Allahabad High Court
Akbar Ali vs State Of U.P. & Another on 3 February, 2010
Author: Bala Krishna Narayana
Bench: Bala Krishna Narayana
Court no. 40
CIVIL MISC. WRIT PETITION NO. 26751 of 1995
Akbar Ali ............... Petitioner
Vs.
State of Uttar Pradesh & anothers ................ Respondents
Hon'ble Bala Krishna Narayana,J.
Counter and rejoinder affidavits have been exchanged.
Heard Sri Anshu Chaudhary learned counsel for the petitioner and learned standing counsel for the State.
The relevant facts of the case as mentioned in the writ petition are that the proceedings under the U.P. Imposition of Ceiling on Land Holdings Act 1961 (herein after referred to as the Act) were initiated against the father of the petitioner Akbar Ali and case no. 110- State Vs. Afsar Ali was registered before the prescribed authority.
In the said proceedings it was held that Afsar Ali did not hold any irrigated land. However some area was declared surplus and the choice of the tenure holder was also accepted and the matter stood concluded. After insertion of Section 4-A in the Act by U. P. Act no. 2 of 1975, the prescribed authority issued a fresh notice under Section 29 of the Act for re-determination of the surplus land. Upon receiving the said notice under Section 29 of the Act the petitioner's father Afsar Ali contested the notice claiming that the provisions of Section 29 of the Act, were not attracted in his case as he had neither inherited any land nor his grove land had ceased to be a grove land nor any irrigation facility had become available to his land. The case was registered as Case no. 1 of 1993-94 State Vs. Afsar Ali. The prescribed authority by its order dated 29.12.1993 passed in the aforesaid case held that the petitioner's father Afsar Ali had installed a boring in two places in his land which were held jointly by Afsar Ali with other co-tenure holders and treating the aforesaid boring as an irrigation facility held the land to be irrigated and declared 2-810 acre of land of Afsar Ali surplus.
Aggrieved from the order of the prescribed authority, the petitioner's father Afsar Ali preferred an appeal before the respondent no. 2, Additional 2 Commissioner, Agra Division, Agra, which was registered as appeal no. 1 of 1994 and was dismissed by him by order dated 22.07.1995 (Annexure no. 2 to the writ petition).
By means of this writ petition the petitioner has prayed for quashing the aforesaid orders dated 28.12.1993 and 22.07.1995 passed by the respondent nos. 1 and 2 respectively.
In the counter affidavit filed on behalf of the State respondents, it has been stated that the prescribed authority passed the order declaring 2-810 Acres of land of Afsar Ali as surplus land after considering the petitioner's objection. The prescribed authority determined the nature of the land on the basis of evidence available on the record including the statement of Lekhpal which testified that some plots of the petitioner's father were irrigated by boring and the petitioner's father had installed two borings on his land and rightly held the petitioner's father's land to be irregated.
Learned counsel for the petitioner submitted the manner in which the prescribed authority shall determine whether land is irrigated land or not has been provided under Section 4-A of the Act.
He further submitted that the prescribed authority as well as the appellate authority erred in law in relying upon the statement of Lekhpal which was totally inadmissible in evidence in view of Section 4- A of the Act for the purpose of deciding issue that the land of the petitioner was irrigated or not.
He also submitted that in order to ascertain as to whether a land is irrigated or not, the prescribed authority was required to examine the relevant Khasra for the years 1378, 1379 and 1380 faslis, latest village map, or such other records as it may have considered necessary, to make local inspection, if the prescribed authority considered it necessary, whereas in the present case the prescribed authority without complying with the requirements of Section 4-A held that the petitioner's land to be irrigated.
In support of his contention, the learned counsel for the petitioner relied upon a Division Bench judgement of this Court in the case Ghasi Ram Vs. State of U.P. through Collector, Aligarh and others reported in 1977 A.W.C.
