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PETITIONER: KALLU ETC.

       Vs.

RESPONDENT: STATE OF U.P. AND ORS.

DATE OF JUDGMENT24/10/1989

BENCH: NATRAJAN, S. (J) BENCH: NATRAJAN, S. (J) SAIKIA, K.N. (J) KULDIP SINGH (J)

CITATION:  1990 AIR  477            1989 SCR  Supl. (1) 567  1990 SCC  Supl.   91     JT 1989 (4)   448  1989 SCALE  (2)946

ACT:     U.P.  Imposition of Ceiling on Land Holdings Act,  1960: Section 4A--’Irrigated land’--Determination of--Whether  two crops should be grown on entire extent of land holding.

HEADNOTE:     The appellants had Fried separate writ petitions in  the High Court challenging the basis for determination of  ’irr- igated  land’  under section 4A of the  U.P.  Imposition  of Ceiling  on Land Holdings Act, 1960. In view of  conflicting interpretations given earlier by Single Judges of that  High Court,  a  reference was made to the Division Bench  in  the case  of the petitioner/appellant Kallu Following the  ratio laid  down by the Division Bench in Kallu v. State of  U.P., [1979] A.L.J. 1113 the writ petitions were dismissed.     Before this Court, the appellants disputed the  correct- ness of the view taken by the Division Bench, and  contended that  in order to classify a land as irrigated  land,  there should  be evidence of ’assured irrigation’  and,  secondly, that  the two crops in a Fasli year should have been  raised on  the  entire extent of the land and not in a  portion  of land alone. Dismissing the appeals, this Court,     HELD:  (1)  The Uttar Pradesh Imposition of  Ceiling  on Land Holdings Act, 1960 is a piece of social legislation for achieving the several objectives set out in the preamble. In order  to give greater thrust to the objects underlying  the Act, the Legislature has changed the basis for reckoning the ceiling  area  from that of ’fair quality land’ to  that  of ’assured irrigation facilities’ available to a land.  [574C- D]     (2) On a reading of section 4A, it may be seen that  the Legislature  has prescribed different kinds of tests on  the basis  of which the authorities have to determine whether  a land is irrigated or not for the purpose of determining  the ceiling area of a tenure holder. The two broad tests are (1) availability of irrigation facilities and (2) the factum  of raising  or the capability of the soil raising at least  two crops in an agricultural year. [573F-G] 568

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   (3) There is no merit in the contention that in addition to  the materials and records set out in the  section  there must be independent evidence of assured irrigation  facility before ever a Prescribed Authority can form an opinion about a land having assured irrigation facility. [574F]     (4)  Sub-clause (b) of section 4-A cannot be read so  as to mean that two crops should have been grown on the  entire extent of a land having irrigation facility for  classifying the land as ’irrigated land’ as it would have the effect  of limiting  the  operation of the sub-clause contrary  to  the legislative intent. [575A]     (5) The classification has to be made with reference  to the potentiality of the land to yield two crops in one Fasli year and not on the basis of the actual raising of two crops on the entire extent of the land. [574H]     (6)  The raising of two crops even on a portion  of  the land  will  prove in the absence of material  to  show  poor quality of soil in portions of the land due to salinity etc. the  uniform  nature and content of the soil of  the  entire land. [575D]

JUDGMENT:     CIVIL  APPELLATE JURISDICTION: Civil Appeal No. 3241  of 1979 etc.     From  the  Judgment  and Order dated  24.7.1979  of  the Allahabad High Court in Civil Misc. Writ Petition No.  11370 of 1975. M.V. Goswami and Dr. B.S. Chauhan for the Appellant.     Prithvi  Raj, R.S. Rana and Ashok K. Srivastava for  the Respondents. The Judgment of the Court was delivered by     NATARAJAN,  J.  In these appeals by special  leave,  the appellants assail the interpretation given to certain provi- sions  of  Section 4A of the U.P. Imposition of  Ceiling  on Land  Holdings Act, 1960 as amended by U.P. Acts 18 of  1973 and  20 of 1976 (hereinafter referred to as the Act) by  the Allahabad  High Court. Conflicting interpretations had  been given by single judges on the relevant provisions and  hence a  reference  was  made in Kallu v. State of  U.P.  &  Ors., [1979]  A.L.I. 1113 to which connected writ  petitions  were tagged  on  to a Division Bench for  an  authoritative  pro- nouncement on two questions viz. 569               "1. What is the true scope and effect of  sub-               clause (b) of clause ’firstly’ of Section 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." The Division Bench, in its reported judgment Kallu v.  State of  U.P.,  [1979] A.L.J. 1113 has discussed the  matter  and answered the two questions as under:               "Clause ’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 therein in  respect               of  any  crop. The relevant  consideration  is               merely the existence of irrigation  facilities               and not its actual utilisation. This is under-               standably so because if facilities are  avail-               able and yet a tenure holder neglects to  make               use  of them there is no  justifiable  reasons

