No. 10-COURT’S ORDER WHETHER THE CASE IS OR NOT APPROVED FOR REPORTING. [Chapter VIII Rule 32 (2)(b)] Description of Case. WPMS No. 4313/2001 (Old CMWP No. 11626 of 1985) Sri Gur Bachan Singh Versus The State of U.P. and two others. A.F.R.(Approved for reporting) Not approved for reporting Date 15-5-2009 (B.S. Verma, J.) Initials of Judge. Reserved Judgment IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL Writ Petition No. 4313 of 2001 (M/S) (Old No. 11626 of 1985) Sri Gur Bachan Singh Son of Sri Anoop Singh, resident of village Kudainyanwala, Tehsil Kashipur, District Nainital (now Udham Singh Nagar) …………. Petitioner. Versus The State of U.P. and two others. ………….Respondents. Sri Arvind Vashist, learned counsel for the petitioner. Sri Sudhir Kumar, learned Brief Holder for the State-respondents. Date May 15, 2009. Hon’ble B.S. Verma, J. By means of this writ petition, the petitioner has sought a writ in the nature of certiorari to quash the judgment and order dated 27-3-1984 passed by respondent no.3-Prescribed Authority Ceiling/Sub Divisional Officer Kashipur, district Nainital (now Udham Singh Nagar) as well as the judgment and order dated 23-5-1985 passed by the respondent no.3- I Additional District Judgment Nainital (Annexure Nos. 15 and 17 respectively to the writ petition). 2. Relevant facts, giving rise to the present writ petition, in brief, are that a notice under Section 10(2) of the U.P. Imposition of Ceiling on Land Holdings Act, 1960 (for short the Act) along with a copy of C.L.H. From III as per Rule 6 of the Rules framed under the Act was issued to the petitioner calling upon him to show cause why the draft statement may not be accepted as correct and the land be not declared surplus. In response thereof, the petitioner filed his objection on 12-8-1982 alleging that the draft statement is not correct and the petitioner does not possess any land in excess of the ceiling limit under the Act. 3. The petitioner had taken other ground in the objection including that the notice is contrary to the provisions of the Act as well as the Rules framed thereunder and being void the same is liable to be cancelled. The description of the holdings is incorrect because the holding in possession of the petitioner is neither irrigated nor surplus. It was also alleged that the land transferred by the petitioner in favour of one Smt. Gurmit Kaur through registered sale deed dated 12-8-1977 has been included in the notice and the vendee is in possession of the under the sale deed since then and the objection/petitioner has no concern with that land. It was further alleged that there are residential houses standing over plot no. 71/1 area 0.10 acre in village Kudainyanwala and the same being non-cultivable has to be excluded for determining the ceiling limit. 4. The petitioner also alleged that he exchanged his holding of plot no.81/438 and 83/5 measuring 9.50 acres of the said village with sodhi Mailender Singh against his holdings of plot no.725/4 area 9.50 acres situated in village Sarwar Khera, Tehsil Kashipur with reference to order dated 11.12.1979 passed by Sub Divisional Officer Kashipur in Case No. 22/1 of 1978-79. In the notice that land has also alleged that the land covered by pucca road, Nali, Gaddha etc. should not have been included in the holdings of the petitioner as mentioned in the objection. It was further alleged that there is old grove of mango, Malta, orange and other fruit bearing trees in Khasra no.725/4 area 9.50 acres situate in village Kawwar Khera regarding which no exemption has been given in the C.L.H. for 3 to which the objector is entitled. It is also alleged that some other land as mentioned in clause K, L and M of the memo of the writ petition and detailed in the objection should not have been included in the holdings of the petitioner. 5. During the pendency of the case, one Surendra Singh, son of Kartar Singh moved application to implead himself and he field his objection in support of the objection filed by the tenure holder. Besides, Smt. Gurmeet Kaur, wife of Human Singh also moved an application to array as party to the case and she filed her objection supporting of the objection filed by the tenure holder. 6. Before the Prescribed Authority, the tenure holder Gur Bachan Singh examined himself and his witnesses, Surendra Singh, Harmender Singh, Banwari Lal, Subhash Chaudhary, Kurubax Singh Bedi, Kulveer Singh, Smt. Gurmeet Kaur and Sri Satnam Singh, in oral evidence. From the side of the State, witnesses including Dalchandra Lekhpal, Ramesh Chandra, Assistant Registrar Kanungo and Mahipal Singh, Lekhpal of the area were produced. Both the parties also led documentary evidence. 