M.P. Mehrotra, J.
1. This petition arises out of the proceedings under the U. P. Imposition of Ceiling on Land Holdings Act, 1960.
2. In brief the facts are these:--
3. The petitioner received the notice under Section 10 (2) of the Act and he filed objections, a true copy whereof is annexure No. 1 to the petition. The Prescribed Authority decided the said objections by his order dated 30-06-1976. The petitioner has not annexed to the petition any copy of the said order dated 30-6-1977. Thereafter an appeal was filed by the petitioner and the same was allowed by the appellate court by its judgment dated 21-3-1977. Again no copy of the said judgment has been annexed to the petition. The appellate court remanded the case to the Prescribed Authority with certain directions. After the remand the Prescribed Authority decided the case by his order dated 29-7-1977, a true copy whereof is Annexure 4 to the petition. Thereafter an appeal was filed by the petitioner and a true copy of the memorandum of appeal is Annexure 5 to the petition. The appellate court dismissed the appeal by its judgment dated 17-9-1977, a true copy whereof is annexure 6 to the petition.
4. Now the petitioner has come up in the instant writ petition and in support thereof I have heard Sri B. B. Paul, learned counsel for the petitioner. In opposition, the learned Standing Counsel has made his submissions.
5. In this case a controversy was referred to a Large Bench touching upon the interpretation of Section 4 (ii) of the Act. The larger Bench decided the said controversy against the petitioner and it was held that the enumeration of the areas in the said provision is exhaustive and not illustrative. It was further held that in view of the inclusion of the Ceiling Act in the 9th Schedule of the Constitution, the vires of the said provision could not be attacked on the ground that it was hit by Article 14 of the Constitution. Therefore, the said contention has not been pressed by the learned counsel for the petitioner before me after I heard the petition subsequent to the decision of the larger Bench.
6. Learned counsel next contended that after the case had been remanded by the appellate court holding that the petitioner had only one half share in the land and the remaining one half portion fell to the share of his son Onkar Singh, a fresh notice under Section 10 (2) of the Act should have been issued to the petitioner Har Prasad Singh. In my opinion, this contention has no merit. The appellate court had accepted the contention of the petitioner that from his holding which was shown in C. L. H. Form 3 the share of his son should have been excluded. The appellate court accepted this contention and directed that such half share should be excluded from the holding of the petitioner. There was no necessity for issuing a fresh notice under Section 10 (2) of the Act. Learned counsel for the petitioner himself conceded that the non-issuance of a fresh notice did not result in any prejudice to the petitioner but he contended that in the interest of correctness of the proceedings, a fresh modified notice should have been issued to the petitioner. As I have stated above, there was no necessity for any fresh notice and in any case, no prejudice has been caused to the petitioner as has been conceded by the learned counsel for the petitioner. The first contention raised on behalf of the petitioner is, therefore, rejected.
7. Learned counsel then contended that certain plots were abadi plots and they were liable to be excluded. In this connection the learned counsel referred to para 16 of the writ petition and placed reliance on a decision of Deoki Nandan, J. in Gajendra Singh v. State of U. P. (1978 All LR 602) and of R. C. Srivastava, J. in Hafiz Shafat Ali v. State of U. P. (1979 All LR 472). This contention cannot be allowed to be raised in the instant petition. I have already stated above that the appellate court at an earlier stage remanded the case to the Prescribed Authority with certain directions. The petitioner did not append a copy of the appellate court's remand order which would have clearly shown the points on which the remand order was made. It should be seen that the said remand order was never questioned by any further proceedings in this Court and, therefore, the same became final. The petitioner himself has not sought the quashing of the said remand order in the instant petition. From the order of the Prescribed Authority dated 29-7-1977) (Annexure 4) it stems that the remand was made only on the question regarding the plots being irrigated or unirrigated. The Prescribed Authority dealt only with the said controversy in the said order. In the grounds of appeal (Annexure 5) it is obvious that no ground was taken that some land should not have been included in the holding on the ground that the same was abadi land. The appellate court also has not dealt with the said controversy in its judgment. In this view of the matter, the petitioner cannot be allowed to raise the said contention in this petition.
