Jaswant Singh vs State of U.P. and Others

J.M.L. Sinha, J.—This writ petition is directed against the judgment of the Civil Judge, Etawah, passed in an appeal u/s 13 of U.P. Imposition of Ceiling on Land Holdings Act (hereinafter referred to as the Act.)

The relevant facts can briefly be stated as follows:

In response to a notice issued u/s 10 of the Act showing 24, 36 acres irrigated land as surplus, Jaswant Singh filed objections, inter alia, about plot No. 625 of village Lachhiya Man, plot No. 173 of village Bhujapur and plot No. 139 of village Madhopur wherein the Petitioner stated that the said plots were wrongly shown to be irrigated plots. The Prescribed Authority overruled the objections filed by the Petitioner vide his judgment dated 26-10-1974, and held that all the three plots were irrigated plots. Aggrieved against the judgment of the Prescribed Authority, the Petitioner preferred an appeal. The learned Civil Judge, who heard the appeal, concurred with the conclusion reached by the Prescribed Authority and, vide his judgment dated 21st April, 1975, dismissed the appeal in so for as the aforesaid plots were concerned. The Petitioner has therefore, come up to this Court.

The petition first came up for disposal before a learned single Judge of this Court and one of the contentions raised before him was that, in view of the provisions contained in Section 4-A of the Act, the Civil Judge could not rely on the oral evidence of Gur Prasad, Lekhpal, in coming to the conclusion whether plot Nos. 625, 173 and 139 were irrigated plots and the judgment of the learned Civil Judge, therefore, suffers from an obvious error. Reliance for this argument was placed before the learned Single Judge on a decision of this Court in the case of Ghasi Ram Vs. State of U.P. and Others, . The learned Single Judge entertained some doubt about the correctness of the decision in the case of Ghasiram v. State (supra) and directed that the case may be referred to a larger Bench. It is thus that the case has come up for disposal before us.

Since the whole case has been referred to this Bench for disposal, we have heard learned Counsel for the parties on all the points involved therein.

The first question that fails for consideration is whether in proceedings under Sections 4-A of the Act parties can adduce oral evidence and the Prescribed Authority can look into the same for determining ''irrigated land''.

The term ''irrigated land'' hat been defined in Section 3(11) of the Act which reads as follows: "irrigated land" means land determined as such in the manner laid down in Section 4-A".

In view of the definition of the term ''irrigated land'' contained in Section 3(11) of the Act, it is obvious that the Prescribed Authority can only act in accordance with the procedure contained in Section 4-A of the Act in order to determine the same. It is not open to the Prescribed Authority to adopt a procedure inconsistent with the provisions of Section 4-A of the Act in order to find out ''irrigated land''. The relevant part of Section 4-A reads as follows:

The Prescribed Authority shall examine the relevant khasras for the year 1378 fasli, 1379 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-62-1946, 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 u/s 10; or

Thirdly (a) that any land is situated within the effective command area of a lift irrigation canal of 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 purpose of this Act....

A perusal of the above would show that Section 4-A makes it obligatory on the Prescribed Authority to examine Khasras for the years 1378, 1379 and 1380 Faslis. It further makes it obligatory for the Prescribed Authority also to examine the latest village map. It then confers a discretion on the Prescribed Authority to examine such other records as it may consider necessary and also to make local inspection, if that too be necessary. The section then proceeds to say that thereafter, if the Prescribed Authority be of opinion, as mentioned in Sub-sections firstly, Secondly and thirdly, he shall determine the land to be ''irrigated land''. The word ''thereupon'' occurring in Section 4-A of the Act, to our mind, is meaningful. According to Webster''s New International Dictionary, the word ''thereupon'' means "as a result of some specified things". Reading the word ''thereupon'' occurring in Section 4-A in that manner, the mandate contained in Section 4-A appears to be that the opinion specified in Sub-sections firstly, secondly and thirdly of Section 4-A has to be formed by the Prescribed Authority upon the Khasra for the years 1378, 1379 and 1380 faslis, upon the village map, upon such other records as it may consider necessary and upon local inspection, if the Prescribed Authority considers it necessary to make one. There are no words in Section 4-A to justify any thing other than that specified therein to be made use of by the Prescribed Authority for the formation of opinion on the points specified in sub-sections firstly, secondly and thirdly, thereof. The legislature thought it fit to confine the scope of enquiry to the examination of documents and local inspection presumably because almost every thing that is mentioned in various sub-sections of Section 4-A was capable of being ascertained on the basis thereof and, indeed, where any fact can be ascertained on the basis of documents, oral evidence can serve no useful purpose.

