Allahabad High Court
State Of U.P. Thru Collector Lakhimpur ... vs The Addl. Commssioner Judicial And ... on 30 May, 2022
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
AFR
Reserved on 13.05.2022
Delivered on 30.5.2022
Court No. - 17
Case :- WRIT - C No. - 3000118 of 1994
Petitioner :- State Of U.P. Thru Collector Lakhimpur Kheri
Respondent :- The Addl. Commssioner Judicial And Another
Counsel for Petitioner :- C.S.C
Counsel for Respondent :- V K Pandey
Hon'ble Shree Prakash Singh,J.
1. Heard Sri Gopal Krishna Pathak, learned Additional Chief Standing Counsel for the State and Sri V.K.Pandey, learned counsel for the respondents and perused the record.
2. By means of the instant writ petition the petitioner has prayed for issuance of a writ, order or direction in the nature of certiorari quashing the impugned judgment and order dated 12.07.1993 passed by the opposite party no. 1 i.e., The Additional Commissioner (Judicial) Lucknow Division, Lucknow.
3. The factual matrix of the case is that a notice under Section 10(2) was issued to opposite party no. 2 namely Sri Basudeo Pal, the original tenure holder mentioning therein 40.5 acres of land as irrigated land and an area of 22.462 acres was proposed to be surplus land. After the aforesaid notice the objection was filed mentioning therein that the entire land of village Suabojh has wrongly been shown as irrigated land. He also mentioned the fact in the objection that there are 2 acres of land as USAR land and on some of the portion, there is building etc. On the aforesaid objections, the prescribed authority appointed an Advocate Commission and the Advocate Commissioner prepared a report and submitted the same mentioning therein the status of the land. In the report, Advocate Commissioner mentioned a tube-well installed over the agricultural land.
4. After considering the aforesaid report the prescribed authority decided the objection of opposite party no. 2 on 10.03.1975, on the premises that the land is irrigated and 4.126 acres of land was declared as surplus land.
5. After the aforesaid order dated 10.03.1975, the opposite party no. 2 preferred an appeal on the ground that the order dated 10.03.1975 is in violation of mandate of Section 4-A of the Imposition of Ceiling on Land Holdings Act, 1960 (hereinafter referred to as Act, 1960). The appeal filed by the opposite party no. 2 was dismissed by the 4th Additional & District Sessions Judge, Kheri vide order dated 17.10.1975, wherein holding that Khasra pertaining 1378, 1379 and 1380 fasli are indicating that the land is capable of growing two crops and there is private irrigation work.
6. He submits that being aggrieved from the judgment and order dated 17.10.1975, the opposite party no. 2 preferred Writ Petition No. 2973 of 1975 before Hon'ble High Court. The High Court vide order dated 02.04.1979 remanded back the matter before the learned District Judge to decide the appeal afresh with an observation that the appellate authority has to record a finding that whether the land is within the effective command area of lift irrigation canal or State tube-well or private tube-well irrigation work and further whether the composition of soil is such, which is capable of growing two crops in each year.
7. After the matter was remanded back to the appellate authority, the appellate authority remanded back the matter to the prescribed authority for deciding the question of irrigated or unirrigated land.
8. On the aforesaid remand, the prescribed authority heard the matter wherein the extract of the Khasra 1378, 1379 and 1380 Fasli of village Dalpur and Salawat Nagar was filed by the State and the statement of witnesses namely Sri Ram Avtar and Sri Ram Giri Lekhpal was recorded and they were examined. He added that infact the consolidation proceedings were going on in the village, as such the Khasra 1378 fasli of village Suabojh was available only and that too was filed before the prescribed authority. He submits that after the abovesaid, the judgment and order was passed on 25.10.1985 by the prescribed authority wherein the case was dismissed and the objection of the opposite party no. 2 was rejected, while recording the fact that there is a tube-well and entire land is irrigated land. While dismissing the aforesaid case he also mentioned that land is of such quality where sugarcane crop and wheat are being grown and as such he declared 4.162 acres as surplus land. The judgment and order dated 25.10.1985 was assailed while filing the appeal under Section 13 of the Act, 1960 i.e., before the District Judge, Lakhimpur Kheri and later on it was transferred to Additional Commissioner (Judicial), Lucknow Division, Lucknow. The appeal was dismissed on 30.08.1986, in non prosecution as opposite party no. 2 did not turn up to do pairvi of the case. Later on, an application for recall was moved on 09.01.1992 with the explanation that the opposite party no. 2 was not having any information about the case being transferred before the Additional Commissioner (Judicial), Lucknow Division Lucknow. He added that opposite party no. 2 filed the aforesaid recall application after a period of 51/2 years and no proper explanation was given that why he was not diligent in getting the information from the court of District Judge and as such after the aforesaid application moved by the opposite party no. 2, the petitioner was not afforded any opportunity of hearing to defend the aforesaid application and the Additional Commissioner (Judicial), Lucknow Division Lucknow, recalled the order dated 30.08.1986 by a non-speaking and un-reasoned order.
