Hira Singh vs State Of U.P. And Others
2023 Latest Caselaw 8902 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 

?Court No. - 4
 
Case :- WRIT - C No. - 3000146 of 1998
 
Petitioner :- Hira Singh
 
Respondent :- State of U.P. and Others
 
Counsel for Petitioner :- S.P.Shukla,Sanjay Kumar Srivastava
 
Counsel for Respondent :- C.S.C.,Rama Kant Dixit
 

 
Hon'ble Mrs. Sangeeta Chandra,J.

1. Heard Sri Sanjay Kumar Srivastava, learned counsel for the petitioner and learned Standing Counsel appearing on behalf of the State Respondents.

2. This petition has been filed by the petitioner Hira Singh, who was subsequently substituted by legal heirs challenging the orders dated 23.7.1998 passed by the Appellate Authority and also the order dated 30.06.1998 passed by the Prescribed Authority under the U.P. Imposition of Ceiling on Land Holdings Act, 1960 (hereinafter referred to as "Rural Ceiling Act").

3. It is the case of the petitioner that he was having agricultural land in two villages, namely, Village Dharsawan and Belwa Khatib Pargana and Tehsil Sadar, District Bahraich. He was issued a notice under Rule 7 of the Rules of 1961 relatable to the Rural Ceiling Act on 17.11.1977, on the basis of CLH Form -3 dated 04.11.1977 showing (A) 48.18 acres irrigated land (B) 14.80 acres of un-irrigated land (C) 5.67 acres of grove land i.e. equivalent to 60.30 acres in terms of irrigated land. On receipt of the said notice, the petitioner filed his objections on 29.11.1977 saying that the total land of the petitioner is un-irrigated and the classification as mentioned in Form C.L.H.-3A to C.L.H.-3C was grossly erroneous. He referred to plot nos.222, 493 and 462 of Village Dharsawan and plot nos.200 and 211 of Village Belwa Khatib as not being within the command area of any tube-well and being totally un-irrigated.

4. On 05.12.1977, the Prescribed Authority framed four issues, out of which, two were important i.e. where the total land is un-irrigated ? And whether particular plot shown in the objections are un-irrigated ? Two other issues were framed by the Prescribed Authority relating to the family members and clubbing of land of the petitioner's major son Rajendra Pratap Singh into his holding. Such issues are not very relevant for the purpose of this petition as the orders under challenge are not concerned with them as eventually such issues relating to family members and also land of major son Rajendra Pratap Singh being clubbed, were decided in favour of the petitioner during various stages of litigation.

5. Initially, the Prescribed Authority passed an order on 31.05.1978 declaring 33.822 acres in terms of irrigated land as surplus and proposed plot no.222 area 22.292 acres of village Dharsawan and plot no.200 area 2.45 acres and plot no.211 area 6.030 acres of Village Belwa Khatib i.e. a total of three plots mentioning 33.22 acres in terms of irrigated land as surplus.

6. Feeling aggrieved, the petitioner filed an Appeal before the Appellate Authority who was the then District Judge Bahraich. The Appeal was partly allowed and the matter was remanded by an order dated 15.12.1978 to the Prescribed Authority to determine the extent of irrigated and un-irrigated land afresh, and decide the other issue of major son of the petitioner. On remand, the Prescribed Authority examined the matter afresh and passed an order dated 29.02.1980 and answered both questions against the petitioner. He, however, re-calculated the surplus area and declared 30.98 acres in terms of the irrigated land as surplus.

7. Feeling aggrieved, the petitioner filed an Appeal. The aforesaid Rent Appeal No.42 of 1980 was partly allowed by the Appellate Authority by his order dated 14.05.1980 and it excluded the land of major son of the petitioner from the holding of the petitioner. He also accordingly reduced the total surplus land, thus, declaring an area of 19.969 acres in terms of irrigated land as surplus.