402. 3 Learned counsel for the petitioner next submitted that the failure of the appellate court to redeem the illegality committed by the prescribed authority as rendered the judgment the appellate authority also totally unsustainable in law.
Learned standing counsel made his submissions in support of the impugned orders and contended that the court below did not commit any error or mistake in holding the petitioner's land to be irrigated on the basis of statement of Lekhpal in which he had stated that the petitioner's father had installed boring in his land.
I have considered the submissions made by the of learned counsel for the parties and perused the record of the writ petition.
The only question which arises for consideration in this writ petition is that whether the prescribed authority while holding an enquiry to determine whether a particular land is irrigated or unirrigated can take into consideration oral evidence as has been done in the present case. Section 4-A of the act which enumerates the factors which a prescribed authority under the Act has to take into consideration for the purpose of deciding whether land is irrigated or unirrigated casts a duty on the Prescribed Authority to -- (a) examine relevant khasras for the year 1378 to 1380 Fasli (b) latest village map © such other records as it may consider necessary (d) and may make local inspection if he considers necessary. The Act purposely has omitted oral evidence of any official. Lekhpal or Naib-Tehsildar and has preferred to go by the records and opinion of the Prescribed Authority based on material mentioned in the Section.
This court while examining the a similar issue in the case of Jaswant Singh (Supra) held that it is not permissible for the prescribed to take of any oral evidence in the course of an enquiry under Section 4-A of the Act. The relevant paragraphs no. 6 to 18 of the aforesaid judgment read as under:
" 6. The term ' irrigated land' has been defined in Section 3 (11) of the Act which reads as follows:
"irrigated land" means land determined as such in the manner laid down in Section 4-A". In view of the 4 definition of the term ' irrigated land' contained in Section 3 (11) of the Act, it is obvious that the Prescribed Authority can only act in accordance with the procedure contained in Section 4-A of the Act in order to determine the same. It is not open to the Prescribed Authority to adopt a procedure inconsistent with the provisions of Section 4-A of the Act in order to find out ' irrigated land'. The relevant part of Section 4- A reads as follows:
" The Prescribed Authority shall examine the relevant khasras for the year 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-62-1946, 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
(iv) 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 5 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 of 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; then the Prescribed Authority shall determine such land to be irrigated land for the purpose of this Act .........."
7. A perusal of the above would show that Section 4-A makes it obligatory on the Prescribed Authority to examine Khasras for the years 1378, 1379 and 1380 Faslis. It further makes it obligatory for the Prescribed Authority also to examine the latest village map. It then confers a discretion on the Prescribed Authority to examine such other records as it may consider necessary and also to make local inspection, if that too be necessary. The section then proceeds to say that thereafter, if the Prescribed Authority be of opinion, as mentioned in sub sections firstly, secondly and thirdly, he shall determine the land to be 'irrigated land'. The word 'thereupon' occurring in Section 4-A of the Act, to our mind, is meaningful. According to Webster's New International Dictionary, the word ' thereupon' means "as a result of some specified things". Reading the word ' thereupon' occurring in Sec. 4-A in that manner, the mandate contained in Section 4-A appears to be that the opinion specified in sub-sections firstly secondly and thirdly of Section 4-A has to be formed by the Prescribed Authority upon the Khasra for the years 1378, 1379 and 1380 faslis, upon the village map, upon such other records as it may consider necessary and upon local inspection, if the Prescribed Authority 6 considered it necessary to make one. There are no words in Section 4-A to justify anything other than that specified therein to be made use of by the Prescribed Authority for the formation of opinion on the points specified in sub-sections firstly, secondly and thirdly, thereof. The legislature thought it fit to confine the scope of enquiry to the examination of documents and local inspection presumably because almost every thing that is mentioned in various sub-sections of Section 4-A was capable of being ascertained on the basis thereof and, indeed, where any fact can be ascertained on the basis of documents, oral evidence can serve no useful purpose.
