# Preetam Singh v. State of U.P

- **Citation:** (2023) 5 ILRA 1204
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2023-05-01
- **Case number:** Writ-C No. 3000051 of 1999
- **Bench:** Rajnish Kumar
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/preetam-singh-v-state-of-u-p-50160
- **Pages:** 11

## Headnote

A. Ceiling Law - UP Imposition of Ceiling
on Land Holdings Act, 1960 - Section 29 -
UP
Imposition
of
Ceiling
on
Land
Holdings(Amendment) Act, 1972 - Earlier
notice, declaring certain area as surplus
land, was issued - Principle of res judicata
- Applicability - Amended provision of S.
29 permit re-determination of ceiling area
on certain circumstances - Effect - Held,
in case the unirrigated land became
irrigated, the proceedings could have been
held as per Section 29 of the Act of 1960 -
High
Court
rejected
the
plea
of
applicability of res judicata. (Para 14)

B. Ceiling Law - UP Imposition of Ceiling
on Land Holdings (Amendment) Act, 1960
-
Section
13-A
-
Surplus
land
-
Declaration in term of irrigation and
capability of growing two crops - Finding
of fact - Scope of interference - No cogent
evidence to controvert the finding was
filed - Effect - Held, all the land of the
petitioner, except abadi and Groveland of
petitioner has been found irrigated on the
basis of Khasra of the relevant year,
material and evidence on record, and the
factual finding recorded by the prescribed
authority is unchallenged and no material
contrary
to
it
has
been
produced,
therefore the factual finding cannot be
interfered by this Court. (Para 21 and 35)

Writ petition dismissed of. (E-1)

List of Cases cited:

## Text

1204 INDIAN LAW REPORTS ALLAHABAD SERIES
determination of compensation under the
RFCTLARR Act, 2013, as expeditiously as
possible, preferably, within a period of six
weeks from the date of receipt of copy of
this order.

The
amount
of
compensation
determined under the award shall be
released by the competent authority within
a further period of two weeks, thereafter, in
favour of the tenure holders/persons
interested after due determination of their
share of entitlement and verification of
their identity.

With the above directions, the writ
petition is allowed.
----------
(2023) 5 ILRA 1204
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 01.05.2023

BEFORE

THE HON'BLE RAJNISH KUMAR, J.

Writ-C No. 3000051 of 1999

Preetam Singh ...Petitioner
Versus
State of U.P. ...Respondent

Counsel for the Petitioner:
Avadhesh Kumar

Counsel for the Respondents:
C.S.C.

A. Ceiling Law - UP Imposition of Ceiling
on Land Holdings Act, 1960 - Section 29 -
UP
Imposition
of
Ceiling
on
Land
Holdings(Amendment) Act, 1972 - Earlier
notice, declaring certain area as surplus
land, was issued - Principle of res judicata
- Applicability - Amended provision of S.
29 permit re-determination of ceiling area
on certain circumstances - Effect - Held,
in case the unirrigated land became
irrigated, the proceedings could have been
held as per Section 29 of the Act of 1960 -
High
Court
rejected
the
plea
of
applicability of res judicata. (Para 14)

B. Ceiling Law - UP Imposition of Ceiling
on Land Holdings (Amendment) Act, 1960
-
Section
13-A
-
Surplus
land
-
Declaration in term of irrigation and
capability of growing two crops - Finding
of fact - Scope of interference - No cogent
evidence to controvert the finding was
filed - Effect - Held, all the land of the
petitioner, except abadi and Groveland of
petitioner has been found irrigated on the
basis of Khasra of the relevant year,
material and evidence on record, and the
factual finding recorded by the prescribed
authority is unchallenged and no material
contrary
to
it
has
been
produced,
therefore the factual finding cannot be
interfered by this Court. (Para 21 and 35)

Writ petition dismissed of. (E-1)

List of Cases cited:

