K. C. Agarwal, J. - (1.) THIS writ petition is directed against the judgment of the learned Civil Judge, Etawah dated 20th May, 1975. By the aforesaid judgment the learned Civil Judge allowed the appeal of the petitioner partly and modified the order of the Prescribed Authority by reducing the surplus area from 4'55 acres to 4.33 acres.
(2.) THE first point raised by the learned counsel for the petitioner was that as on the finding of the learned Civil Judge water drawn from the tubewell with the aid of the tractor could not be said to be "private irrigation work" within the meaning of the said expression under Section 3 (14) of the U. P. Imposition of Ceiling on Land Holdings Act, 1960 (hereinafter referred to as "the Act") the learned Civil Judge committed an error in treating the land as irrigated. THE definition of the expression "private irrigation work" means a private tubewell, or a private lift irrigation work operated by diesel or electric power for the supply of water from a perennial water source, complete before August 15, 1972. According to the learned counsel in order that a case falls within the difinition of this clause it was necessary that the tubewell or the lift irrigation must be worked or operated by diesel or electric power and since the tractor was a vehicle and not a type of machine contemplated by this clause, therefore, the tubewell which was being operated by the tractor could not be a private irrigation work. THE submission made is untenable. A tractor too runs on diesel power in the form of a diesel engine with which it is fitted. THE fact that it is a vehicle is immaterial. As long as tubewell was operated by a tractor, it means that diesel power was employed and, therefore, Section 3 (14) of the Act is fully applicable. THE fact that the machine which operated the tubewell was a tractor is immaterial. It was essentially being operated by diesel power and the same falls within the four corners of the definition of the expression "private irrigation work." Counsel for the petitioner next contended that the learned Civil Judge committed an error in holding that plot nos. 283, 328, 329 and 331 had an assured source of irrigation from a tube-well and that clause (3) of Section 4-A of the Act applied to it. It was pointed out in this connection that in the notice served on the petitioner under Section 10(1) of the Act the source of irrigation mentioned was canal. In pursuance of this notice an objection was filed by the petitioner. He denied that canal water was available for irrigation to those plots. The Prescribed Authority decided the case against the petitioner by treating the aforesaid four plots as irrigated and determined the ceiling area of the petitioner in accordance with the same. Aggrieved by the judgment of the Prescribed Authority the petitioner preferred an appeal. In the appeal, the argument advanced was that there was no material before the Prescribed Authority by which he came to the conclusion that two crops were grown between 1378F to 1380F. and further there was no evidence which could show that a tube well existed over plot No. 288 from which water could be brought to irrigate the four plots stated above. The learned Civil Judge did not accept the case of the petitioner and holding that since there was a tube well in existence over plot No. 288, he came to the conclusion that the entire land of the aforesaid plots was capable of being irrigated from the same. I need not, however, go into the merits of this case as I think that the material prejudice was caused to the petitioner due to the service of a wrong notice on him. As already observed, in the notice served the source of irrigation mentioned was a canal whereas the Civil Judge as well as the Prescribed Authority found that since the land of the aforesaid plots were situated within the command area of a private tube-well, therefore, all the plots had to be treated as irrigated. As the petitioner did not have any notice of the aforesaid ground be was materially prejudiced from filing the relevant papers and establishing that the tube well water could not be brought to the land in dispute. Accordingly, it appears appropriate to send back the case to the Civil Judge to decide the question of the aforesaid plots being irrigated or not afresh. In the result, the writ petition succeeds and is allowed in part. The judgment and order of the Civil Judge dated 20th May, 1975 as well as of the Prescribed Authority dated 31-1-1974 are set aside and the case is sent back to the Prescribed Authority with the direction to decide the nature of the aforesaid plots afresh after giving opportunity of adducing evidence to the petitioner as well as to the State. There will be no order as to the costs. Petition partly allowed.;