Kallu v. State Of U.P .

Yashoda Nandan, J.:— When Civil Misc writ Petition No. 11370 of 1975 which arose out of proceedings under the U.P Imposition of Ceiling on Land Holdings Act, 1960 (hereinafter referred to as the Act) came up for hearing before Mufti, J. it was urged before him that in treating the entire area of plots Nos. 595 and 224 which formed subject matter of the proceeding as ‘irrigated land’, the authorities constituted under the Act had erred in law in construing sub-cl. (b) of cl. ‘firstly’ of S. 4-A of the Act. It was contended that the Khasra extracts for the years 1378 and 1380 Fasli relating to the two plots disclosed not only that during the relevant Fasli years two crops had open grown only over part of the areas thereof but the areas with ‘dofasli’ crop also kept varying and the prescribed Authority as well as the appellate authority had committed a patent error of law in treating the entire area covered by the two plots as ‘irrigated land’. Mufti, J. was not inclined to accept the contention. He has expressed his opinion in these words:—

“Manifest it is that both the plots have the source of irrigation. They did yield double crops in all the relevant years. True double crops were not grown over every inch of those plots in either of two seasons of any one of the above fasli years. True, the entire area of the plot No. 224 was never irrigated actually from canal, yet these features are not going to make any difference. Section 4-A by clause ‘firstly’ and ‘thirdly’ envisages two essentials only for each category. In the one thereof there should be an irrigation facility; and growth of double crops. In the other the land should be situated within the effective command of a tube-well and capable of growing two crops. Both the plots stand well within these tests.”

2. Before him, however, on behalf of the State reliance was placed on the single Judge decision of this Court in Ghasi Ram v. State of U.P (1977 All WC 402) in which a contrary view has been taken and it had been held that the requirements of cl. ‘firstly’ of the provision referred to earlier would not be satisfied unless it is shown that the two crops had been grown during the relevant years over the entire plot. He consequently referred to a larger Bench for its opinion, the following two questions.

“1. What is true scope and effect of sub-cl. (b) of cl. ‘firstly of S. 4-A?”

2. In particular, whether the said sub-clause would take in the entire plot only if two crops were grown in every inch of the land covered by it?”

3. Similar questions arose for consideration before Mufti, J. in Civil Misc. Writs Nos. 818, 4536 and 4754 of 1976 which also have been referred for the opinion of a larger Bench. All these petitions have consequently been connected and we are proceeding to deal with the questions referred in them. The questions referred by the learned single Judge for the opinion of a larger Bench are of vital importance in proceedings under the Act since ‘ceiling area’ and ‘surplus land’ have both to be computed on the basis of the irrigated land’ held by the concerned tenure-holder. In answering the questions quoted above it is pertinent to consider as to whether the word ‘land’ used in the Act is synonymous with the word ‘plot’ or ‘plots’.

4. Section 3 of the Act defines ‘grove land’, ‘holding and irrigated land’ surplus land’ and ‘usar land’ but the word land itself has not been defined in the Act. Sub-sec. (21) of S. 3, however, provides that the words and expressions not defined in this Act, but used in the Uttar Pradesh Zamindari Abolition and Land Reforms Act, 1950, shall have the meanings assigned to them in that Act. According to S. 3(14) of U.P Act No. 1 of 1951, ‘Land’ (except in Ss. 109, 143 and 144 of Chap. VII) means land held or occupied for purposes connected with agriculture, horticulture, or animal husbandry which includes pisciculture and poultry farming.’ The definition of the word ‘land’ as contained in U.P Act No. 1 of 1951 throws no light on the question as to whether land’ is equated with the word ‘plot’. While Ss. 4, 4-A, 5, 6, 7, 8, 11, 12, 12-A and certain other provisions of the Act and the Rules framed thereunder use the word land’, Ss. 9 and 10 alone make uses of the expressions plot or plots’. The Act consequently does draw a distinction between ‘land’ and ‘plots’. The word ‘field’ occurs in Ss. 28 and 29 of the U.P Land Revenue Act and in the Land Records Manual we find used the words land’, ‘field’ or ‘fields’ as well as ‘plot’. Thus ‘land’ has to be subdivided into fields and plot numbers are assigned to fields. It is further noticeable that S. 3(2) states that “Usar Land” means land determined to be ‘usar’ in such manner as may be prescribed……. R. 3-A of the Rules, which provides how ‘usar land’ is to be determined, is in the following terms:—

“Any land included in a holding which was not used for growing crops during the year 1376 Fasli to 1380 Fasli (both inclusive) due to the presence of salinity, stone, grit, or kankar shall be treated to be an Usar Land.”

