Ramadhar vs State of U.P. and Others

Paritosh K. Mukherjee, J.—Although, this miscellaneous writ petition has come up for admission, but, by the consent of both the parties, this writ petition is taken for hearing.

This writ petition is directed against the order dated 16-1988 passed by the Additional Commissioner Jhasi dismissing the appeal, preferred by the Petitioner and a loving the appeal, preferred by the state, arising out of the determination made by the Preserved Authority. Hamirpur.

Short facts stated in the instant writ petition are as follows:

Petitioner was served with a notice u/s 10(2) of the U.P. imposition of ceiling on Land Holdings Act (from hereinafter referred to as the act) in October, 1982 in which it was stated that the Petitioner has total holding of an area of 46.14 acre. Out of which 25.99 acre was shown as fully irrigated, and, and area of 20.15 acre was shown as "non irrigated" The total land in irrigated land was shown as 34.05 acre. The ceiling area of Petitioner was fixed as 22.96 acre, as such. An area of 11.09 acre in irrigated'' terms was proposed to be declared as surplus.

Petitioner filed and objection stating that his land of village Islampur and lf village Gutakwara is non-irrigated, it cannot be classified as fully irrigated, and, also it is not in command area of any tube well.

Petitioner further submits that he has 3 major sons, namely Phool Singh, Sant, Ram and Sadhu Singh as such every major son should have been given hectare of additional irrigated land.

According to the Petitioner, State examined the Lekhpal, namely, Sri Prakash. In his deposition, the Lekhpal has nowhere stated that the class and composition of soil belongs to the Petitioner is such that it is capable of growing two crops. He clearly admitted that in the extract of khasra, nowhere two crops have grown in any agricultural year. It was further stated by him that only one crop has been grown in an agricultural year No extract of khasra of the years, 1388, 1889 and 1390F was filed, as such, the question of irrigation was not determined in accordance with Section

The further contention of the Petitioner, is that there was no evidence on record to show that in any of the basic year two crops have been grown in the land shown as irrigated. The statement of a revenue employee cannot be a substitute for official record.

Thereafter by his judgment dated 15-6-1987 Respondent No. 3 held that the land shown in the notice as fully irrigated is single crop irrigated. He disbelieved the statements which were against the record that two crops can be grown as no extract of kshara was filed to show that in any of the year two crops were grown. The Respondent No. 3 by his judgment dated 15-6-1987 declared an area of 204 acre of irrigated land as surplus.

aggrieved, the petitioner field an appeal. An appeal was also filed by the state of U.P. the respondent no. 3 by his judgement dated 16-4-1988, without considering the oral and documentary evidence of the petitioner illegally allowed the appeal of the state, and dismissed the appeal of the petitioner. Hence the present miscellaneous writ petition has been filed before his court.

Sri Nawal Kishore Saxena, learned Counsel appearing for the Petitioner submits that both the authorities below have committed error apparent on the face of record by not properly determining the irrigated area although such he has been raised by the Petitioner before the determination situation of the land in terms of provisions of Section 4A of the Act which is similar to the provisions of Section 4(n) of the West Bengal Land Reforms Act 1955, as amended.

Although having been asked by this Court, Sri Saxena could not place any judgment of Allahabad High Coupon the point in question but this Court cannot overlook the observations of the different Hon''ble Judge of the Calcutta High Court in the following decisions:

(i) Rejuddin Ahamad v. State of West Bengal 1982 (1) CLJ 434 wherein His Lordship Hon''ble B.C. Roy. Later on a Hon''ble Judge of Supreme Court), has held that location showing applicability of command areas 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 tub well and canal etc.

(ii) Haidar Ali Mondal Vs. State of West Bengal and Others, Judgment delivered by Hon''ble Justice Mukul Gopal Mukberjee 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) CLT 635 wherein similar view has been taken by his Lordship Hon''ble Mr. Justice S. Ahamad.

(iv) Radhey Bahadur Roy v. R.O. Kharagpur 1988 (2) CLJ 445 wherein it baa been held that the irrigated area is an areas 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 deterring point as in the West Bengal Act 14K(d) defines irrigated area.

That being actual legal position, I am of the view that both the authorities have committed error apparent on the face of record and arrived at a perverse finding by computation of "ceiling area" without making any enquiry about the situation of the land as to whether it was irrigated area or non irrigated area and fixed the ceiling, arbitrarily.

The orders of the Prescribed Authority dated 15-6-1987 and of appellate authority dated 16-4-1987 are liable to be set aside.

Accordingly, the order of the Prescribed Authority dated 15-6-1987 and appellate authority dated 6-4-1987 are set aside Writ Petition succeeds and is allowed The matters remanded back to the Respondent No. 3 for fresh determination of the situation of the land, whether it is ''irrigated areas'' or non irrigated area, in accordance with the provisions of Sections 4A of the Act after affording opportunity to the Petitioner to place any certificate under evidence to show that the disputed land has not been put in actual irrigation facilities such determination has to be made as quickly at possible, preferably within a period of 3 months from the date of production of a certified copy of this order upon the Respondent No. 3.

The Petitioner is at liberty to enquire from the office of the Respondent No. 3 about the next date of hearing fixed in the case so that there may not be communication gap.

Parties are directed to maintain status quo as on today in respect of the disputed land until afresh determination is made by the prescribed Authority.

There shall be no order as to casts.