# Sita Ram & Ors v. State Of U.P. & Ors

- **Citation:** (2022) 3 ILRA 720
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2022-02-25
- **Case number:** Writ C No. 3000024 of 1998
- **Bench:** Dinesh Kumar Singh
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/sita-ram-ors-v-state-of-u-p-ors-48231
- **Pages:** 5

## Headnote

Act, 1960 - Section 4A - Determination of
irrigated land - To determine whether the
land is irrigated or un-irrigated, 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 and, thereafter, the prescribed
authority may proceed to determine the
nature of land whether it is un-irrigated or
irrigated

Notice u/s 10(2) was issued & in CLH Form-3 an
area of 7.25 acres in terms of the irrigated land
was proposed to be declared as surplus -
petitioner filed objection that land was wrongly
shown as irrigated land & In relevant khasra for
the Fasli Years 1378, 1379 and 1380 petitioners'
land has been shown as un-irrigated and single
crop land - Held - neither the prescribed
authority nor the appellate authority has
considered the khasras of relevant years i.e.
1378 to 1380 Fasli, which is required to be
considered - Impugned order quashed

Allowed. (E-5)

List of Cases cited:

Ram Autar Singh Vs Addl. Commissioner
(Administration) & anr., 1995 (2) AWC 1115

## Text

720 INDIAN LAW REPORTS ALLAHABAD SERIES
Additional
Commissioner
(Judicial),
Lucknow Division, Lucknow, copies of
which are contained in Annexure No. 1 and
2 to the writ petition respectively, are
hereby set-aside. The matter is remitted
back to the Prescribed Authority to decide a
fresh the objections filed by the petitioners
under Section 11(2) of the Act, 1960 after
affording them opportunity for leading
evidence
and,
pass
a
fresh
order
expeditiously.
----------
(2022)03ILR A720
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 25.02.2022

BEFORE

THE HON'BLE DINESH KUMAR SINGH, J.

Writ C No. 3000024 of 1998

Sita Ram & Ors. ...Petitioners
Versus
State Of U.P. & Ors. ....Respondents

Counsel for the Petitioners:
Sri R.P.Singh

Counsel for the Respondents:
C.S.C.

U.P. Imposition of Ceiling on Land Holdings
Act, 1960 - Section 4A - Determination of
irrigated land - To determine whether the
land is irrigated or un-irrigated, 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 and, thereafter, the prescribed
authority may proceed to determine the
nature of land whether it is un-irrigated or
irrigated

Notice u/s 10(2) was issued & in CLH Form-3 an
area of 7.25 acres in terms of the irrigated land
was proposed to be declared as surplus -
petitioner filed objection that land was wrongly
shown as irrigated land & In relevant khasra for
the Fasli Years 1378, 1379 and 1380 petitioners'
land has been shown as un-irrigated and single
crop land - Held - neither the prescribed
authority nor the appellate authority has
considered the khasras of relevant years i.e.
1378 to 1380 Fasli, which is required to be
considered - Impugned order quashed

Allowed. (E-5)

List of Cases cited:

Ram Autar Singh Vs Addl. Commissioner
(Administration) & anr., 1995 (2) AWC 1115

(Delivered by Hon'ble Dinesh Kumar
Singh, J.)

1. The present writ petition has been
filed by the petitioners, who are the sons of
Lodhey Ram, the original tenure holder,
impugning the order dated 31.8.1995 and
30.9.1997
passed
by
the
prescribed
authority and the appellate authority under
the provisions of the U.P. Imposition of
Ceiling on Land Holdings Act, 1960 (For
short 'the Act, 1960').

2. Notice under Section 10(2) of the
Act, 1960 was issued to the father of the
petitioners. In CLH Form-3 annexed with
the notice, area of 7.25 acres in terms of the
irrigated land was proposed to be declared
as surplus. Father of the petitioners filed
objection against the said notice. One of the
prime objection was that land of the father
of the petitioners was un-irrigated and it
was not an irrigated land and in respect of
Plot Nos.306, 307, 308, 321, 328 and 329,
it was wrongly shown as irrigated land.

3. During the pendency of the
proceedings
before
the
prescribed
authority, father of the petitioners died.
3 All. Sita Ram & Ors. Vs. State of U.P. & Ors.
721
Thereafter, the petitioners entered into the
proceedings and filed other documentary
evidence and also adduced oral evidence to
prove their contention that land in Plot
Nos.306, 307, 308, 321, 328 and 329 was
an un-irrigated land.

4. The prescribed authority, however,
vide order dated 7.2.1975 declared the area
of 7.25 acres land of the petitioners in
terms of irrigated land as surplus. Feeling
aggrieved by the said order passed by the
prescribed
authority
dated
7.2.1975,
petitioners filed an appeal in the court of
the District Judge. However, the appeal
was allowed vide order dated 7.8.1975 and
the matter was remanded back to the
prescribed authority for deciding the case
of the petitioners afresh.

