JUDGMENT S.S. Chauhan, J.
1. Through this writ petition, the petitioner challenges the order contained in annexures 4 and 5 dated 15.05.1985 and 07.12.1987 passed by the Prescribed Authority and the Additional Commissioner respectively.
2. The facts, in brief, are that the petitioner through his servant was served with a notice under Section 10(2) of the U.P. Imposition of Ceiling on Land Holding Act (hereinafter referred to as 'the Act') in respect of his holdings situated in Villages Sisendi, Govindpur and Bhaundri, Tehsil Mohanlalganj, District Lucknow, in all measuring 98-15-18 shown to be irrigated in CLH form attached with the notice and 36-15-9 was proposed to be left with the petitioner out of his ceiling area and the rest was proposed to be declared as surplus. The petitioner filed objection against the said notice stating therein that the khasra plot No. 227 of Village Sisendi is a tank on the spot whose total area is 96 Bigha 17 Biswa, out of which 29 Bigha 15 Biswa is in petitioner's name as he has only 1/3rd share in the said plot. The aforesaid plot is not fit for cultivation and is covered by water. The khasra plot No. 226 of the same village i.e. Sisendi measuring 28-3-18 is also a tank on the spot and remains full of water and no cultivation takes place on the same. Similar objection was raised in respect of khasra plot No. 1472 measuring 6 Bigha 17 Biswa being a tank on the spot and not fit for cultivation. The khasra plot No. 425 of village Bhaundri whose total area is 44 Bigha 13 Biswa is also a tank. Out of this plot, the petitioner holds only 25 Bigha 12 Biswa. It was asserted that this plot also remains under water and no cultivation takes place on it. The plot No. 412 of the same village measuring 7 Bigha 10 Biswansi has wrongly been shown as irrigated and is a tank on the spot and remains covered with water throughout the year. In the end, it was prayed that all these plots mentioned above remain covered under water and no cultivation takes place on the said plots and, therefore, they did not fall within the definition of land and as such are liable to be exempted from the operation of the Act.
3. The petitioner further stated in his objection that he had gifted 20 Bigha for the school in village Govindpur and the same is liable to be excluded. The Prescribed Authority by means of order dated 24.12.1974 decided the objection of the petitioner and treated the land mentioned above, shown as tank and covered under water as unirrigated, as surplus land.
4. Feeling aggrieved, the petitioner preferred an appeal under Section 13 of the Act before the District Judge. The petitioner's brother Shri Surendra Kumar Bajpai also preferred an appeal. Both the appeals were allowed by the District Judge and the cases were remanded to the Prescribed Authority Ceiling for disposal of petitioner's objection, after giving them opportunity to produce such evidence as was necessary to support their case. After the remand of the case, a fresh notice dated 05.09.1975 was issued to the petitioner under Section 10(2) of the Act for redetermination of the surplus land. The petitioner again filed objection stating therein the similar things as mentioned above and further stating that plots No. 1698, 1699, 1707, 1752, 1829, 1830, 1824, 1833, 1874 and 2086 of village Sisendi are unirrigated and not fit for growing two crops in a year and as such they cannot be treated irrigated. The documentary as well as oral evidence was adduced by the petitioner and thereafter the Prescribed Authority dismissed the objection of the petitioner by means of order dated 30.10.1976. The petitioner again preferred an appeal under Section 13 of the Act before the District Judge. The District Judge partly allowed the appeal by means of judgment and order dated 11.04.1978. The petitioner felt that there was apparent error in the order of the learned District Judge and accordingly he preferred a review which was dismissed by means of order dated 25.09.1978. The petitioner challenged the above order of the learned District Judge by way of Writ Petition No. 69 of 1979 in this Court. Vide order dated 26.10.1978, the said writ petition was allowed by this Court and the order dated 15.09.1978 was set aside with the direction to the learned District Judge to decide the review afresh in accordance with law. The learned District Judge vide order dated 29.01.1982 allowed the review and sent the appeal for disposal to the Civil Judge, Malihabad, Lucknow. The Civil Judge, Malihabad allowed the appeal by means of order dated 31.10.1984 and remanded the case to the Prescribed Authority for redetermination of surplus land. The Prescribed Authority decided the case by means of order dated 10.05.1985 and held that plots No. 1698, 1699, 1707, 1752, 1830, 1833, and 2082 were irrigated. The petitioner again preferred an appeal under Section 13 of the Act and the same was rejected by the Additional Commissioner of the Division by means of order dated 27.12.1987.