8. In order to illustrate what we have said above, we may briefly refer to various sub-sections of Section 4- A. Accordingly to sub-section, firstly, of Section 4-A, the Prescribed Authority has to form an opinion (a) whether 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 the notification 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) whether that at least two crops were grown in such land in any one of the aforesaid years.
9. Now the information regarding source of irrigation as well as the information regarding crops grown in any plot in any year can be gathered from village record.
10. There may be some dispute about the existence of 7 some private irrigation work inasmuch as one party may confirm its existence and the other may deny it. To resolve that conflict the Prescribed Authority can himself make a local inspection which would reveal beyond any shadow of doubt whether or not any private irrigation work exists. It would thus appear that no oral evidence is necessary for forming an opinion on what is stated in clause firstly of section 4-A.
11. According to clause secondly of Section 4-A, the Prescribed Authority has to form an opinion whether 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. Now, the fact whether or not any irrigation facility became available to any land by a State irrigation work coming into operation subsequent to the commencement of the Amending Act, 1972, is a fact which can best be established by documents. Similarly the fact whether or not two crops are grown in such land in any agricultural year between the date of such work coming into operation and the date of the issue of notice under Section 10 can also be conclusively established by documents particularly the khasra. For purposes of clause secondly also, therefore, oral evidence can hardly serve any purpose.
12. This takes us to clause thirdly or Section 4-A. What the Prescribed Authority has to conclude thereunder is:
8(a) Whether the land is situated within the effective command area of a lift irrigation canal, of a State tube-
well or a private irrigation work;
and
(b) Whether the class and composition of its soil is such that it can grow atl east two crops in an agricultural year.
13. It is worthy of notice that the documents, which it is obligatory for the Prescribed Authority to examine under Section 4-A, include the village map. It can be found out on an examination of the village map coupled with the Khasra whether or not a particular land is situate within the effective command area of any State or private irrigation work. Even if there remains any doubt after examining the khasras, the village map, or such other records as may be available, the Prescribed Authority can himself visit the site and inspect it to himself find out whether the land in question does or does not fall within the command area of any State or private irrigation work. As for composition of soil, that too is mentioned in village records. In any case, oral evidence regarding composition of soil can be most conflicting and, consequently, if in any particular case village records do not contain any information regarding composition of soil, that fact as well can be ascertained by local inspection.
14. It would thus appear that on all the points specified in the various sub-sections of Section 4-A the Prescribed Authority can form an opinion on the basis of records and local inspection. The legislature, therefore, thought it fit that the enquiry under Section 4-A should remain confined to examination of records 9 and local inspection and not to production and examination of oral evidence.
15. The leaned Standing Counsel urged before us that Prescribed Authority will not normally make local inspection, unless there is conflict regarding the existence of any of the facts specified in the various sub-sections of Section 4-A and before the Prescribed Authority makes local inspection he shall have to ask the parties to file affidavits. The learned Standing Counsel urged that it should therefore, be held that oral evidence can be adduced under Section 4-A. We regret our inability to accept this argument. If there is conflict between the parties on any of the points relevant under the various sub-sections of Section 4-A, the Prescribed Authority may ask the parties to file affidavits. He can, however, make use of those affidavits for limited purpose of deciding whether or not it is necessary to make a local inspection. After he has taken a decision on that point one way or the other, he cannot refer to those affidavits again for the purpose of coming to a decision as to whether or not any particular land is ' irrigated land'.
16. It may not be out of place to mention that in some other sections where the legislature intended that the parties should have the opportunity to adduce evidence, they made that intent clear by using proper words. In Section 12 of the Act it is stated that where an objection has been filed under sub-section (2) of Section 10 or under sub-section (2) of Section 11 or because of any appellate order under Section 13, the Prescribed Authority shall determine the surplus land after affording the parties reasonable opportunity of being heard and of producing evidence. Section 21 of 10 the Act states that the Prescribed Authority shall hear any person showing cause under sub-section (2) of Section 19 or in pursuance of any order under sub- section (2) or sub-section (3) of Section 20 and shall give his decision after affording an opportunity for the production of evidence to the person concerned. It will appear that in neither of these two sections the word 'evidence' has been qualified or restricted in any manner. The party concerned can therefore, adduce oral as well as documentary evidence. If the intention of the legislature were that the parties should have an opportunity to adduce oral evidence in proceedings under Section 4-A of the Act, there is no reason why similar language could not be used therein.