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             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  irri-               gation  facilities of the nature mentioned  in               sub-clause (a) of clause ’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  Pre-               scribed Authority on a correct  interpretation               of subclause (a) of clause ’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  consist               partly of an area to which irrigation  facili-               ties  are  available  as also  some  to  which               irrigation  facilities are not available  only               that  area  thereof will be  covered  by  sub-               clause (a) of clause ’firstly’ to which  irri-               gation  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  irriga-               tion facilities may have been available to it.               Similarly  other  varieties of  land  exempted               under Section 6 will have to be excluded  from               consideration.               As  far as sub-clause (b) of clause  ’firstly’               is concerned, the               570               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-clause  (b)  is ’in’ and  not  ’over’  and               consequently  if the crops were grown  in  any               portion of the area of a plot to which irriga-               tion  facility was available under  sub-clause               (a)  of-clause ’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-clause  (b)               of clause ’firstly’ of Section 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-clause  (b)  of               clause ’firstly’ of Section 4A. 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               threes  in  a piece of land  or  raised  crops               therein, it does not signify that he has grown

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             trees  or raised crops 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  suc-               cessfully  converted even deserts  into  green               belts  provided water was available.  Applica-               tion  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  avail-               able to it and is not ’usar land’ and in  some               part  of it ’dofash’ crops have in  fact  been               raised in any of the relevant ’fasli’ years, a               willing  and  hard  working  tenure-holder  by               application  of modern agricultural  appliance               and  fertilisers can improve the  productivity               of the land and consequently no premium should               571               be  available to those who fail to do  so.  In               this  view of the matter, to take  a  concrete               case to compute the area of a  tenure-holder’s               irrigated  land’  under  clause  ’firstly’  of               Section 4A Prescribed Authority must find  out               the  area of land to which irrigation  facili-               ties  of the prescribed nature were  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 of ’irrigated land’. Such an  interpreta-               tion 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 the  crops               on  varying  areas of his holding  during  the               material Fasli Years."                         "For  the reasons given, our  answer               to  question  No.  1, passed  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 sown, 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 condition  laid               in  subclause  (a) and (b)  will  be  complied               with."               "Our answer to question No. 2 is in the  nega-               tive.                        In as far as a contrary view has been               taken with regard to the scope of  sub-clauses               (a) and (b) of clause ’firstly’ of Section 4-A               of  the  Act  in Gasi Ram v.  State  of  U.P.,               (supra)  and  similar  opinion  expressed   in               Surrinjpal  Singh  v. State  of  U.P.,  [1978]               A.L.J.  1343  and Sitaram Tyagi  v.  State  of

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             U.P.,  (Writ No. 8115 of 1975 decided on  22nd               September, 1978, 1978 AWC SCC 114 page 90 have               not been correctly decided."     Thereafter, the writ petitions were placed before single judges  for decision on merits and the petitions came to  be dismissed. In Civil Misc. Writ Petition No. 11370 of 1975 it was  held that plot Nos. 595 and 224 belonging to the  peti- tioner  had been rightly treated as irrigated land in  their entirety for purposes of computation under the Act.  Against that judgment, Civil Appeal No. 3241 of 79 has been 572 filed.  In the other appeal which arises from the  dismissal of  Civil Misc. Writ Petition No. Nil of 84, leave has  been granted confined only to Plot No. 466. The writ petition was dismissed  following  the ratio in Kallu v. State  of  U.P., (supra).  Though the appeals are directed against  the  dis- missal of the two writ petitions, the real challenge in  the appeals  is to the ratio laid down by the Division Bench  in Kallu v. State of U.P., (supra).     The appellants dispute the correctness of the view taken by  the  Division Bench and would contend that in  order  to classify a land as irrigated land, there should be  evidence of ’assured irrigation and secondly the two crops in a fasli should have been raised on the entire extent of the land and not in a portion of the land alone.     The  interpretation of the terms of Section 4-A  of  the Act  assume importance because ’ceiling area’  and  ’surplus land’ under the Act have to be computed on the basis of  the ’irrigated  land’ held by a tenure holder.  Originally,  the ’ceiling  area’  under the Act was to be determined  on  the basis of ’fair quality land’. However, by amendments  intro- duced by U.P. Act 18 of 1973 and U.P. Act 20 of 1976,  ’cei- ling  area’  and ’surplus land’ are to  be  determined  with reference to the assured irrigation facilities available  to land held by a tenure holder.     We  may  now  have a look at the  relevant  portions  of Section 4-A of the Act. They read as under:                         "4-A.  Determination  of   irrigated               land.--The prescribed authority shall  examine               the relevant khasras for the yeas 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.               1579/W/XXIII-62-W-1946, dated March 31,  1953,               as amended from time to time; or               573               (ii) any lift irrigation canal; or               (iii) any State tube-well or a private irriga-               tion 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  of  Land  Holdings  (Amendment)  Act,               1972,  and  at least two crops were  grown  in               such land in any agricultural year between the