9. He submits that infact after the recall of the abovesaid order, the Additional Commissioner/appellate authority has passed the order on 12.07.1993, without affording proper opportunity of hearing and further the application for recall was admitted without mentioning any reason.
10. He also added that vide order dated 12.07.1993, the appeal filed by the opposite party no. 2 was admitted and the order passed by the prescribed authority by virtue of which the land having area 4.162 acres was declared as surplus land, has been set aside. He submits that the findings of the appellate court are perverse as there is an ample evidence of the irrigation work over the land in question.
11. He further argued that learned prescribed authority while considering the issue has gone into the khasra 1378 fasli of village Suabojh wherein it was found that there is a private tube-well over the land in question. He further submits that the report of the Advocate Commissioner dated 21.02.1975, reveals that there is an electric tube-well over the land situated at village Suabojh by which the irrigation work is being done.
12. He further submits that area lekhpal in his statement has also averted that the land is being irrigated through private tube-well and while considering the abovesaid statement, the prescribed authority has also gone into the C.L.H. Form No. 3 wherein the land in question is recorded as irrigated land.
13. Learned prescribed authority has very minutely gone into the Khasra fasli year 1378 wherein it is evident that the sugar cane crop including wheat and paddy are also been recorded which clearly shows that land was capable to grow two crops. He also added that mandate of Section 4-A of the Act which has been envisaged under the U.P. Imposition of Ceiling on Land Holdings Act, 1960 for determination of irrigated land has been followed in letter and spirit while deciding the issue by the prescribed authority. Section 4-A of the Act, 1960 is being quote hereasunder:-
[4A. Determination of irrigated land. - The prescribed authority shall examine the relevant Khasras for the years 1378 Fasli, 1979 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-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; then the Prescribed Authority shall determine such land to be irrigated land for the purposes of this Act.
Explanation I. - For the purposes of this section the expression' effective command area' means an area, the farthest field 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 in any of the years 1378 Fasli, 1379 Fasli and 1380 Fasli, it shall be deemed that two crops were grown on it any of these years, and that the land is capable of growing two crops in an agricultural year.]
14. Referring to the aforesaid Section 4-A of the Act, 1960, learned counsel for the petitioner has also contended that the prescribed authority had gone into the fasli year 1378 and found that provision firstly, secondly and thirdly is very well applied in case of the land of the respondent no. 2.
15. Adding his argument learned counsel for the petitioner submits that infact the prescribed authority has discussed and has gone into all the parameters as is prescribed under Section 4-A of the Act, 1960 and thereafter, he comes to the conclusion that the land in question comes under the purview of irrigated land. He also indicated that the respondent no. 2 did not adduce any such evidence which could substantiate his contention that the land in question does not fall under the category of irrigated land. Contrary to it, the statement of lekhpal , Nakal khasra year 1378 fasli private tube-well as per the report of the Advocate Commissioner (as was ascertain on spot inspection) and the land being capable of growing two crops including the sugar cane crop clearly reveals that aforesaid land in question is irrigated land and as such the prescribed authority had rightly passed the order.
