- (1.) SHITLA Pd. Srivastava, J. Heard learned Counsel for the petitioner and the learned Standing Counsel.
(2.) THIS petition under Article 226 of the Constitution of India has been filed by the petitioner against the judgment dated 30th July, 1988, passed by the respondent No. 2. The brief facts as stated in the writ petition are that a notice under Section 10 (2) of the U. P. Imposition of Ceiling on Land Holdings Act was served on the petitioner in the year 1982 showing 63. 61 acres of land with him out of which 27. 25 acres was shown unirrigated and 36. 36 acres was shown as single crop irrigated. The total land in irrigated terms was shown as 35. 12 acres, after giving benefits to the adult sons an area of 2. 28 acres in irrigated terms was proposed to be declared as surplus land. The. petitioner filed an objection that he had sold all his land to his sons in 1970 and has only one acre of land in his name. The name of his sons have been mutated on the basis of the transfer made in 1970 and in consolida tion operation chaks were carved out in the name of his five sons, therefore, the land entered in the name of his sons cannot be clubbed with the land of the petitioner. It was further stated that earlier a notice under Section 10 (2) was served on the petitioner which was contested by him and the District Judge finally decided the case in favour of the petitioner holding that only 0. 49 acres of land in irrigated terms is liable to be declared as surplus land. It was further stated that respondent No. 3 took possession over that land by order dated 16th January, 1985. It is further stated that after 1976 no unirrigated land of the petitioner has become irrigated land as a result of the irrigation facilities of State Irrigation we. k, nor any private irrigation work has come into exis'tence in the village in question, therefore, the provisions of Section 29 of the Act were not applicable and the second notice was illegal. A plea of res judicata was also raised on the basis of the earlier judgment passed by the Con solidation authorities in 1976. The ground of the attack made by the petitioner was that Bhagwati Prasad, Miya Deen Lekhpal, who were examined on behalf of the State merely stated that the land shown in the notice was single crop irrigated land. This statement is on the basis of 1387, 1388 and 1389 Fasli, but these docu ments were not filed before the Prescribed Authority, which is the requirement of Sec tion 4-A of the Act. Therefore the judgment is illegal. The contention of the petitioner is that he had filed C. H. Form 41 prepared in the consolidation proceedings to show that old plot Nos. and new plot Nos. were unir rigated, but the finding is not based on those evidence.
(3.) A counter-affidavit has been filed on behalf of the State. In the counter-affidavit it is stated that when second notice was given, the irrigated land of the petitioner was increased and the land of the petitioner came in the command area which was stated by Lakhpal Bhagwati Prasad and Miya Deen who prepared the notice on the basis of the relevant Khasras and as plots were shown to be irrigated in khasraof 1387, 1388and 1389 Fasli, therefore, the finding of the respon dents are correct finding. In paragraph No. 21 of the counter-affidavit, it is stated that in respect of plots shown in CH. Form No. 41, the petitioner did not produce any khasra to prove his case. The learned Counsel for the petitioner has urged that in view of Section 4-A of U. P. Imposition of Ceiling on Land Holdings Act it was mandatory for the State to have filed the relevant khasras and the statement of Lakhpal was not enough to decide the con troversy. He has placed reliance on 1978 AWC 577, Jaswant Singh v. State of U. P. and others. On the basis of this judgment the learned Counsel for the petitioner has urged that in order to find out irrigated land Section 4-A makes its obligatory on the Prescribed Authority to examine khasras for the year 1378, 1379 and 1380 Fasli and to examine the latest village map. He also placed reliance on the case of 1977, A. W. C. page 402, Ghasiram v. State of U. P. in which it has been held that "section 4-A casts duty on the Prescribed Authority to - (a) ex amine relevant khasra for the years 1378 to 1380 Fasli (b) latest village map (c) such other records as it may consider necessary (d) and may make local inspection if he considers necessary. As the Act was amended drastically by Act XVIII of 1973, the revenue extracts of three years preced ing this Act have been adopted as basic records. But the Prescribed Authority has been empowered to examine other records as well. The Act purposely has omitted oral evidence of any official-Lekhpal or Naib Tehsildar and has preferred to go by the records and opinion of the Prescribed Authority based on material mentioned in the section. " To appreciate the argument of the learned Counsel for the petitioner it is necessary' to see the intention of the legisla ture hidden under Section 4-A of the U. P. Imposition of Ceiling on Land Holdings Act. The said Section is quoted herein below: "section 4-A contemplates three types of situation when land can be said to be irrigated. They do not over lap. In the first category irriga tion facility and growing of two crops in any of three years (i. e. 1378 to 1380 ). The second category is where irrigation facilities became avail able by State Irrigation Work after 1972 and grow ing of two crops was shown in any agricultural years between date of work and issue of notice under Section 10. And for last category land should be situated within an effective command area of lift irrigation canal, tube well, a private irrigation work and class and composition of soil may be such that it may be capable of growing two crops. ";