# State of U.P v. The Addl. Commissioner Judicial & Anr

- **Citation:** (2022) 6 ILRA 305
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2022-05-30
- **Case number:** Writ-C No. 3000118 of 1994
- **Bench:** Shree Prakash Singh
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/state-of-u-p-v-the-addl-commissioner-judicial-anr-48661
- **Pages:** 12

## Headnote

A. Ceiling Law - Imposition of Ceiling on
Land Holdings Act, 1960 - Section 4-A -
Declaration as the surplus and - Irrigation
306 INDIAN LAW REPORTS ALLAHABAD SERIES
land - Khasra reveals that the land is
capable of growing two crops in a year -
Report of Advocate commissioner found a
tube-well over the land - Effect - Appeal
was allowed by Additional Commissioner
and the order of Prescribed authority to
declare the surplus land was set aside -
No reason assigned - Legality challenged
-
Held,
the
appellate
authority
has
decided the matter in a very cursory
manner and the issue which were raised
by the petitioner before the appellate
authority were either ignored or has not
been considered in right perspective -
Held further, the finding recorded by the
appellate authority is wholly perverse and
is against the settled proposition of law.
(Para 10, 32, 33 and 39)
Writ petition allowed (E-1)
List of Cases cited :-

## Text

_Characters 0–39,951 of 40,816. This is a partial read: ask again with offset=39951 for what follows._

6 All. State of U.P. Vs. The Addl. Commissioner Judicial & Anr.
305
picture wherein the Commissioner is
empowered to either on his own motion or
on the application of the aggrieved person,
inquired into such settlement and if he
found that the same is irregular, he may
issue
show
cause.
The
word
'such
settlement' envisaged in Section 4, derives
its intention from two settlement. One
which
is
been
done
by
the
State
Government under Sub-Section (1) and in
Sub-section (3) by the Collector. Mode has
been prescribed under Section 27(4) that
the Commissioner on his own motion or
any application by any aggrieved person
has been mentioned. So far as own motion
is concerned, that does not attract in the
instant matter but second word which an
application of 'any aggrieved person' is
been
qualified
by
the
word
'such
settlement'.

23. It is admitted fact that the
petitioner is not a person who comes under
clause 1 or clause 3 of Section 27 of the
Act, 1960 for settlement of surplus land,
and therefore, the present petitioners would
not be covered under the purview of the
words 'any aggrieved person'.

24. It is case of the petitioners that
they were the co-tenure holders of Raja
Pratap
Bahadur
Singh
and
without
issuance of notice under Section 10(2) of
the Act, 1960, their land was declared as
surplus land, and as such, the petitioners
if aggrieved, in any way, are not by any
order of settlement passed under SubSection (1) and (3) of Section 27 of the
Act, 1960 but they may be person
aggrieved by the order passed by the
prescribed authority whereby the land of
the petitioners has been declared as
surplus land. The order passed by the
prescribed authority can said to be an
order passed in absence of the petitioners.

25. The appellate authority while
passing the order in appeal which is under
challenge in the writ petition has very
clearly given its finding that the application
under Section 27(4) does not attract in the
matter of the petitioners and as such the
order passed by the appellate authority does
not assail any illegality or infirmity.

26. In view of the aforesaid
submissions and discussions, the writ
petition is devoid of merit.

27. Accordingly, the writ petition is
hereby dismissed.

28. However, it is open to the
petitioners to adopt the legal recourse
which is available to them in accordance
with law.

29. No order as to cost.
----------
(2022)06ILR A305
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 30.05.2022

BEFORE

THE HON'BLE SHREE PRAKASH SINGH, J.

Writ-C No. 3000118 of 1994

State of U.P. ...Petitioner
Versus
The Addl. Commissioner Judicial & Anr.
 ...Respondents

Counsel for the Petitioner:
C.S.C.

