Ram Autar Singh vs Addl. Commissioner (Admn),Vsranasi and Another

Paritosh K. Mukherjee, J.—Entire matter is taken up for final disposal by the consent of learned counsel appearing for the parties although the matter being origin of 1989 is pending admission for seven years.

This writ petition arises out of an appellate order, passed by the Additional Commissioner (Administration), Varanasi division, Varanasi dated July 28, 1988, affirming the decision of the Prescribed Authority dated February 29, 1988 while determining the ceiling area, on the land of the petitioner, under the provisions of U.P. Imposition of Ceiling on Land Holdings Act, 1960 (from hereinafter referred to as the Act).

Writ petition was initially moved before Hon''ble K.P. Singh, J. on September 29, 1988 for its admission, and, on the said date His Lordship granted interim order, restraining the respondents, not to dispossess the petitioner from the land declared as surplus.

The original proceedings having been challenged in appeal, the Appellate Authority, being Additional Commissioner, affirmed the decision taken by the Prescribed Authority, hence the present writ petition.

Sri Namwar Singh, learned counsel appearing for the petitioner submits that in computation of the surplus land, the Prescribed Authority did not determine the ceiling area, in terms of provisions of Section 4A of the Act, which is set out herein below :

''''4A Determination of irrigated land.The Prescribed Authority shall examine the relevant Khasras for the years 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. 1579W/XXIII62W1946, 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) that at least two crops were grown in such land in any one of the aforesaid years; or......"

It appears from the aforesaid provision of Section 4A that Prescribed Authority has to examine relevant khasras for the years 1378 Fasli, 1379 Fasli and 1380 Fasli, as well as latest village map and other connected records, as it may consider necessary, and may also make local inspection where it considers necessary before declaring an area as surplus for ceiling purposes, as to whether the land is receiving irrigation facilities through canal, lift irrigation canal or deep tubewell and as to whether the land is capable of growing alteast two crops in any one of the aforesaid years.

In support of his contentions, learned counsel has placed several authorities of Hon''ble the Supreme Court as well as of this Hon''ble High Court, which are set out herein below:

In Kallu etc. v. State of U.P. and Others, 1990 AWC 42 (SC), wherein, Bench consisting of Hon''ble S. Natarajan, K.N. Saikia and Kuldip Singh, JJ, inter alia came to the following conclusion:

"On a reading of Section 4A, it may be seen that the Legislature has prescribed different kinds of tests on the basis of which the authorities have to determine whether a land is irrigated land or not for the purposes of determining the ceiling area of a tenureholder. The two broad tests are ; (1) availability of irrigation facilities ; and (2) the factum of raising or the capability of the soil for raising atleast two crops in an agricultural year.

In order to form an opinion whether irrigation facility was available for any land from one of the sources mentioned in subclauses (i), (ii) and (ii?) in respect of any crop in any one of the aforesaid years viz., Faslis 1378 to 1380, the Prescribed Authority is enjoined to examine the Khasras for those three fasli year, the village map, other relevant records considered necessary and also to make a local inspection whether it is necessary. Hence there is no scope for contending that a Prescribed Authority may form his opinion without reference to relevant material, in an arbitrary or capricious manner, to the determent of a tenure holder as regards the availability of assured irrigation facility to a land from one of the enumerated sources. Consequently, there is no merit in the contention of the appellant that in addition to the materials and records set out in the subclause, there must be independent evidence of assured irrigation facility before ever a Prescribed Authority can form an opinion about a land having assured irrigation facility."

Subclause (b) of Section 4A refers only to the growing of atleast two crops in a land found to be having assured irrigation facility in anyone of the relevant years. The subclause does not contemplate the raising of two crops on the entire extent of the land. The classification has to be made with reference to the potentiality of the land to yield two crops in one Fasli year and not on the basis of the actual raising of two crops on the entire extent of the land."

Learned counsel also relied upon the judgment of Hon''ble S.N. Sahay, J of this Court, passed in the case of State of U.P. through Collector v. Mukhram Singh and another, 1991 RD 312, wherein learned judge inter alia held as follows:

''The P.A. should examine the relevant Khasras of 1378 F to 1380 p; the latest village map The P.A. may make local inspectionP.A. has to give a finding whether the land is situated within the effective command area of a lift irrigation canal or a State Tubewell or a private irrigation work and whether the class and. composition of its soil is such that it is capable of growing at least two crops in an agricultural yearIn absence of prescribed procedure being followed and such finding recorded the judgment of P.A. is vitiated."