7. The Prescribed Authority after hearing both the parties framed points for determination. Ultimately, the prescribed authority on the point whether the holdings of the tenure holder as per ceiling forms is un-irrigated or irrigated has observed that in plot number 42, it was mentioned that there is tube-well form 1378 to 1380 Fasli and the land is recorded irrigated. It was also observed that 2/3rd portion of plot no.42 measuring 1-27 Acre was irrigated. Plot no. 45 was shown to be irrigated by canal. The Prescribed Authority also observed that 2/3rd portion of plot no.45 measuring 1-65 acre was irrigated. Regarding plot no. 81 measuring 4-38 acres, it was observed that in the Khasra of 1378 to 1380 Fasli, there is no mention of source of irrigation. However, on the basis of land record map, it was found that since plot nos. 83 and 81 are adjoining to each other, therefore, plot no. 81 was held to be irrigated by the tube-well existing on plot no.83 because two crops were harvested thereon. It was further observed that regarding plot no.41 area 13-58 acres, that it was recoded irrigated in 1378 Fasli from the tube well existing on plot 39/3 and two crops have been harvested in on Fasli year, hence this area is covered under irrigated. Regarding plot no. 90 and 93 it was observed that the land thereof is un-irrigated as no source of irrigation is there. The Prescribed Authority has ultimately concluded that the total holding of the tenure holder is held in terms of irrigated to the tune of 22-14 acres as mentioned in the impugned order. 8. On the next point, which is objection regarding plot no. 45 M, are 1-65 acre and plot no. 42 M. acre, 0-89 acre, total 2- 54 acre is said to be sold out on 12-8-1977 though registered sale deed in favour of Smt. Gurmeet Kaur and the same ought to have been excluded from the holding of the tenure holder. The learned Prescribed Authority rejected the contention on the ground that since the sale deed was not made on market price of the land and no documentary evidence was led by the tenure holder regarding purchase of tractor from the money fetched by the sale of land, therefore, the contention of the tenure holder was turned down. 9. The leaned Prescribed Authority has excluded 9-50 acres of land from the holding of the tenure holder from the ceiling limit as 9-50 acre land of plot no. 725/1 of village Sarvarkheda was exchanged with one Indrajit Singh and it was observed that on 8-6- 1973 this land was not in the holdings of the tenure holder. The Prescribed Authority also observed that in plot no. 83/2, there is pucca road in the Khasra of 1380 Fasli on 1-acre land. It was held that the tenure holder is entitled to exclusion of this 1 acre land. Similarly, benefit of 0-38 acre land was given regarding plot no. 81 M., which is road as shown in 1378 to 1380 Fasli. The Prescribed Authority further observed that the unregistered agreement for sale dated 23-6-1970 (Ext. Kha-1 on original record) does not bear any force. The objection of the tenure holder as well as that of alleged vendee Surendra Singh, who was arrayed as party to the proceedings, in respect of 5-78 acres of land of plot No. 41 M. 90 M. 93, 83/1 and 83/2 to be excluded form ceiling limit was turned down for the reason that alleged vendee Surander Sing was in unauthorized possession of the and in 1390 Fasli and tenure holder/petitioner was having adhivasi rights and not bhumidhari rights thereon in the year 1970, hence he could not have legally sold the said land. 10. Regarding objection of the tenure holder that the irrigated land should have been shown encircled in red ink in the Khasra which has not been done therefore, the land could not have been taken as irrigated. The prescribed Authority has held that the Khasras filed by the tenure holder were correct and the copyist has wrongly encircled the land in the Khasras filed on behalf of the State Government for which action should be taken against the copyist for negligence. It was also held that merely because the Khasras were not encircled it red ink, therefore, no advantage on account of clerical error could be given to the tenure holder. 11. Accordingly, the learned Prescribed Authority declared 3-60 acres of land as surplus form the land of Plot no. 41 and passed the impugned order dated 27-3-1984. Aggrieved by the said order, the petitioner as well as objectors Smt. Gurmeet Kaur and Sunder Singh challenged the order dated 27-3-1984 in separate appeal before the District Judge, Nainital, which was ultimately heard and decided by I Additional District Judge Nainital by a common order dated 23-5-1985 thereby all the three appeals were dismissed. Hence this writ petition has been filed by the petitioner. 