Counsel for the Respondents:
V K Pandey

A. Ceiling Law - Imposition of Ceiling on
Land Holdings Act, 1960 - Section 4-A -
Declaration as the surplus and - Irrigation
306 INDIAN LAW REPORTS ALLAHABAD SERIES
land - Khasra reveals that the land is
capable of growing two crops in a year -
Report of Advocate commissioner found a
tube-well over the land - Effect - Appeal
was allowed by Additional Commissioner
and the order of Prescribed authority to
declare the surplus land was set aside -
No reason assigned - Legality challenged
-
Held,
the
appellate
authority
has
decided the matter in a very cursory
manner and the issue which were raised
by the petitioner before the appellate
authority were either ignored or has not
been considered in right perspective -
Held further, the finding recorded by the
appellate authority is wholly perverse and
is against the settled proposition of law.
(Para 10, 32, 33 and 39)
Writ petition allowed (E-1)
List of Cases cited :-
1. Civil Appeal No. 3241 1979; Kallu and ors Vs
St. of U.P. & ors. decided on 24.10.1989
2. Writ Petition No. 11170 of 1975; Shyamvir
Singh Vs The State of U.P. & ors. decided on
01.03.1978
3. Jaswant Singh Vs St. of U.P. & ors. 1978 AWC
577
4. St. of U.P. through Collector Vs Mukh Ram
Singh & anr.; 1991 RD 312
5. Dhirendra Mohan Chaudhary & ors. Vs IInd
Additional District Judge, Bareilly & ors. 1979
AWC 9
(Delivered by Hon'ble Shree Prakash
Singh, J.)

1. Heard Sri Gopal Krishna Pathak,
learned Additional Chief Standing Counsel
for the State and Sri V.K.Pandey, learned
counsel for the respondents and perused the
record. .

2. By means of the instant writ
petition the petitioner has prayed for
issuance of a writ, order or direction in the
nature of certiorari quashing the impugned
judgment and order dated 12.07.1993
passed by the opposite party no. 1 i.e., The
Additional
Commissioner
(Judicial)
Lucknow Division, Lucknow.

3. The factual matrix of the case is
that a notice under Section 10(2) was
issued to opposite party no. 2 namely Sri
Basudeo Pal, the original tenure holder
mentioning therein 40.5 acres of land as
irrigated land and an area of 22.462 acres
was proposed to be surplus land. After the
aforesaid notice the objection was filed
mentioning therein that the entire land of
village Suabojh has wrongly been shown as
irrigated land. He also mentioned the fact
in the objection that there are 2 acres of
land as USAR land and on some of the
portion, there is building etc. On the
aforesaid
objections,
the
prescribed
authority
appointed
an
Advocate
Commission
and
the
Advocate
Commissioner prepared a report and
submitted the same mentioning therein the
status of the land. In the report, Advocate
Commissioner
mentioned
a
tube-well
installed over the agricultural land.

4. After considering the aforesaid
report the prescribed authority decided the
objection of opposite party no. 2 on
10.03.1975, on the premises that the land is
irrigated and 4.126 acres of land was
declared as surplus land.

5. After the aforesaid order dated
10.03.1975, the opposite party no. 2
preferred an appeal on the ground that the
order dated 10.03.1975 is in violation of
mandate of Section 4-A of the Imposition
of Ceiling on Land Holdings Act, 1960
(hereinafter referred to as Act, 1960). The
appeal filed by the opposite party no. 2 was
dismissed by the 4th Additional & District
Sessions Judge, Kheri vide order dated
6 All. State of U.P. Vs. The Addl. Commissioner Judicial & Anr.
307
17.10.1975, wherein holding that Khasra
pertaining 1378, 1379 and 1380 fasli are
indicating that the land is capable of
growing two crops and there is private
irrigation work.

6. He submits that being aggrieved
from the judgment and order dated
17.10.1975, the opposite party no. 2
preferred Writ Petition No. 2973 of 1975
before Hon'ble High Court. The High Court
vide order dated 02.04.1979 remanded back
the matter before the learned District Judge
to decide the appeal afresh with an
observation that the appellate authority has
to record a finding that whether the land is
within the effective command area of lift
irrigation canal or State tube-well or private
tube-well irrigation work and further
whether the composition of soil is such,
which is capable of growing two crops in
each year.

7. After the matter was remanded
back to the appellate authority, the
appellate authority remanded back the
matter to the prescribed authority for
deciding the question of irrigated or
unirrigated land.

