Allahabad High Court
Ayodhya Prasad And Others vs State Of U.P. And Others on 10 May, 2012
Author: Sunita Agarwal
Bench: Sunita Agarwal
HIGH COURT OF JUDICATURE AT ALLAHABAD Court No. - 22 Case :- WRIT - C No. - 113 of 2003 Petitioner :- Ayodhya Prasad And Others Respondent :- State Of U.P. And Others Petitioner Counsel :- Dharam Pal Singh,Siddharth Niranjan Respondent Counsel :- C.S.C. Hon'ble Mrs. Sunita Agarwal, J.
Heard Sri Dharam Pal Singh, learned counsel for the petitioners and the learned Standing Counsel appearing for the respondents.
This writ petition has been filed challenging the order dated 20.9.2002 passed by the Prescribed Authority i.e. respondent no. 3 under U.P. Imposition of Ceiling on Land Holding Act, 1960(hereinafter referred to as the 'Act') and the order dated 25.11.2002 passed by the Additional Commissioner, Jhansi Division, Jhansi.
Proceedings under Section 10(2) of the Act for the land beyond the ceiling limit were initiated against the petitioners and notice under Section 10(2) of the Act has been served upon the petitioners. By the order dated 24.6.1976 an area of 13.77 acre has been declared surplus in terms of irrigated land. The petitioners i.e. tenure holders moved recall application for rejection of the order dated 24.6.1976 which was dismissed by the Prescribed Authority on 16.7.1976, against that order an appeal was filed which was dismissed on 5.10.1977. The matter went upto the Apex Court and the SLP was dismissed. Thereafter, Ayodhya Prasad, Kedar Nath, Ganga Saran, Dwareika, Jagdish and Chatur Singh filed applications challenging the order dated 24.6.1976. The heirs were made parties and their applications were accepted vide the order dated 9.12.1981 passed by the Prescribed Authority. The order dated 24.6.1976 was set aside and they were allowed to submit their objections. The objections were filed and after hearing the objections of heirs of the original tenure holder, an order dated 18.8.1982 was passed whereby 10.64 acres of land has been declared surplus in terms of irrigated land. Three appeals were filed and the Special Judge, Jalaun had accepted all the three appeals by the order dated 4.8.1983 and the order dated 18.8.1982 of the Prescribed Authority was set aside and the matter was remanded back to be decided after taking into consideration of the sale deed and Habibanama. The Prescribed Authority vide order dated 8.2.1984 declared the area of 2.40 acres of land as surplus land in terms of irrigated land against which an appeal no. 23/84 was filed before the Special Judge, Jalaun which was accepted by the order dated 9.1.1985 and the matter was again remanded back to the Prescribed Authority to reconsider and calculate the surplus land of the tenure holder.
By the order dated 31.5.1986, an area of 1.79 acre of land was declared surplus by the Prescribed Authority, against which an appeal was filed which was rejected by the order dated 8.1.1988. Aggrieved by the order dated 8.1.1988, the tenure holders filed writ petition no. 4922 of 1988 in this Court. The order dated 31.5.1986 passed by the Prescribed Authority and the order of the Additional Commissioner, Jhansi Division, Jhansi dated 8.1.1988 were set aside by this Court by means of judgment and order dated 26.8.1994. Relevant portion of judgment and order dated 26.8.1994 is as follows:-
"I have perused the relevant section. It is said that in determining the irrigated lands, the Prescribed Authority shall examine the relevant khasras for the years 1378 Fasli, 1379 Fasli and 1380 Fasli and the latest village map and other records as it may consider necessary. It is submitted before me that as is incumbent upon the Revenue Authority to prepare the Khasra each year for every holding. The impugned order of the additional Commissioner indicates that no only the Prescribed Authority but also the appellate authority has based its findings on khasras for the years 1375, 1376 and 1377 Fasli.
In the counter affidavit, it was contended that no khasras for the years 1378, 1379 and 1380 Fasli were prepared. It has been denied in the rejoinder affidavit and it was asserted in the R.A. That there is no evidence on record to show that such khasras were not prepared. This disputed fact can only be determined by the lower authority and not by this Court sitting in a writ jurisdiction. The impugned order further indicates that the Additional Commissioner failed to make any note of the fact whether the khasras for the years 1378, 1379 and 1380 Fasli were prepared at all.
There being a substantial violation of law, this writ petition must be allowed. The orders of the Prescribed Authority Konch and the Additional Commissioner Jhansi dated 31.5.1986 and 8.1.1988 (Annexures Nos. 1 and 2 to the writ petition respectively) are quashed. The matter is sent back to the Prescribed Authority at Konch, District Jalaun for reconsideration of the matter after looking to the khasras for the years 1378, 1379 and 1380 Fasli, if prepared. If not, then the authority may base its decision on other evidence that may be available to it to determine the nature of the land in question."
