K. P. Singh, J. - (1.) THIS writ petition arises out of proceedings under the provisions of Urban Land (Ceiling and Regulation) Act, 1976. The petitioner had submitted details of her land under section 6 of the above mentioned Act. She was served with a draft notice under section 8 of the Act. She filed several objections against the draft notice and had asserted that the excess area indicated in the draft notice was incorrect. The competent authority through its order dated 14-2-78 declared 1, 31, 653 sq. meters as excess area of the petitioner. Aggrieved by the judgment of the competent authority the petitioner had preferred an appeal which has also been dismissed by the appellate authority through its judgment dated 6-3-1979. Against the judgment of the appellate authority the petitioner has approached this Court under Article 226 of the Constitution of India.
(2.) THE learned counsel for the petitioner has contended before me that plot Nos. 446, 539, 177 and 444 were agricultural plots and they have been wrongly treated as vacant land under the provisions of the above mentioned Act. THE second contention raised on behalf of the petitioner is that plot Nos. 381, 387, 391 and 394 constitute a pond and cannot be treated as land under the provisions of the above mentioned Act. THE third contention raised on behalf of the petitioner is that certain plots of the petitioner were considered as agricultural land of the petitioner for the purposes of the U. P. Imposition of Ceiling on Land Holdings Act and the same in the proceedings giving rise to this petition has not been treated as land for agricultural purposes. Hence an error apparent on the face of the record has crept in and the declaration of excess area of the petitioner stands vitiated in law. According to the learned counsel for the petitioner it is not open to the State to contend that the plots which were declared tenancy of the petitioner under the U. P. Imposition of Ceiling on Land Holdings Act should not be treated as land for agricultural purposes in the present case. The learned counsel for the State has tried to refute the contentions as raised on behalf of the petitioner and has tried to support the impugned judgments. I have considered the contentions raised on behalf of the petitioner and I have gone through the impugned judgments and materials attached with the writ petition, counter affidavit and rejoinder affidavit. It is not disputed before me that some of the plots of the petitioner have been recorded in the relevant khatauni as her tenancy land but the same land has not been treated as used mainly for purpose of agriculture only on the ground that khasra entries were of field. The appellate court has dealt with the claim of the petitioner in this regard in the following words : "......Accordingly land is not to be deemed to be used mainly for the purpose of agriculture if such land is not entered in the revenue or land records of agriculture. It means that the land had to be recorded in the village records in a manner which would suggest that it was land used for the purpose of agriculture. Unless there be such an entry in the revenue records no land can be treated as used mainly for the purpose of agriculture. Such entry can enter only in the khasra. The appellant should therefore have filed extract of khasra of 1383F. He failed to do so. Khatauni extract was filed on record, but could not show user of the land. Title of the appellant in respect of the land would not help. Therefore, the plea of the land being mainly used for agriculture and, therefore, out of the definition of vacant land cannot succeed. It was rightly rejected by the competent authority."
(3.) IT is a matter of common experience that at times the Lekhpals do not make entries. Under the above mentioned Act it has not been stressed that the Khasra extracts govern determination of the use of the land for agriculture purposes. Under section 2 (o) of the Urban Land (Ceiling and Regulation) Act, 1976 "urban land" has been defined as meaning : "(i) any land situated within the limits of an urban agglomeration and referred to as such in the master plan ; (ii) in a case where there is no master plan, or where the master plan does not refer to any land as urban land, any land within the limits of an urban agglomeration and situated in any area included within the local limits of a municipality (by whatever name called a notified area committee, a town area committee, a city and town committee, a small town committee a cantonment board or a panchayat but does not include any such land which is mainly used for the purpose of agriculture. Explanation : For the purpose of this clause and clause (O)- (A) "agriculture" includes horticulture, but does not include raising of grass, dairy farming, poultry farming, breading of livestock and such cultivation, or the growing of such plant, as may be prescribed : (B) land shall not be deemed to be used mainly for the purpose of agriculture, if such land is not entered in the revenue or land records before the appointed day as for the purpose of agriculture. Provided............... Provided further............... (C) Notwithstanding anything contained in clause (B) of this Explanation, land shall not be deemed to be mainly used for the purpose of agriculture if the land has been specified in the master plan for a purpose other than agriculture. Section 2 (q) reads as follows :- " "vacant land" means land, not being land mainly used for the purpose of agriculture, in an urban agglomeration, but does not include........." In the present case I find that both the authorities have not treated a portion of the land claimed by the petitioner as agricultural land on the ground that khasra extracts were not produced. In the khatauni if the disputed land was shown as bhumidhari the main purpose of the land would be for agriculture. Revenue records include khatauni as well, khasra indicates factual position of the possession held by a tenure holder but if that factual possession is not recorded in the khasra no conclusive inference can be drawn that the land was not used for agriculture purpose. Use for agricultural purpose can be established by oral evidence also. In the present case the petitioner had filed several affidavits but the same have not been accepted on the ground that khasra extract was not filed.;