8. On the aforesaid remand, the
prescribed authority heard the matter
wherein the extract of the Khasra 1378,
1379 and 1380 Fasli of village Dalpur and
Salawat Nagar was filed by the State and
the statement of witnesses namely Sri Ram
Avtar and Sri Ram Giri Lekhpal was
recorded and they were examined. He
added
that
infact
the
consolidation
proceedings were going on in the village,
as such the Khasra 1378 fasli of village
Suabojh was available only and that too
was filed before the prescribed authority.
He submits that after the abovesaid, the
judgment and order was passed on
25.10.1985 by the prescribed authority
wherein the case was dismissed and the
objection of the opposite party no. 2 was
rejected, while recording the fact that there
is a tube-well and entire land is irrigated
land. While dismissing the aforesaid case
he also mentioned that land is of such
quality where sugarcane crop and wheat are
being grown and as such he declared 4.162
acres as surplus land. The judgment and
order dated 25.10.1985 was assailed while
filing the appeal under Section 13 of the
Act, 1960 i.e., before the District Judge,
Lakhimpur Kheri and later on it was
transferred to Additional Commissioner
(Judicial), Lucknow Division, Lucknow.
The appeal was dismissed on 30.08.1986,
in non prosecution as opposite party no. 2
did not turn up to do pairvi of the case.
Later on, an application for recall was
moved on 09.01.1992 with the explanation
that the opposite party no. 2 was not having
any information about the case being
transferred
before
the
Additional
Commissioner
(Judicial),
Lucknow
Division Lucknow. He added that opposite
party no. 2 filed the aforesaid recall
application after a period of 51/2 years and
no proper explanation was given that why
he was not diligent in getting the
information from the court of District
Judge and as such after the aforesaid
application moved by the opposite party no.
2, the petitioner was not afforded any
opportunity of hearing to defend the
aforesaid application and the Additional
Commissioner
(Judicial),
Lucknow
Division Lucknow, recalled the order dated
30.08.1986 by a non-speaking and unreasoned order.

9. He submits that infact after the
recall of the abovesaid order, the Additional
Commissioner/appellate
authority
has
passed the order on 12.07.1993, without
308 INDIAN LAW REPORTS ALLAHABAD SERIES
affording proper opportunity of hearing and
further the application for recall was
admitted without mentioning any reason.

10. He also added that vide order
dated 12.07.1993, the appeal filed by the
opposite party no. 2 was admitted and the
order passed by the prescribed authority by
virtue of which the land having area 4.162
acres was declared as surplus land, has
been set aside. He submits that the findings
of the appellate court are perverse as there
is an ample evidence of the irrigation work
over the land in question.

11. He further argued that learned
prescribed authority while considering the
issue has gone into the khasra 1378 fasli of
village Suabojh wherein it was found that
there is a private tube-well over the land in
question. He further submits that the report
of the Advocate Commissioner dated
21.02.1975, reveals that there is an electric
tube-well over the land situated at village
Suabojh by which the irrigation work is
being done.

12. He further submits that area
lekhpal in his statement has also averted
that the land is being irrigated through
private tube-well and while considering the
abovesaid
statement,
the
prescribed
authority has also gone into the C.L.H.
Form No. 3 wherein the land in question is
recorded as irrigated land.

13. Learned prescribed authority has
very minutely gone into the Khasra fasli
year 1378 wherein it is evident that the
sugar cane crop including wheat and paddy
are also been recorded which clearly shows
that land was capable to grow two crops.
He also added that mandate of Section 4-A
of the Act which has been envisaged under
the U.P. Imposition of Ceiling on Land
Holdings Act, 1960 for determination of
irrigated land has been followed in letter
and spirit while deciding the issue by the
prescribed authority. Section 4-A of the
Act, 1960 is being quote hereasunder:-

[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-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;
6 All. State of U.P. Vs. The Addl. Commissioner Judicial & Anr.
309
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.]

14. Referring to the aforesaid Section
4-A of the Act, 1960, learned counsel for
the petitioner has also contended that the
prescribed authority had gone into the fasli
year 1378 and found that provision firstly,
secondly and thirdly is very well applied in
case of the land of the respondent no. 2.

