- (1.) S. P. Srivastava, J. Though this mat ter was listed for admission, but on the joint request of learned counsel for the parties, this matter is being disposed of finally at this stage.
(2.) THIS petition under Article 226 of the Constitution of India has been filed by the petitioner against the judgment of the Prescribed Authority dated 13-2-85 and the judgment of the appellate authority dated 18-8-87. The brief facts of the case are that the petitioner was served with a notice under Section 10 (2) of the U. P. Imposition of Ceiling on Land Holdings Act 1960, proposing to declare 4. 10 acres land in ir rigated term as surplus land. Objection was filed by the petitioner on a number of grounds. The main ground of defence was that the petitioner is a tenure-holder of a very small area. In the family of the petitioner there are two mothers, one is step mother, namely Smt. Ram Kunwar who has separated from the family a long ago and the petitioner has given 4. 5 acres of land for her maintenance and there is a will also. It is also stated that the tenure-holder has also transferred surplus land through a registered sale- deed in favour of his mother. The name of the mother is recorded on that land. Therefore, the petitioner has no land to be declared as surplus. The prescribed Authority framed is sues, examined witnesses and held that no evidence has been produced by the petitioner to prove his contention on the point of irrigation facilities etc, rather it has been held by the Prescribed Authority on the basis of the evidence that the petitioner has 4. 48 acres of land which are capable of yielding two crops and are irrigated through government tube-well and are within the command area of the State Tube-well. The prescribed authority, accordingly held that the tenure-holder has 26. 46 acres of land which is being irrigated through the State canal. The Prescribed Authority by judg ment dated 13-2-86 declared 4. 10. acres of land in irrigated term as surplus land. Ag grieved by the aforesaid judgment the petitioner preferred an appeal before the commissioner, Jhansi Division which was decided by the Additional Commissioner, Jhansi. The Appellate Authority also con sidered the statement of Lakhpal on the point of availability of irrigation facilities and affirmed the findings of the Prescribed Authority on the point of will. It was held by the appellate authority that as the will is of 9-6-74 and the sale-deed is of 14-5-81, they are after the relevant date, therefore, they are ineffective as provided under Section 5 (8) of the U. P. Imposition of Ceiling on Land Holdings Act.
(3.) LEARNED counsel for the petitioner has urged that under the provisions of Ceil ing Act, it was necessary for the Prescribed Authority to peruse the Khasra extract of 1378, 1379 and 1380 fasli for determining the irrigation facilities as provided under Section 4-A of the Imposition of Ceiling on Land Holdings Act and if these khasra are not available the:: other evidence can be looked into. The statement of Lakhpal is of not much help in view of the specific provisions being there in the Act itself. Therefore, the Prescribed Authority was not legally correct in determining the ceiling area and in determining the irrigated land merely on the basis of the statement of Lakhpal. It has also been contended that the Lakhpal Sri Nand Ram has stated on oath that while preparing the relevant document in 1389 F&sjj, he had Taken help of Khasra 1387,1388 and 1389 fasli. It is submitted by learned counsel for the petitioner that the statement of Lekhpal is on the record. It is further contended by the learned counsel for the petitioner that the land of the step mother of the petitioner should not have been included in the holdings of the petitioner. On behalf of the State of coun-tar-affidavit has been filed in this case and the learned standing counsel has urged that the papers were prepared on the basis of the khasra extract of 1378,1379 and 1380 Fasli and the irrigated area has been shown in Akar Patra 3 Ga which was attached to the notice and it was rightly held by the Prescribed Authority that the petitioner has failed to prove his case. After hearing learned counsel for the petitioner as well as the learned Stand ing counsel, at length I am of the view that the judgment of the Prescribed Authority as well as of the appellate authority should be quashed as they have not considered the case as provided under Section 4-A of the Imposition of Ceiling on Land Holding Act. It was necessary for them to have considered the entires of 1378, 1379 and 1380 Fasli, unless there is finding to the effect that these Khasras are not available. Since the case has not been decided on the basis of the relevant revenue extract and it was decided only on the basis of oral evidence I, there fore, think it proper that the Prescribed Authority is directed to decide the matter afresh on the point of irrigation facilities and redetermine the ceiling area after giving finding on the point of availability fo irriga tion facilities as provided u/s. 4-A of the U. P. Imposition of Ceiling on Land Holdings Act only.;