12. I have heard leaned counsel for the parties and perused the record. 13. At the outset, it is pertinent to mention that this Court vide order dated 20-07-2005 dismissed the writ petition on merit. The petitioner-applicant having been aggrieved by the said order, filed review/recall application bearing no. 204 of 2009 mainly on the ground that the objection raised by the petitioner regarding benefit of the road to the extant of 1.38 acre in plot no. 83 and 81 was wrongly ignored by the Prescribed Authority and the perversity in that regard was not dealt with by writ Court. 14. Obviously, the matter regarding the main objection of the petitioner as detained in this writ petition. This court after hearing both the parties and in order to meet the ends of justice has recalled the order dated 20-7-2005 vide order dated 23-4-2005 and heard the arguments of the learned counsel for both the parties in the writ petition on 24-4-2009. 15. The first contention of the learned counsel for the petitioner is that the Prescribed Authority did not consider the objection raised by the petitioner and has not given benefit of pucca road existing over plot no. 83 M. to the tune of 1-00 acre and plot no. 81 M. to the tuner of 0-38 acres. Learned counsel has argued that the total land 1-38 acre covered by pucca road should have been excluded form the ceiling limit. Learned counsel for the petitioner has further contended that the finding of the Prescribed Authority regarding plot no. 81 is irrigated is erroneous for the simple reason that it was held that because plot no. 83 and 81 are adjoining to each other, therefore, the area of plot no. 81 shall be deemed to be irrigated from the tube-well existing over plot no. 83. Learned counsel also hammered the finding of the Prescribed Authority that plot 41 was found irrigated form the tube-well existing on plot no. 39/3 in 1378 Fasli and contended that no cogent evidence was led by the State to substantiate this fact before the Prescribed Authority, therefore, finding of the Prescribed Authority could not have been accepted in that regard. 16. Another contention raised by the learned counsel for the petitioner is that the learned Prescribed Authority has wrongly ignored the transfer made through registered sale deed dated 12-8- 1997 in favour of Smt. Gurmit Kaur. 17. The last contention of the learned counsel for the petitioner is that plot no. 42 has been wrongly held to be irrigated by the Prescribed Authority. 18. Before entering into the merits of the case, it is expedient to refer to the provisions Section 4-A of the Act because the controversy involved in the writ petition is regarding determination of irrigated land. Section 4-A reads as under:- “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. 1579-W/XXIII-62-W-1946m dated March 31, 1953, as amended form 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 yeas; or secondly, that irrigation facility become available to any lane 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 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 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. Explanation I.- For the purposes of this section the expression ‘effective command area’ means an area, the farthest filed whereof in any direction was irrigated- (a) in any of the years 1378 Fasli, 1379 Fasli and 1380 Fasli; or (b) in any agricultural year referred to in the clause ‘secondly’. Explanation II.- The ownership and location of a private irrigation work shall not be relevant for the purpose of this section. Explanation III. Where sugarcane crop was grown on any land of the years 1378 Fasli, 1379 Fasli and 1380 Fasli it shall be deemed that two crops were grown on it in any of these years, and that the land is capable of growing two crops in an agricultural year.” 19. So Far as the contention raised by the learned counsel for the petitioner that although the Prescribed Authority has held that road to the extent of 1-00 acre does exists over plot no. 83 M is concerned, the same has some force. The Prescribed Authority has observed in clause 5 at page 9 of his judgment that the petitioner is entitled to the benefit of road existing over plot no. 83/2. It was also observed in the same clause that on plot no. 81 M., there exists road to the extent of 0-38 acre and the petitioner is entitled to get benefit of this area also. Thus, the Prescribed Authority has held that the petitioner is entitled to the benefit of road to the extent of 1-38 acre, while in the operative portion, benefit of road to the time of 0-38 acre only was given to the petitioner. The learned appellate court has not considered this aspect. To this extent, the finding of the Prescribed Authority is perverse and is liable to be modified. 