# Kaushlendra Bahadur Singh v. State of U.P

- **Citation:** (2022) 3 ILRA 258
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2022-02-21
- **Case number:** Writ C No. 3000130 of 1994
- **Bench:** Manish Mathur
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/kaushlendra-bahadur-singh-v-state-of-u-p-48194
- **Pages:** 6

## Headnote

Civil Law - U.P. Imposition of Ceiling on
land Holdings Act, 1960 - Sections 3, (14)
& 4-A - Irrigated plot or unirrigated -
Determination - For determination as to
whether a particular agricultural plot was
under irrigation or not u/s 4-A it is
essential that there must be irrigation
facility and decision regarding irrigation
facility and growing of crops is required to
be taken by the Prescribed Authority on
the basis of Khasras for the years 1378
Fasli, 1379 Fasli and 1380 Fasli, along
with the latest village map and such other
records as it may consider necessary, and
may also make local inspection where it is
considered necessary - Local inspection as
such is meant merely to be corroborative
and
cannot
form
the
basis
for
determination of irrigated land (Para 11,
23)

In the instant case dispute was to whether plot
no.347 could be held as irrigated or unirrigated
land - disputed plot was held to be irrigated on
the basis of statement of Lekhpal & the Lekhpal
made said statement on the basis of alleged
spot inspection - Held - In the impugned order
there is nothing to indicate that the relevant
revenue records i.e. Khasras for the said three
years have been considered by the authority
concerned - Such a basic activity not having
been done by the authorities concerned renders
the impugned orders against provisions of
Section 4-A of Act of 1960 - Prescribed Authority
could not have made local inspection and the
statement of Lekhpal at best is merely
corroborative - fact that two crops were shown
to have been produced on the plot in question is
also merely corroborative and has to be seen in
juxtaposition with other aspects of the matters,
particularly with regard to entries made in the
Khasras of the relevant years- Impugned order
set aside (Para 14, 24, 27)

Allowed. (E-5)

List of Cases cited :

## Text

258 INDIAN LAW REPORTS ALLAHABAD SERIES

19. Considering aforesaid facts, this
Court reaches to a conclusion that the
proceedings under challenge are violative
of the mandatory conditions of Section 29
of
Act
of
1960
and
is
therefore
unsustainable.

20. Consequently, impugned order
dated 01.07.1991 as well as notice issued
under Section 10(2) of Act of 1960 are
hereby quashed by issuance of a writ in the
nature of Certiorari.

21. In view of aforesaid, the writ
petition succeeds and is allowed. Parties to
bear their own costs.
----------
(2022)03ILR A258
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 21.02.2022

BEFORE

THE HON'BLE MANISH MATHUR, J.

Writ C No. 3000130 of 1994

Kaushlendra Bahadur Singh ...Petitioner
Versus
State of U.P. ...Respondent

Counsel for the Petitioner:
U.S. Sahai

Counsel for the Respondent:
C.S.C.

Civil Law - U.P. Imposition of Ceiling on
land Holdings Act, 1960 - Sections 3, (14)
& 4-A - Irrigated plot or unirrigated -
Determination - For determination as to
whether a particular agricultural plot was
under irrigation or not u/s 4-A it is
essential that there must be irrigation
facility and decision regarding irrigation
facility and growing of crops is required to
be taken by the Prescribed Authority on
the basis of Khasras for the years 1378
Fasli, 1379 Fasli and 1380 Fasli, along
with the latest village map and such other
records as it may consider necessary, and
may also make local inspection where it is
considered necessary - Local inspection as
such is meant merely to be corroborative
and
cannot
form
the
basis
for
determination of irrigated land (Para 11,
23)

In the instant case dispute was to whether plot
no.347 could be held as irrigated or unirrigated
land - disputed plot was held to be irrigated on
the basis of statement of Lekhpal & the Lekhpal
made said statement on the basis of alleged
spot inspection - Held - In the impugned order
there is nothing to indicate that the relevant
revenue records i.e. Khasras for the said three
years have been considered by the authority
concerned - Such a basic activity not having
been done by the authorities concerned renders
the impugned orders against provisions of
Section 4-A of Act of 1960 - Prescribed Authority
could not have made local inspection and the
statement of Lekhpal at best is merely
corroborative - fact that two crops were shown
to have been produced on the plot in question is
also merely corroborative and has to be seen in
juxtaposition with other aspects of the matters,
particularly with regard to entries made in the
Khasras of the relevant years- Impugned order
set aside (Para 14, 24, 27)

Allowed. (E-5)

List of Cases cited :

1. St. of U.P. Vs D.J. & ors. 2007 4 AWC 3700
(Allahabad)

2. St. of U.P. through Collector Vs Mukh Ram
Singh & anr. 1991 RD 312

(Delivered by Hon'ble Manish Mathur, J.)

