Allahabad High Court
Rama Shanker Singh vs Commissioner & Another on 7 March, 2013
Author: Sudhir Agarwal
Bench: Sudhir Agarwal
HIGH COURT OF JUDICATURE AT ALLAHABAD Court No. - 34 Case :- WRIT - C No. - 3564 of 1996 Petitioner :- Rama Shanker Singh Respondent :- Commissioner & Another Petitioner Counsel :- R.C. Singh Respondent Counsel :- S.C. Hon'ble Sudhir Agarwal,J.
1. This writ petition has been restored to its original number vide order of date passed on restoration application. As requested by learned counsel for the parties, the writ petition is taken up for hearing and is being disposed of finally.
2. Heard Sri R.C. Singh, learned counsel for the petitioner and learned Standing Counsel for the respondents.
3. The Prescribed Authority/Chief Revenue Officer, Deoria declared 19.11 acres irrigated land of petitioner surplus vide order dated 30.04.1994 passed under Section 10(2) of U.P. Imposition of Ceiling on Land Holdings Act, 1960 (hereinafter referred to as the "Act, 1960") and thereagainst petitioner's Ceiling Appeal No. 63/164/P. 1994 having been dismissed by Additional Commissioner, Gorakhpur Mandal, Gorakhpur vide order dated 30.10.1995, this writ petition under Article 226 of the Constitution of India has been filed seeking a writ of certiorari for quashing of aforesaid two orders.
4. Sri R.C. Singh, learned counsel for the petitioner submitted that in order to determine a land, whether irrigated or not, the requirement of Section 4-A of Act, 1960 has been given a complete go bye. He submitted that the impugned appellate order is wholly illegal and shows a total non-application of mind on the part of Appellate Court. Sri Singh submitted that earlier when judicial authorities used to exercise appellate powers, the appeals were considered in a more independent, reasoned and lawful manner but now when executive authorities have been conferred appellate jurisdiction, the orders being passed by them show a marked distinction in two types of orders and most of time the executive authorities, may be on account of pressure of work, are passing superficial, non-speaking and unreasoned order forcing unnecessary litigation upon the poor rural litigant people.
5. The proceedings under Section 10(2) of act, 1960 were initiated vide notice dated 10.04.1974, issued to petitioner's father, Sri Sahebzada Singh, proposing to declare 29.79 acres of land, surplus. Thereafter a revised amended notice dated 22.11.1976 was issued proposing 34.81 acres irrigated land as surplus, whereagainst objection was filed but Prescribed Authority vide order dated 31.01.1977 declared 33.08 acres of land (irrigated), surplus. Beside petitioner's father, Sri Sahebzada Singh, the objections were also filed by Smt. Kailash Kumari, grand daughter of Sri Sahebzada Singh and one institution namely, Intermediate College, Turkpatti, claiming certain part of land as their own respective holdings. It is also to be stated that during aforesaid proceedings, Sri Sahebzada Singh died substituting petitioner.
6. Aggrieved by order dated 31.01.1977 three appeals were filed, i.e., 235 of 1977, Ramashanker Singh Vs. State; 298 of 1977, Intermediate College Turkpatti Vs. State and 297 of 1977, Smt. Kailashi Singh Vs. State.
7. The above appeals were allowed by District Judge, Deoria vide judgment dated 23.05.1981 and setting aside Prescribed Authority's order, he remanded the matter to decide afresh, in the light of observations made therein. The Appellate Court found that while determining surplus area, determination of land as irrigated having not been done in accordance with procedure prescribed in law and, therefore, an error in law has occurred. The Prescribed Authority was directed by Appellate Court to strictly observe the requirement/procedure prescribed in law and thereafter to determine, whether land is irrigated or not and proceed accordingly. Para 6 of the judgment, dated 23.05.1981, in Civil Appeal No. 235 of 1977, is reproduced as under:
"6. It is contended in appeal that the learned Prescribed Authority has wrongly based its findings on the report of the Supervisor-Kanungo dated 24.1.77 that the Prescribed Authority has mentioned to be that of the Tehsildar. The law enjoins duty upon the Prescribed Authority to make a local inspection and also to peruse the extract of Khasra and Khataunis of the relevant years that it has not done. The record shows that on the record there are no Khasra and Khataunis of Village Machharia and even then the Prescribed Authority while deciding question of irrigated and unirrigated land as also the actual area of Abadi, Rasta and Temple etc. has relied upon inadmissible report of the Supervisor-Kanungo. It is, therefore, necessary that the case should be remanded for determining all these questions by the Prescribed Authority after perusing the documents and making local inspection itself."
