- (1.) SHISHIR Kumar, J. I have heard Sri Anil Sharma, learned Counsel for the petitioner and learned Standing Counsel for the respondents.
(2.) THE present writ petition has been filed for quashing the orders dated 29. 1. 1985 and 2. 7. 1985 passed by the respondent Nos. 1 and 2 (Annexures 1 and 2 respectively ). The fact arising out of the writ petition are that the petitioner who was a tenure holders notice under Section 10 (2) of the Act was issued declaring an area of 8. 79 acres of the irrigated land. Upon receipt of the aforesaid notice, the petitioner fled an objection before the Prescribed Authority. Rath, District Hamirpur, stating therein that the irrigated land mentioned in the notice is not correct and there is no facility of irrigation and the land belonging to the petitioner is not capable of two crops in the area. Thereafter the petitioner has not received any notice and in the first week of February, 1985. The petitioner heard a rumour in the village that the case against the petitioner has been decided ex-parts on 28. 1. 1985. and 29. 1. 1985. The petitioner inquired from his Counsel who informed him that he is also not aware regarding the decision. Then the petitioner has made an inquiry and then he came to know that the said case has been decided by the Pre scribed Authority Kulpahar. Then the petitioner filed an application to set aside the ex-parte order but the Prescribed Authority vide its order dated 6th February, 1985 had rejected the said application. Aggrieved by the aforesaid order, the petitioner filed a regular appeal before the Appellate Authority. A specific ground in the appeal was taken which is being quoted below.
(3.) IN spite of the aforesaid fact, the Appellate Authority wife its order dated 2. 7. 1985 has rejected the appeal filed to the petitioner without recording a finding regarding the fact that whether the notice was ever served after filing an objection to the petitioner or not. A specific ground was taken before the Appellate Authority that the notice was issued by the Prescribed Authority sitting at Rath but the Prescribed Authority sitting at Kulpahar has decided the objection of the peti tioner. The Appellate Authority has recorded a finding that it appears that no order of transfer on record was there. The appeal filed by the petitioner was rejected only on the ground that the order has been signed by the Prescribed Authority mentioning is as Rath/kulpahar Therefore, it will be presumed that the order has been passed by the authority sitting at Rath. Further submission has been made by shri Anil Sharma, learned Counsel for the petitioner that judgment and over passed by the authorities below are not in confirmity of Section 4-A of the U. P. Imposition of Ceiling on Land Holdings Act, 1960. A finding to this effect has to be recorded on the basis of the relevant khasra of such year as the State Government may notify the latest village map and such other records as may be considered necessary and focal inspection to that effect has to be made As regards, the finding recorded by the Prescribed Authority regarding finding in judgments, it is not in con son a nee of Section 4-A sub-clause (1) If there is no finding, land of the petitioner cannot be treated to be irrigated having facility of two crops. The reliance has been placed by the learned Counsel for the petitioner upon a judgment of the Apex Court reported in 1981) 3 SCC 93, Kartar Singh v. Slate of Utter Pradesh and others. The operative portion of this order is being quoted below: "for these reasons, therefore, we will allow this appeal on this point only and remit the case to the prescribed authority to determine the exact area of the land with respect to the plots mentioned above only much is irrigated or has irrigations facilities. The prescribed authority will also find if two crops are grown in one of the years as required by Section 4-A. If on determining the question he finds that irrigation facilities are not available to the entire plots, he will determine the surplus area accordingly and given choice to the tenure holder under the Act. ";