15. Adding his argument learned
counsel for the petitioner submits that
infact
the
prescribed
authority
has
discussed and has gone into all the
parameters as is prescribed under Section
4-A of the Act, 1960 and thereafter, he
comes to the conclusion that the land in
question comes under the purview of
irrigated land. He also indicated that the
respondent no. 2 did not adduce any such
evidence which could substantiate his
contention that the land in question does
not fall under the category of irrigated land.
Contrary to it, the statement of lekhpal ,
Nakal khasra year 1378 fasli private tubewell as per the report of the Advocate
Commissioner (as was ascertain on spot
inspection) and the land being capable of
growing two crops including the sugar cane
crop clearly reveals that aforesaid land in
question is irrigated land and as such the
prescribed authority had rightly passed the
order.

16. He submits that the appellate
authority ignoring the aforesaid evidences
set aside the order passed by the prescribed
authority. He submits that it is a well settled
law that even if any part of land is proved
to be capable of growing two crops then
whole of the land shall be deemed to be
irrigated. He further added that the
statement of the lekhpal, the report of the
Advocate Commissioner after the spot
inspection, private tube-well over the land,
the
statement
of
the
witnesses
and
capability of growing two crops as per the
khasra fasli year 1378 has been ignored by
the appellate authority while passing order
impugned. The order impugned is against
the settled proposition of law and further it
is also contrary to the mandate of Section
4-A of the Act, 1960. The appellate
authority has superfluously consider the
facts and has ignored the actual facts,
statement of witnesses and the provisions
of law.

17. Apart from the aforesaid he has
also argued that the appellate authority has
also erred to allow the application for recall
of the order after period of 51/2 years
without recording any reason or finding.

18. In support of his contention he has
placed reliance on a judgment and order
dated 24.10.1989 passed in Civil Appeal
No. 3241 1979 and 4390 of 1984 (Kallu
310 INDIAN LAW REPORTS ALLAHABAD SERIES
and ors vs. State of U.P. ors). He has
referred para 9 and 10 of the judgement
which reads as under:-

"9. Coming now to the specific
provisions of Section 4-A dealt with by the
High Court, it may be seen that in order to
form an opinion whether irrigation facility
was available for any land from one of the
sources mentioned in subclauses (i), (ii)
and (iii) in respect of any crop in anyone of
the aforesaid years viz., Faslis 1378 to
15380, the Prescribed Authority is enjoined
to examine the Khasras for those three
Fasli years, the village map, other relevant
records considered necessary and also to
make a local inspection whenever it is
necessary. Hence there is no scope for
contending that a Prescribed Authority may
form his opinion without reference to
relevant material, in an arbitrary or
capricious manner, to the detriment of a
tenure holder as regards the availability of
assured irrigation facility to a land from
one
of
the
enumerated
sources.
Consequently, there is no merit in the first
contention of the appellant that in addition
to the materials and records set out in the
sub-clause, there must be independent
evidence of assured irrigation facility
before ever a Prescribed Authority can
form an opinion about a land having
assured irrigation facility.

10. As regards the second contention
relating to sub-clause (b), the clause refers
only to the growing of atleast two crops in a
land found to be having assured irrigation
facility in any one of the relevant years. The
sub-clause does not contemplate the raising
of two crops on the entire extent of the land.
The classification has to be made with
reference to the potentiality of the land to
yield two crops in one Fasli year and not on
the basis of the actual raising of two crops on
the entire extent of the land. Therefore, subclause (b) cannot be read so as to mean that
two crops should have been grown on the
entire extent of a land having irrigation
facility for classifying the land as 'irrigated
land' as it would have the effect of limiting
the operation of the sub-clause contrary to
the legislative intent. The High Court has
taken the view that when the Legislature
made amendments to the Act, it must have
had in mind the advancement that has been
made in agricultural science and farm
technology and by reason of it a tenure
holder can overcome hurdles and raise two
crops in a year over the entire extent of a
land having irrigation facility. We need not
go as far as that. The normal presumption, in
the absence of contra-material, would be that
the quality content of soil of a land would be
uniform throughout its extent. Such being the
case, if a tenure holder is able to raise two
crops in a year in a portion of the land, then
it would be logical to hold that the other
portions of the land also would have the
capacity to yield two crops if the tenure
holder had utilised the entire extent to raise
two crops instead of utilising a portion of the
land alone. The raising of two crops even on
a portion of the land will prove, in the
absence of material to show poor quality of
soil in portions of the land due to salinity etc.,
the uniform nature and content of the soil of
the entire land. The High Court was therefore
right in holding that the Prescribed Authority
can treat a land, having assured irrigation
facility, as 'irrigated land' if the tenure holder
had raised two crops even in a portion of the
land during anyone of the prescribed years
and that it is not necessary that the raising of
the two crops should have been made on the
entire extent of the land in order to classify
the land as 'irrigated land'."