8. The petitioner challenged the aforesaid Appellate Order on the question of determination of irrigated/ un-irrigated land by filing Writ Petition No.2742 of 1980. The said Writ Petition was allowed on 07.08.1984 and the matter was remanded to the Appellate Authority for redetermining, looking into the khatauni of the relevant year i.e. 1379 Fasli, 1379 Fasli and 1380 Fasli in compliance of the provisions for Section 4A of the Rural Ceiling Act.

9. After remand, the Appeal came up before the Divisional Commissioner (because of an amendment under Section 13 of the Act being carried out in the meantime). The Commissioner passed an order dated 29.01.1990 and remanded the case to the Prescribed Authority for redetermining the extent of irrigated/ un-irrigated areas. After remand, the Prescribed Authority passed a fresh order on 05.02.1994, where it confirmed its earlier order dated 29.02.1980 without any change i.e. he again declared 19.969 acres in terms of irrigated land as surplus. The petitioner thereafter approached the Appellate Authority. The Appeal was allowed on the question of determination of irrigated/un-irrigated area. The Appellate Court by its order dated 13.03.1995 remitted the matter to the Prescribed Authority, but the Prescribed Authority again on 30.06.1998 rejected the contention of the petitioner and confirmed his orders dated 05.02.1994 and 29.02.1980.

10. Feeling aggrieved, the petitioner filed an Appeal. This time his Appeal was rejected summarily at the admission stage itself.

11. It is the case of the petitioner that the Appellate Authority was under a duty to decide the Appeal in accordance with the observations and directions of this Court in its judgment and order dated 07.08.1984 which required the Appellate Authority to re-decide the extent of irrigated/ un-irrigated land by considering the evidence on record and whether the khasra extract of the relevant years were examined or not. To find out whether all plots were irrigated in a particular year or growing two crops, and whether the Kharif crop was irrigated in the same year or not. Under the provisions of Section 4(A), fresh findings had to be recorded. However, the Prescribed Authority has relied upon its earlier orders and the Appellate Authority has rejected the Appeal without application of mind.

12. Learned counsel for the petitioner has argued that the Prescribed Authority relied upon the option given by the petitioner with regard to plot no.222 of Village Dharsawan to say that the petitioner himself had given option that only that part of land which was covered by boring should be allowed to be retained by him and the rest of the area of plot no.222 may be taken as surplus land.

13. This finding on the basis of option given by the petitioner is erroneous as it would not mean that the boring existed on the plot in question in the year 1378 to 1380 Fasli. In fact, the boring was got done many years later.

14. Learned counsel for the petitioner has stated that the khasra of 1380 Fasli showed that no area of plot no.222 was irrigated. Rabi crop was sown on only in six acres. Left over area of plot no.222 was mentioned as parti/ un-cultivated. No portion of land of plot no.222 was shown as having been under double crop/ do fasala. Also, the Prescribed Authority failed to notice that the khasra No.1379 Fasli for Village Dharsawan for Belwa Khatib was missing from the record room. Only entries of 1378 and 1380 Fasli were examined.

15. Learned counsel for the petitioner has also argued regarding plot nos. 200 and 211, which according to him were un-irrigated, but the Prescribed Authority had returned a finding of them having been irrigated with tubewell, although the field map did not show any such tubewell.

16. Learned counsel for the petitioner has argued that the statement of the Area Lekhpal of Village Dharsawan and Village Belwa Khatib were taken, but they were not posted at the relevant time. They had only spoken from the record and not from personal knowledge.

17. Learned Standing Counsel, on the basis of counter affidavit filed in the said writ petition, has argued that the Prescribed Authority had considered the statements of Lekhpal of the Village, who had categorically stated that plot no.200 and 211 were irrigated from the tubewell situated in plot no.167 which was installed in 1375 Fasli by the tenure holder himself. The khasra entries of the relevant years 1378 and 1380 were also examined where two crops were mentioned. No doubt, the khasra of 1379 Fasli was not available in the revenue record room, but khasra of one year before and one year afterwards were looked into and such entries showed two crops having been sown on the plots in question.

