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Judgment
Arun Tandon, J.—These two writ petitions arise out of common judgment of the Appellate Authority passed in Ceiling Appeal Nos. 2 of 1991 and 3 of 1991-92.
The facts as are on record of these two petitions in short are:
(i) Proceedings u/s 10(2) of the U.P. Imposition of Ceiling on Land Holdings Act, 1960 were initiated against Jai Pal Singh. In the notice so issued it was stated that certain land, which was recorded in the name of Dinkar Rao, Mukesh Rao, Sheo Pal, Manpal Singh, Narpal Singh and Mangat Ram, was Benami and Sri Jai Pal was the true owner of the property in question. Objections were filed to the notice so issued by Jai Pal Singh and by the persons who were stated to be Benami for the benefit of Jai Pal Singh. Objections were filed to the notice,
(ii) The Prescribed Authority upheld the objections and held that the land recorded in the name of other persons cannot be treated to be the holding of Jai Pal Singh. Jai Pal Singh filed objections qua certain portion of the land of village Udiawali being unfit for cultivatory purpose, being the bed of the river and therefore be excluded from the total holdings and also certain part of the holding being wrongly treated as irrigated, as well as benefit of land being provided in respect of major sons.
(iii) It appears that against the order of the Prescribed Authority two sets of appeal were filed. One by Jai Pal Singh and other by the Benami recorded owners, being Appeal Nos. 2 of 1991 and 3 of 1991 respectively. The Appellate Authority under the impugned order decided both the appeals by means of a common judgment and it has been held that the Appeal No. 3 of 1991 filed by the Benami tenure holders be dismissed, inasmuch as it has been found that the sale deed in respect of the property in dispute was actually produced by Jai Pal Singh and that the persons, whose name was recorded over the property, were not even aware as to which land has been purchased. The source of payment of consideration by the said Benami land holders could not be disclosed.
(iv) In the totality of the circumstances it has been recorded by the Appellate Authority that the entire land is in the cultivatory position of Jai Pal Singh and he was the true owner of the same. After having arrived at the said conclusion, the Appellate Authority considered the objections raised with regard to the certain plots being wrongly treated as irrigated and has answered the said issue in favour of Jai Pal Singh. It has been held that the State authorities could not establish that there was a source of irrigation for the plots mentioned. Lastly additional land has been provided for the adult son of Jai Pal Singh.
(v) So far as the issue with regard to the land submerged in river being excluded from the total land holding of Jai Pal Singh is concerned, it has been held that no cogent evidence could be led by Jai Pal Singh to establish as to what portion of the land always remains submerged in the river and further there was no evidence which could establish the exact area, which was so submerged, benefit whereof was claimed by Jai Pal Singh. The Appellate Authority recorded that the plots, in respect whereof such benefit was claimed, lay at the banks of the river.
(vi) In view of the aforesaid finding, the Appellate Authority, after granting benefits as noticed above, held that Jai Pal Singh had 136-15-6 Bigha of land as surplus. It is against this order that the present two writ petitions have been filed.
So far as the writ petition filed by Jai Pal Singh is concerned, the only issue pressed before this Court is that the Appellate Authority has wrongly refused to exclude the land, which was submerged in the river, from the total holding of the Petitioner and that an spot inspection should have been made for deciding the aforesaid issue. For the aforesaid purpose he has placed reliance upon the judgment of this Court in the case of Vibhuti Kumar Bajpai Vs. State of U.P. and Others, . which in turn relies upon the judgment of this Court in the case of Mahadeo Vs. The Civil Judge and Others, . as also upon the various order passed by the Hon''ble Supreme Court in particular facts of the appeal, which was pending before it.
Having heard Counsel for the Petitioner and having examined the records, I am of the considered opinion that the judgments relied upon by the Petitioner are clearly distinguishable. In the case of Mahadeo (supra) the Court was considering the matter where the land admittedly lay at the bed of the river and therefore this Court held that such land, which lay at the bed of the river, cannot be said to be fit for agricultural purposes and therefore stood excluded from the land holding for determining the ceiling limits under U.P. Imposition of Ceiling on Land Holdings Act, 1960. The said judgment has been followed in the case of Vibhuti Kumar Bajpai (supra). The land which lies at the bed of the river is clearly distinguishable from the land which lies at the bank of the river. The banks of the river, even if submerged for certain duration, can still be cultivated when river recedes. From the records it is established that it was the case of the Petitioner himself that the land was submerged for some part of the year only.
In view of the aforesaid, this Court finds that the land which lays at the banks of the river cannot be said to be completely unfit for agricultural purposes and the land can always be used after the river recedes.
Even otherwise this Court may record that for claiming exemption from the land being treated to be unfit for agricultural purpose, the burden lies upon the recorded tenure holder to establish by such cogent evidence, as he may be advised, for establishing that because of the river the land cannot be used for agricultural purposes at any point of time in the year, which is not the case of the Petitioner. In the facts of the case the Appellate Authority is legally justified in refusing benefit claimed by the Petitioner on the strength of his allegation that the land, which lay at '' the bank of the river stood submerged for sometime in the year, was unfit for agricultural purposes.
This Court finds no good ground to interfere under Article 226 of the Constitution of India. Writ petition is liable to be dismissed.
So far as the writ petition filed by Shiv Pal Singh and Ors. is concerned, it has been contended before this Court that the ceiling authorities cannot go behind the sale deeds, which have been executed prior to 24.1.1971 in view of the provisions of Section 5(6) proviso (b) of the U.P. Imposition of Ceiling on Land Holdings Act, 1960.
I am of the considered opinion that the contention so raised is totally misplaced. In the facts of the case provision of Section 5(1) Explanation I are attracted. Explanation I to Section 5 reads as below:
Explanation I.--In determining the ceiling area applicable to a tenure holder, all land held by him in his own right, whether in his own name, or ostensibly in the name of any other person, shall be taken into account.
In the facts of the case categorical findings of fact have been recorded that the sale deeds, which have been effected in favour of the Petitioners, in fact were produced by Jai Pal Singh, and the persons in whose favour sale deeds were executed had no source of income to purchase the land and for all practical purposes the transaction were Benami. The purchasers were not even able to identify the land purchased.
In view of the aforesaid, the provisions of Section 5(6) have no application in the facts of the present case. The ceiling authorities have rightly treated that the land was ostensibly in the name of purchasers therefore covered by Section 5(1) Explanation I.
There is no illegality in the order. Both the Writ petitions are dismissed.