17. The learned Standing Counsel then referred us to Section 37 of the Act and urged that if Section 4-A is read with Section 37, it would follow that even in proceedings under Section 4-A the Prescribed Authority can call upon the parties to adduce oral evidence. Section 37 reads as follows:
" Any officer or authority holding an inquiry or hearing an objection under this Act shall, in so far as it may be applicable, have all the powers and privileges of a Civil Court, and follow the procedure laid down in the Code of Civil Procedure, 1908, for the trial and disposal of suits relating to immovable property." (italicising by us).
From the above it would appear that Civil Procedure Code can apply to proceedings under the Act only in so far as it may be applicable. Section 4-A of the Act is a self- contained provision inasmuch as the legislature has thereby made a special provision for determination of irrigated land. It is well settled that a general 11 provision cannot over-ride a special provision. The Prescribed Authority can, therefore, make use of the Civil Procedure Code during an enquiry under Section 4-A only in so far as it is consistent with the procedure laid down therein. Since the Prescribed Authority, while making an enquiry under Section 4-A has to examine records and make local inspection, he can make use of the provisions of the Civil Procedure Code for that purpose only. Making use of the provisions contained in the Civil Procedure Code for bringing on record oral evidence will run counter to the provisions contained in Section 4-A. For contention raised by the learned Standing Counsel, is, accordingly, rejected.
18. For all the reasons stated above, we find ourselves in agreement with the view expressed by Hon'ble R. M. Sahai, J. in Ghasiram Vs. State (Supra) and we holding that it is not permissible for a Prescribed Authority to make use of any oral evidence in the course of an enquiry under Section 4-A of the Act."
It is not disputed that in the Khasra of 1378 fasli to 1381 fasli, the petitioner's land is not shown to be irrigated. There is no documentary evidence on the record which may indicate that the irrigation facility was available for the land in question in respect of any crop in any one of the aforesaid years by any canal or any lift irrigation canal or any developed area or any irrigation facility had become available to the petitioner's land by the irrigation work subsequent to the enforcement of the Act and two crops were grown on the petitioner's land in any agricultural year between the date of such work coming into operation and the date of issue of notice under Section
10. There is nothing on record which may show that the petitioner's land is situated within the effective command area of a lift irrigation canal of a state tube-well or a private irrigation work or is capable of growing at least two crops in an agriculture area.
Learned counsel for the state/respondents has further failed to show 12 that before holding the petitioner's land to be irrigated the prescribed authority had either examined the relevant khasras, or latest village map or any other record or the prescribed authority had make any local inspection.
The record shows that all the aforesaid issues were raised before the appellate authority by the petitioner and the order passed by the prescribed authority was sought to be set aside on the ground of complete failure of the prescribed authority to comply with the requirements of Section 4-A of the Act while holding the petitioner's land to be irrigated yet the appellate authority without considering the grounds on which the petitioner had challenged the order of the prescribed authority illegally dismissed the appeal of the petitioner and affirmed the order of the prescribed authority. The ratio of the case of Jaswant Singh (supra) applies with full force to the facts of the present case and the orders passed by the respondent nos. 3 and 2 holding the petitioner's land to be irrigated on the basis of oral evidence of the Lekhpal only can not be sustained.
In view of the above discussion I hold that the orders impugned in this writ petition are liable to be set aside.
The writ petition is allowed. The orders dated 28.12.1993 and 22.07.1995 passed by the Prescribed Authority Eta and the Additional Commissioner, Agra, respectively, are hereby quashed.
There will however be have no order as to costs.
Dt.03.02.2010 YK.