5. The prescribed authority again vide
order dated 31.3.1976, on remand, declared
area of 7.25 acres land in terms of irrigated
land as surplus. Against the said order
passed
by
the
prescribed
authority,
petitioners
preferred
an
appeal.
The
appellate court, however, vide order dated
27.9.1976 again directed the prescribed
authority to declare the surplus land taking
account the choice given by the petitioners
under Section 11(C) of the Act, 1960 and
dismissed the appeal on merit.

6. The petitioners again filed
objection 11(2) of the Act, 1960 before the
prescribed authority and the same was
rejected
vide order
dated
21.5.1980.
Against the said order, the petitioners again
preferred an appeal before the District
Judge.
However,
the
appellate
court
dismissed the appeal vide order dated
30.8.1980.

7. Aggrieved by the said order dated
30.8.1990 passed by the appellate court,
petitioners filed Writ Petition No.3359 of
1980 before this Court. This Court vide
order dated 4.9.1984 allowed the writ
petition and remanded the matter back to
the appellate court with certain directions.

8. From perusal of the order dated
4.9.1984 passed by this Court in Writ
Petition no.3359 of 1980, the only point,
which was to be considered by the
appellate court, was about the nature of the
land, whether the land in question was
within the provisions of the Act, 1960 and
whether it was un-irrigated land. The
appellate court vide order dated 23.2.1995,
on remand, remanded the matter back to
the prescribed authority for decision in the
matter in accordance with law keeping in
view the observation/directions of this
Court in the order dated 4.9.1984 passed in
Writ Petition No.3359 of 1980.

9. The prescribed authority himself
made spot inspection on 8.1.1990. It was
said that no notice was given to the
petitioners regarding spot inspection and
the report was prepared by the prescribed
authority behind the back of the petitioners.
On the basis of the spot inspection, the
prescribed authority decided the petitioners'
objection vide order dated 31.8.1995 and
rejected the claim of the petitioners for the
land being un-irrigated. Against the said
order passed by the prescribed authority,
the petitioners have preferred an appeal
before the appellate court. However, the
appellate authority dismissed the appeal
vide impugned order dated 30.9.1997.

10. Sri R.P. Singh, Learned counsel
for the petitioners submits that provision
for determining the nature of the land
(irrigated and un-irrigated) is provided in
Section 4(A) of the Act, 1960. He further
submits that to determine whether the land
722 INDIAN LAW REPORTS ALLAHABAD SERIES
is irrigated or un-irrigated, the relevant
khasra for the Fasli Years 1378, 1379 and
1380 were required to be seen. He also
submits that in all the above Fasli years, the
petitioners' land has been shown as unirrigated and single crop land. It is
submitted that when the documentary
evidence provides that the land was unirrigated, which is the mandate of the
statute under Section 4(A) of the Act, 1960
to determine the nature of the land, the
prescribed authority was not well within
the power to make spot inspection to
determine the nature of the land. If there
was no documentary evidence in respect of
the three Fasli years i.e. 1378, 1379 and
1380, then only the prescribed authority
could have made spot inspection or
appointed a commission for determining
the nature of the land. He, therefore,
submits that the prescribed authority and
the appellate authority have grossly erred in
dismissing the objection of the petitioners
so far the determination of the nature of the
land of the petitioners in Gata Nos.306,
307, 308, 321, 328 and 329 is concerned.

11. On the other hand, Sri J.P.
Maurya, learned Additional Chief Standing
Counsel, has submitted that there is no bar
for the prescribed authority to make spot
inspection even if there is entry in the
khasra
of
1378
to 1380
Fasli
for
determining nature of the land being unirrigated and single crop land. He further
submits that the land of two villages, which
is the subject matter of the proceedings,
comes within the command area and
irrigation facility was provided by the
State. Therefore, neither the appellate
authority nor the prescribed authority has
committed any error of law.

12. I have considered the submissions
advanced by the learned counsel for the
petitioners as well as by the learned
Additional Chief Standing Counsel for the
State-opposite parties.

13. The Legislature has amended the
Act, 1960 by U.P. Act No.2 of 1975 with
retrospective effect w.e.f. 8.6.1973. Section
4(A) has been inserted in the said
legislation for determination of the irrigated
land, which reads as under:-

"4A. Determination of irrigated
land. - The prescribed authority shall
examine the relevant Khasras for the years
1378 Fasli, 1979 Fasli and 1380 Fasli, the
latest village map and such other records
as it may consider necessary, and may also
make local inspection where it considers
necessary and thereupon if the prescribed
authority is of opinion :-

firstly, (a) that, irrigation facility
was available for any land in respect of any
crop in any one of the aforesaid years; by -

(i)
any
canal
included
in
Schedule NO. 1 of irrigation rates notified
in Notification No. 1579-W/XXIII-62-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
3 All. Sita Ram & Ors. Vs. State of U.P. & Ors.
723
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 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'."

