COURT NO.2 IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL Writ Petition (M/S) 1747/2001 (Old No. 4794/1999) Mahendra Krishna & Others …….Petitioners Versus State of U.P. & Others …….Respondents Sri V.B.S. Negi, learned Counsel for the petitioners. Sri H.M. Raturi, learned Standing Counsel for the respondents. 4th August, 2008 Hon’ble P.C. Verma, J. By means of this writ petition, petitioners have challenged the judgment and order dated 30.6.1976 passed by the Prescribed Authority/respondent no. 3 and judgment and order dated 29.12.1998 passed by the Additional Commissioner (Judicial), Kumaon Mandal, Nainital. These orders are contained in Annexure No. 2 and 11 to the writ petition respectively. 2. Relevant facts of the case are that notice under Section 10(2) of the U.P. Imposition of Ceiling on Land Holdings Act was issued to late Sri Bihari Lal, who died during the pendency of the appeal before the court below. Petitioner no. 1 to 4 are the sons of late Bihari lal and petitioner no. 5 & 6 are the sons of late Nirmal Krishan, who was the son of late Bihari Lal. After the death of Bihari Lal, the names of the petitioners were substituted. 2 3. After receiving the notice under Section 10(2) of the U.P. Imposition of Ceiling on Land Holdings Act (hereinafter referred to as ‘the Act’), objections were filed by the tenure holders. It was stated by the petitioners that the land in dispute is unirrigated land and accordingly the petitioners claimed benefit of Section 4(ii) of the Act. Prescribed Authority rejected the objections of the petitioners vide his judgment and order dated 30.6.1976. 4. Aggrieved by the aforesaid judgment and order of the Prescribed Authority, petitioners filed an appeal before the Civil Judge, Nainital, which was partly allowed vide judgment and order dated 18.3.1977. Thereafter petitioners preferred writ petition before the Allahabad High Court challenging the aforesaid judgment and order of the Civil Judge, Nainital. The High Court observed that the appellate authority has not indicated as to whether the unirrigated land of the petitioners was capable of producing only crop in an agricultural year in consequence of assured irrigation from any State Irrigation Work or private irrigation work and remanded the matter to the appellate authority. 5. After remand of the case, the appellate authority again dismissed the appeal vide judgment and order dated 14.5.1991. Petitioners challenged the said order by filing writ petition no. 21039 of 1991 before the Allahabad High Court, which was allowed on 9.12.1997 with direction to the appellate authority to decide the dispute afresh. 3 6. After the remand of the case, the Additional Commissioner (Judicial), Kumoan Mandal, Nainital heard the appeal and asked the Collector, Nainital to submit the report on certain points in respect of the irrigation facility. The petitioners filed objection to the report of the Collector, Nainital. The Additional Commissioner after hearing the parties and on the basis of the evidence adduced on the record dismissed the appeal of the petitioners vide his judgment and order dated 29.12.1998. 7. The Additional Commissioner has recorded a clear cut finding that the land in dispute is irrigated land and source of irrigation is available for the whole year. The Additional Commissioner has further agreed with the finding recorded by the Prescribed Authority that at least one crop is grown in the disputed land. 8. In view of the aforesaid findings recorded by the court below, the conditions specified under Section 4-A of the Act stand satisfied. For the sake of convenience, Section 4-A of the Act is reproduced as under: “4-A. 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:- 4 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-W-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 under Section 10; or thirdly, (a) that any land is situated within the effective command area of a lift irrigation canal or 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; 5 then the Prescribed Authority shall determine such land to be irrigated land for the purpose of this Act.” 9. Therefore, so far as the question as to whether the land in dispute is irrigated or unirrigated is concerned, finding of fact has been recorded by the court below. Now, this question cannot be gone into in this writ petition unless any perversity is shown in the findings. The impugned orders have been passed on merit and the findings recorded by the Additional Commissioner are based on evidence and revenue records. I find no perversity or illegality in the impugned orders and they do no call for any interference by this Court. 10. In the result, I find no merit in the writ petition and the same is accordingly dismissed. No order as to costs. (P.C. Verma, J.) 4.8.2008 Prabodh