RAJ BAHADUR Vs. STATE OF U P

JUDGEMENT

(1.) B. Dikshit, J. This writ petition has arisen as a notice was issued to petitioner under Section 29 to show cause as to why 19. 02 acres of irrigated land belonging to him be not declared as surplus. The notice has been contested by petitioner. The Prescribed Authority under U. P. Imposition of Ceiling on Land Holdings Act (in short Prescribed Authority) held that petitioner had only 13 acres of irrigated land and, therefore, he did not declare any land of petitioner surplus. State preferred an appeal. The appellate court reversed the finding of Prescribed Authority in respect of minority of petitioner's son and held him major. The appel late court remanded the case for decision afresh in respect of determination of irrigated land held by petitioner. It directed that the dispute in respect of land to be irrigated or unirrigated be decided by Prescribed Authority in the light of Section 4-A of U. P. Imposition of Ceiling on Land Holdings Act (in short Act' ). The Prescribed Authority on remand considered the case in respect of land being ir rigated or unirrigated and declared only 1. 67 acres of irrigated land as surplus. The appellate court held plot Nos. 18, 19, 74 and 134 to be single crop land. The tenure-holder went in appeal against declaration of 1. 67 acres irrigated land as surplus. The State neither filed appeal nor any cross-objection against the order of Prescribed Authority. The appellate court reconsidered the whole case and by im pugned order held 19. 03 acres of irrigated land as surplus being an area held by petitioner beyond ceiling limit.

(2.) COUNTER affidavit and rejoinder affidavit have been exchanged and therefore the writ petition is being disposed of finally at the stage of admission in accordance with rules of the Court.

(3.) THE second contention of the learned counsel for petitioner also has sub stance. THE remand order was specific that the Prescribed Authority will determine whether plots Nos. 18, 19, 74 and 134 are irrigated in accordance with Section 4-A or Section 29 in case they have subsequently become irrigated. After remand the Prescribed Authority and appellate Court were required to consider only if under Section 4-A the land is to be treated irrigated. THE Prescribed Authority and appel late Court have not declared land to be surplus on the basis of Section 29 but they have considered the case in respect of said plots on the ground of being within command area of a canal. This could be done if the land was covered by the test laid down under Section 4-A Firstly and Thirdly where test provided is that the determination of irrigated land will be on the basis of Khasra entries but if it is under Section 4-A Secondly then land becomes irrigated on a date after the enfor cement of U. P. Imposition of Ceiling on Land Holdings (Amendment) Act, 1972. THE appellate Court has not considered the land to be irrigated on the basis of test laid down in Section 4-A but taking into consideration that the land was shown in Sajra of the village in 1976-77 Fasli within command area of canal that it has held it to be irrigated. THE test laid down under Section 4-A of the Act has to be followed in all cases where ceiling area is to be re- determined after coming into operation of U. P. Imposition of Ceiling on Land Holdings (Amendment) Act, 1972 which has not been taken into consideration for declaring the land to be irrigated. THE appel late court has considered the matter on the basis of different test and, therefore, the finding of appellate Court cannot be upheld and the case is to be sent back to the appellate Court for decision afresh in the light of aforesaid observations.