5. It is not necessary that every inch of a plot of land may have been incapable of growing crops during the material Fasli years on account of the presence of salinity, stone, grit or kankar. It thus appears that during the process of determination of ‘usar land’ only a part of the plot may be found to be ‘usar land’ within the meaning of S. 3(20), the remaining area of the same plot may not be ‘usar land’ and might fall either within the category of ‘irrigated land’ or ‘unirrigated land’, S. 4(i) provides that two and a half hectares of ‘usar land’ will count as one hectare of ‘irrigated land’ or one and half hectare of unirrigated land. This shows that ‘usar land’ is neither ‘irrigated’ nor ‘unirrigated’ land. S. 6(1) of the Act which enacts that notwithstanding anything contained in the Act, land of the categories mentioned therein inter alia “land used as cremation ground or as a graveyard, but excluding cultivated land” shall not be taken into consideration for the purposes of determining the ‘ceiling area’ applicable and the ‘surplus land’ of a tenure-holder also lends support to the conclusion that the expressions ‘land’ and ‘plot’ are not conterminous. If a plot of land is partly cultivated and a share thereof is used as graveyard the area used as graveyard will be ignored and only that part of the plot which is cultivated is to be taken into account for determining the ‘ceiling area’ or ‘surplus land’ of the tenure-holder.

6. We further find from an examination of the various provisions of the Act that the Act is concerned with determination of the ‘ceiling area’ and the ‘ceiling area’ may consist of entire plot or only part of a plot or plots. Individual tenure-holder may have a plot which exceeds the ‘ceiling area’. In such an event the ‘ceiling area’ will have to be carved out and consist only of a part of the plot. Even when a tenure-holder files a statement in exercise of rights conferred on him under Section 9 of the Act indicating the plot or plots he would like to retain as part of his ‘ceiling area’ in case his preference is in excess of the ‘ceiling area’ to which he is entitled he will be allowed to retain only a part of the plot. A tenure-holder's ‘surplus land’ will also naturally have to be computed in terms of area and on the basis of plot or plots included in his holding. Under the circumstances, there seems to be no escape from the conclusion that the word ‘land’ as used in the Act is not used in the same sense as ‘plot or plots’.

7. We are consequently of the opinion, in agreement with the view taken by R.M Sahai, J. In Ghasi Ram v. State of U.P (supra) that ‘land’ and ‘plot’ are not synonyms. Though in the instant case the question has not been referred to a larger Bench by the learned single Judge since we are considering the decision by R.M Sahai, J. in the abovementioned case, we must express our doubts about the correctness of the view taken by him that in proceedings for determination of ‘irrigated land’ it is not open to the Prescribed Authority to permit oral evidence to be adduced and it must necessarily confine its enquiries to an examination of the relevant Khasras, the latest village map, such other records as it may consider necessary, and to a local inspection.

8. Approving the view taken in Ghasi Ram v. State of U.P (supra), with regard to the scope of S. 4-A a Division Bench of this Court consisting of R.B Misra and J.M.L Sinha, JJ. in Jaswant Singh v. State of U.P (1978 All WC 577) opined that in determining the extent of ‘irrigated land’ held by a tenure-holder in proceedings under S. 4-A of the Act it was not open to the Prescribed Authority to admit oral evidence and it was required to confine itself to an examination of the records mentioned in that provision and to a local inspection. It was held that S. 87 of the Act which provides that “any officer or authority holding an enquiry or hearing an objection under this Act, shall in so far as it may be applicable, have all the powers and privileges of a Civil Court, and follow the procedure laid down in the Civil P.C, 1908, for the trial and disposal of suits relating to immovable property” has no application to proceedings under S. 4-A of the Act which is a self-contained provision. These decisions appear to be based on the assumption that S. 4-A contemplates some sort of an order or decision. The object and purpose of the Act is to determine the ‘surplus land’ held by a tenure-holder so that it may be acquired by the State for redistribution to others. In the process, the Act requires the ‘ceiling area’ to which a tenure-holder is entitled, to be assessed. The ‘ceiling area’ has to be computed on the basis of the ‘irrigated land’ held by a tenure-holder. S. 4-A merely provides the basis for computing the ‘irrigated land’ held by a tenure-holder. The determination of the ‘irrigated land’ held by a tenure-holder is part of the process by which the Prescribed Authority decides under S. 12 of the Act the ‘surplus land’ held by a tenure-holder. The only judicial order to be passed by the Prescribed Authority is one contemplated by S. 12 of the Act in the event of an objection having been filed by the tenure-holder in response to a notice issued under S. 10 of the Act. S. 12 in very clear terms provides that:—

