SHEO NATH Vs. STATE OF UTTAR PRADESH

JUDGEMENT

(1.) THIS writ petition arises out of the proceedings under the U. P. Imposition of Ceiling on Land Holdings Act, 1960. The present dispute has been confined only to plot no. 59 situate in village Chandrapura Khurd, Pargana and district Etawah. The dispute is as to whether this plot should be treated as irrigated land or not. Both the Prescribed Authority and the learned appellate authority have treated it as irrigated land. It appears that the petitioner also possesses another plot No. 122 which was irrigated by a tube well. The khasra entries of the years 1377F., 1378F. and 1380F. have been filed in this case which show that the two crops were shown in this plot and has been shown as irrigated. No source of irrigation is mentioned. A notice under section 10 (2) of the U. P. Imposition of Ceiling on Land Holdings Act, 1960 was issued to the petitioner on 4-9-1975. The Prescribed Authority held that plot No. 122 was irrigated land be- cause two crops have been shown as having been grown and consequently he held that the land was capable of growing two crops. The petitioner appealed against the order of the Prescribed Authority. In appeal the appellate court came to the conclusion that a State tube well has come into existence in the year 1380 F. and held that in view of the provisions of Section 4-A it must be held that irrigation facility was available for the land. Therefore, in view of the provisions of the opening part of section, the land must be held to be irrigated land. The provisions regarding the determination of the irrigated land fall in Section 4-A of the Act which runs as follows: "firstly........................ Secondly, that the irrigation facility became available to any land by a State irrigation work coming into operation subsequent to the enforcement Y of the Uttar Pradesh Imposition of Ceiling on Land Holdings (Amendment) Act, 1972 and at least two crops were grown in suchland in any agricultural year between the date of such work coming into operation and the date of issue of notice under Section 10." I have only mentioned relevant portions of the section. The State tube well came into existence in 1975. The learned appellate court has held in its judgment that a State irrigation facility came into existence in 1380F. because the land had been shown to have irrigated and two crops have been grown during the year 1378 F. and 1380 F. and therefore it held that the land must be held to be irrigated land. A true interpretation of the provisions which I have reproduced would show that between the date of the coming into operation of an irrigation facility by the State and the date of issue of notice under Section 10 (2) of the Act to the tenure holder at least two crops have been grown in any agricultural year. The appellate court has not examined this aspect of the matter at all. The approach of the appellate court is therefore vitiated and suffers from a manifest error of law. The learned Standing counsel states that appellate court was wrong in its order in holding that the petitioner had been cultivating this land and getting irrigation facility from the tubewell situate in plot no. 122 and consequently the land should be considered to be irrigated land in view of the opening part of Section 4-A of the U. P. Imposition of Ceiling on Land Holdings Act, 1960. The question whether the petitioner possessed private irrigation work on plot no. 122 or any other plot and had been getting water from that private irrigation work in the year 1378 F., 1379 F. and 1380 F. for the purposes of cultivation of this plot has not been examined by the appellate court. As a matter of fact this question should have been decided by the appellate court. In the result the writ petition succeeds and is allowed in part. The order of the learned appellate court is set aside in so far as plot no. 59 has been held to be irrigated land. The case is sent back to the appellate court. The appellate court should only confine itself to the decision of the question as to whether plot no. 59 was irrigated land within the meaning of the U. P. Imposition of Ceiling on Land Holdings Act. The other findings of the appellate court have not been challenged in this writ petition and remain intact. Parties will bear their own costs.