SIDDHARTH,J. - (1.) Heard Sri H.O.K. Srivastava and Sri Satya Prakash Srivastava learned counsels for the petitioner, Sri S.P. Srivastava learned Standing Counsel on behalf of respondent Nos. 1, 2 and 3 and Sri Mohd. Shahanshah Khan and Sri V.K.Singh Somvanshi on behalf of legal heirs of respondent Nos. 4 and 5. The above noted writ petition has been filed by the petitioner praying for quashing the judgment and order dated 15.02.2008 passed by opposite party No.1, Additional Commissioner, Vindhyachal Division, Mirzapur, in Appeal No. 290 of 2006 and 12.10.2006 passed by the opposite party No.2, Additional Collector (Finance/Revenue)/Prescribed Authority under U.P. Imposition of Ceiling on Land Holdings Act, Mirzapur, in Case No. 01 of 2003, under Section 10(2) of U.P. Imposition of Ceiling on Land Holdings Act, 1960. Petitioner's case is that on 04.01.1974, notices under Section 10(2) of U.P. Imposition of Ceiling on Land Holdings Act, 1960 (hereinafter referred to as the "Act") were issued against original petitioner, Mani Shanker (since died), stating that the plots mentioned in notice are unirrigated. Subsequently, a fresh notice was issued on 12.4.1976 to the petitioner stating that petitioner holds 113 bigha and 17 biswa of land, when he had surplus land of 70 bigha and 12 biswa. The original petitioner and opposite party No.6, Ram Kishore Pandey, filed an objection stating that Ram Kishore has purchased the land from petitioner on 12.6.1968 and as such the notice issued to the petitioner deserves to be dropped. The land held by respondent No.6 should be deducted from the holding of the petitioner. Petitioner claimed exemption on the basis of sale deed executed by him to third party and also on the basis of land being unirrigated. The Prescribed Authority by his order dated 05.02.1977 declared 70 bigha and 12 biswa of land of the petitioner as surplus. Petitioner gave choice indicating that the land sold by him in 1968 may be taken as his choice. The objection made by opposite party No.6, Ram Kishore, was rejected as barred by time.
(2.) The order dated 05.02.1977 passed by Prescribed Authority was challenged in appeal before the District Judge, who allowed the same on 02.11.1982 and remanded the case to the Prescribed Authority to decide it again, after affording opportunity of hearing and evidence to the parties. The Prescribed Authority, without issuing any notice to the petitioner and other affected parties, decided the case by the exparte order dated 31.01.1986. The petitioner moved a recall application praying for recall of the exparte order dated 31.01.1986 before the Prescribed Authority, which was rejected by him on 23.12.1991. The order dated 23.12.1991 was challenged by the petitioner before the Commissioner, Varanasi Division, Varanasi, by way of an appeal, but the same was rejected by the judgment and order dated 17.9.1992. The petitioner preferred a Civil Misc. Writ Petition No. 40424 of 1992 before this Court challenging the orders dated 31.01.1986 and 17.9.1992 passed by the Prescribed Authority and the Additional Commissioner, respectively. The aforesaid writ petition was allowed by the judgment and order dated 15.4.2002 remanding the matter to the Prescribed Authority for deciding the objections of the petitioner after affording the opportunity of hearing. After remand of the case from this Court, the petitioner filed a detailed objection before the Prescribed Authority stating that land of villages, Mahugarh and Sikta, are unirrigated. The canal water does not reaches the plots. The land is dependent upon rain. It was further stated that petitioner has five sons and three unmarried daughters, who have no land of their own. It was also stated stated petitioner has transferred 8 bigha and 11 biswa of land in favour of Khillu, S/o Jhagadu, R/o Village Danapur, on 28.3.1968 and delivered possession to him. He further stated that he has transferred 3 bigha and 7 biswa of land village, Mahugarh, in favour of Ram Kishore and Sharad Pandey by registered sale deed dated 12.6.1968 and delivered possession to them. He also stated that he was need of money and therefore, he transferred 18 bigha and 2 biswa of land on 22.7.1971 to Brij Lal, Gomati, Shyam Lal and Shanker, sons of Shahdeo and they are in cultivatory possession thereof. After statutory deduction, permitted under law, the holding of the petitioner comes about 42 bighas only. The objection of the petitioner was counter objected by Nayab Tehsildar vide objection dated 02.9.2003. He denied that the land of the petitioner in Tehsil Lalganj, is unirrigated and dependent upon rains only. He further stated that the land sold by the petitioner to third party has already been excluded from ceiling purchased by order of Prescribed Authority dated 31.1.1986. Regarding sale deed dated 22.7.1971 executed by the petitioner, it was stated that it is beyond the date of cut off 24.1.1971 and therefore, it cannot be executed from consideration. No son of the petitioner was major on 8.6.1973 and therefore, not entitled to any land. The statement of the petitioner, Lekhpal and Uttam Kumar, were recorded before the Prescribed Authority.
(3.) Learned counsel for the petitioner has submitted that Prescribed Authority did not give any finding on the issue of land being irrigated or unirrigated under Section 4-A of the Act. The relevant Khasras 1378, 1379 and 1380 Faslis were not examined by the Prescribed Authority nor he made any local inspection. He did not give any land to the sons and daughters of the petitioner and included the land transferred to Brij Lal etc. on 22.7.1971 in the land of the petitioner by his judgment and order dated 12.10.2006. Aggrieved by the aforesaid judgment of the Prescribed Authority, the petitioner preferred an Appeal No. 290 of 2006 before the Additional Commissioner, Vindhyachal Division, Mirzapur. It has been submitted that the Commissioner has also not decided the issue of the land being irrigated or unirrigated and has rejected the appeal of paraphrasing the findings of the Prescribed Authority. Learned counsel for the petitioner has relied upon the judgment of this Court in the case of Vyas Prasad (Dead) through LRs. Vs. Additional Commissioner, Gorakhpur Division, Gorakhpur and others, 2017 (137) RD 142, wherein this Court has held that it is incumbent upon the Prescribed Authority to decide whether land in dispute was irrigated or unirrigated as per Section 4-A of the Act. In the absence of determination, the order of Prescribed Authority cannot be upheld. Learned counsel for the petitioner has relied upon paragraph Nos. 22 to 25 of the aforesaid judgment, quoted as below:- "22. It has also been argued by the learned Senior Counsel that for determination of the irrigated land, the Prescribed Authority wrongly relied upon the oral statements of the Lekhpal. As per the law laid down by this Court in a larger Bench decision in the case of Jaswant Singh v. State of U.P ., : 1978 AWC 577, under Section 4-A of the Rural Ceilings Act, oral evidence cannot be relied upon to determine whether land is irrigated land to declare its as surplus, the Division Bench of this Court affirmed the judgment rendered by a learned Single Judge in the case of Ghasiram v. State of U.P ., 773 Allahabad 438. The Division Bench considered the question referred to it with regard to "whether in proceedings under Section 4-A of the Act parties can adduce oral evidence and the Prescribed Authority can look into the same for determining irrigated land?" 23. This Court observed that irrigated land has been defined in Section 3(11) of the Act, which means land determined as such in the manner laid down in Section 4-A. Section 4-A lays down the procedure in order to determine irrigated land and it is not open to the Prescribed Authority to adopt a procedure inconsistent with the provisions of Section 4-A. ;