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             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  irriga-               tion  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.               EXPLANATION I.    (Omitted)               EXPLANATION II.    (Omitted)               EXPLANATION III.    (Omitted)     On  a  reading of Section 4-A, it may be seen  that  the Legislature  has prescribed different kinds of tests on  the basis  of which the authorities have to determine whether  a land is irrigated land or not for the purpose of determining the ceiling area of a tenure holder. The two broad tests are (1) availability of irrigation facilities and (2) the factum of raising or the capability of the soil for raising atleast two crops in an agricultural year.     We may now examine the merits of the appellant’s conten- tions.  The  statute has been enacted "to  provide  for  the imposition of ceiling on land holdings in Uttar Pradesh  and certain other matters connected ,therewith." The preamble to the Act reads as under: 574               "Whereas  it is necessary in the  interest  of               the community to ensure increased agricultural               production  and to provide land  for  landless               agricultural  labourers and for  other  public               purposes as best to subserve the common good.               And  whereas a more equitable distribution  of               land is essential.               And, therefore, it is expedient to provide for               the imposition of ceiling on land holdings  in               Uttar    Pradesh   for   the    aforementioned               purposes."     The  Act  is  thus a piece  of  social  legislation  for achieving the several objectives set out in the preamble. In order  to give greater thrust to the objects underlying  the Act, the Legislature has changed the basis for reckoning the ceiling  area  from that of ’fair quality land’ to  that  of "assured irrigation facilities" available to a land.     Coming  now  to the specific provisions of  Section  4-A dealt  with by the High Court, it may be seen that in  order ’to  form an opinion whether irrigation facility was  avail- able for any land from one of the sources mentioned in  sub- clauses (i), (ii) and (iii) in respect of any crop in anyone of  the  aforesaid  years viz., Faslis 1378  to  15380,  the Prescribed Authority is enjoined to examine the Khasras  for those  three  Fasli years, the village map,  other  relevant records  considered necessary and also to make a  local  in- spection  whenever it is necessary. Hence there is no  scope for  contending  that a Prescribed Authority  may  form  his opinion without reference to relevant material, in an  arbi- trary  or  capricious manner, to the detriment of  a  tenure holder  as  regards the availability of  assured  irrigation facility  to  a  land from one of  the  enumerated  sources. Consequently,  there is no merit in the first contention  of the appellant that in addition to the materials and  records set  out in the sub-clause, there must be  independent  evi-

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dence  of  assured irrigation facility before  ever  a  Pre- scribed  Authority can form an opinion about a  land  having assured irrigation facility.     As regards the second contention relating to  sub-clause (b),  the clause refers only to the growing of  atleast  two crops in a land found to be having assured irrigation facil- ity  in any one of the relevant years. The  sub-clause  does not  contemplate  the  raising of two crops  on  the  entire extent  of the land. The classification has to be made  with reference to the potentiality of the land to yield two crops in one Fasli year and not on the basis of the actual raising of two crops on the entire 575 extent of the land. Therefore, sub-clause (b) cannot be read so  as to mean that two crops should have been grown on  the entire  extent  of  a land having  irrigation  facility  for classifying  the land as ’irrigated land’ as it  would  have the  effect  of  limiting the operation  of  the  sub-clause contrary to the legislative intent. The High Court has taken the  view that when the Legislature made amendments  to  the Act, it must have had in mind the advancement that has  been made  in  agricultural science and farm  technology  and  by reason of it a tenure holder can overcome hurdles and  raise two crops in a year over the entire extent of a land  having irrigation  facility.  We need not go as far  as  that.  The normal presumption, in the absence of contra-material, would be  that the quality and content of soil of a land would  be uniform  throughout  its extent. Such being the case,  if  a tenure  holder  is able to raise two crops in a  year  in  a portion  of the land, then it would be logical to hold  that the other portions of the land also would have the  capacity to  yield  two crops if the tenure holder had  utilised  the entire  extent  to raise two crops instead  of  utilising  a portion of the land alone. The raising of two crops even  on a portion of the land will prove, in the absence of material to show poor quality of soil in portions of the land due  to salinity etc., the uniform nature and content of the soil of the  entire  land.  The High Court was  therefore  right  in holding  that  the Prescribed Authority can  treat  a  land, having  assured irrigation facility, as ’irrigated land’  if the  tenure holder had raised two crops even m a portion  of the  land during anyone of the prescribed years and that  it is  not necessary that the raising of the two  crops  should have been made on the entire extent of the land in order  to classify the land as ’irrigated land’.     As  the  learned single judges have dismissed  the  writ petitions  on the ground that the lands in question  satisfy the tests laid down by the Division Bench in Kallu v.  State of U.P., (supra), we do not find any merit in these appeals. Consequently, both the appeals are dismissed but there  will be no order as to costs. R.S.S.                                         Appeals  dis- missed. 576