14. From perusal of Section 4(A) of the
Act, 1960, it is clear that besides examining
khasras of 1378 to 1380 Fasli, the prescribed
authority is required to examine the latest village
map and such other records which may be
considered necessary for the purpose and, may
also make local inspection, if it considers
necessary and, thereafter, the prescribed authority
may proceed to determine the nature of land
whether it is un-irrigated or irrigated considering
the factors as mentioned in the sub-sections.

15. In view of the aforesaid, I find
substance in the submission of Sri J.P.
Maurya, learned Additional Chief Standing
Counsel that the prescribed authority was
well within the power to make spot
inspection besides considering the khasras
of 1378-1380 Fasli, as it is provided in the
Act, 1960 itself.

16. This Court in the case of Ram
Autar Singh vs. Addl. Commissioner
(Administration) and another, 1995 (2)
AWC 1115 has held that under the
provisions of Section 4(A) of the Act,
1960, the onus of burden of proof not only
lies with the tenure holder, but at the same
time, it also lies with the prescribed
authority, when such dispute is raised by
the tenure holder in respect of the nature of
the land. The prescribed authority is
required to examine the relevant khasras of
respective years. If the prescribed authority
does not discharge such duty of examining
the relevant khasras, the order passed by
the prescribed authority is bad in law.
Paragraphs 16 to 18 of the aforesaid
judgement are extracted herein below:-

"16.
I
have
carefully
gone
through the facts of the writ petition,
respective submissions of the learned
counsel for the parties, and, meticulously to
the provisions of Section 4A of the Act, and,
am of the opinion that the onus of burden of
proof not only lies with the writ petitioners,
but, at the same time, it also lies with the
prescribed authority, when such dispute
has been raised by the petitioners to
examine the relevant khasras of respective
years, which has not been discharged,
either by the prescribed authority, or, by
the appellate authority.

17. That being the factual and
legal position, this Court is of the view that
the impugned orders passed by the
prescribed authority dated February 29,
724 INDIAN LAW REPORTS ALLAHABAD SERIES
1988 and of the appellate authority dated
July 28, 1988 contained in Annexures 1
and 2, respectively to the writ petition are
liable to be set aside.

18. Accordingly, in view of what
has been stated above, the impugned orders
dated February 29, 1988 passed by the
prescribed authority and dated July 28,
1988 passed by the appellate authority are
quashed. The entire matter is remanded
back to the prescribed authority for taking
afresh
decision,
after
examining
the
relevant khasras (referred to above). Such
determination has to be made as quickly as
possible, preferably within a period of two
months from the date of production of a
certified copy of this order. Petitioner is
also entitled to produce any evidence, and,
or, fact available with him, in support of
his case, at the resume hearing of the
matter after remand of the case. Petitioner
is further detected to take note of the next
date of hearing so that there may not be
any communication gap. Pending fresh
decision before the prescribed authority,
regarding possession of land, as on today,
parties are directed to maintain status
quo."

17. From perusal of the orders passed
by the prescribed authority and the
appellate authority, it is apparent that
neither the prescribed authority nor the
appellate authority has considered the
khasras of relevant years i.e. 1378 to 1380
Fasli, which is required to be considered
under the provisions of the Act, 1960 and
as has been held by this Court in the case of
Ram Autar Singh (supra).

18. In view thereof, the present writ
petition is allowed and the impugned orders
dated 31.8.1995 and 30.9.1997 passed by
opposite party nos.2 and 3 are hereby
quashed. The matter is remanded back to
the prescribed authority to take a fresh
decision regarding nature of the land after
considering the khasras of 1378 to 1380
Fasli. The prescribed authority should
proceed with the matter and determine the
said question regarding nature of the land,
preferably, within a period of four months.
Petitioners are directed to fully cooperate in
the proceedings.

19. Let a copy of this order be
submitted by the learned counsel for the
petitioners before the prescribed authority
within a period of fifteen days from today
for compliance.
----------
(2022)03ILR A724
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 24.02.2022

BEFORE

THE HON'BLE MANISH MATHUR, J.

Writ C No. 3000172 of 1995

Prabhawati ...Petitioner
Versus
Addl. Commisioner Lucknow Division
& Ors. ...Respondents

Counsel for the Petitioner:
Sri V,K, Pandey

Counsel for the Respondents:
C.S.C.

A. Civil Law - U.P. Imposition of Ceiling on
Land Holdings Act, 1960: Section 5(6)(b),
37, 38 - Certain portion of petitioner's holdings
have been held to be surplus in view of the
provisions of U.P. Imposition of Ceiling on Land
Holdings Act, 1960. The authorities have drawn
an adverse inference against the petitioner on
the twin grounds that neither the plaintiff
presented herself nor was the sale deed on the