16. He submits that the appellate authority ignoring the aforesaid evidences set aside the order passed by the prescribed authority. He submits that it is a well settled law that even if any part of land is proved to be capable of growing two crops then whole of the land shall be deemed to be irrigated. He further added that the statement of the lekhpal, the report of the Advocate Commissioner after the spot inspection, private tube-well over the land, the statement of the witnesses and capability of growing two crops as per the khasra fasli year 1378 has been ignored by the appellate authority while passing order impugned. The order impugned is against the settled proposition of law and further it is also contrary to the mandate of Section 4-A of the Act, 1960. The appellate authority has superfluously consider the facts and has ignored the actual facts, statement of witnesses and the provisions of law.
17. Apart from the aforesaid he has also argued that the appellate authority has also erred to allow the application for recall of the order after period of 51/2 years without recording any reason or finding.
18. In support of his contention he has placed reliance on a judgment and order dated 24.10.1989 passed in Civil Appeal No. 3241 1979 and 4390 of 1984 (Kallu and ors vs. State of U.P. ors). He has referred para 9 and 10 of the judgement which reads as under:-
"9. Coming now to the specific provisions of Section 4-A dealt with by the High Court, it may be seen that in order to form an opinion whether irrigation facility was available for any land from one of the sources mentioned in subclauses (i), (ii) and (iii) in respect of any crop in anyone of the aforesaid years viz., Faslis 1378 to 15380, the Prescribed Authority is enjoined to examine the Khasras for those three Fasli years, the village map, other relevant records considered necessary and also to make a local inspection whenever it is necessary. Hence there is no scope for contending that a Prescribed Authority may form his opinion without reference to relevant material, in an arbitrary or capricious manner, to the detriment of a tenure holder as regards the availability of assured irrigation facility to a land from one of the enumerated sources. Consequently, there is no merit in the first contention of the appellant that in addition to the materials and records set out in the sub-clause, there must be independent evidence of assured irrigation facility before ever a Prescribed Authority can form an opinion about a land having assured irrigation facility.
10. As regards the second contention relating to sub-clause (b), the clause refers only to the growing of atleast two crops in a land found to be having assured irrigation facility in any one of the relevant years. The sub-clause does not contemplate the raising of two crops on the entire extent of the land. The classification has to be made with reference to the potentiality of the land to yield two crops in one Fasli year and not on the basis of the actual raising of two crops on the entire extent of the land. Therefore, sub-clause (b) cannot be read so as to mean that two crops should have been grown on the entire extent of a land having irrigation facility for classifying the land as 'irrigated land' as it would have the effect of limiting the operation of the sub-clause contrary to the legislative intent. The High Court has taken the view that when the Legislature made amendments to the Act, it must have had in mind the advancement that has been made in agricultural science and farm technology and by reason of it a tenure holder can overcome hurdles and raise two crops in a year over the entire extent of a land having irrigation facility. We need not go as far as that. The normal presumption, in the absence of contra-material, would be that the quality content of soil of a land would be uniform throughout its extent. Such being the case, if a tenure holder is able to raise two crops in a year in a portion of the land, then it would be logical to hold that the other portions of the land also would have the capacity to yield two crops if the tenure holder had utilised the entire extent to raise two crops instead of utilising a portion of the land alone. The raising of two crops even on a portion of the land will prove, in the absence of material to show poor quality of soil in portions of the land due to salinity etc., the uniform nature and content of the soil of the entire land. The High Court was therefore right in holding that the Prescribed Authority can treat a land, having assured irrigation facility, as 'irrigated land' if the tenure holder had raised two crops even in a portion of the land during anyone of the prescribed years and that it is not necessary that the raising of the two crops should have been made on the entire extent of the land in order to classify the land as 'irrigated land'."
19. Referring the aforesaid, he submits that if a tenure holder is able to grow two crops in a year in a portion of the land, then it would be logical to hold that other portions would also have capacity to yield two crops. He added that raising two crops even on a portion of the land, will prove the uniform nature and content of the soil of the entire land.
