SDO, Dadri passed in case No. 8 of 1980, State Vs. Asharfi.

2Order dated 14.4.1983 passed by the prescribed authority rejecting review petition filed against first order.

3Order dated 13.5.1986 passed by Additional Commissioner, Meerut Division, Meerut dismissing appeal No. 18 of 1985-86, which was directed against orders of prescribed authority at serial No. 1 and 2.

The prescribed authority through orders at serial No. 1 and 2 declared 8 Bigha and odd irrigated land of petitioner as surplus land. By the third order appeal filed against the first two orders was dismissed.

Earlier matter had come to this court in the form of writ petition No. 5204 of 1977 which was allowed on 7.5.1979 and prescribed authority was directed to decide  irrigated or unirrigated nature of plot Nos. 19 and 174 after permitting the parties to adduce evidence. In the said order, it was directed that the matter should be decided in the light of division bench authority of this court reported in Jaswant Singh Versus State 1978 AWC 577. Thereafter prescribed authority passed the order at serial No.1 (Supra).

Both the courts below held that Khasras of 1378 to 1380 fasli were available. It was also held that plot No. 19 was quite big having an area of 61 Bigha and odd in which petitioner's share were only 17 Bighas and odd. It was further observed that in the relevant Khasras entire plot of 61 Bigha and odd was shown to have been irrigated through tube well of one Shahbari and it was also shown therein that every year two crops were grown in the said plot. It was argued by the petitioner tenure holder before the prescribed authority that the entire land in all the three relevant years i.e 1378, 1379 and 1380 fasli was not shown to be irrigated and growing two crops. There were different variations in different years. Prescribed authority rightly held that as the variations were different i.e. in some year only in 10 Bighas two crops were not grown and in some year in about 25 Bighas two crops were not grown hence it meant that nature of the soil was such that if efforts had been made then entire plot could have yielded two crops. It was also argued that plot No. 19 was subsequently irrigated by tube well No.22. Prescribed authority rightly held that it made no difference and relevant years to be seen were 1378 to 1380 fasli. Prescribed authority also observed that apart from petitioner Asharfi Devi, no other co-tenure holder of the said plot raised any objection regarding irrigated character of the said plot. The argument of petitioner that Lekhpal wrongly mentioned in relevant Khasras that the plot in dispute was wrongly shown to have been irrigated from the tube well of Shahbari, was rightly rejected. Prescribed authority under Ceiling Act can not go against Khasras of 1378 to 1380 fasli while determining irrigated nature of land as is evident from section 4-A of the Act. Prescribed authority also mentioned that Naib Tehsildar in his report also mentioned the irrigated nature of the plot. Learned counsel for the petitioner has argued that the said report was not available. Even if the said report is completely ignored, position remains the same. The findings are based upon entries of Khasras 1378 to 1380 fasli and that is what is required by section 4-A of the Act.

The findings recorded by the courts below are not at all against the judgment of Jaswant Singh Vs. State 1978 AWC 577. In the said authority, it was mentioned that under section 4-A of the Act, it was not permissible for the prescribed authority to make use of any oral evidence in the course of enquiry. Prescribed authority has not placed reliance upon any oral evidence. Even if the report of Naib Tehsildar, Lekhpal etc is completely ignored, the Khasras of 1378 to 1380 fasli completely proved that the plots in dispute were irrigated.

Moreover, the division bench authority of this court reported in Kallu Vs. State 1979 ALJ 1113 held that if part of a plot was irrigated in any of the relevant years then it could be assumed that the nature of the soil of whole plot was such that if efforts had been made then the whole plot could have been irrigated and used for growing corps. The said authority has been approved by the Supreme Court in Kallu Vs. State decided along with Abiaram Singh Vs. State AIR 1990 SC 477.

Accordingly I do not find any error in the impugned orders; writ petition is therefore dismissed.

Waqar

23.4.2007


Copyright

Reproduced in accordance with s52(q) of the Copyright Act 1957 (India) from judis.nic.in, indiacode.nic.in and other Indian High Court Websites

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