5. The learned Counsel for the petitioner has submitted that the plots which are covered under water cannot be included within the definition of land as contemplated under Section 3(14) of the U.P. Z.A. & L.R. Act (hereinafter referred to as 'the Z.A. Act' for short) and, therefore, they could not have been clubbed within the ceiling area for declaring the surplus land. He also submits that the Prescribed Authority has not made a spot inspection and, therefore, the correct appreciation of the quality of land could not be made. If spot inspection would have been made, it would have been clear to the Prescribed Authority which plots are covered under water and which are usar and banjar and which is the irrigated land. He submits that the khasras which were placed on record were ample proof of the fact pertaining to 1378, 1379 and 1380 fasli that the land, as averred by the petitioner, is recorded as talab in Village Sisendi i.e. plots No. 226 and 227 and area of 28-3-18 and 6-3-19 is recorded as talab in the name of the petitioner and against plot No. 227 having area of 96 Bigha 17 Biswa names of three brothers have been indicated and the area of tank has been shown as 29-15-2. This entry finds mentioned in khasra of 1380 fasli and plots No. 412 and 425 of village Bhaundri are also tank on the spot.
6. He submits that the Prescribed Authority as well as the Additional Commissioner committed manifest error of law in declaring the land of the petitioner covered with water as irrigated. The petitioner's share is to the extent of 1/3rd only but in respect of plots No. 1699, 1707 and 1833 he has been shown as shareholder of 2/3rd share. So to this extent the determination of the surplus area is bad in law.
7. The learned Counsel for the petitioner has placed reliance upon the cases of Mahadeo v. The Civil Judge, Basti and Ors. 1979 All. L.J. 284] and Maharaj Singh v. State of U.P. and Ors. 1978 R.D. 278.
8. The learned Additional Chief Standing Counsel on the other hand submitted that in accordance with the last order of the Appellate Authority the Prescribed Authority has considered the case of the petitioner and thereafter determined the surplus land and, accordingly, no illegality has been committed in determination of the irrigated and unirrigated area. The land covered with water has rightly been considered to be unirrigated land and cannot be exempted from the ceiling operation. The evidence filed by the petitioner has been taken into consideration by the Prescribed Authority as well as the Appellate Authority and after considering the evidence and the entries in the khasra and spot inspection, the land has been declared surplus.
9. I have heard the learned Counsel for the parties and gone through the record.
10. The Prescribed Authority by means of order dated 30.10.1976 determined the surplus land of the petitioner, against which an appeal was filed by the petitioner. The learned District Judge by means of order dated 11.04.1978 directed the Prescribed Authority that the land of the petitioner may be separated according to his choice. Being aggrieved with the said order, the petitioner filed review against the order of the learned District Judge which was rejected by means of order dated 25.09.1978. The petitioner preferred a writ petition before this Court challenging the aforesaid order. This Court allowed the writ petition and set aside the order of the learned District Judge and directed that review be considered on merit. The learned District Judge while considering the review allowed the same by means of order dated 29.01.1982 and thereafter the case was transferred to the Court of learned Civil Judge on 08.12.1983. The learned Civil Judge vide his order dated 31.10.1984 allowed the appeal and remanded the matter to the Prescribed Authority. The Prescribed Authority determined the surplus land of Shri Surendra Kumar Bajpai separately and Shri Surendra Kumar Bajpai did not file any appeal against the order of the Prescribed Authority. It is only the petitioner who preferred an appeal as according to the order dated 11.04.1978 the District Judge has determined the petitioner holder of 74-11-3 equivalent to 56-15-18, which is his exclusive share. No land of Surendra Kumar Bajpai has been included in the said determination. The Prescribed Authority only followed the direction of the learned Civil Judge in appeal and declared the surplus land of the petitioner.
11. The only point which falls for consideration is whether the land covered by water i.e. to the extent of share of the petitioner in plots No. 226 and 227 in respect of Village Sisendi and 412 and 425 in respect of village Bhaundri is within the definition of land as contemplated under Section 3(14) of the ZA Act. The evidence on record goes to show that the khasra entries indicate that the land on spot is tank. The Pradhan of Village Sisendi, Shri Nanhe Singh has appeared as witness and has stated that the land remains covered under water throughout the year and no cultivation takes place on the same. The identical controversy arose in a case before this Court in the case of Tej Pal Singh v. State of U.P. and Ors. 1999 (2) AWC 1662 and the Court, while observing that in spite of directions of the Supreme Court dated 01.12.1987 given in SLP No. 3654 of 1987 that the petitioner's ceiling area be re-determined after arriving at a finding as to whether the plots of the petitioner are irrigated and submerged under water or not, the courts below have not adverted to the question involved in the light of judgment of the Supreme Court, allowed the writ petition and set aside the orders impugned and also remanded the matter to the Prescribed Authority for making spot inspection. The relevant portion of the said judgment is as follows:
3. The Prescribed Authority and in appeal, the Additional Commissioner mentioned in their judgments the two directions given by the Supreme Court which were required to be followed by the respondents, but while deciding the case of the petitioner, only gave lip service to the directions of the Supreme Court. The directions of the Apex Court are binding and its non-compliance directly or indirectly amounts to non-application of mind.
