NANHEY Vs. KASTOORI DEVI

JUDGEMENT

(1.) THE applicant raised an objection to the execution of a decree that he was a small farmer within meaning of the U. P. Debt Relief Act No. 4 of 1977. This plea was repelled by the execution Court. Aggrieved, the objector has come to this Court in revision. THE U. P. Debt Relief Act, by sub-section (11) of Section 2 defines 'small farmer' as follows:- "(11) "Small Farmer" means a person residing in a village who, on the date of commencement of this Act, holds unirrigated land exceeding one hectare but not exceeding two hectares, and whose principle source of livelihood is income from agricultural land or by manual labour on such land and included a person cultivating land as an asami or as a share cropper." THE Act came into force on February 21,1977. THE applicant had to establish that on February 21, 1977, he, Inter alia held unirrigated land exceeding one hectare but not exceeding two hectare. THE second Explanation to Section 2 provides that for the purposes of clauses (9) and (11) one hectare of irrigated land shall be equated to two hectares of unirrigated land. In this view, the applicant could be a small farmer if he held irrigated land exceeding hold hectare but not exceeding one hectare. THE Court below found that the applicant held more than 2.50 acres of irrigated land, 2.50 acres are equal to 1 hectare. THE rinding hence was that the applicant held more than one hectare of irrigated land and so he was not a small farmer. Explanation III to Section 2 provides that the expression 'irrigated land' and 'unirrigated land' shall have the meaning respectively assigned to them in the U. P. Imposition of Ceiling on Land Holdings Act, 1960, Clause (13 i of Section 3 of the U. P. Imposition of Ceiling on Land Holdings Act defines 'unirrigated land' to mean any land other than irrigated land, grove-land or usar land. Clause (11) of the aforesaid Section 3 defines 'irrigated land' to mean land determined as such in the manner laid down in Section 4-A. Section 4-A reads as follows- "4-A. Determination of irrigated land.-THE Prescribed Authority shall examine the relevant khasras for the years 1378 Fasli, 1379 Fasli and 1380 Fasli, the latest village map and such other records as it may consider necessary, and may also make local inspection where it considers necessary, and thereupon if the prescribed authority is of opinion; Firstly, (a) that, irrigation facility was available for any land in respect of any crop in any one of the aforesaid years: by- (i) any canal included in Schedule No. 1 of irrigation rates notified in Notification No. 1578-W-XIII-52-2- 1946, dated March 21, 1953, as amen ded from time to time; or (ii) any lift irrigation canal; or (iii) any State tube-well or a private irrigation work; and (b) that at least two crops were grown in such land in any one of the aforesaid years; or Secondly.-That irrigation facility became available to any land by a State Irrigation Work coming to operation subsequent to the enforcement of the Uttar Pradesh Imposition of Ceiling on Land Holdings (Amendment) Act, 1972, and at least two crops were grown in such land in any agricul tural year between the date of such work coming into operation and the date of issue of notice under Section 10, or Thirdly.-(a) that any land is situated within the effective command area of a lift irrigation canal of a State tube-well or a private irrigation work; and (b) that the class and composition of its soil is such that it is capable of growing at least two crops in an agricultural year; then the prescribed Authority shall determine such land to be irrigated land for the purpose of this Act. Explanation I.-For the purpose of this section the expression' effective command area' means an area, the farthest field whereof in any direction was irrigated- (a) in any of the years 1378 Fasli, 1379 Fasli and 1380 Fasli, or (b) in any agricultural year referred to in the clause 'secondly'. Explanation II.-THE ownership and location of a private irrigation work shall not be relevant for the purpose of this section. Explanation III.-Where sugarcane crop was grown on any land in "any of the years 1378 Fasli, 1379 Fasli and 1380 Fasli, it shall be deemed that two crops were grown on it in any of these years, and that the land is capable of growing two crops in an agricultural year." Under this provision before an opinion is formed that any land is irrigated land the khasras for the years 1378 Fasli, 1379 Fasii and 1380 Fasli and the latest village map and such other records as may be considered necessary had to be examined. Local inspection can also be made, if considered necessary. After examining these documents and making the local inspection, if any, an opinion has to be formed with regard to the satisfaction of firstly, secondly, or thirdly. When either of these three clauses are satisfied, then such land can be determined as 'irrigated land'. THE applicant had filed the khasras for the years 1379 Fasli and 1380 Fasli. THE Court below held that they were not reliable. It relied upon the Khatauni for the years 1382 Fasli to 1387 Fasli as well as the Khasra for the year 1382 Fasli. On an examination of these documents, it came to the con clusion that the applicant had more than 2.50 acres of irrigated land. Learned counsel for the applicant submitted that the Court below had no jurisdiction to examine the khatauni for the years 1382 Fasli to 1387 Fasli or the Khasra for the year 1382 Fasli. Under Section 4-A, the khasra for the years 1378 Fasli, 1379 Fasli and 1380 Fasli alone can be examined. Rule 3 of the Rules framed under the Ceiling Act provides;- "3. In arrears where due to consolidation operations or record opera tions or for any other reason, no Khasras were prepared during the years mentioned in Section 4-A, the Prescribed Authority, while examining other records, may also examine available Khasras for the three latest years preceding the year in which the Khasra was not prepared." Under this rule, the phrase 'and other records' occurring in Section 4-A, will include the khasras for the three latest years preceding the year in which the Khasra was not prepared. Learned counsel for the applicant argued that Rule 3 shows that Khasras for the year subsequent to the year 1378 Fasli could not be examined. I am, however, unable to agree with the submission in its entirety. If for any reason the khasra for the years 1378 Fasli, 1379 Fasli and 1380 Fasli are not held