19. Referring the aforesaid, he
submits that if a tenure holder is able to
grow two crops in a year in a portion of the
6 All. State of U.P. Vs. The Addl. Commissioner Judicial & Anr.
311
land, then it would be logical to hold that
other portions would also have capacity to
yield two crops. He added that raising two
crops even on a portion of the land, will
prove the uniform nature and content of the
soil of the entire land.

20. Learned counsel for the petitioner
has further placed reliance on a judgment
dated on 01.03.1978 passed in Writ
Petition No. 11170 of 1975 (Shyamvir
Singh vs. The State of U.P. and others).
He has referred para 10 of the judgement
which reads as under:-

In the aforesaid background if a
tenure-holder wishes to challenge the
correctness of the statement prepared in
CLH From 3 in respect of his irrigated land
he will have to plead in his objection all
such facts which, if proved would establish
that the statement in Form 3 about his
irrigated land was not prepared in the
manner prescribed by Section 4-A of the
Act and that his land was not irrigated
within the meaning of the said section. He
will also, have to produce evidence to prove
those facts. In adversary proceedings a
presumptian cannot be rebutted only by
raising a plea in the objection. The facts
pleaded have to be proved. In Agricultural
& Industrial Syndicate Ltd. v. State of U.P,
(1974) 2 SCC 27 (para. 8) it was held that
after an objection has been filed by the
tenure-holder disputing the correctness of
the statement prepared under Section 10 of
the Act there ensues a dispute and in such a
case there is an adversary proceeding
before the Prescribed Authority between
him and the government; Since the
Prescribed Authority in the process of
deciding the objection is empowered to take
evidence it would be "court" within the
meaning of Sec. 3 of the Evidence Act. As
such when it is deciding an objection under
Sec. 12 of the Act the provisions of the
Evidence Act in regard to the manner and
burden of proof will apply to the
proceedings. Section 101 of the Evidence
Act inter alia provides that when a person
is bound to prove the existence of a fact, the
burden of proof lies on that person. In view
of the decision of the Supreme Court in P.J
Ratnam's case (supra) to the effect that it is
for the party who challenges the regularity
in respect of official acts to plead and prove
his case and in view of Section 101 of the
Evidence Act the burden to prove that the
statement in C.L.H Form 3 about his
irrigated land was not prepared in the
manner prescribed by Section 4-A of the
Act would lie on the tenure-holder and to
discharge that burden it would be for him
to produce such evidence as he considers
material including the relevant extracts of
Khasras mentioned in Section 4-A. It is
really with reference to these documents
and not with reference to his pleading in
the objection that the tenure holder would
be in a position to show that the statement
in Form 3 about his irrigated land has not
been prepared in the manner prescribed by
Section 4-A of the Act. In the eye of law
there is hardly any difference between a
case where no objection at all is filed and a
case where in the objection necessary facts
have not been pleaded nor evidence has
been led to prove such facts. Section 4-A
does not cast any obligation on the
Prescribed Authority to record reasons
where no objection is filed at all. The said
section cannot in my opinion be reasonably
interpreted to mean that it casts an
obligation on the Prescribed Authority to
record reasons why a particular plot has
been treated as irrigated in C.L.H Form 3
even if no facts have been pleaded by the
tenure-holder in his objection which if
proved will establish that the said plot has
been shown as irrigated in Form 3
312 INDIAN LAW REPORTS ALLAHABAD SERIES
otherwise than in conformity with Section
4-A and no evidence has, been led by him
to prove those facts. If these facts have been
pleaded
and
proved
the
Prescribed
Authority will certainly have to decide the
objection raised. In this behalf and record
reasons for its findings in conformity with
Section 4-A. In the absence of requisite
pleading
and
proof
the
Prescribed
Authority, while declaring surplus land
under Section 12 of the Act, can be required
to record reasons stating as to under which
part or category of Section 4-A a particular
plot has been treated as irrigated in CLH
Form 3, only if Section 4-A is placed at par
to the performance of a ritual. In this view
of the matter I find it difficult to accept the
submission made by counsel for the
petitioner that the Additional Civil Judge
committed
an
error
in
treating
the
petitioner's land of village Rajpur as
irrigated.

