Yogendra Singh vs Addl. Commissioner Chitrakoot
2017 Latest Caselaw 6562 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

RESERVED
 
A.F.R.    
 

 
Court No. - 25
 

 
Case :- WRIT - C No. - 13110 of 2002
 

 
Petitioner :- Yogendra Singh
 
Respondent :- Addl. Commissioner Chitrakoot
 
Counsel for Petitioner :- Ram Kishore Pandey,Ram Kishore Pandeya,Shashikant Shukla
 
Counsel for Respondent :- C.S.C.				
 
		With 
 
Case :- WRIT - C No. - 44638 of 2004
 

 
Petitioner :- Smt. Archana Singh
 
Respondent :- Addl. Commissioner & Others
 
Counsel for Petitioner :- B.M. Singh,D.P. Singh,K.D. Mishra
 
Counsel for Respondent :- C.S.C.,R.K.Pandey
 
		With 
 
Case :- WRIT - C No. - 44640 of 2004
 

 
Petitioner :- Devendra Singh
 
Respondent :- Addl. Commissioner & Others
 
Counsel for Petitioner :- B.M. Singh,D.P. Singh,K.D. Mishra
 
Counsel for Respondent :- C.S.C.,R.K.Pandey
 
		With 
 
Case :- WRIT - C No. - 44650 of 2004
 

 
Petitioner :- Gyanendra Singh @ Babloo Singh
 
Respondent :- Addl Commisssioner & Others
 
Counsel for Petitioner :- B.M. Singh,D.P. Singh,K.D. Mishra
 
Counsel for Respondent :- C.S.C.,R.K.Pandey
 

 
Hon'ble Siddhartha Varma,J.

Upon notice being issued by the respondent No.2 under Section 10(2) of the U.P. Imposition of Ceiling on Land Holdings Act, 1960 (hereinafter called as "the Act") on 17.3.1997 with regard to his holdings in village Garhchapa & Chureh Kaseruwa, Tehsil-Karvi, District-Chitrakoot, the petitioner filed his reply on 4.9.1997 and specifically stated that the land of khata nos. 28, 324 and 325 of village Garhchapa, District Chitrakoot was neither owned by him nor was it in his possession. He also stated that the family of the petitioner comprised his wife, two adult sons and two adult daughters and therefore, he had to get the advantage of the exemption provided for by the Act. Further objection taken by the petitioner was that the independent holding of the petitioner was unirrigated and there was no source of irrigation at all in both the villages. Still further, it was stated in the objection that the share of the petitioner in the joint holding in village Chureh Kaseruwa had wrongly been shown as his personal property even though, he had only a certain share in the holding in village Chureh Kaseruwa. It was also stated that in a fasli year only one crop was grown. After the prescribed authority had taken up the matter, the documentary evidence placed by the petitioner comprising Kissan Bahi of village Garhchapa of the Khata No.374, a copy of the Khatauni of village Garhchapa of 1402 to 1405 fasli of khatas nos.324, 325, 28 and 374, and a copy of the khataunis of 1400 to 1405 Fasli of village Garhchapa of the Khata No.75 were placed. With regard to village Chureh-Kaseruwa, Tehsil Karvi for the year 1400 to 1405 fasli khataunis of Khatas Nos. 231, 246, 260 and 161 were filed. From the side of the State, no documentary evidence was filed and only the statement of Gokul Prasad Pandey, Lekhpal Garhchapa and the statement of Kamla Prasad, Lekhpal Chureh-Kaseruwa, Tehsil Karvi were recorded. They were cross-examined by the petitioner. To prove the date of birth of the various family members of the petitioner, the Pariwar Register was also filed. Upon consideration of the objection of the petitioner, the prescribed authority by its judgment and order dated 20.1.2000 determined 5.091 hectares land as surplus of the petitioner. The judgment of the prescribed authority was confirmed by the respondent No.1 after dismissing the appeal on 2.01.2002.

Learned counsel for the petitioner submitted:

(i) The prescribed authority fell in error in not considering the fact that it had included the khatas of outsiders in the holdings of the petitioner. It was specifically stated that Khata No.324 belonged to Bhyanker Singh and Devendra Singh. Bhyanker Singh was a complete outsider, even though Devendra Singh was the son of the petitioner but was holding the land in khata no.325 with Bhayankar Singh separately.

(ii) In khata No.325 Devendra Singh s/o Rakshpal Singh (not the son of the petitioner) with his brothers Devendra Singh & Bharat Singh also sons of Rakshpal Singh were owners with one Bhayankar Singh s/o Suraj Bhan Singh.

(iii) Even though the daughter of the petitioner Archana Singh was an adult on the relevant date when the notice was issued and was in possession of certain lands independently, yet plots in her ownership were clubbed with the holding of the petitioner.

(iv) The plots, which came to the ownership of the family members of the petitioner in 1991 and were in the exclusive ownership of those family members, who were adults, were also clubbed with the holding of the petitioner.