“Where an objection has been filed under sub-sec. (2) of S. 10 or under sub-sec. (2) of S. 11, or because of any appellate order under S. 13, the Prescribed Authority shall, after affording the parties reasonable opportunity of being heard and of producing evidence, decide the objections after recording his reasons, and determine the surplus land.”

9. The decision which ultimately affects a tenure-holder is one, as already stated, under S. 12 and it must be based on reasons to be recorded in writing and after parties have been given an opportunity of hearing and producing evidence. It is this order which is subject of an appeal and ultimate challenge in proceedings in this Court under Art. 226 of the Constitution. Moreover, the Act contemplates compulsory acquisition of property and any interpretation which results in prejudice to the tenure-holder must be avoided unless there are compelling circumstances. It is possible to contend that merely because S. 4-A of the Act makes it incumbent on the Prescribed Authority to take into account the record mentioned therein and resort to a local inspection, it does not by implication debar a tenure-holder likely to be affected of the right to lead oral evidence in support of his objection. In Muhammad Sulaiman Khan v. Muhammad Yar Khan (1889) ILR 11 All 267 (FB), Mahmood, J. observed as follows:—

“…… I take it as an undoubted principle of law that everything is to be taken as permissible unless there is some prohibition against it. The principle is of such a comprehensive nature that it applies equally to substantive and adjective law, and has been recognised as one of the fundamental principles of interpreting statutes.”

10. The other two learned Judges who constituted the Full Bench did not disagree with this rule of construction.

11. Since the question does not arise for consideration in this case, we, however, express no final opinion and leave the correctness or otherwise of the decision in Ghasi Ram v. State of U.P and Jaswant Singh v. State of U.P (supra) to be decided, as far as this aspect is concerned, in a case in which it directly arises.

12. We now proceed to consider the specific questions referred to this Bench. Section 4-A to the extent relevant for our purposes is in the following terms:—

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:—

13. 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. 1579-W/XXIII-62-W-1946 dated March 31, 1953, as amended 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 into 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 agricultural year between the date of such work coming into operation and the date of issue of notice under S. 10; or

14. Thirdly (a) that any land is situated within the effective command area of a lift irrigation canal or 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………….

(Emphasis supplied).

15. The basis for determination of the ‘ceiling area’ under the Act as originally enforced was fair quality land. Since the amendments introduced by U.P Act 18 of 1973 and subsequently by U.P Act 20 of 1976 ‘ceiling area’ and ‘surplus land’ require determination with reference to the assured irrigation facilities available to land held by a tenure-holder. Cl. ‘firstly’ of Section 4-A requires the Prescribed Authority to form an opinion as to whether during the material Fasli years irrigation facilities were available from such sources as are enumerated there in respect of any crops. The relevant consideration is merely the existence of irrigation facilities and not its actual utilization. This understandably so because if facilities are available and yet a tenure-holder neglects to make use of them there is no justifiable reason why he should have an advantage over those who have been up and doing while he has chosen to be idle and asleep. We have already held that land’ and ‘plot’ cannot be equated. If irrigation facilities of the nature mentioned in sub-cl. (a) of cl. ‘firstly’ of Section 4-A are available only to a part of the total area of which a plot is comprised it cannot be held that irrigation facilities were available for the entire plot. In such cases the prescribed authority on a correct interpretation of sub-cl. (a) of cl. ‘firstly’ will have to treat only that area of a tenure-holder's plot as ‘irrigated land’ to which irrigation facilities were available. We are consequently of the opinion that if a large plot consists partly of an area to which irrigation facilities are available as also some to which irrigation facilities are not available only that area thereof will be covered by sub-cl. (a) of cl. ‘firstly’ to which irrigation facilities were in fact available. Of course ‘usar land’ as defined in the Act and determined in the manner provided by the Rules will have to be excluded even though irrigation facilities may have been available to it. Similarly other varieties of land exempted under S. 6 will have to be excluded from consideration.