8. The Prescribed Authority thereafter again repeated same legal errors and treating the report of Supervisor Kanoongo to be that of Tehsildar, and, relying thereon, he again passed order dated 30.04.1994, which is one of the impugned order (Annexure-4 to the writ petition). Thereagainst the Additional Commissioner, Gorakhpur also in a wholly illegal manner and without applying mind to the various submissions raised by petitioner, has passed the impugned appellate order dated 30.10.1995 (Annexure-6 to the writ petition). The entire findings and discussion in appellate order contained in last para, reads as under:
^^eSus vihykUV ds fo}ku vf/koDrk rFkk ftyk 'kkldh; vf/koDrk ¿jktLoÀ dk rdZ fordZ lquk vkSj i=koyh ij miyC/k lk{;ksa dk ifj'khyu fd;kA eSa lger gwWa fd vihydrkZ }kjk mBk;s x;s rdZ lkjghu o oyghu gS ;g vihy oLrqr% dky okf/kr gSA fu;r izkf/kdkjh us i=koyh esa miyC/k lHkh lk{;ksa dk lE;d ifj'khyu djus ds mijkUr gh iz'uxr vkns'k ikfjr fd;k gSA ikfjokfjd lnL;ksa ds ckjs esa Hkh fu;r izkf/kdkjh dk fu"d"kZ fof/k lEer gSA vihy oyghu lkjghu gksus ds dkj.k fujLr fd;s tkus ;ksX; gSA ,r}kjk vihy fujLr dh tkrh gSA vihy dh i=koyh nkf[ky nQrj gksA^^ "I have heard the arguments adduced by learned counsel for the appellant and that of the District Government Advocate (Revenue) and perused the evidence available on record. I agree that the arguments raised by the appellant have no substance and force. This appeal is, in fact time barred. The Prescribed Authority has passed the order in question only after due perusal of all the evidences available on record. The conclusion drawn by Prescribed Authority in respect of the family members as well is legitimate. The appeal being devoid of substance and force is liable to be dismissed. The appeal is hereby dismissed. File of the appeal be consigned to records."
(English translation by the Court)
9. Now coming first to the question, whether appellate order satisfy requirement of a reasoned and speaking order. I requested learned Standing Counsel to find out the reasons and application of mind in appellate order, but, he, after going through order, fairly conceded that by no means the impugned appellate order can be said to be a speaking and reasoned order.
10. It is really surprising that repeatedly this Court and Apex Court are making observations, passing umpteen orders, directing and requesting executive authorities exercising quasi judicial powers, to pass reasoned and speaking orders so as to disclose atleast consideration on issues raised by appellant and also application of mind yet the same superficial, short circuit approach is continuing on the part of such authorities.
11. The relevant extract of appellate order does not disclose anything which can be termed to be a reason but it contains only the inferences and conclusions drawn by Appellate Court and that too in a sheer cryptic and superficial manner. Virtually it does not show any application of mind on the part of Appellate Court. The grounds taken by appellant before Appellate Court have neither addressed nor discussed and also not shown as to why they are not acceptable.
12. It is well known that "conclusions" and "reasons" are two different things and reasons must show mental exercise of authorities in arriving at a particular conclusion.
13. In Union of India Vs. Mohan Lal Kapoor (1973) 2 SCC 836, as under:
"Reasons are the links between the materials on which certain conclusions are based and the actual conclusions. They disclose how the mind is applied to the subject matter for a decision whether it is purely administrative or quasi-judicial. They should reveal a rational nexus between the facts considered and the conclusions reached."
14. Referring to the above case law, Apex Court in Gurdial Singh Fijji Vs. State of Panjab & Ors (1979) 2 SCC 368 in para 18 said:
"We may also indicate, since the High Court saw the file and discovered that the appellant was not brought on the Select List because he was "not found suitable otherwise", that regulation 5 which deals with the preparation of a list of suitable officers provides by Clause 7 that "if in the process of selection, review or revision it is proposed to supersede any member of the State Civil Service, the Committee shall record its reasons for the proposed supersession". While dealing with an identical provision in Clause 5 of regulation 5 of the same Regulations as they stood then, this Court observed in Union of India v. Mohan Lal Capoor and Ors. (1973)2 SCC 836 that "rubber-stamp" reasons given for the supersession of each officer to the effect that the record of the officer concerned was not such as to justify his appointment "at this stage in preference to those selected", do not amount to "reasons for the proposed supersession" within the meaning of Clause 5. "Reasons", according to Beg J. (with whom Mathew J. concurred) "are the links between the materials on which certain conclusions are based and the actual conclusions". The Court accordingly held that the mandatory provisions of regulation 5(5) were not complied with by the Selection Committee. That an officer was "not found suitable" is the conclusion and not a reason in support of the decision to supersede him. True, that it is not expected that the Selection Committee should give anything approaching the judgment of a Court, but it must at least state, as briefly as it may, why it came to the conclusion that the officer concerned was found to be not suitable for inclusion in the Select List. In the absence of any such reason, we are unable to agree with the High Court that the Selection Committee had another "reason" for not bringing the appellant on the Select List."
15. The Apex Court in the case of Uma Charan Vs. State of Madhya Pradesh & Anr. AIR 1981 SC 1915 said:
"Reasons are the links between the materials on which certain conclusions are based and the actual conclusions. They disclose how the mind is applied to the subject matter for a decision whether it is purely administrative or quasi-judicial. They should reveal a rational nexus between the facts considered and the conclusions reached. Only in this way can opinions or decisions recorded be shown to be manifestly just and reasonable"
16. In Mc Dermott International Inc. Vs. Burn Standard Co. Ltd. & Ors. (2006) 11 SCC 181 Apex Court referring to Bachawat's Law of Arbitration and Conciliation, 4th Edn., pp. 855-56 in para 56 said:
"Reasons are the links between the materials on which certain conclusions are based and the actual conclusions..."