(v) The onus of proving that the land of the petitioner was irrigated lay squarely on the shoulders of the State Authorities, yet the burden was shifted on the petitioner and despite the fact that none of the ingredients was present as per Section 4A of the Act, which could establish that the land of the petitioner was irrigated, the holdings of the petitioner were considered as irrigated.

(vi) If the statement of Gokul Prasad Pandey, Lekhpal of Garhchapa is perused, then it becomes evident that the land was unirrigated and was of "Patha" area, which was not a fertile land.

(vii) If the statement of Kamla Prasad, Lekhpal of Chureh-Kaseruwa, Tehsil Karvi is perused, then it becomes evident that he had concluded that probably a pumping set was used to suck water from the pond which was present and stated that the land was irrigated. The said Kamla Prasad, Lekhpal had not been able to give any definite conclusion regarding the share of the petitioner.

(viii) The ages of the children of the petitioner were also clear from the family register and also from the oral statement of the petitioner himself.

The counsel for the petitioner thus stated that the orders impugned were wrongly passed and deserved to be quashed.

In reply, the learned Standing Counsel for the respondents submitted that:

(i) The burden to prove that the land of the petitioner was unirrigated lay on the petitioner. If he could not prove the same, then it would be presumed that the same was irrigated. The burden to prove that the land was irrigated could not be settled on the state.

(ii) Since the petitioner was to get the advantage of the exemption clauses if the children were adult then it was his responsibility to establish that they were adults.

(iii) The pumping set if was established, was in existence even without a well being there, then it would be presumed that the land was irrigated and it mattered little if any boring well existed.

(iv) If the notice included the lands of others, then the petitioner had to prove that it was wrongly done so.

I have heard the learned counsel for the petitioner and the learned Standing Counsel for the respondents and have also gone through the record of the case and find that the judgments of the prescribed authority as also the appellate authority were erroneous. As per Section 4A of the Act, the burden of proving that the land was irrigated squarely lay on the shoulders of the State Authorities. This is also what has been stated in the case of Genda Singh Vs. State of U.P. and others reported in 1979 ALR 415. Furthermore, when the records indicated that the lands of the outsiders were being included in the holdings of the petitioner, then the prescribed authority as also the appellate authority could not have turned a deaf ear to the submissions of the learned counsel for the petitioner. Further, when the adult children of the petitioner were having independent ownership of holdings, then their land should not have been clubbed with the holdings of the petitioner.

In the instant case, when the son Devendra Singh and daughter Archna Singh, who were born on 12.3.1967 and 14.4.1971 respectively and were adult at the relevant point of time and also were having their independent holdings, then their holdings could not have been clubbed with that of the petitioner. In fact as they were adults the petitioner should have been given the required exemption. Furthermore, under Section 5(3) of the Act, it had to be seen whether the adult son was having more than two hectares of irrigated land in his individual ownership. This having not been considered, the order of the prescribed authority becomes erroneous. Further, I have no hesitation in holding that the manner in which the prescribed authority and the appellate authority have held that the land of the petitioner was irrigated and was thus in excess of the ceiling limits is absolutely preposterous. They have not considered the Khataunis of the years 1378 fasli, 1379 fasli or of 1380 fasli. They did not make any local inspection and also did not see the land for themselves before concluding that the land was irrigated. Section 4A provides the various inputs, which had to be taken into consideration for concluding that the land was irrigated. In the instant case, I find that none of the inputs was taken into consideration. Furthermore, when the petitioner raised a ground at the appellate stage that his shares in the joint holdings were not properly calculated, then the appellate Court simply turned down the submission by saying that the appellant had not raised those grounds before the prescribed authority. The appellate Court should not have done this. To ascertain the shares of a tenure holder is not a difficult task. A bare perusal of the Khataunis would have revealed as to how much share the petitioner had in the various plots.

In view of the above, the orders dated 20.1.2000 and 2.1.2002 passed by the respondents No.2 and 1 respectively are hereby quashed. The writ petition is allowed.

In the connected writ petitions, the petitioners therein have challenged the impugned orders in those writ petitions saying that as they were co-sharers, they should also have been heard. There is substance in this submission. In view of the Full Bench's decision in Shantanu Kumar Vs. State of U.P., reported in 1979 AWC 585, all co-sharers were required to be heard after the required notice on them under Rule 8 of the U.P. Imposition of Ceiling on Land Holdings Rules, 1961. As they were not put to notice, the impugned orders dated 28.7.2003, 20.1.2000 and 28.6.2002 passed in Writ Petition No.44638 of 2004, orders dated 20.1.2000, 28.6.2002 and 28.7.2003 passed in Writ Petition No. 44640 of 2004 and orders dated 28.7.2003, 20.1.2000 and 28.6.2002 passed in Writ Petition no. 44650 of 2004 are also quashed. The Writ Petition No. 44638 of 2004, Writ Petition No. 44640 of 2004 and Writ Petition No.44650 of 2004 are allowed.

Order Date :- 9.11.2017

Ashish Tripathi