1. St. of U.P. Vs Mukh Ram Singh & anr.; 1991
(9) LCD 232

2. Badi Bahu Vs St. of U.P. & ors.; 1997(15) LCD
1265

3. Vibhuti Kumar Bajpai Vs St. of U.P. & ors.;
2008 (26) LCD 832

4. Bal Krishna Vs St. of U.P. & ors.; 1984 LCD
115

5. Ram Sagar Vs Civil Judge, Bahraich & ors.;
1984(2) LCD 300

6. S Ram Chandra Rao Vs Nagabhushana Rao &
ors.; 2023 (41) LCD 1

7. Bhagwan Singh & anr. Vs St. of U.P. & ors.;
1996(14) LCD 387

8. Raj Bahadur Vs St. of U.P. & ors.; 1996(14)
LCD 248

9. Raja Mahipal Singh Vs St. of U. P. & ors.;
2007(25) LCD 1196
5 All. Preetam Singh Vs. State of U.P.
1205
10. Kaushlender Bahadur Singh Vs St. of U.P.;
2022(40) LCD 765

11. Adi Kumar Jain Vs Additional Commissioner
(Admn) Faizzbad & ors.; 2016(34) LCD 699

12. Smt. Binda Gupta & ors. Vs St. of U. P. &
ors.; 2003(21) LCD 511

13. Rajendra Prasad Tiwari Vs St. of U.P. & ors.;
2022 (40) LCD 1836

14. Kunwar Bahadur Singh Vs Prescribed
Authority/A.D.M.
Ceiling,
Unnao
&
anr.;
2022(40) LCD 891

15. Shantanu Kumar Vs St. of U.P. & ors.; 1979
AWC(F.B.) 585

16. St. of U.P. Vs The Additional Commissioner
Judicial & ors.; MANU/UP/2168/2022

(Delivered by Hon'ble Rajnish Kumar, J.)

1. Heard Sri Avadhesh Kumar,
learned counsel for the petitioner and Sri
S.K. Khare, learned Standing Counsel.

2. The petitioner Preetam Singh has
approached this Court, by means of the
present petition, challenging the order
dated 11.04.1997 passed by the Prescribed
Authority(Ceiling/Upper Collector, Kheri)
contained in Annexure No.2 to the petition
and the order dated 12.01.1999 passed by
the
Additional
Commissioner
(Administration),
Lucknow
Division,
Lucknow, contained in Annexure No.4 to
the petition.

3. The brief facts of the case, for
adjudication of the present case, are that in
respect of the land in dispute, the petitioner
was served with a notice as per Section 29
of the UTTAR PRADESH IMPOSITION
OF CEILING ON LAND HOLDINGS
ACT, 1960(hereinafter referred to as the
Act of 1960) proposing 19.682 acres
irrigated land as surplus giving benefit of
18.03 acres irrigated land to the petitioner.
In
response
thereof,
the
petitioner
submitted the objections dated 06.03.1995
on the ground that the notice is barred by
res-judicata and it is time barred. The
petitioner also took an objection that the
land of the petitioner is un-irrigated and he
is entitled for the maximum benefit. A plea
was also taken that holdings have wrongly
been shown. On the basis of the pleadings,
the following 7 issues were framed:

वाद जबन्दु

1. क्या पुनशजनगशत नोजटस में आपजिकताश की जोत का
जवविण गलत जदखाया गया है, यजद हााँ तो उसका प्रभाव?

2. क्या आपजिकताश के जवरुद्ध सीजलंग अजधजनयम के
अंतगशत वाद िलकि अजन्तम रूप से जनणीत हो िुका है, जो
पक्षकािों के मध्य िेसज्यूडीकेटा का -- िखता है, यजद हााँ तो
उसका प्रभाव?

3. क्या आपजिकताश के जवरुद्ध पुनशजनगशत नोजटस
कालबाजधत है, यजद हााँ तो उसका प्रभाव?

4. क्या आपजिकताश की समस्त भूजम अजसंजित है तथा
इस आशय हेतु पूवश जनणीत अजभमत पक्षकािों के मध्य
िेसज्यूडीकेटा का प्रभाव िखता है, यजद हााँ तो उसका प्रभाव?

5. क्या आपजिकताश अ०जो०सी० अजधजनयम के अन्तगशत
प्रदि अजधकतम लाभ पाने का अजधकािी है, यजद हााँ तो उसका
प्रभाव?

6. क्या आपजिकताश के जवरुद्ध पुनशजनगशत नोजटस धािणीय
नहीं है, यजद हााँ तो उसका प्रभाव?

7. आपजिकताश जकस सहायता का अजधकािी है?

