Gopi Nath, J. - (1.) THIS is a petition under Article 226 of the Constitution. It challenges the orders of respondents Nos. 1 and 2 dated 3-12-1974 and 16-12-1974 declaring an area of 21 bighas 15 biswas and 13 dhurs of land held by the petitioner as surplus. In response to a notice issued under Section 10 (2) of the U. P. Imposition of Ceiling on Land Holdings Act (hereinafter referred to as the Act) the petitioner filed objections, inter alia, on the ground that 42 bighas 19 biswas and 7 dhurs of land in plots situate in village Gangapur, 4 bighas 7 biswas of land in plots situate in village Ailaha, 3 bighas 7 biswas of land in plots situate in village Bijaura and 6 biswas of land in plots situated in village Bhag-wantpur formed part of river bed and were accordingly exempt from the operation of the U. P. Imposition of Ceiling on Land Holdings Act and could not be taken into account in determining the ceiling area and the surplus land of any of the petitioner. He further contended that part of the land including in his holding was unirrigated and another part was grove. The Prescribed Authority, after considering the objections, came to the conclusion that part of the land of the petitioner's holding formed part of the river bed of river Ghagra, but such land could not be excluded from the operation of the Act and could be included in the holding of the tenure-holder for the purposes of determining the ceiling area and the surplus land. As regards the remaining part of the tenure-holder's holding, the Prescribed Authority after considering the objections found that the entire area was irrigated and no part of it was grove. Thus it rejected all the objections of the petitioner and declared an area of 21 bighas 15 biswas and 13 dhurs as the surplus land of the petitioner. On appeal the appellate authority affirmed that order and rejected the objections of the petitioner as raised before the Prescribed Authority and held that the land covered by the river bed of river ghagra could not be exempted from the operation of the Ceiling Act and no part of his holding was unirrigated or had a grove on it. The appellate order was passed on 16-12-1975. It appears that the petitioner filed an application for the setting aside of that order on the ground that the same was passed ex parte and prayed for a rehearing of the appeal. That application was rejected by an order dated 13-3-1976. The petitioner then filed the instant writ petition challenging the orders of the two authorities below, inter alia, on the ground that the land forming part of the river bed of river Ghagra could not be included in the holding of the Petitioner and was exempt from the operation of the ceiling Act. He further contended that the two authorities below had erroneously held that no part of the petitioner's holding was unirrigated land and no part of it was covered by grove. We have heard the learned counsel for the parties. The finding recorded on the question of irrigated nature of the petitioner's land is a finding of fact and cannot be disturbed in this petition. But we find force in the petitioner's contention that the land forming part of the bed of river Ghagra could not be taken into account for determining the ceiling area of the petitioner and declaration of the surplus land. The land forming part of river bed in our opinion is not a holding to which the Act applies. Holding is defined in Section 3 (9) of the Act as follows : "Holding means the land or lands held by a person as a Bhumidbar, Sirdar, Asami of a Gaon Sabha or an Asami mentioned in Section 11 of the U. P. Zamindari Abolition and Land Reforms Act, 1950 or as a tenant under the U. P. Tenancy Act 1939 other than a sub-tenant or as a lessee or as a sublessee of a Government lessee, where the period of the sub-lease is co-extensive with the period of the lease." Under Section 21 (1) (e) of U. P. Zamindari Abolition and Land Reforms Act every person who on the date immediately preceding the date of vesting occupied or held land as a non-occupancy tenant of pasture land or of land covered by water and used for the purpose of growing singhara or other produce or of land in the bed of a river and used for casual or occasional cultivation shall be deemed to be an asami thereof. Section 132 (a) of that Act provides that no sirdari right shall accrue in pasture lands or lands covered by water and used for the purpose of growing singhara or other produce or in land in the bed of a river and used for casual or occasional cultivation. Thus a tenure holder of land in the bed of a river is an Asami of that land under Sec. 21 (1) (e) read with Sec. 132 of the Z A and L R Act. Section 3 (9j of the Act defines holding to include the holding of an Asami of only two categories, viz., Asami of a Gaon Sabha and Asami mentioned in Section 11 of the U. P. Zamindari Abolition and Land Reforms Act. An Asami under Section 21 (1) (e) read with Section 132 of the U. P. Zamindari Abolition and Land Reforms Act is not included in the categories of Asamis mentioned in Section 3 (9). Accordingly, the land of an Asami other than an Asami of a Gaon Sabha or one mentioned under Section 11 cannot be included in the statement prepared under Section 10 (1) of the Act for determining the ceiling area. It has been found by the two authorities below that part of the land of the petitioner formed part of the bed of river Ghagra. The petitioner accordingly became Asami bf that land under Section 21 read with Section 132 of the U. P. Zamindari Abolition and Land Reforms Act and this part of his holding could not be included in the ceiling operations unless some other kind of tenure was found to exist therein which was covered under the Ceiling Act. It may be possible for the State to show by reference to statutory provision or other materials on record or by production of further material that the nature of tenure in respect of this land was of a different kind. But since there is nothing on the record of the present proceeding to suggest that there was any other kind of tenure except that of an asami of the kind mentioned above it seems appropriate to remand the case to the appellate authority to redetermine the ceiling area after allowing the parties to adduce such evidence in the case as they consider necessary.
(2.) LEARNED counsel for the respondent contended that the petition was belated. An explanation has been furnished by the petitioner that since he had applied for the recalling of the appellate order by an application under Order 41 Rule 19 CPC hence this petition got delayed and was filed only after the disposal of that application which was rejected on 13-3- 1976. We accept the explanation and condone the delay. It was then contended by the learned Standing Counsel that the petitioner did not urge before the authorities below that the land covered by the river bed could not be included in the holding as defined in Section 3 (9) of the Ceiling Act. The petitioner had claimed exemption in respect of the land forming part of the river bed and his contention was that this part of land could not be included in the Ceiling proceedings. The appeal was decided ex parte and the petitioner had applied for the setting aside of that order. We do not know how would the petitioner have tried to substantiate his point before the appellate authority. The question raised, however, is one of pure law, whether the holding of an asami who does not fall within the categories mentioned in Section 3 (9) of the Act can be included in the ceiling proceedings. We have already permitted the State to establish before the authority below by productrory of evidence or by reference to statutory provisions that this land forms part of the holding of the petitioner as defined by Section 3 (9) of the Act. The petition accordingly succeeds and is allowed. The case is remanded to the appellate authority for a fresh decision according to law in the light of the observations made. In the circumstance of the case parties shall bear their own costs. Petition allowed.;