20. Now coming to the second contention of the learned counsel for the petitioner that the finding of the prescribed authority that since plot nos. 83 and 81 are adjoining and there exists tube- well over plot no. 83, therefore, plot no.81 shall be deemed to be irrigated form the tube-well, I am of the considered view that this finding of the Prescribed Authority is perverse and cannot be sustained in the eye of law. 21. I am of the considered view the mere fact that a major portion of land was irrigated is no ground for holding that entire land was irrigated between 1378 and 1380 Fasli. In the absence of any determination regarding nature of the land in accordance with Section 4-A of the Act, the land cannot be treated to be irrigated. It is also pertinent to mention that where the land is declared as irrigated land but no basis for such conclusion is given, the decision suffers form patent error. 22. In the case at hand, the Prescribed Authority fell into manifest error of law by holding that because the two plots i.e. 81 and 83 are adjoining to each other, therefore, just on presumption plot no. 81 shall be deemed to be irrigated, for which the provisions of Section 4-A (supra) does permit at all. Moreover, there appears to be no evidence at all before the Prescribed Authority that the land of plot no. 81 is situated within the effective command area. The contention of the learned counsel for the petitioner is acceptable so far as the area of plot no. 81 is held erroneously as irrigated. 23. As regards the third contention of the learned counsel for the petitioner that benefit of sale deed dated 12-8-1977 executed in favour of Smt. Gurmeet Kaur should have been given to the petitioner is concerned, I do not find any perversity in the impugned order passed by the learned Prescribed Authority. The Prescribed Authority after perusing the evidence led before him has given a categorical finding that the tenure holder has failed to adduce cogent evidence to substantiate his objection on that count. It was observed by the prescribed authority that the sale deed was not executed on the prevailing market value of the land. This contention of the petitioner does not call for any interference. 24. So far as the contention of the petitioner that the petitioner is entitled to the exemption of the area of plot no. 41 because there is no tube-well over the said plot and the same had been shown irrigated from the tube-well of other person existing over plot no. 39/3, I do not find any perversity in the impugned order passed by the learned Prescribed Authority for the simple reason that the prescribed authority as per provisions of Section 4- A (supra) has observed that the land of plot no.41 was irrigated and two crops does not call for any interference by this Court in exercise of writ jurisdiction. 25. The last contention of the learned counsel for the petitioner that plot no. 42 has been wrongly held to be irrigated by the prescribed Authority is not tenable on the face of the record. There are revenue entries in respect of 1378 Fasli showing that this plot is irrigated from the tube-well existing on plot no. 39/3 and two crops were grown thereon in one agricultural year. The finding of the Prescribed Authority in respect of plot no. 42 is based on evidence led before him and the same does not call for any interference by this Court. 26. For the reasons and discussion above, I am of the view that the writ petition deserves to be partly allowed to the extent as discussed above, i.e. the petitioner is entitled to be benefit of pucca road to the extent of 1-38 acre instead of 0-38 acre and in respect of 4-38 acres area of plot 81 in irrigated terms. The order dated 27-3- 1984 passed by the Prescribed Authority Kashipur deserves to be modified to the above extent. For rest of the contentions raised by the petitioner, the writ petition deserves to be dismissed. 27. Accordingly the writ petition is partly allowed. Costs easy, The impugned order dated 27-3-1984 passed by Prescribed Authority Kashipur stands modified to the above extent and the Prescribed Authority would be at liberty to proceed in the matter in accordance with law after excluding the area covered by road and after working out the area in un-irrigated terms of plot no. 81, measuring 4-38 acres as mentioned in the body of the judgment , if the holdings in possession of the petitioner still remains surplus. 28. The interim order dated 6-8-1985 stands vacated. (B.S. Verma, J.) RCP