21. Referring the aforesaid judgment
he submits that the Court has held that it is
the duty of the tenure holder to adduce
copies of the khasra for relevant years, it is
not incumbent upon the State Government
to produce the same.

22. He submits that in such view of
the matter the order passed by appellate
authority vitiates in law and is liable to be
set aside.

23. On the other hand, learned counsel
for opposite party no. 2 has opposed the
contention aforesaid and submits that the
finding recorded by the appellate court is
correct as he has considered the matter on the
basis of the evidence and the records
available before him.

24. He further submits that very small
part of land is said to be irrigated and that
does not mean that all the holdings of the
tenure holder comes under the purview of
irrigated land, as per provision of Section
4-A of Act, 1960. He further added that as
per finding of the appellate court, only 2.30
acres land was found to be irrigated though
the total land which was found irrigated by
the prescribed authority was 22.123 acres.
He submits that specific finding has also
been recorded by the appellate authority
that due to tube-well it could not be assume
that all the land of the tenure holder comes
under the area of irrigated land. There is
also a finding that as per the Fasli 1379 the
sugar cane crop and paddy as well as wheat
was shown to be there but in Fasli 1380
there is only sugar cane crop.

25. Learned counsel for respondent
no. 2 has placed reliance on a judgment
dated 03.05.1979 passed in Civil Misc.
Writ No. 8178 of 1975, Jaswant Singh Vs.
State of U.P. and others. Referring the
aforesaid
judgment
he
submits
that
Division Bench of this Court has held that
in order to find out irrigated land Section 4A of the Act, 1960 makes it obligatory on
the prescribed authority to examine khasras
of the fasli years 1378, 1379 and 1380 and
latest village map including the local
inspection.

26. He submits that in the instant
matter the prescribed authority has failed to
comply with the verdict of the judgment
and order dated 03.05.1978.

27.

Learned
counsel
for
the
respondent has also placed reliance on a
judgment reported in 1978 AWC 577
Jaswant Singh vs. State of U.P. and
others. Placing the aforesaid judgement, he
submits that it is the khasra of concern fasli
year by which the ceiling authority comes
to conclusion that whether any irrigation
6 All. State of U.P. Vs. The Addl. Commissioner Judicial & Anr.
313
facility was available and whether two
crops are being grown over the land. He
has referred para 14 of the judgement
which reads as under:-

It would thus appear that on all the
points specified in the various sub-sections
of Section 4-A the Prescribed Authority can
form an opinion on the basis of records and
local inspection. The legislature, therefore,
thought it fit that the enquiry under Section
4-A should remain confined to examination
of records and local inspection and not to
production
and
examination
of
oral
evidence.

28. He has also placed reliance on a
judgment reported in 1991 RD 312 State of
U.P. through Collector vs. Mukh Ram
Singh and another and has referred para 3
of the judgment which reads as under:-

In the present case, it has been
observed by the Prescribed Authority in his
judgment that he did not examine the
khasras for 1378 to 1380 Fasli because
they were not produced by the party
concerned. He has mentioned that there are
private tube wells near the disputed plot
and only on this basis he had recorded the
finding that the said plot is an irrigated
land. It was open to the Prescribed
Authority to ask for the Khasras from his
own records and examine the same, and not
only the khasras but also the village map
and other necessary records. He has not
specifically recorded the finding that the
class and composition of 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 of
Section 4-A, and clause thirdly of that
Section, that it is an irrigated plot.
Moreover the finding recorded by the
learned Additional District Judge is a
finding of fact based on appreciation of
evidence including entires in Khasra 1380
Fasli and there is no justification to
interfere with the said finding, in the writ
petition. It may be incidently mentioned
that the learned counsel for the opposite
parties has also referred to the case
reported in 1979 AWC 9 Dhirendra Mohan
Chaudhary v. IInd Additional District
Judge, Bareilly, in which it has been held
that in order that a land may be termed as
irrigated one, it is necessary that the land
must be irrigated from the canal or any lift
irrigation canal or any State Tube well or a
private irrigation work and that even if the
land is irrigated by boring Tubewell, it
cannot be said that the irrigation work was
done from a private irrigation work and it
cannot be termed as irrigated land.

