Allahabad High Court
Girja Prasad vs State Of U.P. & Others on 10 September, 2012
Author: B. Amit Sthalekar
Bench: B. Amit Sthalekar
HIGH COURT OF JUDICATURE AT ALLAHABAD ?Court No. - 26 Case :- WRIT - C No. - 3007 of 2000 Petitioner :- Girja Prasad Respondent :- State Of U.P. & Others Petitioner Counsel :- G.N.Verma,Madhur Prakash Respondent Counsel :- C.S.C. Hon'ble B. Amit Sthalekar,J.
By the above writ petitions, the petitioners in W.P. No. 3007 of 2000 and the petitioner in W.P. No. 3008 of 2000 are challenging the orders dated 21.1.1988, 30.3.1999 and 31.12.1999.
Since the impugned orders in both the above writ petitions as well as the controversy involved in both the writ petitions are one and same, therefore, the above writ petitions are being decided by this common judgement.
The facts of the case, in brief, are that a notice under section 10(2) of the U.P. Imposition of Ceiling on Land Holdings Act, 1960 (Act, 1960) was issued in the name of Girja Prasad the petitioner in W.P. No. 3007 of 2000) on 4.2.1988 wherein the Prescribed Authority calculated 5.26 acres of land alleged to be belonging to the petitioner to be surplus. The petitioner filed his objections claiming that the entire land is un-irrigated and besides in his family there are 8 persons out of which his 3 sons are major and are entitled to own two hectares of land each. It was claimed that the sons of the petitioner namely, Ram Prasad, Ganesh Prasad, Pramod Kumar, Devendra Kumar and Krishna Kumar (petitioners in W.P. No. 3008 of 2000) have acquired the land in the year 1962 and it was contended that the petitioner's sons were all major and that their names have been recorded in the revenue records as Bhumidhar and,therefore, their land ought not to have been included in the land of the petitioner-Girja Prasad while considering as to whether any land belonging to the petitioner was surplus or not. The Prescribed Authority has declared 5.26 acres of land of the petitioner as surplus land by his order dated 27.9.1983.
Aggrieved by the order of the Prescribed Authority the petitioner filed an appeal before the Civil Judge, Jalaun being ceiling appeal No. 105/83. The petitioner has stated that while deciding his appeal the Civil Judge has recorded a clear finding that from a perusal of the Khatauni and revenue receipts as well as the revenue records, the names of Ganesh Prasad, Krishna Kumar and Devendra Kumar were recorded as Bhumidhar over plot no. 53, 25, 121 and 154 respectively and all these persons were in independent possession over the said plots. The Civil Judge has also held that in case it is held that the land is un-irrigated land the appellant-petitioner herein would be entitled to hold 45 acres of land. From the evidence on record that the names of Ganesh Prasad, Krishna Kumar, Devendra Kumar and Pramod Kumar were recorded in the revenue records as Bhumidhar, the Civil Judge came to the conclusion that the findings of the Prescribed Authority that 5.26 acres of land of petitioner's land was to be declared surplus was not correct and was contrary to the documents on record and, therefore, the Civil Judge by his order dated 9.10.1984 allowed the appeal and remanded the matter back to the Prescribed Authority to reconsider the matter afresh in the light of the observations made by him.
When the matter came up before the Prescribed Authority on remand an application was moved on behalf of the State Government on 25.7.1985 that notice be also issued to Ganesh Prasad, Krishna Kumar, Devendra Kumar, as required by the provisions of rule 8 of the Rules so that they may also be heard. This application on behalf of the State Government was rejected by the Prescribed Authority/Pargana Adhikari (SDM Orai) by his order dated 27.9.1985 on the ground that in the remand order of Civil Judge dated 9.10.984 a finding has already been recorded that the entire land of the petitioner is un-irrigated land.
Aggrieved by order dated 27.9.1985, the State Government filed an appeal before the Commissioner, Jhansi Division, Jhansi being appeal no. 163/219/19/7 of 1985-86 under section 13 of the Act, 1960. The Appellate Authority has, however, placing reliance upon the oral statement of the Lekhpal has recorded a finding that the land was not un-irrigated but it was irrigated land., the irrigation being made through a government tube well. He further held that the total area of the irrigated land falling to the appellant-petitioner was 33.16 acres and besides the persons mentioned in the order of the Prescribed Authority dated 27.9.1985 to whom notices were required to be issued were minor at the time when the ceiling proceedings were initiated and, therefore, land said to be belonging to them could not be separated from the land of the petitioner Girja Prasad and, therefore, the entire land is to be taken into consideration while declaring any portion of it to be surplus. Accordingly, the appellate authority by the impugned order dated 21.1.1988 allowed the appeal filed by the State Government and held that the land of the appellant-petitioner was irrigated land and, therefore, 5.26 acres of land was rightly declared to be surplus.
When the sons of the petitioner came to know about the said proceedings they moved an application on 31.3.1997 that they also be given an opportunity of being heard. On this application the Prescribed Authority passed an order dated 30.3.1999 rejecting the application dated 31.3.1997 and upholding the order dated 21.1.1988 whereby it was held that 5.26 acres of land belonging to the petitioner Girja Prasad had rightly been declared surplus.
Aggrieved by the order dated 30.3.1999, the sons of the petitioner filed an appeal which was also dismissed by order dated 31.12.1999, impugned in this petition.
