- (1.) SHITLA P. Srivastava, J. This petition under Article 226 of the Constitution of India has been filed by the petitioner, against an order dated 3-2-88 passed by the Additional Commissioner Jhansi Division, Jhansi in Appeal No. 133/85, 95/85- 86 under Section 13 of the U. P. Imposition of Ceiling on Land Holdings Act which was filed against the judgment dated 29-3-85 passed by the Prescribed Authority. The petitioner has prayed for quashing the or ders passed by the Prescribed Authority as well as by the appellate authority.
(2.) THE brief facts leading to the present writ petition are that after service of notice under Section 10 (2) of the U. P. Imposition of Ceiling on Land Holdings Act, (hereinafter referred to as the Act only), the petitioner filed objection that entire hold ing is unirrigated; two crops were never grown by the petitioner. THEre is no Schedule I or B canal in the village. THE land of the petitioner do not fall in the command area of the tube-well and the petitioner ex ecuted a gift-deed dated 21-9-71 for an area of 67. 03 acre to her four daughters who are in possession and their names have been mutated. That land should be excluded from the petitioner's holding. Before the Prescribed Authority, the State produced Lakhpal as a witness to prove the availability of irrigation facility. THE petitioner examined witnesses. The Prescribed Authority dismissed the objection of the petitioner. The petitioner filed appeal which was also dis missed. The petitioner has now challenged those orders in the present writ petition. The main ground of attack of the petitioner is that onus lies on the State to establish that the land which is mentioned in the notice is irrigated land and further that the land which was transferred by the petitioner in favour of the daughters was not petitioner's land. The Prescribed authority as well as the appellate authority have not considered the ingredients of Section 4-A of the Act while determining the availability of the irrigation facilities. His further conten tion is that the gift- deed was executed on 21-9- 71, therefore, the relevant date for consideration would be 8-6-73 and not 24-1 -71 as the notice itself was given to the petitioner in the year 1982 i. e. after the amendment was made in the Act. His fur ther contention is that in view of the state ment made by the Lakhpal that some of the plots were not effective command area of the State tube-well. The finding of the Prescribed authority as well as the appellate authority is against the law. The learned Standing counsel has urged that the findings recorded by the respondents are finding of fact and moreover, as it has been held that the land is capable of yielding two crops, therefore, these shall be related to be agricultural land for the purposes of the gift deed it is 24-1-71 which shall be the relevant date and not 8-6-73. 8 5. 1 have heard learned counsel for the petitioner and the learned Standing Coun sel and have also perused the judgment of the respondents. The prescribed authority has held that no evidence was filed by the petitioner to prove that the land was unirrigated one, rather the Lakhpal has stated on oath that it was in effective command area of the State tube-well. Therefore, he has held that the land was irrigated one. On Issue No. 3 it has been held that as transfer was made after 24-1-71, therefore, the land shall be treated to be the land of the tenure-holder. The appellate authority has also af firmed the same finding. From the record it appears that both the Courts have not cor rectly appreciated the law on the points and they have not appreciated that the notice was given to the petitioner after the amend ment was enforced in the Act. Therefore, for the purpose of considering the transfer made by the tenure-holder it was 8-6-73 which would be relevant date and not 24-1-71. Therefore, the judgments of the respon dents are set aside on this point. So far as consideration of the agricultural character of the land it is also significant to note that the notice was issued in 1982 then it was the duty of the competent authority to see as to whether the irrigation facilities were avail able in the relevant year as provided under Section 4-A. Moreover, as the Lakhpal has himself stated on oath that some of the plots were not in effective command area of the State tube-well than at least those plots should have not been taken to irrigated one, but as none, of the two authorities have taken into consideration this aspect of the case, the orders passed by them are not to be maintained and they are being quashed. 6. Accordingly, the writ petition is al lowed. The matter is being sent back to the appellate authority to reconsider the evidence on the point of availability of ir rigation facilities as provided under Section 4-A of the Act and re-determine the ceiling area of the tenure-holder taking into con sideration that the gift- deed executed by the tenure-holder was valid and after transfer she did not remain the owner of the land. The appellate authority may permit the par ties to lead evidence on the point of availability of irrigation facilities. 7. There will be no order as to costs. Petition allowed. .;