1.

Heard
learned
counsel
for
petitioner and Sri J.P. Maurya, learned
Additional Chief Standing Counsel for
opposite parties 1 to 3. No one has
appeared on behalf of opposite parties 4
and 5.
3 All. Kaushlendra Bahadur Singh Vs. State of U.P.
259

2. Petition has been filed against order
dated 26.02.1992 passed by the prescribed
authority as well as order dated 03.08.1994
passed in appeal by the Additional
Commissioner in terms of U.P. Imposition
of
Ceiling
on
land
Holdings
Act,
1960(hereinafter referred to as the Act of
1960).

3. Initially, the dispute pertained only
to plots numbered 572, 576 & 347 and their
being irrigated or unirrigated in terms of
the provisions of Act of 1960.

4. The initially recorded tenure-holder
was issued notices under Section 10(2) of
Act of 1960 and in pursuance thereof, the
Prescribed Authority vide order dated
27.02.1976 declared 65.108 acres of land of
the tenure holder as surplus.

5. The order was challenged in appeal
which was partly allowed vide order dated
27.08.1976. Against the aforesaid order, the
original tenure holder filed Writ Petition
No.3043 of 1976 which was allowed vide
order dated 20.12.1978 remitting the matter
to Prescribed Authority for a decision
afresh. In pursuance thereof, vide order
dated 25.07.1979 plots numbered 572 &
576 were held unirrigated but plot no.347
having an area of 23.557 acres was held to
be irrigated. The Prescribed Authority was
not inclined to accept the choice furnished
by petitioner.

6. Order dated 25.07.1979 was
thereafter
challenged
in
appeal
with
submission that Plot No.347 was also
unirrigated and that compliance of Section
4-A of Act of 1960 was not made. The said
appeal was dismissed vide order dated
13.11.1979,
which
was
thereafter
challenged in Writ Petition No.1108 of
1980 which was allowed vide judgment
and
order
dated
20.07.1984
again
remanding the matter for consideration
afresh by the appellate authority.

7. After remand, the Commissioner
being the appellate authority thereafter
again remitted the matter to the Prescribed
Authority vide order dated 27.12.1988
whereafter
impugned
order
dated
26.02.1992 was passed and has been
upheld in appeal by impugned order dated
03.08.1994.

8. Learned counsel for petitioner
submits that as of now the dispute pertains
only to fact as to whether plot no.347 could
be held as irrigated or unirrigated land not
only in terms of remand order but also in
terms of the provisions of Act of 1960 and
also explanation of choice. It is submitted
that in terms of Section 4-A of Act of 1960,
determination of irrigated land is to be
made only after examination of relevant
revenue records such as Khasras for the
years 1378 Fasli, 1379 Fasli and 1380
Fasli, which can be said to be the only
authoritative documents to indicate whether
a particular agricultural plot was under
irrigation or not. It is submitted that while
passing impugned orders, the authorities in
question have not only ignored the
provisions of Section 4-A of Act of 1960
but also the remand order of this Court
specifically
directing
the
concerned
authorities to pass appropriate orders only
after examination of the revenue records
such as Khasras. It is also submitted that
impugned orders have been passed purely
on conjectures and surmises without any
substance and also while brushing aside
specific assertions made by petitioner. It is
submitted that despite direction of this
Court for examination of revenue records, a
bare perusal of impugned orders will make
it evident that relevant revenue records
260 INDIAN LAW REPORTS ALLAHABAD SERIES
such as Khasras have not been examined
by the concerned authorities. It is also
submitted that the omission on part of the
authorities was despite the fact that
petitioner had submitted relevant extracts
of Khasras for the said three years
according to which the disputed property
was shown to be unirrigated.

9. Sri J.P. Maurya, learned Additional
Chief Standing Counsel for the opposite
parties refuting the submissions advanced
by learned counsel for petitioner has
submitted that the impugned orders have
been passed in keeping with the provisions
of Section 4-A of Act of 1960 as well as
remand order of this Court. It is submitted
that the authorities have clearly recorded a
finding that abutting agricultural plots had
their private irrigation work completed
before 15.08.1972 and that the disputed
plot was within the effective command
area of the said plots in terms of
explanation I to Section 4-A of Act of
1960. It is submitted that the authorities
also considered the spot inspection report
and the statement of Lekhpal concerned
for arriving at the conclusion. It is
submitted that there was no deviation
effected by the authorities with regard to
provisions of Section 4-A of Act of 1960
or the remand order.