In order to illustrate what we have said above, we may briefly refer to various sub-sections of Section 4-A. According to sub-section, firstly, of Section 4-A, the Prescribed Authority has to form an opinion (a) whether 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 the notification dated March 31, 1953, as amended from time to time,

or (ii) any lift irrigation canal or

(iii) any State Tubewell or a private irrigation work,

and (b)whether that atleast two crops were grown in such land in any one of the aforesaid years.

Now the information regarding source of irrigation as well as the information regarding crops grown in any plot in any year can be gathered from village record.

There may be some dispute about the existence of some private irrigation work inasmuch as one party may confirm its existence and the other may deny it. To resolve that conflict the Prescribed Authority can himself make a local inspection which would reveal beyond any shadow of doubt whether or not any private irrigation work exists. It would thus appear that no oral evidence is necessary for forming an opinion on what is stated in clause firstly of Section 4-A.

According to clause secondly of Section 4-A, the Prescribed Authority has to form an opinion whether irrigation facility became available to any land by a State Irrigation work coming into operation subsequent to the enforcement of the Utter Pradesh Imposition of Ceiling on Land Holdings (Amendment) Act, 1972 and atleast 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 u/s 10. Now, the fact whether or not any irrigation facility became available to any land by a State Irrigation work coming into operation subsequent to the commencement of the Amending Act, 1972, is a fact which can best be established by documents. Similarly the fact whether or not two crops are grown in such land in any agricultural year between the date of such work coming into operation and the date of the issue of notice u/s 10 can also be conclusively established by documents particularly the khasra. For purposes of clause secondly also, there fore, oral evidence can hardly serve any purpose.

This takes us to clause thirdly of Section 4-A. What the Prescribed Authority has to conclude thereuner is:

(a) Whether the land is situated within the effective command area of a lift irrigation canal, of a State tube-well or a private irrigation work;

and,

(b) Whether the class and composition of its soil is such that it can grow atleast two crops in an agricultural year.

It is worthy of notice that the documents, which it is obligatory for the Prescribed Authority to examine u/s 4-A, include the village map. It can be found out on an examination of the village map coupled with the khasra, whether or not a particular land is situate within the effective command area of any State or private irrigation work Even if there remains any doubt after examining the khasras, the village map, or such other records as may be available, the Prescribed Authority can himself visit the site and inspect it to himself find out whether the land in question does or does not fall within the command area of any State or private irrigation work. As for composition of soil, that too is mentioned in village records. In any case, oral evidence regarding composition of soil can be most conflicting and, consequently, if in any particular case village records do not contain any Information regarding composition of soil, that fact as well can be ascertained by local inspection.

It would thus appear that on all the points specified in the various sub-sections of Section 4-A the Prescribed Authority can form an opinion on the basis of records and local inspection. The legislature, therefore, thought it fit that the enquiry u/s 4-A should remain confined to examination of records and local inspection and not to production and examination of oral evidence.

The learned Standing Counsel urged before us that Prescribed Authority will not normally make local inspection, unless there is conflict regarding the existence of any of the facts specified in the various sub-sections of Section 4-A and before the Prescribed Authority makes local inspection he shall have to ask the parties to file affidavits. The learned Standing Counsel urged that it should therefore, be held that oral evidence can be adduced u/s 4-A. We regret our inability to accept this argument. If there is conflict between the parties on any of the points relevant under the various sub-sections of Section 4-A, the Prescribed Authority may ask the parties to file affidavits. He can, however, make use of those affidavits for limited purpose of deciding whether or not it is necessary to make a local inspection. After he has taken a decision on that point one way or the other, he cannot refer to those affidavits again for the purpose of coming to a decision as to whether or not any particular land is ''irrigated land''.