18. Also, in the khasra extract of 1378 Fasli tubewell was recorded as in existence and the statement of the Assistant Registrar, Kanoongo dated 29.06.1979 was also considered by the Prescribed Authority and it is not as if only the Area Lekhpal's statement was believed. An on-spot inspection was also done by the Prescribed Authority, as directed by the Appellate Authority.

19. It has also been stated that the writ petition has raised disputed questions of fact, but in view of the elaborate discussion of the material evidence on record and in the light of the relevant provisions of law, the order passed by the Prescribed Authority is just and the writ petition ought to be dismissed.

20. Learned counsel for the petitioner has placed reliance upon paragraph-6 of the rejoinder affidavit filed by him, wherein details of various plots which were found to be irrigated have been mentioned as not belonging to Hira Singh, the original tenure holder but belonging to others.

21. This Court has gone through paragraph-6 of the Rejoinder Affidavit, which runs in four pages and has raised several disputed questions of fact which cannot be looked into by this Court while sitting in Writ jurisdiction.

22. This Court has also gone through the orders impugned. It appears that this Court while deciding the Writ Petition No.2742 of 1980, had made certain observations with regard to the khasra of relevant years not being examined as they were not on record and with regard to whether all the plots, as mentioned by the Prescribed Authority and the Appellate Authority, being irrigated in a particular year by growing two crops. The findings were to be recorded taking into account the provisions of Section 4(A) of the Act. By the order dated 07.08.1984, the Court restored the Appeal to its original number and directed the Appellate Authority to decide the same in view of the observations made in the order passed by this Court.

23. The Appellate Court looked into the judgment rendered by this Court and further elaborated the duties of the Prescribed Authority, but this time in Hindi and also directed that the tenure holder should be given proper opportunity.

24. The order of the Prescribed Authority has been perused by this Court. It refers to earlier three rounds of litigation by the tenure holder and also to the order passed by the High Court. It thereafter refers to the statement of the then Assistant Registrar Kanoongo dated 13.06.1979, which had admitted that the khasra of 1379 Fasli was not available in the revenue record room, but he observed that since the khasra 1378 and 1380 Fasli were available, they could be relied upon. The Prescribed Authority, thereafter, examined the khasra of 1378 and 1380 Fasli and Form 3C relating to Gram Belwa Khatib and Village Dharsawan wherein Gata No.200/2.48 acres, plot no.211/3.55 acres, plot no.222 ad-measuring 30.74 acres, plot no.1393 ad-measuring 6.51 acres, plot no.562/4.54 acres and plot no.864/0.36 acres had been shown as irrigated in column nos.7 and 8. He referred to the statement of the Area Lekhpal one Farooq Ahmad of Village Belwa Khatib, who stated that he was the Lekhpal for past six years and that from personal knowledge he stated that plot nos.200 and 211 were being irrigated from the boring situated in plot no.167. This boring was done in 1375 Fasli, the Khasra of 1386 Fasli also refers to boring existing in plot no.167, which also showed the entire land being sown by double crop. The Village map of Belwa Khatib also showed boring situated in plot no.167 and a nali/ drain/ channel being situated in plot nos.200 and 211. From the same, it was evident that plot nos.200 and 211 were being irrigated through these channels. In Village Dharsawan plot no.222 also showed a boring and two crops showing Rabi crop to be irrigated and Kharif crop being un-irrigated. Some part of plot no.222 was however shown as un-cultivated, because it was elevated land. The Assistant Registrar Kanoongo had admitted that certain part of plot no.222 was uncultivated/ parti, but the rest of the land had been left uncultivated by the tenure holder only to prepare it for Rabi crop. The Prescribed Authority not only went through the record of the 1378 and 1380 Fasli but also of 1377 Fasli and 1375 Fasli.