This Court is not unmindful of catena of decisions on the point, by Calcutta High Court. Some of those decisions are reproduced below:

(i) Reazuddin Ahmed v. State of West Bengal, (1982) 12 Cal LJ 434, wherein His Lordship Hon''ble B.C. Roy, (later on a Hon''ble Judge of Supreme Court) has held that ''Notification showing applicability of command area will not serve the purpose for determination of command area, but, there must be actual enquiry by the authorities, as to whether irrigation facilities are being received by deep tubewell and canal etc.

(ii) Haider Ali Mandal v. State of West Bengal, (1984) 88 Cal WN 536, Judgment delivered by Hon''ble Justice Mukul Gopal Mukherjee on 3.1.1986, wherein similar view has been taken by aforesaid learned Single Judge.

(iii) Rabea Khatoon v. State of West Bengal, (1987) 1 Cal LT 635 wherein similar view has been taken by Hon''ble Mr. Justice S. Ahamad.

(iv) Radhaballav Roy v. R.O., Kharagpur (1988) 2 Cal LJ 445 wherein it has been held that the irrigated area is an area specified in notification made by the State Government which is capable of being irrigated at any time during the agricultural year. Notification is not final determining point as in the West Bengal Act 14K(d) defines irrigated area.

On earlier occasion, dealing with the similar matter, in the case of Ramadhar v. State of U.P. and others, 1995 (2) ALJ, 99, when Sri N.K. Saxena, learned counsel appearing in the above case, on behalf of the petitioner was not capable to cite the decisions of Hon''ble Supreme Court as well as of this High Court, I have taken independent view, following the catena of decisions of Calcutta High Court (referred to above), and, determined the question of ''irrigated area'' and ''unirrigated area'', in terms of provision of Section 4A of the Act.

In the instant case, Sri Namwar Singh, learned counsel has given his best assistance to the Court in arriving at the truth, i.e. catena of decisions on this point, and, learned standing counsel also offered his able assistance in defending the orders passed by the Prescribed Authority and Appellate Authority.

Sri Singh, in support of his contentions, placed reliance on the finding of the Appellate Authority, wherefrom it appears that the Appellate authority, being Additional Commissioner, Varanasi Division, Varanasi vide his order impugned dated July 28, 1988 also came to necessary conclusion that the original prescribed authority did not take into consideration of the relevant khasras of 1378 Fasli to 1380 Fasli, but arrived at an inference and concluded his .finding that decision of the Prescribed Authority has rightly been taken.

Learned standing counsel also submitted that onus of discharging burden of proof lies with the writ petitioners and not with the statutory officials of the State Government.

This court has to arrive at a necessary conclusion as to whether the matter should be remanded back to the Prescribed Authority for redetermination of the ceiling area afresh, after setting aside both the impugned orders, referred to above, passed by the Prescribed Authority and the Appellate Authority.

I have carefully gone through the facts of the writ petition, respective submissions of the learned counsel for the parties, and, meticulously to the provision of Section 4A of the Act, and is of the opinion that the onus of burden of proof not only lies with the writ petitioner, but, at the same time, it also lies with the Prescribed Authority, when such dispute has been raised by the petitioner to examine the relevant khasras of respective years, which has not been discharged, either by the Prescribed Authority, or, by the Appellate Authority.

That being the factual and legal position, this Court is of the view that the impugned orders passed by the Prescribed Authority dated February 29, 1988 and of the Appellate Authority dated July 28, 1988, contained in Annexures1 and 2, respectively to the writ petition are liable to be set aside.

Accordingly, in view of what has been stated above, the impugned orders date February 29, 1988 passed by the Prescribed Authority and dated July 28, 1988 passed by the Appellate Authority are quashed. The entire matter is remanded back to the Prescribed Authority for taking afresh decision, after examining the relevant khasras (referred to above).

Such determination has to be made as quickly as possible, preferably within a period of two months from the date of production of a certified copy of this order.

Petitioner will also be entitled to produce any evidence, and, or, fact available with him, in support of his case, at the resume hearing of the matter after remand of the case.

Petitioner is further directed to take note of the next date of hearing so that there may not be any communication gap.

Pending fresh decision before the Prescribed Authority, regarding possession of land, as on today, parties are directed to maintain status quo.

Writ petition succeeds and is allowd to the extent indicated above.

There shall be no order as to costs. Petition allowed.