It may not be out of place to mention that in some other sections where the legislature intended that the parties should have the opportunity to adduce evidence, they made that intent clear by using proper words. In Section 12 of the Act it is stated that where an objection has been filed under Sub-section (2) of Section 10 or under Sub-section (2) of Section 11 or because of any appellate order u/s 13, the Prescribed Authority shall determine the surplus land after affording the parties reasonable opportunity of being heard and of producing evidence. Section 21 of the Act states that the Prescribed Authority shall hear any person showing cause under Sub-section (2) of Section 19 or in pursuance of any order under Sub-section (2) or Sub-section (3) of Section 20 and shall give his decision after affording an opportunity for the production of evidence to the person concerned. It will appear that in neither of these two sections the word ''evidence'' has been qualified or restricted in any manner. The party concerned can therefore, adduce oral as well as documentary evidence. If the intention of the legislature were that the parties should have an opportunity to adduce oral evidence in proceedings u/s 4-A of the Act, there is no reason why similar language could not be used therein.

The learned Standing Counsel then referred us to Section 37 of the Act and urged that if Section 4-A is read with Section 37, it would follow that even in proceedings u/s 4-A the Prescribed Authority can call upon the parties to adduce oral evidence. Section 37 reads as follows:

Any officer or authority holding an inquiry or hearing an objection under this Act shall, in so far as it may be applicable, have all the powers and privileges of a Civil Court, and follow the procedure laid down in the Code of Civil Procedure, 1908, for the trial and disposal of suits relating to immovable property.

(italicising by us).

From the above it would appear that CPC can apply to proceedings under the Act only ''insofar as it may be applicable.'' Section 4-A of the Act is a self-contained provision inasmuch as the legislature has thereby made a special provision for determination of irrigated land. It is well settled that a general provision cannot over-ride a special provision. The Prescribed Authority can, therefore, make use of the CPC during an enquiry u/s 4-A only insofar as it is consistent with the procedure laid down therein. Since the Prescribed Authority, while making an enquiry u/s 4-A has to examine records and make local inspection, he can make use of the provisions of the CPC for that purpose only. Making use of the provisions contained in the CPC for bringing on record oral evidence will run counter to the provisions contained in Section 4-A. For contention raised by the learned Standing Counsel, is, accordingly, rejected.

For all the reasons stated above, we find ourselves in agreement with the view expressed by Hon''ble R.M. Sahai, J. in Ghasiram v. State (supra) and we hold that it is not permissible for a Prescribed Authority to make use of any oral evidence in the course of an enquiry u/s 4-A of the Act.

Having thus disposed of the controversy on the legal question, we now proceed to examine the other contentions raised on behalf of the Petitioner.

As already indicated earlier, the learned Counsel for the Petitioner in his argument before us asssailed the findings of the learned Civil Judge only with respect to plot Nos. 625, 173 and 139.

On a perusal of the judgment of the learned Civil Judge we find that, while coming to the conclusion that plot No. 625 was ''irrigated land'', the learned Civil Judge took into account the oral evidence of Gur Prasad, Lekhpal. We have already held earlier, that in proceedings u/s 4-A of the Act, it is not permissible to look into the oral evidence. The finding of the learned Civil Judge with respect to plot No. 625 should, therefore, be quashed on that ground alone.

Coming to plot No. 173, the learned Civil Judge has relied on Sub-section thirdly of Section 4-A in order to hold that it is irrigated land. The learned Civil Judge has observed in his judgment that according to khasra of 1378, 1379 faslis, plot No. 173 was irrigated from an ordinary well. An ordinary well is neither a private irrigation work nor State irrigation work as would appear from Section 3(14) and Section 3(15) of the Act.

The learned Civil Judge thereafter referred to the khasra entry of 1376 fasli which indicated that the plot was irrigated by a private tubewell in this year. Learned Counsel for the Petitioner urged that, according to Section 4-A, the Prescribed Authority could examine the khasras of 1378,1379 and 1380 faslis and such other records, as it may consider necessary. It was, urged that expression ''other records'' should be interpreted to mean records other than khasras and consequently, the khasra of 1376 fasli could not be taken into consideration by the Prescribed Authority. We regret our inability to accept this argument.