25. On the spot inspection was also carried out by the Prescribed Authority and in the map prepared of such inspection, a mention was made of plot no.222 having a boring and on the north east corner, a chak road was also shown bounded on one side by nali/ channel for irrigation. The Lekhpal of the area in question had also made a statement that the tubewell was in existence since before the 1378 Fasli. In so far as the plot no.493 was concerned, the tenure holder's brother Bhanu Pratap Singh's tubewell in plot no.492 was in existence before 1378 Fasli and irrigation was done through the same. Similarly, for plot no.562, tubewell was situated in plot no.864 belonging to Shiv Prasad Singh, from which irrigation was being done.

26. It is on the basis of the record of khasra no.1378-1380 Fasli, statements of the Area Lekhpal and the Assistant Registrar Kanoongo and also on Village map; and on the basis of spot inspection being carried out by the Prescribed Authority that findings have been arrived at regarding irrigated land of the petitioner.

27. At least three Lekhpals were examined and one Assistant Registrar Kanoongo. An on the spot inspection was also carried out. The relevant khasra of 1378 and 1380 Fasli were examined. The village map was also carefully examined. Besides such examination of records, village map and all the plots in question physically, the Prescribed Authority also took into account the option submitted by the tenure holder on 16.12.1988 for declaring that part of plot no.222 as surplus, which was un-irrigated. There was an admission on the part of the tenure holder of a boring being in existence on plot no.222 and part of it being irrigated.

28. This Court is of the opinion that the Prescribed Authority has meticulously dealt with all evidence which was produced both by the petitioner and by the revenue officials of the two villages concerned. He has also done the spot inspection and taken into account the option submitted by the petitioner on 16.12.1988.

29. This Court, therefore, finds no good ground to interfere in the order dated 30.06.1998.

30. In so far as the arguments raised by the learned counsel for the petitioner regarding non-consideration of the entire case again by the Appellate Authority and dismissal of his Appeal summarily is concerned, this Court has also gone through the Appellate order. The Appellate Authority has considered the relevant facts in the light of the order passed in Appeal remitting the case to the Prescribed Authority. He has examined the fact that the statement of all revenue officials concerned were taken. The relevant khasra of 1378 and 1380 Fasli was examined, although the khasra of 1379 Fasli was not available in the revenue record. The Appellate Authority also found in the khasra that two crops had been mentioned and a tubewell as aforesaid, was also mentioned. It thereafter took into account the option submitted by the tenure holder on 06.12.1998 admitting that on plot no.222 there was a boring, therefore, it could not be said that it was un-irrigated. The spot-inspection carried out by the Prescribed Authority had shown certain part of plot no.222 being un-cultivated. It was only after looking into the order of the Prescribed Authority that the Appeal was dismissed by the Appellate Authority.

31. This Court, therefore, finds no illegality or infirmity in the order passed by the Appellate Authority also.

32. As per Section 4A of the Rural Ceiling Act, the Prescribed Authority has to examine the relevant khasras for the year 1378 Fasli, 1379 Fasli and 1380 Fasli and the latest village map and other records, as it may consider necessary, and also make a local inspection where it considers necessary and then if the Prescribed Authority is of the opinion that the irrigation facility was available for any land in respect of any crop in any one of the aforesaid years, either through a canal or through lift irrigation canal or a tubewell or a private irrigation and that at least two crops were sown in such land in any one of the aforesaid years, then he may take into account such land as irrigated land for determining surplus land of a tenure holder.

33. It is evident that the provisions of the Act do not require that in each of the relevant Fasli years such a finding of raising of two crops or of being irrigated should be present. It only refers to Khasra of any one of the aforesaid years being sufficient for determination of surplus land. Even if khasra of 1379 Fasli was not available in the revenue record room, the khasra of plot no.1378 Fasli and 1380 Fasli were both examined.

34. This Court, therefore, finds no good ground to show interference.

35. The writ petition stands dismissed.

Order Date :- 27.3.2023

Rahul