29. Referring the aforesaid judgement
he submits that it has been held that the
khasra fasli year 1378 to 1380 is to be
examined by the prescribed authority. He
submits that even if a land is been irrigated
by the boring tube-well the same cannot
said to be a private irrigation work.
Concluding his argument he has also placed
reliance on a judgement reported in 1979
AWC 9 Dhirendra Mohan Chaudhary
and others vs. IInd Additional District
Judge, Bareilly and others. He has
referred para 4 to 6 of the judgement which
reads as under:-

4. Learned counsel for the petitioners
has also contended before me that on the
finding recorded by the appellate authority
itself the tube-wells were not of such nature
as could be termed as a source of irrigation
of perennial nature yet the land of the
petitioners has been termed as irrigated
one on the ground that the same area of the
petitioners had been actually irrigated. But
314 INDIAN LAW REPORTS ALLAHABAD SERIES
the authority did not consider this aspect of
the matter that in order that the land of the
petitioners may be termed as irrigated one,
it is necessary that the land must be
irrigated from the canal or any lift
irrigation canal or any State tube well or a
private
irrigation
work.
In
the
circumstances of the present case it
appears that the appellate authority thinks
that the land was irrigated by boring tubewell, hence the land of the petitioners was
termed at irrigated one.

5. Private irrigation work has been
defined in Section 3 sub-clause (14) of U.P.
Imposition of Ceiling on Land Holdings
Act, which runs thus:-

""Private irrigation work" means a
private tube-well, or a private lift irrigation
work operated by deisel or electric power
for the supply of water from a perennial
water source, completed before August 15,
1972."

6. On the finding recorded by the
appellate authority it is clear that the
boring tube well was not capable of
producing perennial water source. Even if
the land of the petitioners was irrigated, it
cannot be said that the irrigation work was
done from a private irrigation work. In this
view of the matter the determination of the
appellate authority that the land of the
petitioners is irrigated one appears to be
patently erroneous.

30. Referring the aforesaid, he submits
that in fact the boring tube-well cannot be
termed as means of private irrigation facility
and as such even if there is any report that
tube-well was there that was in the form of
boring tube-well and as such that cannot be
treated as private irrigation work.

31. Adding his contention he submits
that the appellate authority has rightly come
to the conclusion that only 2.30 acres of land
is irrigated and as such the order passed by
the prescribed authority wherein 4.162 acres
land was declared as surplus land are against
the evidence as well as the provisions of law
and as such the order passed by the
prescribed authority was liable to be set aside
and the order passed by the appellate
authority is liable to be uphold by this Court.

32. Having heard learned counsel for
the parties and after perusal of record, I find
that the appellate authority has ignored the
material facts while discussing the issue
raised by the petitioner. The appellate
authority while passing the impugned order
did not consider the fact that the mandate of
Section 4-A of the Act, 1960 has been taken
care of by the prescribed authority while
passing the order dated 22.10.1985. The
prescribed authority had gone into khasra
fasli year 1378 of village Suabojh, wherein
he found that there was a private tube-well
over the land. The entry recorded in fasli year
1378 is also supported by the report of the
Advocate Commissioner dated 21.02.1975,
wherein he has also mentioned the fact that
there is a private tube-well by which the land
in question are been irrigated. Apart from the
aforesaid, the khasra also reveals that the land
in question is capable to grow two crops
including the sugar cane crop. Further the
statement of lekhpal of area concerned has
also been recorded in this regard who also
supportted the version of the report of
Advocate Commissioner as well as entries
made in fasli year 1378. From perusal of the
order 25.10.1985, it seems that there is no
such objection or evidence adduced contrary
to the fact and evidences mentioned/adduced
by the State over there.

33. Further it has also been noticed by
this Court that the appellate authority has
decided the matter in a very cursory
manner and the issue which were raised by
6 All. State of U.P. Vs. The Addl. Commissioner Judicial & Anr.
315
the petitioner before the appellate authority
were either ignored or has not been
considered in right perspective.

34. From perusal of the order of the
appellate court, it reveals that though he
has mentioned the fact that sugar cane crop
was over there but no finding has been
recorded to the effect of the same. Further
he has also disbelieved the statement of the
area lekhpal as well as the entries of the
tube-well which is evident from the khasra
entry of fasli year 1378. The report of
Advocate
Commissioner
which
was
submitted by local inspection, has been
over looked by the appellate authority.