4. The oral evidence of Area Lekhpal
Sri
Hussain
Ali,
Sri
Awdhesh
Kumar,Lekhpal who prepared the file and
Assistant Registrar Kanoongo Sri Krishna
were produced in oral evidence on behalf
of the State and CH Form 45 and three
Intekhab Khatauni of the 1399-1404 Fasli
and Intekhab Khasra of 1402 Fasli were
filed. The petitioner produced the oral
1206 INDIAN LAW REPORTS ALLAHABAD SERIES
evidence of Sri Himachal son of Moti Lal
and
himself.
In
documentary
evidence,petitioner filed the mutation State
versus Preetam Singh under Section 10(2)
and copy of the order dated 18.07.1985
passed by the Additional District Judge,
Kheri in Appeal 36 of 1985; Preetam Singh
versus State of U.P.

5. After hearing learned counsel for
the parties and considering the material and
evidence
on
record,
the
prescribed
authority declared 19.682 acres irrigated
land as surplus as no choice was given by
the petitioner and the benefit of 18.03 acres
was given to the petitioner. The details of
the land declared surplus is given below:-

जवविण भूजम
जजला तहसील पिगना ग्राम गा०सं० क्षेत्रफल
खीिी जनघासन पजलया बालपुि 117 10-69 एकड जसंजित

 112 7-43 .......

 118जम० 1-562 .......
------------------------------------------

 19-682 एकड जसंजित अथों में

6. The petitioner preferred an appeal
No. 253 of 1996-97 against the order
passed by the prescribed authority, which
has been rejected by means of the order
dated 12.01.1999 after considering the
grounds raised by the petitioner. Hence the
present petition has been filed by the
petitioner challenging the aforesaid orders.

7. Learned counsel for the petitioner
submitted
that
in
the
consolidation
proceedings, two sons of the petitioner,
who had become major were alloted
separate chaks but no notice was given to
them, whereas the notice was required to be
given to them being the tenure holder under
Section 3(17) of the Act of 1960. He further
submitted that the notice under Section
10(2) of the Act of 1960 was given to the
petitioner beyond the prescribed period of 2
years, which was in violation of Section
13A of the Act of 1960 which is to be read
together with Section 29 of the Act of 1960.
He also submitted that the notice was
barred by res judicata because earlier twice
notices were given and when second time
notice was given, though the prescribed
authority had declared certain area as
surplus but the said order was set aside in
appeal by the District Judge. Lastly, learned
counsel for the petitioner submitted that the
impugned orders have been passed on the
basis of presumption and assumption
without any proof by the State and
considering the provisions of Section 4A of
the Act of 1960, while declaring the land of
the petitioner as surplus as irrigated.
Therefore the impugned orders are not
tenable in the eyes of law and liable to be
quashed by this Court.

8. Learned counsel for the petitioner
relied on State of U.P. versus Mukh Ram
Singh and another; 1991(9)LCD 232,
Badi Bahu versus State of U.P. and
others;
1997(15)
LCD
1265,Vibhuti
Kumar Bajpai Versus State of U.P. and
others; 2008(26) LCD 832, Bal Krishna
versus State of U.P. and others; 1984 LCD
115, Ram Sagar versus Civil Judge,
Bahraich and others; 1984(2) LCD 300, S
Ram Chandra Rao versus Nagabhushana
Rao and others; 2023 (41) LCD 1,
Bhagwan Singh and another versus State
of U.P. and others; 1996(14) LCD 387, Raj
Bahadur versus State of U.P. and others;
1996(14) LCD 248, Raja Mahipal Singh
versus State of Uttar Pradesh and others;
2007(25)
LCD
1196,
Kaushlender
Bahadur Singh versus State of U.P.;
2022(40) LCD 765, Adi Kumar Jain
versus Additional Commissioner(Admn)
5 All. Preetam Singh Vs. State of U.P.
1207
Faizzbad and others; 2016(34) LCD 699,
Smt. Binda Gupta and others versus State
of Uttar Pradesh and others; 2003(21)
LCD 511, Rajendra Prasad Tiwari versus
State of U.P. and others; 2022 (40) LCD
1836, Kunwar Bahadur Singh versus
Prescribed
Authority/A.D.M.
Ceiling,
Unnao and another; 2022(40) LCD 891
and Shantanu Kumar versus State of U.P.
and others;1979 AWC(F.B.) 585.