8. Lastly, it was contended that certain land was wrongly treated as irrigated and the same should have been treated as unirrigated. In paragraphs 15 and 16 of the petition a large number of plots are mentioned. However, from the grounds of appeal (Annexure 5) and from the judgment of the appellate court (Annexure 6) it is clear that in the appellate court below the following plots alone were contended to be unirrigated:
129, 130/2, 134, 136, 164, 237, 396, 251, 252, 256, 268 and 352,
9. The petitioner cannot be allowed to go beyond the plots which were mentioned by him in ground No. 2 of the memorandum of appeal (Annexure 5) and which were pressed before the appellate court as is clear from formulation of point No, 2 and the discussion thereon in the judgment of the appellate court (Annexure 6). Out of the aforesaid 12 plots the petitioner placed before me khasra extracts for 1378, 1379 and 1380 Faslis regarding ten plots but he did not place any khasra extract for plots No. 268 and 352. From the said extracts it is clear that the authorities below rightly treated plots Nos. 129, 130/2, 134, 136, 164, 237, 396, 251, and 252 to be irrigated. From the extract of khasra for 1379 fasli it is clear that plots Nos. 129, 130/2, 134, 136, 164, 237 and 396 grew two crops in the year and their source of irrigation is recorded as tube-well. Plots Nos. 251 and 252 were rightly treated as irrigated on the basis of Khasra entries for 1378 fasli. Two crops were grown in the said agricultural year and the source of irrigation is noted as tube-well. Now remain three plots Nos. 256, 268 and 352. So far as plots Nos. 268 and 352 are concerned, I have already stated above that the petitioner did not file in this petition any extract of the relevant khasras. However, from the order of the Prescribed Authority and the judgment of the appellate court also it is not clear why the said two plots were treated as irrigated. So far as plot No. 256 is concerned, from the extracts of khasras which have been placed before me I have not found any source of irrigation noted against it. The learned counsel for the petitioner sought to contend that the khasra entries were not reliable and in such circumstances the petitioner's oral evidence should have been looked into. Learned counsel in this connection contended that the Authority of Division Bench pronouncement in Jaswant Singh v. State of U. P. (1978 All WC 577) stands diluted on account of the subsequent pronouncement in Kallu v. State of U. P. (1979 All WC 579). It should be seen that no such case was taken up before the Prescribed Authority and in the objections filed before the Prescribed Authority, it was never stated that khasra entries were manipulated or were incorrect. In such circumstances, the petitioner could not be allowed to raise the said question to the instant petition. Learned counsel also contended that in 1380 fasli in respect of plots Nos. 251 and 252 the source of irrigation is mentioned as Nal Coop power. Therefore, the entry of Nal Coop in 1379 fasli should not lead to the conclusion that the plots concerned had the facility of a private irrigation work. In my view this contention is incorrect. The entry of Nal Coop (Tube-well) can reasonably be expected to mean a tube-well operated by diesel or electric power. It was also contended that plot No. 237 was the bed of the river and a reference was made to the statement of the Lekhpal. Reliance was placed on the decision of M. P. Saxena, J. in Rani Prem Kunwar v. Dist. Judge (1978 All LJ 436). This controversy cannot be allowed to be raised in this petition, because it was never raised before the Prescribed Authority and the appellate court. Learned counsel also sought to contend that the khasra entries did not show that the entire area of the plots in question had been irrigated and that the column recording the area of the two crop land in the khasra never showed that the entire area of a plot was treated as two crop land These contentions cannot be accepted now in view of the Division Bench in Kallu v. State of U. P. (1979 All WC 579).
10. Learned counsel for the petitioner next contended that in the instant case the Prescribed Authority was bound to take a local inspection and for this contention reliance was placed on Shital Singh v. State of U. P. (1978 All LR 605); and Ram Swarup Singh v. State of U. P. (1979 All LR (SOC) 44): (1978 All LJ 972). In my opinion in none of these two cases it was laid down that a Prescribed Authority was bound to make a local inspection while determining a controversy under Section 4-A of the Act. It is within his discretion to do so. Moreover, it should be seen that no grievance was made before the lower appellate court that such a local inspection was not made by the Prescribed Authority. In the writ petition itself also no such grievance was made. Therefore, the learned counsel for the petitioner is not entitled to raise the said controversy here.
11. Accordingly, T allow this petition and quash the judgment of the appellate court dated 17-9-1977 and the order of the Prescribed Authority dated 29-7-1977 to the extent the plots Nos. 268, 352 and 256 were treated as irrigated. The case is remanded to the Prescribed Authority with a direction that each of the said three plots shall be dealt with separately and the Prescribed Authority shall state how both the requirements laid down in any of the three categories of Section 4-A stand satisfied or do not stand satisfied and the plots shall be accordingly treated irrigated or unirrigated. The Prescribed Authority shall deal with the said controversy in the light of the interpretation of Section 4-A by the two Division Bench pronouncements of this Court in Jaswant Singh v. State of U. P. (1978 All WC 577) and Kallu v. State of U. P. (1979 All WC 5791. The Division Bench pronouncement in Shiv Ram Singh v. State of U. P. (1979 All WC 257) will also be looked into by the Prescribed Authority and in accordance with the said decision the relevant khasra entries will be looked into even though the khasra extracts might not have been filed by the petitioner. The ceiling area and surplus land shall be re-determined thereafter. It is made clear that no other controversy shall be allowed to be raised before the Prescribed Authority or before the appellate court in case an appeal is filed against the fresh decision of the Prescribed Authority. In other words, except for the said three plots, the judgment of the appellate court dated l7-9-1977 shall be treated as final. In the circumstances of the case, there will be no order as to costs.