16. As far as sub-cl. (b) of cl. ‘firstly’ is concerned, the requirement is that at least two crops were grown in such land in any one of the aforesaid years (emphasis supplied). The expression ‘such land’, it is obvious, means land referred to in sub-cl. (a) of cl. ‘firstly’. The word used in sub-cl. (b) is ‘in’ and not ‘over’ and consequently if two crops were grown in ‘any portion of the area of a plot to which irrigation facility was available under sub-clause (a) of cl. ‘firstly’, the entire area to which irrigation facility was available shall have to be treated as land in which two crops were grown. The requirement of sub-cl. (b) of cl. ‘firstly’ of S. 4-A is not that every inch of the land to which irrigation facilities were available in the material years should have grown double crops. To take a hypothetical example, if to a plot of land consisting of 50 acres irrigation facilities were available to an area of 20 acres and on any portion of such 20 acres at least two crops were grown in any of the years 1378 Fasli to 1380 Fasli, the entire area of 20 acres to which irrigation facilities were available will have to be treated as ‘irrigated land’ for the purpose of sub-cl. (b) of clause firstly of S. 4-A. The word ‘in’ is one of common use. If it is said that an individual lives in a particular building or locality it does not convey that he is in occupation of the entire building or locality. Similarly when it is said that one has grown trees in a piece of land or raised crop therein, it does not signify that he has grown trees or raised crop over the entire land. When the legislature by amending the Act made availability of irrigation facilities the basis for determination of the ceiling area and surplus land instead of the quality of the land it must have had some purpose in mind. During the last decade farm technology and agricultural science have made rapid progress and human ingenuity coupled with labour and application of scientific know-how has successfully converted even deserts into green belts provided water was available. Application of scientific methods has made possible improvement in soil quality and its fertility. It is not unreasonable to infer that when the Act was amended the legislature intended that if any land has irrigation facilities available to it and is not ‘usar land’ and in some part of it ‘dofasli’ crops have in fact been raised in any of the relevant ‘Fasli’ years a willing and hardworking tenure-holder by application of modern agricultural appliances and fertilizers can improve the productivity of the land and consequently no premium should be available to those who fail to do so.

17. In this view of the matter to take a concrete case to compute the area of a tenure-holder's ‘irrigated land’ under cl. ‘firstly’ of S. 4-A the Prescribed Authority must find out the area of land to which irrigation facilities of the prescribed nature was available for any crop during the relevant Fasli years, exclude therefrom ‘usar land’ etc. and if it finds that over any part of such area at least two crops were grown it must hold the entire area as irrigated land’. Such an interpretation resolves the problem which the prescribed authority would be faced with in determination of the ‘irrigated land’ of a tenure-holder where records reveal the growing of two crops on varying areas of his holding during the material Fasli years.

18. For the reasons given, our answer to Question No. 1 posed by the learned single Judge is as follows:—

“If in any portion of an area of plot or plots to which during the Fasli years 1378 to 1380 irrigation facilities were available and over any portion of such area double crop had in fact been grown the entire area of the plot to which irrigation facilities were available will be covered by clause ‘firstly’ of Section 4-A since both the conditions laid down in sub-cls. (a) and (b) will be complied with.”

19. Our answer to Question No. 2 is in the negative.

20. In as far as a contrary view has been taken with regard to the scope of sub-cls. (a) and (b) of cl. ‘firstly’ of S. 4-A of the Act in Ghasi Ram v. State of U.P (supra) and similar opinion expressed in Surajpal Singh v. State Of Uttar Pradesh (1978 All LJ 1243) and Sitaram Tyagi v. State of U.P Writ No. 8115 of 1975 decided on 22-9-1978: (1979 All LJ NOC 17) have not been correctly decided.

21. Our opinion shall be placed before the appropriate Bench for decision of the writ petition on merits.

22. Reference answered accordingly.