9. Per contra, learned Standing
Counsel submitted that the notice was
given to the petitioner on the basis of
Section 29 of the Act of 1960 in view of the
unirrigated land became irrigated land
therefore the contention of learned counsel
for the petitioner regarding bar of res-
judicata and limitation does not arise and is
misconceived and not tenable. He further
submitted that the petitioner had never
taken a plea either before the prescribed
authority or before the appellate court or
this Court in the petition that the sons of
petitioner have become major and they
have been allotted separate chaks in the
consolidation proceedings, therefore it is
not tenable. Even otherwise, it appears that
the sons of the petitioner have been
recorded as tenure holders after passing of
the orders, and during lifetime of petitioner
therefore the petitioner is not entitled for
any benefit on this ground. He further
submitted that on the basis of the oral as
well as documentary evidence adduced
before
the
prescribed
authority,
the
prescribed authority found that there is tube
well in the land in dispute by which all the
land is being irrigated. The crops such as
wheat and sugar cane etc. are being sown,
which are not possible without water. The
land is also domat auval and capable of two
crops and of higher quality. The petitioner
has failed to contradict the findings
recorded by the prescribed authority, which
are recorded on the basis of material
available on record. He also submitted that
before the appellate authority or this Court
also the petitioner has failed to show that
his land is unirrigated.

10. On the basis of above, learned
Standing Counsel submitted that the
impugned orders have rightly been passed
in accordance with law. There is no
illegality or error in the impugned orders.
The writ petition has been filed on
misconceived and baseless grounds which
is liable to be dismissed with cost. Learned
Standing Counsel relied on State of U.P.
versus
The Additional
Commissioner
Judicial and Ors.;MANU/UP/2168/2022.

11. I have considered the submissions
of learned counsel for the parties and
perused the records.

12. The notice was given to the
petitioner in the year 1995 on the basis of
Section 29 of the Act of 1960 proposing
19.682 acres irrigated land as surplus
giving benefit of 18.03 acres irrigated land
to the petitioner. The petitioner submitted a
reply dated 06.03.1995. After submission
of reply by the petitioner, the evidence was
adduced by the parties. After affording
opportunity of hearing to the parties, the
prescribed authority passed the order dated
11.04.1997, considering the evidence and
material on record and declared 19.682
acres of land of the petitioner as surplus in
irrigated terms and 18.038 acres of land has
been given to the petitioner for use. The
petitioner challenged the said order in
appeal, which has been dismissed. Hence
the present petition has been filed.

13. The first contention of learned
counsel for the petitioner is that the notice
issued in the year 1995 is barred by
1208 INDIAN LAW REPORTS ALLAHABAD SERIES
limitation under Section 13 A of the Act of
1960 as well as res-judicata. Section 29 of
Act of 1960, on the basis of which, the
notice was issued provides that where after
the date of enforcement of the Uttar
Pradesh Imposition of Ceiling on Land
Holdings (Amendment) Act, 1972 any
unirrigated land becomes irrigated land as a
result of irrigation from a State irrigation
work or any grove-land loses its character
as grove-land or any land exempted under
this Act ceases to fall under any of the
categories exempted, the ceiling area shall
be
liable
to
be
redetermined
and
accordingly the provisions of this Act,
except Section 16, shall mutatis mutandis
apply. Section 29 is extracted here-inbelow:-

29. Subsequent declaration of
further land as surplus land- Where after
the date of enforcement of the Uttar
Pradesh Imposition of Ceiling on Land
Holdings (Amendment) Act, 1972-

(a) one land has come to be held by a
tenure-holder under a decree or order of
any Court, or as a result of succession or
transfer, or by prescription in consequence
of adverse possession, and such land
together with the land already held by him
exceeds the ceiling area applicable to him;
or

(b) any unirrigated land becomes
irrigated land as a result of irrigation from
a State irrigation work or any grove-land
loses its character as grove-land or any
land exempted under this Act ceases to fall
under any of the categories exempted,

the ceiling area shall be liable to be
redetermined
[and
accordingly
the
provisions of this Act, except Section 16,
shall mutatis mutandis apply].