20. Learned counsel for the petitioner has further placed reliance on a judgment dated on 01.03.1978 passed in Writ Petition No. 11170 of 1975 (Shyamvir Singh vs. The State of U.P. and others). He has referred para 10 of the judgement which reads as under:-
In the aforesaid background if a tenure-holder wishes to challenge the correctness of the statement prepared in CLH From 3 in respect of his irrigated land he will have to plead in his objection all such facts which, if proved would establish that the statement in Form 3 about his irrigated land was not prepared in the manner prescribed by Section 4-A of the Act and that his land was not irrigated within the meaning of the said section. He will also, have to produce evidence to prove those facts. In adversary proceedings a presumptian cannot be rebutted only by raising a plea in the objection. The facts pleaded have to be proved. In Agricultural & Industrial Syndicate Ltd. v. State of U.P, (1974) 2 SCC 27 (para. 8) it was held that after an objection has been filed by the tenure-holder disputing the correctness of the statement prepared under Section 10 of the Act there ensues a dispute and in such a case there is an adversary proceeding before the Prescribed Authority between him and the government; Since the Prescribed Authority in the process of deciding the objection is empowered to take evidence it would be "court" within the meaning of Sec. 3 of the Evidence Act. As such when it is deciding an objection under Sec. 12 of the Act the provisions of the Evidence Act in regard to the manner and burden of proof will apply to the proceedings. Section 101 of the Evidence Act inter alia provides that when a person is bound to prove the existence of a fact, the burden of proof lies on that person. In view of the decision of the Supreme Court in P.J Ratnam's case (supra) to the effect that it is for the party who challenges the regularity in respect of official acts to plead and prove his case and in view of Section 101 of the Evidence Act the burden to prove that the statement in C.L.H Form 3 about his irrigated land was not prepared in the manner prescribed by Section 4-A of the Act would lie on the tenure-holder and to discharge that burden it would be for him to produce such evidence as he considers material including the relevant extracts of Khasras mentioned in Section 4-A. It is really with reference to these documents and not with reference to his pleading in the objection that the tenure holder would be in a position to show that the statement in Form 3 about his irrigated land has not been prepared in the manner prescribed by Section 4-A of the Act. In the eye of law there is hardly any difference between a case where no objection at all is filed and a case where in the objection necessary facts have not been pleaded nor evidence has been led to prove such facts. Section 4-A does not cast any obligation on the Prescribed Authority to record reasons where no objection is filed at all. The said section cannot in my opinion be reasonably interpreted to mean that it casts an obligation on the Prescribed Authority to record reasons why a particular plot has been treated as irrigated in C.L.H Form 3 even if no facts have been pleaded by the tenure-holder in his objection which if proved will establish that the said plot has been shown as irrigated in Form 3 otherwise than in conformity with Section 4-A and no evidence has, been led by him to prove those facts. If these facts have been pleaded and proved the Prescribed Authority will certainly have to decide the objection raised. In this behalf and record reasons for its findings in conformity with Section 4-A. In the absence of requisite pleading and proof the Prescribed Authority, while declaring surplus land under Section 12 of the Act, can be required to record reasons stating as to under which part or category of Section 4-A a particular plot has been treated as irrigated in CLH Form 3, only if Section 4-A is placed at par to the performance of a ritual. In this view of the matter I find it difficult to accept the submission made by counsel for the petitioner that the Additional Civil Judge committed an error in treating the petitioner's land of village Rajpur as irrigated.
21. Referring the aforesaid judgment he submits that the Court has held that it is the duty of the tenure holder to adduce copies of the khasra for relevant years, it is not incumbent upon the State Government to produce the same.
22. He submits that in such view of the matter the order passed by appellate authority vitiates in law and is liable to be set aside.
23. On the other hand, learned counsel for opposite party no. 2 has opposed the contention aforesaid and submits that the finding recorded by the appellate court is correct as he has considered the matter on the basis of the evidence and the records available before him.
24. He further submits that very small part of land is said to be irrigated and that does not mean that all the holdings of the tenure holder comes under the purview of irrigated land, as per provision of Section 4-A of Act, 1960. He further added that as per finding of the appellate court, only 2.30 acres land was found to be irrigated though the total land which was found irrigated by the prescribed authority was 22.123 acres. He submits that specific finding has also been recorded by the appellate authority that due to tube-well it could not be assume that all the land of the tenure holder comes under the area of irrigated land. There is also a finding that as per the Fasli 1379 the sugar cane crop and paddy as well as wheat was shown to be there but in Fasli 1380 there is only sugar cane crop.