I have heard Shri Madhur Prakash, learned counsel for the petitioner and Shri Mata Prasad, learned Addl. Chief Standing Counsel for the State respondents.
From a perusal of the appellate order dated 9.10.1984 passed in appeal, filed against the order of the Prescribed Authority dated 27.9.1983 declaring 5.26 acres of land of the petitioner as surplus land, it is seen that the appellate authority has recorded a finding that the land in question was not irrigated land inasmuch as the State had not been able to produce any documentary evidence to show that the land in question was irrigated land required under any of the three categories mentioned in section 4-A of the Act of 1960.
Section 4-A of the Act 1960 reads as follows:
"4-A. 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."
The learned Civil Judge has also recorded a clear finding that Ganesh Prasad, Krishna kumar, Devendra Kumar are all sons of the petitioner and have been independently recorded as Bhumidhar in possession of land as per the State Government's own records. The Civil Judge has also recorded a finding that since independent notice to Ganesh Prasad, Krishna Kumar and Devendra Kumar were never issued, therefore, the entire proceedings under section 10(2) for declaring the land to be surplus were void. The Appellate Authority by the order dated 9.10.1984 has also held that since Ganesh Prasad, Krishna Kumar and Devendra Kumar have been recorded as Bhumidhar in the State Government's own records on the date when the notice was issued to the petitioner their land could not be included in the land of the petitioner in proceedings under the Act, 1960. Accordingly, the Appellate Authority set aside the order dated 27.9.1983 of the Prescribed Authority and remanded the matter back to the Prescribed Authority to re-calculate the ceiling area of the appellant-petitioner in the light of the observations made in the order dated 9.10.1984.
When the matter came back to the Prescribed Authority on remand, an application was moved on 31.3.1997 by the sons of the petitioner Girja Prasad that they also be given an opportunity of being heard. On this application the Prescribed Authority passed an order dated 21.1.1988 rejecting the application dated 27.9.1985 and upholding the order whereby it was held that 5.26 acres of land belonging to the petitioner had rightly been declared surplus. The Appellate Authority has placed reliance upon the statement of the Lekhpal that at the time of the initial ceiling proceedings Ganesh Prasad, Devendra Kumar, and Krishna Kumar were minors therefore, their land would also be included in the land of the petitioner Girja Prasad while calculating the surplus land.
The application filed by Ganesh Prasad, Devendra Kumar and Krishna Kumar on 31.3.1997 that they also be given an opportunity of hearing has been rejected by the impugned order dated 30.3.1999 confirming the order of the Prescribed Authority dated 21.1.1988.
It is interesting to note that against the order of the Civil Judge dated 9.10.1984 no appeal was preferred by the State Government and in such circumstances the findings recorded therein became final. The Appellate Court in the order dated 9.10.1984 had clearly held that the State Government miserably failed to prove that the land was irrigated land within the three categories mentioned in section 4-A of the Act, 1960. The Appellate Court has also recorded a finding of fact that from the Government's own records, Ganesh Prasad, Krishna Kumar and Devendra Kumar were adults at the time when the ceiling proceedings were initiated and that their names have been recorded in the government records as Bhumidhar over plots nos. 53,25, 121 and 154, all of which plots had been included as land of the petitioner while deciding the ceiling proceedings. The Appellate Authority has also recorded a clear finding that in the ceiling proceedings notices have not been issued to Ganesh Prasad, Krishna Kumar and Devendra Kumar and therefore, the entire ceiling proceedings were void. It is in this view of the matter that the Appellate Authority had remanded the matter to the Prescribed Authority to reconsider the matter afresh. Before the Prescribed Authority when the application was moved on behalf of the State Government that notice be also issued to Ganesh Prasad, Krishna Kumar and Devendra Kumar, the same was rejected on the ground that appellate court by his order dated 9.10.1984 has already held the land to be un-irrigated land and also that since no notice had been issued to Ganesh Prasad, Krishna Kumar and Devendra Kumar, the entire ceiling proceedings were void. Accordingly the application of the State Government had been rejected.
However, the appellate authority during the appeal filed by the State Government against the order dated 27.9.1985 ignored the findings recorded by the Civil Judge, Jalaun in his judgment dated 9.10.1984 and has relying solely upon the oral statement of Lekhpal and ignoring the voluminous documentary evidence on record in the form the Government records recorded a finding that Ganesh Prasad, Krishna Kumar and Devendra Kumar were minor at the time of initiation of ceiling proceedings and, therefore, the order dated 27.9.1985 of Prescribed Authority was set aside by the impugned order dated 21.1.1988. The application moved by Ganesh Prasad, Krishna Kumar and Devendra Kumar and Pramod Kumar on 31.3.1997 have also been rejected by the Prescribed Authority/S.D.M. Jalaun completely ignoring the finding recorded by the Civil Judge in his order dated 9.10.1984.
In the circumstances having regard to the findings recorded by the Civil Judge, Jalaun in his order dated 9.10.1994 which is based on voluminous documentary evidence in the form of State Government's own records which have attained finality and also considering the fact that inspite of the State Government's own application dated 25.7.1985 that notices be issued to Ganesh Prasad, Krishna Kumar and Devendra Kumar to given them opportunity of being heard, the same was rejected, the consequential orders dated 21.1.1988, 30.3.1999 and 31.12.1999 are, therefore, quashed.
Both the writ petitions are allowed. There shall be no order as to cost.
Order Date :- 10.9.2012 o.k.