14. In view of above, where after the
date of enforcement of the Uttar Pradesh
Imposition of Ceiling on Land Holdings
(Amendment) Act, 1972, the unirrigated
land becomes irrigated land or any groveland loses its character as grove-land or any
land exempted under this Act ceases to fall
under any of the categories exempted, the
ceiling area was liable to be re-determined
and for the said purpose all the provisions
of the Act, except Section 16 were
applicable mutatis mutandis. Therefore the
contention of learned counsel for the
petitioner,
on
the
basis
of
earlier
proceedings against the petitioner that it is
barred by res judicata is mis- conceived and
not tenable and liable to be rejected
because in case the unirrigated land became
irrigated the proceedings could have been
held as per Section 29 of the Act of 1960.

15. The Hon'ble Supreme Court, in
the case of S.Ramchandra Rao versus S.
Nagabhushana Rao and others(supra),
has held that the doctrine of res judicata,
having a very ancient history, embodies a
rule of universal law and is a sum total of
public policy reflected in various maxims
like ''res-judicata pro veritate occipitur',
which means that a judicial decision must
be accepted as correct and ''nemo debet bis
vexari pro una et eadem causa', which
means that no man should be vexed twice
for the same cause. This case is not
applicable in the present case because in
the present case the action has been taken
under statutory provision on the basis of
changed circumstances, under Section 29
of the Act of 1960 therefore it is not barred
by res-judicata.

16. So far as the plea of limitation in
view of Section 13A is concerned, the said
provision is for rectifying any mistake
apparent on the face of the record within a
period of two years from the date of
notification under sub-section (4) of
5 All. Preetam Singh Vs. State of U.P.
1209
Section 14. Section 13-A and Section 14(4)
of the Act of 1960 are extracted below:-

[13A. Redetermination of surplus
land in certain cases. -(1) The Prescribed
Authority may, at any time, within a period
of two years from the date of the
notification
under[sub-section
(4)
of
Section 14], rectify any mistake apparent
on the face of the record :

Providing that no such rectification
which has the effect of increasing the
surplus land shall be made, unless the
Prescribed Authority has given notice to
the tenure-holder of its intention to do so
and
has
given
him
a
reasonable
opportunity of being heard.

(2) The provisions of Sections 10, 11,
12, 12-A, 13, 14, [15 and 16]shall mutatis
mutandis
apply
in
relation
to
any
proceeding under sub-section (1), and for
purposes of application of Section 10, the
notice under the proviso to sub-section (1),
shall be deemed to be a notice under
Section 9.]

14(4) The Prescribed Authority shall,
as soon as may be after the date mentioned
in clause (a), clause (b) or clause (c), as
the case may be, of sub-section (1), notify
in the Official Gazette every surplus land
determined under this Act, or under Section
9 of the Uttar Pradesh Imposition of
Ceiling on Land Holdings (Amendment)
Act, 1974 or under Section 31 of the Uttar
Pradesh Imposition of Ceiling on Land
Holdings (Amendment) Act, 1976.

17. In view of above also, the action
taken under Section 29 of the Act of 1960
cannot be said to be barred by res-judicata
or beyond limitation in view of Section
13A of the Act of 1960 because both the
provisions
are
for
different
situations/contingencies.

18. The next contention of learned
counsel for the petitioner is that the sons of
the petitioner had become major and after
consolidation
proceedings,
they
were
alloted separate holdings, therefore notice
was required to be given to them also but
the notice was not given to them, therefore
the impugned order is not tenable. Perusal
of the objection filed by the petitioner on
06.03.1995 against the notice indicates that
no such plea was taken by the petitioner.
Even in the appeal filed by the petitioner
against the order passed by the prescribed
authority before the appellate authority on
11.04.1997,this plea was not taken. Even in
this petition and the rejoinder affidavit, the
petitioner has not taken this plea. For the
first time in the supplementary affidavit
filed on 23.11.2022, it has been stated that
both the sons of the petitioner have got
separate chaks, they are major and separate
tenure holders and are entitled to get 7.30
hectare each under the Ceiling Act. This
plea has been taken without disclosing as to
when they became major and got separate
chaks and how during lifetime of petitioner.
Form 45 filed by the petitioner, though
indicates the name of the sons of the
petitioner, namely Gurmeet Singh and
Paramjeet Singh having their separate
chaks but it does not indicate as to when
these have been prepared, whereas these
have been got issued on 18.10.2022. On a
specific query being put to learned counsel
for the petitioner, as to when the
consolidation proceedings had taken place
and the name of the sons of the petitioners
were recorded separately, he had stated that
the consolidation had taken place in the
year 1998 and the name of sons of the
petitioner were recorded separately. The
prescribed authority had decided the case
by means of the order dated 11.04.1997.
Therefore it is apparent that at the time of
start of proceedings as per Section 29 of the
1210 INDIAN LAW REPORTS ALLAHABAD SERIES
Act of 1960 or even by the time of passing
of the order by the prescribed authority, the
name of the sons of the petitioner were not
recorded separately. Therefore the plea that
the sons of the petitioner were separate
tenure holder in terms of Section 3(17) of
the Act of 1960 and required separate
notice was not taken, therefore now at this
stage it cannot be taken, even otherwise it
is mis- conceived and not tenable. A query
was also put to the learned counsel for the
petitioner as to how during life time of the
petitioner, the name of the sons of the
petitioner have been recorded separately,
learned counsel for the petitioner failed to
give any answer to it.