25. Learned counsel for respondent no. 2 has placed reliance on a judgment dated 03.05.1979 passed in Civil Misc. Writ No. 8178 of 1975, Jaswant Singh Vs. State of U.P. and others. Referring the aforesaid judgment he submits that Division Bench of this Court has held that in order to find out irrigated land Section 4-A of the Act, 1960 makes it obligatory on the prescribed authority to examine khasras of the fasli years 1378, 1379 and 1380 and latest village map including the local inspection.
26. He submits that in the instant matter the prescribed authority has failed to comply with the verdict of the judgment and order dated 03.05.1978.
27. Learned counsel for the respondent has also placed reliance on a judgment reported in 1978 AWC 577 Jaswant Singh vs. State of U.P. and others. Placing the aforesaid judgement, he submits that it is the khasra of concern fasli year by which the ceiling authority comes to conclusion that whether any irrigation facility was available and whether two crops are being grown over the land. He has referred para 14 of the judgement which reads as under:-
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 and local inspection and not to production and examination of oral evidence.
28. He has also placed reliance on a judgment reported in 1991 RD 312 State of U.P. through Collector vs. Mukh Ram Singh and another and has referred para 3 of the judgment which reads as under:-
In the present case, it has been observed by the Prescribed Authority in his judgment that he did not examine the khasras for 1378 to 1380 Fasli because they were not produced by the party concerned. He has mentioned that there are private tube wells near the disputed plot and only on this basis he had recorded the finding that the said plot is an irrigated land. It was open to the Prescribed Authority to ask for the Khasras from his own records and examine the same, and not only the khasras but also the village map and other necessary records. He has not specifically recorded the finding that the class and composition of soil is such that it is capable of growing at least two crops in an agricultural year. Therefore simply because there are two tube wells near the disputed plot, it cannot be held in view of Section 4-A, and clause thirdly of that Section, that it is an irrigated plot. Moreover the finding recorded by the learned Additional District Judge is a finding of fact based on appreciation of evidence including entires in Khasra 1380 Fasli and there is no justification to interfere with the said finding, in the writ petition. It may be incidently mentioned that the learned counsel for the opposite parties has also referred to the case reported in 1979 AWC 9 Dhirendra Mohan Chaudhary v. IInd Additional District Judge, Bareilly, in which it has been held that in order that a land may be termed as irrigated one, it is necessary that the land must be irrigated from the canal or any lift irrigation canal or any State Tube well or a private irrigation work and that even if the land is irrigated by boring Tubewell, it cannot be said that the irrigation work was done from a private irrigation work and it cannot be termed as irrigated land.
29. Referring the aforesaid judgement he submits that it has been held that the khasra fasli year 1378 to 1380 is to be examined by the prescribed authority. He submits that even if a land is been irrigated by the boring tube-well the same cannot said to be a private irrigation work. Concluding his argument he has also placed reliance on a judgement reported in 1979 AWC 9 Dhirendra Mohan Chaudhary and others vs. IInd Additional District Judge, Bareilly and others. He has referred para 4 to 6 of the judgement which reads as under:-
4. Learned counsel for the petitioners has also contended before me that on the finding recorded by the appellate authority itself the tube-wells were not of such nature as could be termed as a source of irrigation of perennial nature yet the land of the petitioners has been termed as irrigated one on the ground that the same area of the petitioners had been actually irrigated. But the authority did not consider this aspect of the matter that in order that the land of the petitioners may be termed as irrigated one, it is necessary that the land must be irrigated from the canal or any lift irrigation canal or any State tube well or a private irrigation work. In the circumstances of the present case it appears that the appellate authority thinks that the land was irrigated by boring tube-well, hence the land of the petitioners was termed at irrigated one.
5. Private irrigation work has been defined in Section 3 sub-clause (14) of U.P. Imposition of Ceiling on Land Holdings Act, which runs thus:-
""Private irrigation work" means a private tube-well, or a private lift irrigation work operated by deisel or electric power for the supply of water from a perennial water source, completed before August 15, 1972."
6. On the finding recorded by the appellate authority it is clear that the boring tube well was not capable of producing perennial water source. Even if the land of the petitioners was irrigated, it cannot be said that the irrigation work was done from a private irrigation work. In this view of the matter the determination of the appellate authority that the land of the petitioners is irrigated one appears to be patently erroneous.
