Bhagwan Singh and Another vs State of U.P.and Others

B. Dikshit, J.—A notice under Section 29(b) of U.P. Imposition of Ceiling on Land Holdings Act, 1960 (in short Act'') has given rise to this petition. The notice has been issued to petitioner as State claims the land which was unirrigated to have become irrigated after enforcement of U.P. Imposition of Ceiling on Land Holdings (Amendment) Act, 1972 (in short Amending Act''). The claim of State is that certain land, which was unirrigated has come within the command area of a State tubewell constructed after enforcement of Amending Act and, therefore, the Ceiling area of petitioners is to be redetermined,

The determination of unirrigated land, which has become irrigated after enforcement of U.P. Act No. 18 of 1973, is to be done in accordance with Section 4A, Secondly. The claim of State before appellate court has been that Khasras entries for the year 137SF to 1380F are not relevant as the notice to petitioner has been issued under Section 29(b) in the year 1983, This stand of State to exclude Khasra entries for the year 1378F to 1380F also leave the redetermination of ceiling area and surplus land of petitioner, if any, in the light of Section 4A,

Section 4A Secondly is the only provision providing for redetermination of Ceiling area when unirrigated land becomes irrigated after enforcement of Amending Act and it is that test which is to be applied in determining the irrigated land held by petitioner, if we see the scope of Section 4A Firstly and Thirdly, it is apparent that their application has been limited for irrigated land on date of enforcement of Amending Act, the date being 861973, while under Section 4A Secondly the test for determining irrigated land has been provided where unirrigated land after enforcement of Amending Act becomes irrigated due to facility of State Irrigation Work being made available in an agricultural year and two crops being sown. The first condition that after enforcement of Amending Act the irrigation facility in an agricultural year from State Irrigation Work become available stands fulfilled in the case. The petitioner has mainly disputed the want of condition of two crops being sown in an agricultural year. The Prescribed Authority did'' not hold said land to be irrigated in absence of two crops being grown after irrigation facility became available to the land in dispute from State Irrigation Work,, The appellate authority has reversed the finding of Prescribed Authority and held, the land as irrigated. He held the land to be irrigated as according to him the land was within the command areas of a State Irrigation Work and it was capable of growing two crops.

Learned counsel for the petitioner has argued that the appellant court has applied wrong test by holding the land capable of growing the crops to be treated as irrigated land under Section 4A secondly as it provides that only that land is to be treated as irrigated where two crops were actually grown and not merely because the land is capable of growing two crops. Learned Standing Counsel opposed this argument and submitted that as the land was capable of growing two crops, therefore, the same has been rightly treated to be irrigated land.

Section 4A provides for determining a land to be irrigated under 3 conditions mentioned therein as firstly, secondly and thirdly. While enacting said provision the Legislature was aware about the difference between soil capacity of growing at least two crops in one agricultural year and actual growing of two corps. In cases firstly and secondly of said section the language used is at least two crops were grown whereas under thirdly the test which has been provided is that the composition of soil is such that it is capable of growing atleast two crops. The Legislature having been conscious about the difference between the two and providing different test under different condition has been specific in providing for actual growing of two crops under Section 4A secondly. For the aforesaid reasons it is to be held that under Section 4A secondly unless two crops are actually grown after the date of enforcement of Amending Act and date of issuing of notice under Section 10 read with Section 29(b), the land cannot be treated as irrigated The Prescribed Authority applied correct test while holding the land as not irrigated. The appellate authority''s order is liable to be quashed as it applied wrong test to the effect that the soil was capable of growing two crops.

For the aforesaid reasons the writ petition succeeds and allowed, the order passed by the Additional Commissioner, Jhansi Division, Jhansi, dated 1641988 (Annexure 6 to the writ petition) and the case is seat back to Additional Commissioner, Jhansi Division, Jhansi, for registering the appeal to its original and deciding the same afresh. There shall be no order as to costs.