4. The question as to whether the land of the petitioner is submerged under water or not cannot be decided only from the entries mentioned in the records or upon the statement of Lekhpal. In view of the directions of the Apex Court, it was incumbent upon the Prescribed Authroity to have made spot inspection in the presence of the petitioner and to have prepared a detailed report about the plots which are alleged to be submerged under water.
12. In another case Rani Prem Kunwar v. District Judge, Bareilly and Ors. 1978 AWC 431 again the question arose as to whether the land submerged with water can be treated to be the land for the purposes of the Act. This Court after considering the definition of the land laid down as under:
5. The preamble makes it clear that the Act has been passed to provide land for landless agricultural labourers and for a more equitable distribution of land as also in the interest of community to ensure increased agricultural production and for other public purposes as best to subserve the common good. The object of the Act, therefore, is to carve out land from the large holdings so that the remaining holdings may be manageable and capable of more intensive cultivation as also to provide land to whose who could not have got it or who have very little of it. Obviously this purpose cannot be achieved unless there is land. A land which remains submerged with water and which cannot be used for any purpose contemplated by Section 3(14) of U.P. Act I of 1951 cannot be regarded as land nor it can serve the purposes contemplated by the preamble of the U.P. Imposition of Ceiling on Land Holdings Act.
6. The learned Standing Counsel has referred to Sections 3(2), 3(9), 3(16) and 3(17) which define ceiling area, holding, surplus land and tenure-holders respectively. His contention is that if the petitioner is tenure-holder of plot No. 135 and it is not exempted from Section 6 of the Act it will be included in determining the ceiling area. I am reluctant to subscribe to this view because in all these proceedings the word used is 'land' which is defined in Section 3(14) of U.P. Act I of 1951 only. As discussed above, plot No. 135 does not fall within the definition of land and it cannot be taken into consideration in determining the ceiling area. The learned District Judge committed manifest error of law by including it in that area.
13. In the case in hand also khasra of 1380 fasli of village Sisendi goes to indicate that 28-3-18 in plot No. 226 has been recorded as talab in the name of the petitioner and the rest has been recorded as banjar. The khasra of 1378 fasli of village Bhaundri does not indicate any land covered with water but argument has been raised in respect of plots No. 412 and 425. The khasra of 1378 fasli with respect to village Govindpur also does not indicate any land covered with water except banjar and usar. The khasra of 1380 fasli pertaining to village Sisendi indicates that plot No. 226 to the extent of 28-3-18 and 6-3-19 is tank and plot No. 227 measuring 96-15-2 is also a tank to the extent of 29-15-2. The khasra of plot No. 1379 fasli of village Sisendi indicates only 6-3-19 as tank and khasra of 1378 fasli indicates in plot No. 226 petitioner's share as 28-3-18 and 6-3-19 and in plot No. 227 the joint name of all the three brothers has been shown and the area of tank has been shown as 29-15-2. All these entries go to show that the question as to what extent the land is covered under water and is submerged in water and no cultivation is taking place on the same, has not been taken into consideration by the Prescribed Authority. The contention of the parties before the Prescribed Authority and the Appellate Authority can only be verified in a correct decision manner after the Prescribed Authority makes a spot inspection, as held in the case of Tej Pal Singh (supra). If the Prescribed Authority comes to the conclusion that the land in question is submerged under water and no cultivation takes place on the same, then the same would be excluded from the ceiling area as ruled by this Court in Rani Prem Kunwar (supra).
14. So far as the entry to the extent of 2/3rd share is concerned, the same finds support from the order of the Prescribed Authority and the petitioner has been shown to be the 2/3rd shareholder in respect of plots No. 1699, 1707 and 1833 and in other plots he has been shown shareholder of 1/3rd. In this view of the matter, the Prescribed Authority will take into consideration these aspects and ascertain as to how 2/3rd share of the petitioner has been indicated and if due to inadvertence any wrong calculations to the extent of 2/3rd share of the petitioner has been shown, then the same may be corrected.
15. In view of what has been indicated herein-above, the writ petition is allowed, the orders of the Prescribed Authority and the Appellate Authority are hereby set aside and the matter is remanded to the Prescribed Authority with a direction to make a spot inspection and take a decision in accordance with law.
16. There shall be no order as to costs.