19. The next contention of learned
counsel for the petitioner is that the land of
the petitioner has not been declared
irrigated in accordance with Section 4 A of
the Act of 1960. The prescribed authority
without any evidence has held the land in
dispute to be irrigated whereas it was
unirrigated. Section 4 A of the Act of 1960
is extracted here-in-below:-

[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-
3

(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 of an area, the farthest field
whereof in any direction was irrigated-

(a) in any of the years 1378 Fasli,
1379 Falsi 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 purposes of this
Section.

Explanation III- Where sugarcane
crop was grown on any land in any of the
year of 1378 Falsi, 1379 Fasli and 1380
Falsi, 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."
5 All. Preetam Singh Vs. State of U.P.
1211

20. The aforesaid Section 4A of the
Act of 1960 contemplates the situations in
which the land can be said to be irrigated.
Firstly irrigation facility and growing of
two crops in any of the three years.
Secondly where irrigation facility became
available to any land after coming into
enforcement of the Amendment Act of
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. Lastly land should be
situated within effective command area of
lift irrigation canal, tubewell, a private
irrigation work and class and composition
of soil may be such that it may be capable
of growing two crops. Rule 3 of the U.P.
Imposition of Land Holdings Rules 1961,
as amended by means of the notification
dated
18.09.1975
w.e.f.
19.09.1975,
provides;
''In
areas
where
due
to
consolidation
operations
or
record
operations or for any other reason no
Khasras were prepared during the years
mentioned in Section 4-A, the Prescribed
Authority while examining other records
may also examine available Khasras for the
three latest years preceding the year in
which the Khasra was not prepared'.

21. The prescribed authority decided
the issues nos. 2,3 and 4 together. The
prescribed authority after considering the
evidence and material on record and
considering the Khatauni of the 1399-1404
Fasli and Khasra 1402 Fasli and CH Form
45 and 41 and oral evidence, which proved
the same, recorded a categorical finding
that there are provisions of irrigation in all
the plots and wheat and sugar cane etc. are
being sown which is not possible without
the facility of water. A specific finding has
also been recorded that in Gata No.115 of
the petitioner there is a tube well from
which all the gatas of the petitioners are
being irrigated. It has been proved by the
Khasra of 1402 Fasli i.e. the relevant year
in which notice was issued and evidence of
Lekhpal and Assitant Registrar Kanoongo.
CH Form 41 also shows that the land is of
the high quality, the soil is Domut Auval
and there are tube well in many of other
gatas also. Accordingly recorded a finding
that leaving the abadi and grove land of
petitioner all is irrigated land and capable
of growing two crops. These findings have
not been challenged by the petitioner either
before the appellate authority or before this
Court and filed any cogent evidence to
controvert these findings.

22. This Court, in the case of State of
U.P. versus Mukh Ram Singh and
another(supra),
has
held
that
the
prescribed authority has not specifically
recorded the finding that the class and
composition of the 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 Section 4-A, and clause thirdly of
that Section, that it is an irrigated plot.
Moreover a finding of fact recorded on the basis
of appreciation of evidence including Khasra
cannot be interfered.

23. This Court, in the case of Badi
Bahu
versus
State
of
U.P.
and
others(supra), has held that so far as
consideration of the agricultural character
of the land, it is also significant to note that
the notice was issued in 1982 then it was
the duty of the competent authority to see
as to whether the irrigation facilities were
available in the relevant year as provided
under Section 4-A.