10.

Upon
consideration
of
submissions advanced by learned counsel
for the parties and perusal of record, it is
apparent that the relevant revenue extracts
such as Khasras for the relevant years are
not on record of the proceedings of this
Writ Petition However, the appellate
authority in its order has indicated that the
petitioner had brought the extracts of
relevant Khasras for the said three years
on record of the proceedings of appeal.

11. For the said purposes of
determination of agricultural plot to be
irrigated, the provisions of Section 4-A is
relevant in which it has been specifically
stated that the prescribed authority shall
examine the relevant Khasras for the years
1378 Fasli, 1379 Fasli and 1380 Fasli
along with the latest village map and such
other records as it may consider necessary,
and may also make local inspection where
it is considered necessary The provisions of
Section 4-A of Act of 1960 are as follows:-

"4A. 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-W1946, 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
3 All. Kaushlendra Bahadur Singh Vs. State of U.P.
261
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 tubewell 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."

12. Since the impugned orders have
been passed after remand by this Court,
necessarily the impugned orders are bound
to be proscribed by the conditions of
remand as indicated by this Court in its
judgment and order dated 20.07.1984.

13. The said remand order clearly
indicates that the Prescribed Authority has
failed to examine the relevant Khasras for
the three years indicated herein above in
terms of Section 4-A of Act of 1960. The
primary purpose of examination of relevant
revenue record such as Khasras for the said
three years is relevant primarily on account
of fact that they record the fact of the plot
in question to be irrigated or otherwise. The
said indication in the Khasras is supposed
to be conclusive proof, subject to rebuttal
by evidence. It is for this reason that this
court while passing the earlier order of
remand had made a specific direction to
authorities concerned to examine the
Khasras for the relevant years.

14. However, on examination of
impugned order passed by the Prescribed
Authority as well as order passed by
appellate authority, there is nothing to
indicate that the relevant revenue records
such as Khasras for the said three years
have been considered by the authority
concerned. Such a basic activity not having
been done by the authorities concerned
renders the impugned orders not only
against provisions of Section 4-A of Act of
1960 but also against the terms of the
remand
order
of
this
court
dated
20.07.1984.

15. It is also seen from a perusal of
impugned order passed by Prescribed
Authority that Plot No.347 has been taken
to be irrigated on account of the fact that a
neighbouring Gata no.369 had its private
irrigation system installed prior to cut off
date i.e. 15.08.1972. It is on this basis that
the Prescribed Authority has recorded a
finding that since Plot No.347 comes
within the effective command area of Pot
No.369, it therefore could be held to be
irrigated.

16. With regard to aforesaid reasoning
of the Prescribed Authority, it is clear that
the term 'private irrigation work' has been
defined in Section 3(14) of Act of 1960 and
262 INDIAN LAW REPORTS ALLAHABAD SERIES
means a private tube-well, or a private lift
irrigation work operated by diesel or
electric power for the supply of water from
a perennial water source, completed before
August 15, 1972

17. Expression ' effective command
area' has been defined in explanation (I) to
Section 4-A of Act of 1960 and means an
area, the farthest field whereof in any
direction was irrigated in any of the three
years 1378 Fasli, 1379 Fasli and 1380
Fasli; or in any agricultural year referred to
in the clause 'secondly'. Explanation II
states that the ownership and location of a
private irrigation work shall not be relevant
for the purpose of this section.

18. From a conjoint reading of
Section 3(14) and Explanation I to Section
4-A of Act of 1960, it is evident that for an
agricultural plot to come within the
effective command area of a private
irrigation work, it is necessary that the
farthest field was irrigated in any of the
three Fasli years referred to herein above or
in any agricultural year whereof the
irrigation facility became available to any
land by a State irrigation work coming into
operation subsequent to enforcement of the
amendment Act of 1972 and where 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.

19. For the purposes of Explanation I
and determination of effective command
area, it is thus imperative that the relevant
revenue record such as Khasra for the said
three years should be examined since, in
the present case, it is not the contention of
the opposite parties that any State irrigation
work came into operation and was effective
over the plot in question.