reliable the Khasras for subsequent years should be available for examination in order to find out whether any of the three clauses, firstly, secondly or thirdly, are satisfied. Under clause 'firstly' the examination of the various documents is done in order to find out that irrigation facilities were available for any land in respect of any crop in any one of the aforesaid years. THE phrase 'aforesaid years' means 1378 Fasli, 1379 Fasli and 1380 Fasli. Similarly, under sub-clause (b) of clause 'firstly', it has to be shown that at least two crops were grown in such land in any one of the aforesaid years. Here also, the aforesaid years are confined to the mentioned three years. Khasras for subsequent year can be examined in order to form an opinion whether the irrigation facilities were available and at least two crops are grown in the land in any of the years 1378 Fasli, 1379 Fasli and 1380 Fasli. Of course, the khasras for subsequent year could not be examined to find whether irrigation facilities were available and at least two crops are grown in years subsequent to 1380 Fasli. Under the clause 'secondly', events happening subsequent to the coming into force of the Ceiling Amendment Act, 1972 are relevant. If irrigation facilities became available thereafter and at least two crops have been grown in any agricultural year till the date of issue of notice under Section 10, the land will be deemed to be irrigated. For this purpose, Khasras for the year subsequent to 1380 Fasli will become relevant and can be examined. THE clause 'thirdly' also envisages irrigation facilities becoming available in any of the agricultural year referred to in clause 'secondly', namely, in any agricultural year between the dates when the State Irrigation Work comes into operation and issue of notice under Section 10. For the purposes of clause 'thirdly' also, Khasras subsequent to the year 1380 Fasli may, in certain situations, becomes relevant. Section 4-A of the Ceiling Act hence does not totally exclude examination of Khasras subsequent to the year 1380 Fasli. Section 4-A of the Ceiling Act has to be read along with Section 5 of that Act. Under Section 5, no tenure-holder is entitled to hold in the aggregate throughout Uttar Pradesh, any land in excess of ceiling area applicable to him on and from the commencement of the U. P. Imposition of Ceiling on Land Holdings (Amendment) Act, 1972, which came into force on January 24, 1971. Since the datum line is January 24, 1971 to deterajine the ceiling area which under Section 5 is required to be determined in terms of irrigated areas. Section 4-A confines the attention of the Prescribed Authority to the examination of Khasras for the three years ending with 1380 Fasli normally. In other words, the determination of irri gation land under Section 4-A was with a view to find out the irrigated land held by a tenure-holder on or before January 24, 1971. But in certain situa tions, Section 4-A contemplated taking Judicial notice of events subsequent to January 24, 1971. Under the U. P. Debt Relief Act, the definition of small farmer requires that on the date of commencement of this Act, namely, February 21, 1977 the person should hold unirrigated land exceeding one hectare but not exceeding two hectares. THE expression 'unirrigated land' has been given the meaning assigned to it under the Ceiling Act. Since the U. P. Debt Relief Act, 1977 specifically requires a finding that the person should hold the stated amount of unirrigated land on the date of commencement of this Act, the third Expla nation to Section 2 of the Debt Relief Act, 1977 which provides that the expres sion 'irrigated land' and 'unirrigated land' shall have the meaning respectively assigned to them in the U. P. Imposition of Ceiling on Land Holdings Act, 1960, must be read to import the meaning assigned to them under the Ceiling Act in so far as they are helpful in the operation of the U. P. Debt Relief Act, 1977. Since the requirement of sub-section (11) of Section 2 of the U. P. Debt Relief Act is to find the holding of a person on the date of commencement of this Act, the determination of 'irrigated land' can be done under Section 4-A as required by Explanation III to Section 2 but in such a determination for the purposes of the U. P. Debt Relief Act the phrase 'and such other records as it may consider necessary' occurring in Section 4-A, ought to be interpreted so as to advance the object of the U. P. Debt Relief Act, 1977, namely, to enable the Court to find the holding of a person on the date of commencement of that Act which is February 21, 1977. In order to find the holding of a person on February 21, 1977, the khasra for the year subsequent to 1380 Fasli and till 1977 are material and relevant. In my opinion, they will be admissible for examination in order to determine 'irrigated land' under Section 4-A. As shown above, the phrase 'and such other records' occurring in Section 4-A, is flexible enough to include khasras subsequent to year 1380 Fasli, even for determination of 'irrigated land' under the Ceiling Act. This also establishes that while determining the 'irrigated land' under the U. P. Debt Relief Act, 1977, khasras for the year subsequent to 1380 Fasli are admissible. Since the holding of a person has to be with respect to February 21, 1977, the phrase'in any one of the aforesaid years' occurring the clause 'firstly' will have to be read so as to include years subsequent to 1380 Fasli and till February 21, 1977 for which the Khasras and other records have been examined. A mere literal application of Section 4-A would defeat the intent and purpose of the U. P. Debt Relief Act in order to find the holding of a person on February 21, 1977. THE third Explanation to Section 2 providing that the expressions 'irrigated land' and 'unirrigated land' shall have the meaning respectively assigned to them under the Ceiling Act is a piece of legislation by reference. It will apply as far as may be in order to carry out the purpose of the U. P, Debt Relief Act, 1977. A 'purposive construction' rather than a literal approach will carry out the legislative intent. THE Court below examined the khasras and khatauni subsequent to year 1380 Fasli validly. THE finding that the applicant is not a small farmer within the meaning of the U. P. Debt Relief Act, 1977 is not hence vitiated by any jurisdictional defect or error. In the result, the revision fails and is accordingly dismissed with costs.