24. This Court in the case of Vibhuti
Kumar Bajpai versus State of U.P.(supra)
1212 INDIAN LAW REPORTS ALLAHABAD SERIES
has held that question as to what extent the
land is covered under water and is
submerged in water and no cultivation is
taking place on the same, has not been
taken into consideration by the prescribed
authority.

25. This Court, in the case of Bal
Krishna versus State of U.P. and
others(supra), has held that in Kallu Vs.
State (1979 ALJ 1113), while interpreting
sub-cl.(a) of section 4-A of the U.P.
Imposition of Ceiling on Land Holdings
Act it was observed that if irrigation
facilities of the nature mentioned in subcl.(a) of cl. ''firstly' of S.4-A are available
only to a part of the total area of which a
plot is comprised, it cannot be held that
irrigation facilities were available for the
entire plot, meaning thereby that other plot
is not unirrigated.

26. This Court, in the case of Ram
Sagar versus Civil Judge, Bahraich and
others(supra), has held that it is well
settled that while computing the irrigated
area, the prescribed authority has to
consider Khasra and relevant revenue
records in order to find out whether
irrigation facilities were available to any
land in respect of any crop. It has further
been held that it is also equally well settled
that the onus lies on the state to establish
that the land which is mentioned in the
notice is irrigated land.

27. This Court, in the case of
Bhagwan Singh versus State of U.P.and
others(supra), has considered the scope of
Section 4Aof the Act of 1960. The relevant
portion of paragraph 5 is extracted
hereinbelow:

"Section 4 A provides for determining
a land to be irrigated under 3 conditions
mentioned therein as firstly, secondly and
thirdly. While enacting said provision the
legislature was aware about the difference
between soil capacity of growing at least
two crops in one agricultural year and
actual growing of two crops. In cases firstly
and secondly of said section the language
used is at least two crops were grown
whereas under thirdly the test which has
been provided is that the composition of
soil is such that it is capable of growing at
least two crops. The legislature having
been
conscious
about
the
difference
between the two and providing different test
under different condition has been specific
in providing for actual growing of two
crops under Section 4 A secondly. For the
aforesaid reasons it is to be held that
under S. 4-A secondly unless two crops
are actually grown after the date of
enforcement of Amending Act and date of
issuing of notice under Section 29(b), the
land
cannot
be
treated
as
irrigated.........."

28. This Court, in the case of Raj
Bahadur versus State of U.P. and
others(supra), has held that the land can be
declared as surplus if the land was covered
by the test laid down under Section 4-A.
The test laid down under Section 4-A of the
Act has to be followed in all cases where
ceiling area is to be re-determined after
coming into operation of U.P. Imposition of
Ceiling on Land Holdings (Amendment)
Act 1972.

29. This Court, in the case of Raja
Mahipal Singh versus State of U.P. and
others(supra), has observed that the
Prescribed Authority is required to consider
the date of mutation in favour of the
transferees and the question regarding
nature of some plot being irrigated or not or
being grove or not and if there is reduction
5 All. Preetam Singh Vs. State of U.P.
1213
in valuation of land due to change of plots
in consolidation proceedings.

30. This Court, in the case of
Kaushlendra Bahadur Singh versus State
of U.P.(supra), has observed that it is
apparent from the 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
and local inspection as such is meant
merely to be corrobrative and cannot form
the basis for determination of irrigated land
keeping in view the specific provisions of
Section 4 A of the Act of 1960.

31. This Court, in the case of Adi
Kumar
Jain
versus
Additional
Commissioner
and
others
(supra),
Rajendra Prasad Tiwari versus State of
U.P. and others(supra) AND Smt. Binda
Gupta versus State of U.P. and others
(supra) have also taken the similar view.

32. This Court, in the case of Kunwar
Bahadur
Singh
and
others
versus
Prescribed Authority and another(supra),
has held that for issuance of a fresh notice
under Section 10(2) of the Act of 1960, the
conditions stipulated under Section 29 are
required to be fulfilled. The relevant
paragraphs 14 and 15 are extracted
hereinbelow:

"14. For the purposes of a fresh notice
under Section 10(2) of Act of 1960
pertaining to subsequent declaration of
further land as surplus land after the
enforcement of Amendment Act of 1972, it
is imperative that the land has come to be
held by a tenure holder under a decree or
order of any Court, or as a result of
succession or transfer, or by prescription in
consequence of an adverse possession, and
such land together with the land already
held by him exceeds the ceiling area
applicable to him or that any other
unirrigated land becomes irrigated land as
a result of irrigation under certain
conditions.

