Decided on January 02,2012

Sri Prem Preet Singh Appellant
State of U.P. and two Others Respondents


- (1.) By means of this petition the petitioner has sought a writ in the nature of certiorari quashing the orders dated 20-10-1990 and 19-12-1990, Annexure Nos. 2 and 4 to the writ petition, passed by the Prescribed Authority, Nainital and the Commissioner, Kumaun Division, Nainital respectively. Briefly stated the facts giving rise to this writ petition, are that the petitioner is the tenure-holder of plot Nos. 2/2 and 12/2 along with other plots in village Bhauva Nagla, Tehsil Bazpur, District Udham Singh Nagar. A notice U/S 10(2) of U.P. Imposition of Ceiling on Land Holdings Act, 1960 was issued to the petitioner proposing to declare 344 Bighas 6 Biswas of land to be surplus. Against the notice detailed objection was filed by the petitioner on 13-8-1986. In the objection it was mentioned that the land of one Sri Ram Singh S/o Sri Roop Ram was included and the petitioner has no concern whatsoever with the land of Sri Ram Singh. The Prescribed Authority passed an order dated 5.1.1988 declaring certain area of land to be surplus of the petitioner, against which the petitioner filed an appeal which was allowed by the Assistant Commissioner (Administration), Nainital by the order dated 21.2.90 and the matter was remanded back to Prescribed Authority. Thereafter by order dated 20-10-90 the Prescribed Authority has declared 36 Bighas 3 Biswas of land in terms of irrigated land, as being surplus of the petitioner. Feeling aggrieved by the aforesaid order the petitioner filed an appeal before Commissioner, Kumaun Division, which was numbered as Ceiling Appeal No. 2 of 1990-91. The said appeal has been dismissed by the Commissioner vide order dated 19-12-1990. Therefore, this petition has been filed.
(2.) The main grounds on which the judgments of Prescribed Authority as well as the Commissioner were assailed, are that plot Nos. 2/2 and 12/2 are un-irrigated land and the learned Prescribed Authority as well as the learned Commissioner, have wrongly held the plots as irrigated on the basis of evidence adduced by the State. According to petitioner, oral evidence cannot be read in evidence for determining the land as 'irrigated' in view of judgment of Jaswant Singh versus State of U.P. and others, 1979 AWC 577 and the learned Prescribed Authority as well as the appellate court have wrongly relied upon the oral evidence of Registrar Qanungo. The second ground taken by petitioner is that the Prescribed Authority has wrongly treated the irrigation facility by way of canal while there is no canal in the category of notified canal and the learned Commissioner has wrongly arrived at a conclusion that since the land is capable of growing two crops and there is also irrigation facility by canal and artisan tube-well and treated the land as irrigated.
(3.) Counter affidavit has been filed by the respondents. In the counter affidavit the stand has been taken by the State that there are irrigation facilities by way of canal as well as artisan/private tube-well in the land in dispute, therefore, the Prescribed Authority as well as the appellate court have rightly treated the land as 'irrigated land'. Along with Supplementary Counter affidavit Khasra of village Bhauva Nagla of 1378 Fasli to 1380 Fasli have been filed. The petitioner also filed the Khasra of 1378 Fasli to 1380 Fasli. So far as Plot No. 2/2, area 64 Bighas, is concerned, that has been shown irrigated by canal (ugj rksM) and plot No. 12/2 has also been shown irrigated by canal (ugj rksM) in 1378 Fasli and 1379 Fasli, but in 1380 Fasli, land of Khasra No. 12/2 has been shown irrigated by way of artisan/tubewell and in Khasra 1378 Fasli also shown two crops of paddy and wheat.;

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