20. From a perusal of the provisions
of the Act, it is thus clear that the
authorities concerned should have taken
into account the relevant records such as
Khasras for the aforementioned three
years. That apparently was also the basis of
remand
order
of
this
Court
dated
20.08.1984. As would be evident from the
impugned orders, the authorities having not
examined the Khasra for the three years
clearly vitiates the impugned orders on that
score alone, particularly when extracts of
Khasras have already been brought on
record in proceedings of appeal as evident
from the appellate order.

21. A reading of the impugned orders
will also make it evident that the disputed
plot has been held to be irrigated on the
basis of statement of Lekhpal. Much
emphasis has been laid by the authorities
on the statement made by the Lekhpal to
the effect that the plot in question was
irrigated. The Lekhpal in turn has made a
statement on the basis of alleged spot
inspection that was carried out.

22. Learned State counsel has also
emphasized the fact that the impugned
orders have been passed taking into
account the spot inspection which could
have been resorted to in terms of Section 4A of Act of 1960.

23. It is no doubt correct that Section
4-A of Act of 1960 leaves a discretion upon
the authorities concerned to direct local
inspection to be made wherever it considers
necessary. However, it is also apparent
from a reading of Section 4-A of Act of
1960 that it is the statutory mandate that the
Prescribed Authority is first required to
examine the relevant Khasras for the said
three years. Local inspection as such is
meant merely to be corroborative and
3 All. Toofani Vs. State of U.P. & Ors.
263
cannot form the basis for determination of
irrigated land, keeping in view the specific
provisions of Section 4-A of Act of 1960.
Thus, the Prescribed Authority could not
have made local inspection and the
statement of Lekhpal at best is merely
corroborative.

24. It is also evident from a perusal of
order passed by the Prescribed Authority
that the petitioner had raised a specific plea
that although plot no.369 may be irrigated
but it is not on the same plane as plot
no.347 which is on a higher plane than plot
no.369. Although the Prescribed Authority
had noted such objections in the order but
has not specifically dealt with such a
pleading and has merely rejected the same
on the ground that it is not borne out by the
statement of Lekhpal.

25. The aspect of matter whether a plot
can be held to be irrigated or otherwise under
Section 4-A of Act of 1960 has been dealt with
by a judgment of this Court in State of U.P. v.
District Judge and others reported in 2007 4
AWC 3700 (Allahabad) in which it has been
held that for determination of irrigated land
under Section 4-A of Act of 1960, it is
essential that there must be irrigation facility
and decision regarding irrigation facility and
growing of crops is required to be taken on the
basis of Khasras of 1378 to 1380 Faslis. It is
held that for the aforesaid determination, the
examination of the said Khasras is imperative
since there is a specific column indicating the
source of irrigation.

26. Similar is the view taken in the
decision of this Court in State of U.P. through
Collector v. Mukh Ram Singh and another
reported in 1991 RD 312 whereunder it has
been held that simply because there are two
tube-wells near the disputed plot, it cannot be
held that in view of Section 4-A and clause
thirdly of that Section, to record that it is an
irrigated plot unless and until there is a finding
based on appreciation of evidence including
entries in Khasras that it come within the zone
of command area.

27. While passing the impugned orders,
the authorities have also placed reliance on the
fact that two crops were shown to have been
produced on the plot in question. Much reliance
has been placed on the aforesaid aspect.
However upon reading of Section 4-A of Act of
1960, it is evident that the said factor is also
merely corroborative and has to be seen in
juxtaposition with other aspects of the matters,
particularly with regard to entries made in the
Khasras of the relevant years.

28. In view of the fact that the impugned
orders having been passed against the dictum of
this Court vide judgment dated 20.07.1984 and
the provisions of Section 4-A of Act of 1960,
are clearly vitiated and are therefore set aside
only with regard to findings pertaining to Gata
no.347 situate in Village Indur, P.O. Fakarpur,
Tehsil Kaisharganj, District Bahraich by
issuance of a writ in the nature of Certiorari.

29. The writ petition consequently stands
allowed. Parties to bear their own costs.
----------
(2022)03ILR A263
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 04.02.2022

BEFORE

THE HON'BLE VIVEK KUMAR BIRLA, J.
THE HON'BLE MOHD. ASLAM, J.

Criminal Misc. Appl. Defective u/s 372 Cr.P.C.
(Leave To Appeal) No. 14 of 2016

Toofani ...Appellant
Versus
State of U.P. & Ors. ...Opposite Parties