As already stated earlier, Section 4-A made it obligatory on the Prescribed Authority to examine the khasra of 1378, 1379 and 1380 faslis as well as the village map. The legislature thereafter left it to the discretion of the Prescribed Authority to examine such other record as he may consider necessary. The expression ''other records'' occurring in Section 4-A to our mind refers to any record other than the khasras of 1378, 1379 and 1380 faslis. The Prescribed Authority, therefore, had the discretion to examine the khasra of 1376 fasli and he committed no error in doing so.

Learned Counsel for the Petitioner then urged that, since the Prescribed Authority has relied upon sub-section thirdly of Section 4-A for holding plot No. 173 to be irrigated land, it was necessary for him to find:

(a) that plot No. 173 was situated within the effective command area of the private tube-well, and

(b) that the class and composition of the soil of plot No. 173 was such chat it was capable of growing atleast two crops in an agricultural year. Learned Counsel for the Petitioner then invited our attention to Clause (a) of Explanation I which states that for the purposes of Section 4-A the expression ''effective command area'' means an area, the farthest field whereof in any direction was irrigated in any of the years 1378 fasli, 1379 fasli and 1380 fasli. Learned Counsel for the Petitioner pointed out that the Civil Judge presumed on the basis of the khasra entry of 1376 fasli that plot No. 173 may have been irrigated by the same tube-well in the years 1378F. 1379F. and 1380 fasli, but he recorded no finding to the effect that the farthest field in any direction in the effective command area of the tube-well was actually irrigated in the year 1378, 1379 and 1380 faslis by it. It was further urged by the learned Counsel for the Petitioner that in the matter of plot No. 173 also the learned Civil Judge approached the case under the belief that oral evidence was permissible as would be apparent from the fact that having drawn the aforesaid presumption he proceeded to say that no evidence to the contrary had been adduced by the Petitioner to rebut the presumption. Learned Counsel urged that the approach of the learned Civil Judge with regard to plot No. 173 was itself contrary to law.

It must be conceded that the learned Civil Judge has not recorded a categorical finding on the point as to whether the farthest field in he ''effective command area'' in which plot No. 173 is situate was irrigated from the private tube-well in the year 1378, 1379 and 1380 Faslis. Having drawn the presumption that, since plot No. 173 was irrigated from the tube-well in 1376 fasli, it should have been irrigated from the same source in the subsequent years, the Prescribed Authority proceeded to hold that it was ''irrigated land''. A reading of the finding of the learned Civil Judge with regard to plot No. 173 also gives an impression that, while deciding the dispute regarding plot No. 173 as well the learned Civil Judge was under the impression that the parties could adduce oral evidence, to dislodge the presumption that he was drawing on the basis of the entry in the khasra of 1376 fasli and since it was not done, that presumption could be drawn. Consequently, the finding referred by the learned Civil Judge with regard to plot No. 173 can also not be sustained.

This takes me to plot No. 139, for holding that plot No. 139 was irrigated land, the learned Civil Judge relied upon a sub-section firstly of Section 4-A of the Act, According to the learned Civil Judge, it was apparent from the extract of the khasras that irrigation facility from a tube-well was available from plot No. 139 during the year 1378 and 1379 fasli and further that two crops were also grown on this plot in each of the years 1378, 1379 and 1380 faslis. The conclusion reached by the learned Civil Judge is not at all based on any oral evidence. We, therefore, find no infirmity whatsoever in that finding.

In the result, the petition is allowed insofar as plot No. 623 of village Lachhia Mau and plot No. 173 of village Bhujapur are concerned and the finding of the learned Civil Judge thereon are quashed. The finding of the learned Civil Judge with regard to plot No. 139 of village Madhopur is, however, maintained. The case shall be remanded to the learned Civil Judge for recording his findings afresh with regard to plot Nos. 625 and 172 keeping in mind the observations contained in the body of this judgment. In the circumstances of the case, we make no order as to costs.