15. Once the said conditions of Section
29 are fulfilled, the provisions of Section 30
of the Act become applicable. From a
perusal of aforesaid proceedings, it is clear
that for issuance of a fresh notice under
Section 10(2) of Act of 1960, the conditions
stipulated under section 29 of Act of 1960
are compulsorily required to be fulfilled."

33. A Full Bench of this Court, in the
case of Shantanu Kumar versus State of
U.P. and others(supra), has held that the
existence of another remedy under the Act
cannot validate the proceedings which are
void for lack of jurisdication and which
have resulted in the delcaration as surplus
land of an area which a person other than
the tenure holder who has been heard
claims.

34. A Coordinate Bench of this Court
in the case of State of U.P. versus The
Additional Commissioner Judicial and
others(supra),
has
observed
that
in
Explanation (III) of Section 4A, where
sugar cane crop has been recorded on
Khasra in any of the fasli years, it shall be
deemed that two crops are grown on it and
that land is capable of growing two crops in
an agricultural year. It has further been
observed that 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. 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. The respondent has
1214 INDIAN LAW REPORTS ALLAHABAD SERIES
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. In the
present case also, the findings have been
recorded on the basis of the Khasra of the
relevant year i.e. 1402 Fasli and supported
by the evidence of Area Lekhpal, Lekhpal
who prepared the file and the Assistant
Registrar, Kanoongo, which have not been
controverted by the petitioner at any stage
by any cogent evidence.

35. Coming back to the facts of the
case in hand and considering the same in
the light of the law and the case laws,
referred above, it is apparent that the notice
was rightly issued to the petitioner in
accordance with law and as per Section 29
of the Act of 1960. The plea of limitation
and res-judicata taken by the petitioner are
not tenable as discussed above. The plea
that notice was required to be given to the
sons of the petitioner is also not tenable
because it was never taken except in the
supplimentary affidavit filed in November
2022, therefore since it was not taken
before
the
Prescribed
Authority
or
Appellate Authority and even in this
petition upto the stage of rejoinder affidavit
it is not considerable, even otherwise the
petitioner has failed to give the relevant
details in this regard and as admitted by
learned counsel for the petitioner, the
separate chaks were allotted in 1998 i.e.
after passing of the order by the Prescribed
Authority. All the land of the petitioner,
except abadi and grove land of petitioner
has been found irrigated on the basis of
Khasra of the relevant year, material and
evidence on record, and the factual finding
recorded by the prescribed authority is
unchallenged and no material contrary to it
has been produced, therefore the factual
finding cannot be interfered by this Court.
Thus, this Court is of the view that the
impugned orders have rightly been passed
in accordance with law and after affording
sufficient opportunity to the petitioner. The
writ petition has been filed on mis
conceived and baseless grounds, therefore
it lacks merit and liable to be dismissed.

36. The writ petition is, accordingly,
dismissed. No order as to costs.
----------
(2023) 5 ILRA 1214
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 06.04.2023

BEFORE

THE HON'BLE RAM MANOHAR NARAYAN
MISHRA, J.

Matters Under Article 227 No. 271 of 2023

Naveen Kumar Sharma & Anr.
 ...Petitioners
Versus
State Of U.P. & Anr. ...Respondents

Counsel for the Petitioners:
Sri Utkarsh Dixit, Sri Anupam Shyam
Dwivedi, Sri Sudhir Dixit

Counsel for the Respondents:
G.A., Sri Ardhendu Shekhar Sharma, Sri
Ram Babu Sharma

A. Criminal/Banking Law - Negotiable
Instruments Act, 1881: Section 138 -
Handing over of the cheques by way of
security per se would not extricate the
accused from the discharge of liability
arising from such cheques. (Para 8, 18)

In the present case, whether the account of
which said cheque was drawn, was having
sufficient balance to pay the amount gathered
by said cheque worth Rs. 90,000,00/- drawn in
favour of respondent, whether petitioner was
having some other account apart from the