The order impugned in the present petition dated 20.9.2002 has been passed by the Prescribed Authority, Jalaun at Orai in pursuance of the judgment and order dated 26.8.1994 passed by this Court. The Prescribed Authority in its order dated 20.9.2002 has relied upon the report of the Tehsildar dated 25.10.1996 as also the report of Naib Tehsildar and recorded finding that in view of the fact that the khasras for the years 1378, 1379 and 1380 Fasli required under Section 4-A of the Act, have not been prepared and as such the calculation of irrigated and un-irrigated lands shall be done on the basis of khasras for the years 1375, 1376 and 1377 Fasli. The prescribed Authority recorded in its order that the High Court in its judgment and order dated 26.8.1994 has directed the Prescribed Authority to reconsider the matter after looking the khasras for year 1378, 1379 and 1380 Fasli, if prepared and if not, then the authority may pass its decision on other evidences that may be available to it to determine the nature of the land in question. On the basis of these directions the Prescribed Authority in the order dated 20.9.2002 has further relied upon the report of Tehsildar dated 25.10.1996 that in view of the fact that the khasras for the three years 1378, 1379 and 1380 Fasli have not been prepared on account of consolidation proceedings and as such the determination of nature of land in question can be done on the basis of khasras for 1375, 1376 and 1377 Fasli. The Prescribed Authority recorded a finding that in Aakarpatra 3-Ga, the area of irrigated land, single crop land and un-irrigated land has been shown and also on the basis of perusal of khasras for the years 1375, 1376 and 1377 Fasli, the Gata No.86, area 3.56 acres and in Gata no. 110/2, area 0.15 acre are irrigated through canal and are single Fasli and on the basis of this computation done, the total land of two plots mentioned above, an area of 3.71 acres has been considered as single crop land and the rest land was found irrigated land having two Fasli. The calculation was done accordingly and out of the total area, 2.90 acres of land has been declared surplus in terms of irrigated land.
The petitioners preferred an appeal under Section 13(1) of the Act challenging the order of the Prescribed Authority. The Appellate Authority after going through the order dated 20.9.2002 concurred with the findings of the Prescribed Authority and recorded that as the khasras for the years 1378, 1379 and 1380 Fasli were not available and as such the Prescribed Authority has rightly determined the land after consideration of the report of Tehsildar, Naib Tehsildar(Ceiling), statement of Lekhpal and khasras for the years 1375, 1376 and 1377 Fasli. In view thereof, the order of the Prescribed Authority called for no interference and the appeal was dismissed by the order dated 25.11.2002.
The report of the Tehsildar, Konch dated 25.10.1996 is on record and has been annexed as Annexure 7 to the writ petition and finds place at page 38 of the paper book. A perusal of the said report shows that the Tehsildar has categorically stated that the khasras for the years 1378, 1379 and 1380 Fasli have not been prepared and determination of surplus land is to be done on the basis of khasras for the years 1375, 1376 and 1377 Fasli and the said khasras ought to have been retained during weeding operation done in the department. However, khasras for the years 1375, 1376 and 1377 Fasli have been weeded out. Tehsildar also gave date of weeding of khasras for the years 1375. According to the report, the date of weeding of khasra 1375 Fasli is 27.7.1982 and of 1377 Fasli is 30.7.1983. He further recorded in his report that copies of these khasras cannot be made available on account of fact that the same have been weeded out. The then Registrar Kanoongo is responsible for the act of weeding of relevant khasras.
In view of the said fact emerges from the record, this Court on 23.4.2012 had directed learned Standing Counsel to produce the entire original record pertaining to the matter, before the Court today. In compliance of the said order, entire record has been placed by the learned Standing Counsel in the Court.
A perusal of the record shows that the report of Tehsildar dated 25.10.1996 is very much on record and it is an admitted situation of the fact that the khasras for the years 1375, 1376 and 1377 Fasli have been weeded out prior to passing of the order by this Court dated 26.8.1994 and the order of the Prescribed Authority dated 20.9.2002. In view thereof, the observation of the Prescribed Authority that the determination of the surplus land can be done on the basis of khasras for the years 1375, 1376 and 1377 Fasli, is not supported from the record. It is rather surprising as to how the Prescribed Authority has relied upon the khasras for the years 1375, 1376 and 1377 Fasli, in view of the categorical report of Tehsildar dated 25.10.1996 that khasras for these years have already been weeded out. The impugned order passed by the Prescribed Authority further shows that there was no further documents or material on record which has been relied upon by it for determination of surplus land.
The appellate authority further erred in ignoring the report of Tehsildar and simply concurred with the finding of the Prescribed Authority. Both the authorities have committed grave illegality in determination of the nature of the land in question. It may also be noted that both the authorities below have not complied with the order passed by this Court dated 26.8.1994 in its letter and spirit and have proceeded with the matter in an arbitrary manner.
In view of the above discussions, the impugned orders passed by the prescribed Authority dated 20.9.2002 and the order passed by the Additional Commissioner dated 25.11.2002 are hereby set aside. The writ petition is allowed.
However, it is directed that the Prescribed Authority, Konch, District Jalaun at Orai shall consider the matter and thereafter determine the irrigated and un-irrigated area of the land in question after making an on-the-spot inspection done by it and further examine the entire records available and produced before this Court. It is needless to mention that the Prescribed Authority is under obligation to decide the matter in accordance with law and on the basis of material available on record. Learned Standing Counsel has further pointed out that the Proceedings under the Ceiling Act were initiated as early as in the year 1976 and since then much changes might have taken place on the spot. In view thereof, it would be appropriate that the Prescribed Authority, while making the local inspection, shall take into consideration the existing situation and the position of the disputed land at the time when the proceedings were initiated in the year 1976, In any case, it is incumbent upon the Prescribed Authority to determine the nature of the land in question in accordance with Section 4-A of the Act after taking into consideration of the entire records available before it and the situation on the date of initiation of the proceedings. The Prescribed Authority is directed to decide the matter in view of the observations made above within a period of six months from the date a certified copy of this order is produced before it.
No order as to costs.
Order Date :- 10.5.2012 P.P.