MAHADEO Vs. CIVIL JUDGE BASTI

JUDGEMENT

(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 :

(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.