35. In explanation (III) of Section 4A, where sugar cane crop has been
recorded on khasra to grow on any land in
any of the fasli years 1378, 1379, 1380, it
shall be deemed that two crops were grown
on it, in any of these years, and that land is
capable of growing two crops in an
agricultural year. In the instant matter the
prescribed authority has recorded finding
that in fasli year 1378, there is entry of
sugar cane crop over the land in question
and this finding has not been controverted
by the appellate authority.

36. So far as the private tube-well is
concerned, the petitioner did not raise any
objection with regard to the boring tubewell before the prescribed authority.

37. Further it is incumbent upon the
tenure holder to place the khasra of 1378,
1379 and 1380 fasli before the prescribed
authority, though in the instant matter the
State has submitted the nakal of khasra
1378, 1379 and 1380 fasli 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.

38. The respondent has 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. Further
finding recorded by the appellate authority
regarding 2.30 acres of land as irrigated
land, is based on conjecture and surmises.

39. In such view of the matter the
finding recorded by the appellate authority
is wholly perverse and is against the settled
proposition of law and as such the order
passed by the appellate authority dated
12.07.1993 is hereby set aside.

40. The matter is remanded back to
the appellate authority to decide the matte
afresh after taking into consideration the
entries of khasra of fasli 1378, the
statement of area lekhpal and the report of
the Advocate Commissioner in a right
perspective. The appellate authority shall
also give its finding on the issue with
regard to the capability of the land growing
two crops over the land in question.

41. The State shall file the copy of
this order within a period of 10 days before
the appellate authority and then the
appellate authority after calling objection
from the concerned parties shall decide the
matter within further period of four months
from the date of production of certified
copy of this order produced before him.

42. The writ petition is allowed
accordingly.

43. No order as to cost.
316 INDIAN LAW REPORTS ALLAHABAD SERIES
----------
(2022)06ILR A316
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 12.05.2022

BEFORE

THE HON'BLE SHREE PRAKASH SINGH, J.

Writ-C No. 3000166 of 2003

Ram Pal Misra ...Petitioner
Versus
State of U.P. & Anr. ...Respondents

Counsel for the Petitioner:
Q.M. Haque

Counsel for the Respondents:
C.S.C., Anoop Srivastava

A. Ceiling Law - Indian Limitation Act,
1963 - Section 5 - Declaration of the
petitioner's land as surplus land u/s 10(2)
of UP Imposition of Ceiling on Land
Holdings Act, 1960 - State filed the appeal
after 26 years - Appeal admitted on first
date of hearing and notice issued - No
notice was issued on delay condonation
application - Effect - Held, an inordinate
delay could not be condoned without
notice to the respondents and without
recording any reasons for condonation of
delay. So far as the issue of reaching to
the substantial justice is concerned, the
same is undoubtedly a goal/intent of
legislature but, condoning the inordinate
delay, without issuance of notice or calling
objection from other side, shall frustrate
the very object of the aforesaid doctrine.
(Para 18)
B. Indian Limitation Act, 1963 - Section 5
- Delay condonation - Sufficient cause -
Held, the sufficient cause is to be
considered in a proper object, philosophy
and
spirit.
While
dealing
with
such
situation, the court has always found out
paramount consideration of substantial
justice. Liberal approach, while dealing
with such applications, are required but it
is also the duty of the court to see that the
same
may
not
be
unbriddled
and
unguided. (Para 17)
Writ petition allowed (E-1)
List of Cases cited :-
1. Ragho Singh Vs Mohan Singh & ors. (2001) 9
SCC 717
2. Noharlal Verma Vs District Cooperative
Central Bank Ltd. Jagdalpur; 2008 14 SCC 445
3. V. M. Salgaocar & bros. Vs Board of Trustees
of Port of Mormugao & anr.; (2005) 4 SCC 613
4. St. of Mah. Vs Sharadchandra Vinayak
Dongre & ors. (1995) 1 SCC 42
(Delivered by Hon'ble Shree Prakash
Singh, J.)

1. Heard Sri Q. M. Haque, learned
counsel for the petitioner, Sri J.P.