Allahabad High Court
State Of U.P. Thru Collector ... vs Bhagwan Prasad on 8 July, 2019
Bench: Yashwant Varma
HIGH COURT OF JUDICATURE AT ALLAHABAD
?Court No. - 6
Case :- WRIT - C No. - 2801 of 2004
Petitioner :- State Of U.P. Thru Collector Allahabad
Respondent :- Bhagwan Prasad
Counsel for Petitioner :- S.C.
Counsel for Respondent :- S.C.,A.N.Misra
Hon'ble Yashwant Varma,J.
Heard learned Standing Counsel for the petitioner.
This petition on behalf of the State impugns the judgment and order dated 09 April 2003 passed by the Additional Commissioner allowing an appeal of the land holder.
Although notice had been issued to the respondent, none has appeared on his behalf even though the matter is taken in the revised call.
From the undisputed facts which stand disclosed on the writ petition, it appears that initially a notice under Section 10 of the U.P. Imposition of Ceiling On Land Holdings Act, 1960 was issued to the land holder in 1986. Objections were filed to the notice so issued by the respondents. Ultimately by an order of 21 March 1995, the Prescribed Authority decided the objection and also computed the surplus land which was liable to be recognised as being held by the respondent. That decision was affirmed by the Commissioner in appeal.
Challenging those two orders the land holder preferred a writ petition before this Court being W.P. No. 237 of 1996 which was partly allowed on 30 April 1996 in the following terms:-
"The finding recorded on the point of transfer dends and the finding on the point if the petitioner had four major sons on the cut off date i.e. 8.6.1973 this court does not find any infirsity in the finding of the courts below. But the finding recorded on the point if land are irrigated or not, appear based Preciation of evidence or none application or The lands of the petitioner do not appear to have been coverd either in the Ist 2nd or 3rd conditions of of the Ceiling Act. Of course there is evidence that canal facility is available in the village and in the Fasali 1396 and 1397 irrigation facility is disclosed from Khasara of those years but the case of the State does not appear to have any covrage on the Principles of 3rd clause of section 4A of the Ceiling Act.
No Counter affidavit has been filed upto date inspite of clear directions by the Court.
The writ petition has merits on the point noted above, so it is admitted and partly allowed. The impugned order so for the finding of irrigated or one irrigated of the Petitioner's land is concerned, is not auds. The matter is remanded to the Prescribed Authority, who will calculate the surplus land after application of mind on this point afresh."
As is evident from the order of remand as framed by this Court, the principal issue which was to be decided afresh was whether the land was irrigated or not. On remand the Prescribed Authority in terms of its order passed on 30 October 2002 held that in light of the Khasras brought on record for 1378F-1395F, 1396 and 1397 Faslis, the land was irrigated and also fell within the command area of the canal system established. In view thereof he proceeded to hold that the plots in question were liable to be treated as irrigated. Aggrieved by that decision the respondent preferred an appeal which has been allowed by the Additional Commissioner in terms of the order impugned.
The Additional Commissioner had principally held that it was incumbent upon the State to bring on record the relevant material pertaining to 1378, 1379 and 1380 Faslis to establish whether the land in question was irrigated or not. It has further found that even if it were to be assumed that the land was irrigated in 1396 Fasli, the mere fact that it fell within the command area of the canal system would not be sufficient. The Appellate Authority has held that it was incumbent upon the respondents and the onus to prove lay solely on their shoulders to establish that the land was irrigated.
Undisputedly the question was liable to be determined in light of the provisions made in Section 4A of the Act. Section 4A makes the following provisions;-
"[4A. Determination of irrigated land. - The prescribed authority shall examine the relevant Khasras for the years 1378 Fasli, 1979 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 -
(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 under Section 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 purposes of this Act."
From a perusal of that provision it is evident that the onus to establish that the land was irrigated in 1378, 1379 and 1380 Fasli was upon the petitioner. The Court notes that the only document which appears to have been placed with reference to Section 4A before the Prescribed Authority by the petitioner was the revenue record for the year 1378 Fasli. While dealing with the entries made in the revenue records prepared for the subsequent years the Appellate Authority has found that no evidence was led to establish that the plot was irrigated. It has further observed that the mere fact that it fell within the command area of the canal system would not be sufficient to deny benefit to the land holder. It was held that it was for the State to establish that the plot in question was in fact irrigated. The view so taken merits no interference.
The petition fails and is dismissed.
Order Date :- 8.7.2019
faraz