30. Referring the aforesaid, he submits that in fact the boring tube-well cannot be termed as means of private irrigation facility and as such even if there is any report that tube-well was there that was in the form of boring tube-well and as such that cannot be treated as private irrigation work.
31. Adding his contention he submits that the appellate authority has rightly come to the conclusion that only 2.30 acres of land is irrigated and as such the order passed by the prescribed authority wherein 4.162 acres land was declared as surplus land are against the evidence as well as the provisions of law and as such the order passed by the prescribed authority was liable to be set aside and the order passed by the appellate authority is liable to be uphold by this Court.
32. Having heard learned counsel for the parties and after perusal of record, I find that the appellate authority has ignored the material facts while discussing the issue raised by the petitioner. The appellate authority while passing the impugned order did not consider the fact that the mandate of Section 4-A of the Act, 1960 has been taken care of by the prescribed authority while passing the order dated 22.10.1985. The prescribed authority had gone into khasra fasli year 1378 of village Suabojh, wherein he found that there was a private tube-well over the land. The entry recorded in fasli year 1378 is also supported by the report of the Advocate Commissioner dated 21.02.1975, wherein he has also mentioned the fact that there is a private tube-well by which the land in question are been irrigated. Apart from the aforesaid, the khasra also reveals that the land in question is capable to grow two crops including the sugar cane crop. Further the statement of lekhpal of area concerned has also been recorded in this regard who also supportted the version of the report of Advocate Commissioner as well as entries made in fasli year 1378. From perusal of the order 25.10.1985, it seems that there is no such objection or evidence adduced contrary to the fact and evidences mentioned/adduced by the State over there.
33. Further it has also been noticed by this Court that the appellate authority has decided the matter in a very cursory manner and the issue which were raised by the petitioner before the appellate authority were either ignored or has not been considered in right perspective.
34. From perusal of the order of the appellate court, it reveals that though he has mentioned the fact that sugar cane crop was over there but no finding has been recorded to the effect of the same. Further he has also disbelieved the statement of the area lekhpal as well as the entries of the tube-well which is evident from the khasra entry of fasli year 1378. The report of Advocate Commissioner which was submitted by local inspection, has been over looked by the appellate authority.
35. In explanation (III) of Section 4-A, where sugar cane crop has been recorded on khasra to grow on any land in any of the fasli years 1378, 1379, 1380, it shall be deemed that two crops were grown on it, in any of these years, and that land is capable of growing two crops in an agricultural year. In the instant matter the prescribed authority has recorded finding that in fasli year 1378, there is entry of sugar cane crop over the land in question and this finding has not been controverted by the appellate authority.
36. So far as the private tube-well is concerned, the petitioner did not raise any objection with regard to the boring tube-well before the prescribed authority.
37. Further it is incumbent upon the tenure holder to place the khasra of 1378, 1379 and 1380 fasli before the prescribed authority, though in the instant matter the State has submitted the nakal of khasra 1378, 1379 and 1380 fasli before the prescribed authority. The entries in one fasli year is sufficient to substantiate regarding irrigation work and crops on the land in question. The oral statement of lekhpal of area can be treated as a good evidence if it is supported by documentary evidence.
38. The respondent has also failed to submit any proof either before the prescribed authority or the appellate authority to show the reason to disbelieve the statement of area lekhpal. Further finding recorded by the appellate authority regarding 2.30 acres of land as irrigated land, is based on conjecture and surmises.
39. In such view of the matter the finding recorded by the appellate authority is wholly perverse and is against the settled proposition of law and as such the order passed by the appellate authority dated 12.07.1993 is hereby set aside.
40. The matter is remanded back to the appellate authority to decide the matte afresh after taking into consideration the entries of khasra of fasli 1378, the statement of area lekhpal and the report of the Advocate Commissioner in a right perspective. The appellate authority shall also give its finding on the issue with regard to the capability of the land growing two crops over the land in question.
41. The State shall file the copy of this order within a period of 10 days before the appellate authority and then the appellate authority after calling objection from the concerned parties shall decide the matter within further period of four months from the date of production of certified copy of this order produced before him.
42. The writ petition is allowed accordingly.
43. No order as to cost.
Order Date :- 20.5.2022 Ujjawal