Burden On State To Prove Land Is Irrigated Before Declaring It Surplus Under Ceiling Act: Allahabad High Court
The Allahabad High Court has held that a finding that a tenure-holder's land is irrigated for the purposes of Section 4-A of the U.P. Imposition of Ceiling on Land Holdings Act, 1960 must rest upon the Khasra entries of Fasli years 1378, 1379 and 1380, and where the State fails to produce those records, a declaration of surplus land founded on such a finding is a finding based on...
The Allahabad High Court has held that a finding that a tenure-holder's land is irrigated for the purposes of Section 4-A of the U.P. Imposition of Ceiling on Land Holdings Act, 1960 must rest upon the Khasra entries of Fasli years 1378, 1379 and 1380, and where the State fails to produce those records, a declaration of surplus land founded on such a finding is a finding based on no evidence.
Section 4-A of the U.P. Imposition of Ceiling on Land Holdings Act, 1960 provides for determination of irrigated land. It turns on whether irrigation facilities existed and whether the land was capable of yielding two crops in the relevant agricultural years.
The Court held that it was for the respondents to establish compliance with the provision, and that the determination could not be made on presumption.
Justice Irshad Ali held,
“The statutory scheme clearly requires the Prescribed Authority to record a finding on the basis of the Khasra entries of Fasli years 1378, 1379 and 1380 together with other relevant evidence regarding the existence of irrigation facilities and the capability of the land to produce at least two crops in the relevant agricultural years. Such determination cannot be founded upon presumptions or general observations.”
Petitioner is an agriculturist and tenure-holder of land in Village Pyarepur, District Unnao. In 1962, he and eleven others formed a co-operative farming society, Kisan Sanyukt Sahkari Kheti Samiti Ltd., registered on 28th January 1963 under the U.P. Co-operative Societies Act. Roughly 166 bighas stood recorded in the society's name in Khata No.260, of which the petitioner had contributed 26 bighas, 18 biswas and 15 biswansis. Separately, he held land in Khata Nos.140, 158 and 49, some of it jointly.
In 1992, the Prescribed Authority issued a notice in C.L.H. Form-3 alleging that he held 16.494 hectares of irrigated land and proposing to declare 5.194 hectares surplus. He objected that he had three major sons though only two had been counted. It was further urged that the society's entire land had been wrongly added to his personal holding, and that unirrigated land had been treated as irrigated.
By order dated 27th January 1996, the objections were rejected, the whole holding treated as irrigated and 5.194 hectares declared surplus. In appeal, the matter was remanded. After remand, the authority excluded the society's land except the petitioner's contribution, but again treated the holding as irrigated without examining the Khasra entries — and this time declared 13.629 hectares surplus, by order dated 30th March 1998. The appellate authority affirmed that order on 6th May 2000.
Before the High Court, Counsel for the petitioner argued that Section 4-A had not been followed on remand. It was argued that no Khasra of the relevant Fasli years had been looked at, no spot inspection report existed on record, and the burden of proving the statutory ingredients lay on the State. It was also urged that the Lekhpal's statement recording three sons had been ignored.
The Court observed that on a specific query, no counsel for the respondents could place any material from the Khasra records of the relevant Fasli years to show that the land satisfied Section 4-A, that it consistently yielded two crops, or that a source of irrigation existed. No inspection report by the Prescribed Authority had been brought on record either, it noted.
“The inability of the respondents to produce the foundational revenue records completely demolishes the basis of the findings recorded by the authorities below.”
“The finding that the entire holding was irrigated is, therefore, unsupported by any legally admissible evidence and is liable to be characterised as a finding based on no evidence.”
The Court also found that the records had been misread, Plot No.140 being confused with Khata No.140.
“Merely because tube-wells existed over a plot belonging to the co-operative society, the authorities presumed that the petitioner's independent holdings situated in Khata No.140 were also irrigated. Such inference is contrary to the revenue records and reflects complete non-application of mind. A statutory determination affecting valuable agricultural holdings cannot rest upon such erroneous assumptions.”
The Court held that the Lekhpal's statement recording three sons and two daughters was neither disputed nor discarded for any sustainable reason, yet both authorities proceeded on the footing that there were only two major sons and denied the petitioner the benefit of Section 5(3). It held that no finding had been recorded on his claim to additional ceiling area for a family of seven, and his statutory opinion of 30th November 1995, indicating the land which could be declared surplus, had gone unconsidered though the Act obliges the authorities to consider it.
On the jump in surplus area from 5.194 hectares to 13.629 hectares after remand, the Court held,
“Such substantial enhancement of surplus area without any fresh evidence or additional material on record itself demonstrates that the matter was not reconsidered in accordance with law but on wholly arbitrary considerations.”
Holding the findings of both authorities to be perverse and arbitrary, the Court allowed the writ petition and quashed the orders. The matter was remitted to the Prescribed Authority to decide the ceiling proceedings afresh after examining the Khasra entries, the Lekhpal's statement, the claim under Section 5 and the petitioner's option regarding retention of land, by a reasoned and speaking order preferably within six months.
Case Title: Babu Lal v. Prescribed Authority Ceilling Unnao And 2 Others