17. Recently the Apex Court in Kranti Associates Private Limited & Anr. Vs. Masood Ahmed Khan & Ors. (2010) 9 SCC 496 referring to the judgment in Mohan Lal Capoor (supra) in para 23 said:
"Such reasons must disclose how mind was applied to the subject-matter for a decision regardless of the fact whether such a decision is purely administrative or quasi-judicial. This Court held that the reasons in such context would mean the link between materials which are considered and the conclusions which are reached. Reasons must reveal a rational nexus between the two."
18. The Apex Court recently also in Competition Commission of India Vs. Steel Authority of India Ltd. & Anr. JT 2010 (10) SC 26, in para 68, referring to the judgment in the case of Gurdial Singh Fijji (supra), said:
"Reasons are the links between the materials on which certain conclusions are based and the actual conclusions. By practice adopted in all courts and by virtue of judge- made law, the concept of reasoned judgment has become an indispensable part of basic rule of law and in fact, is a mandatory requirement of the procedural law. Clarity of thoughts leads to clarity of vision and therefore, proper reasoning is foundation of a just and fair decision."
19. The impugned appellate order, therefore, ex facie a non-speaking one, is illegal and vitiated in law. I have no hesitation in setting aside the same but this by itself will only multiply the litigation for the reason that Prescribed Authority has also committed same legal error, as was observed by Appellate Court earlier, when vide order dated 23.05.1981, it remanded the matter and specifically directed Prescribed Authority to pass appropriate order in the light of observations made therein yet the Prescribed Authority, with a closed mind, and without showing any improvement upon itself, has proceeded to pass order with same blunders and legal errors, forcing another set of litigation upon petitioner and that too, up to this Court, though with a little more care the Prescribed Authority could have avoided the same.
20. I need not to stress upon the mandate of law as contained in Section 4-A of Act, 1960. Sections 4-A reads as under:
"4-A. 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-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 purpose 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 agriculture year."
21. In the present case the impugned order does not show that Khasra of 1378, 1379 and 1380 Fasli at all have been looked into by Prescribed Authority while determining land, whether irrigated or not. While deciding question, whether land is irrigated or not, the Prescribed Authority is always bound to decide matter in accordance with statutory provisions, i.e., 1960 Act. There is not even a whisper about relevant Khasras and its perusal by Prescribed Authority.
22. The provision of Section 4-A of Act, 1960 in order to determine land irrigated has been held mandatory by this Court in Jaswant SinghVs. State of U.P., 1978 AWC 577 which has been followed by this Court also in Civil Misc. Writ Petition No. 18295 of 1990 (G.S. Singh and another Vs. Commissioner) decided on 2.5.2011 and Civil Misc. Writ Petition No. 38155 of 1993 (Sher Singh Vs. State of U.P. & others) decided on 16.3.2012. This Court in Sher Singh (supra) observed as under:
"The Division Bench of this Court in Jaswant Singh (supra) has taken the view that Section 4-A is mandatory ... Since the authorities below have completely failed to adhere to the conditions precedent in order to hold the land irrigated by following the provisions of Section 4-A of the Act, the impugned orders are wholly illegal and cannot sustain."
23. Apparently the requirement of Section 4-A as such has not been adhered to by authorities below and, in view thereof the impugned order of Prescribed Authority is also cannot sustain, in so far as, the issue relating to land in question, being irrigated or unirrigated, is concerned.
24. In the result, the writ petition is allowed. The impugned orders dated 30.04.1994 and 30.10.1995 are hereby quashed. The matter is remanded to Prescribed Authority to determine the question of irrigated land by taking into account the requirement of Section 4-A of Act, 1960 strictly in accordance with the judgment of this Court in Jaswant Singh (supra) and also as directed by Appellate Court vide judgment dated 23.05.1981.
25. The petitioner shall also be entitled to cost, which I quantify to Rs. 10,000/-.
Order Date :- 07.03.2013 AK Hon'ble Sudhir Agarwal, J.
1. This is an application for recall of my order dated 26.05.2011 whereby the writ petition was dismissed.
2. I have gone through the affidavit filed in support of this application. The cause shown for absence of learned counsel for the petitioner, when the case was called in the revised list, is sufficient. The order dated 26.05.2011 is recalled and the writ petition is restored to its original number. The application is, accordingly, allowed.
Dt/-07.03.2013 AK-(Appl. No. 48751 of 2013) Hon'ble Sudhir Agarwal, J.
1. Heard.
2. Delay in filing restoration application is explained satisfactorily. It is hereby condoned. The application is accordingly allowed.
Dt/-07.03.2013 AK-(Appl. No. 48755/13) Hon'ble Sudhir Agarwal, J.
1. Heard.
2. Allowed.
3. Let substitution be carried out during course of the day.
Dt/-07.03.2013 AK-(Appl. No. 22923/13)