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2007 Supreme(All) 2168
[2007(9) ADJ 682]
ALLAHABAD HIGH COURT
BEFORE : S.U. KHAN, J.
BHUPENDER SINGH ..........Petitioner
Versus
STATE OF U.P. AND OTHERS ...........Respondents
(Civil Misc. Writ Petition No. 4064 of 1987, decided on 17th August, 2007)
Counsel :
K.R. Sirohi and G.N. Verma for the Petitioner; S.C. for the Respondents.
Headnote:U.P. Imposition of Ceiling on Land Holdings Act, 1960—Sections 10(2) and 3(8)—U.P. Zamindari Abolition and Land Reforms Act, 1950—Section 21—Initiation and finalisation of Ceiling proceedings against petitioner's father, holding that petitioner's father did not possess any surplus land—And his lands were to be grove lands—Thereafter, on his death, half of agricultural lands held by petitioners father was inherited by petitioner—And rest half was inherited by other brothers of petitioner—Petitioner, apart from inherited land of his father had some other agricultural lands also—As according to State, lands (in total) of petitioner exceeded ceiling limit—Hence, a notice under Section 10(2) to petitioner by State—Whereupon Prescribed Authority holding that petitioner did not possess any surplus lands—On appeal by State to Addl. Commissioner it was allowed, confirming notice and setting aside impugned order of Prescribed Authority—Hence, petition against, by petitioner—Held, in a grove, some trees are bound to dry-up, or die after sometime, and they were to be replaced by new trees—Thus, it cannot be said that entire grove lands, or particular portion thereof, has ceased to be grove—Moreover, Addl. Commissioner did not hold any part of plots to be grove—Furthermore, Prescribed Authority had not treated petitioner's entire land as grove—Hence, judgment and order passed by Appellate Court was set aside—And judgment and order passed by Prescribed Authority restored. [Paras 12, 13, 14, 15, 16 and 17]
Hon’ble S.U. Khan, J.—Heard learned Counsel for the parties.
2. Ceiling proceedings were initiated and finalised against petitioner’s father Shanti Swaroop and it was held ithat Sri Shanti Swaroop did not possess any surplus land. An area of 16 Bigha 15 Biswancy land comprised in plot No. 762 to 772 belonging to the petitioner’s father was held to be grove land. Thereafter, father of the petitioner died and half of the agricultural land held by petitioner’s father was inherited by the petitioner. (Rest half was inherited by the other brother of the petitioner). Petitioner apart from inherited land of his father had some other agricultural land also. The State was of the opinion that the agricultural land already held by the petitioner and the agricultural land inherited by him from his father taken together exceeded the ceiling limit under U.P. Imposition of Ceiling on Land Holdings Act, 1960. Accordingly notice under Section 10(2) of the Act was issued to the petitioner. Prescribed Authority, Sardhana district Meerut before whom the case was registered as case No. 14 State v. Bhupendra Singh decided the matter on 1.5.1985 and held that petitioner did not possess any surplus land. Before the Prescribed Authority, petitioner contended that he owned plot bearing No. 1512 area 19 Bigha 17 Biswa held by him was grove land. Prescribed Authority himself inspected the spot and accepted the said contention. Against order of Prescribed Authority dated 1.5.1985, State filed appeal No. 3 of 1986. Additional Commissioner, Meerut division, Meerut allowed the appeal on 19.1.1987, set-aside the order passed by the prescribed authority and confirmed the notice through which 19 Bigha 13 Biswa and 7 Biswancy land of the petitioner in terms of the irrigated land was proposed to be taken as surplus land.
3. As far as plot No. 762 to 774 are concerned the Prescribed Authority had held that 50% of the said plots was grove. (This land had been inherited by the petitioner from his father and in ceiling proceeding against his father this entire area had been held to be grove).
4. Appellate Court mentioned that in order to prove a particular area of agricultural land as grove it would have to be seen as to whether it contained sufficient number of trees on 24.1.1971 or not and for the said purpose reliance would have to be placed upon Khasra of 1378 fasli (i.e. 1.7.1970 to 30.6.1971 A.D). Appellate Court further observed that in Khasra of 1378 fasli, it was mentioned that there were 250 Kalmi Mango trees, 80 Aadu trees, 30 Naspati trees, 20 Phutlukat treos and 25 palm trees. Thereafter, learned Additional Commissioner observed that distance between the two Dashahri Mango trees should be 30 feet and for Kalmi (grafted) Mango trees less than that. In this regard learned Commissioner was not correct. First of all there are several kinds of Kalmi (grafted) mango trees e.g. Dashahri, Langra and Chausa etc. Dashahri is itself grafted mango tree and not distinct therefrom as observed by commissioner. 30 to 35 feet distance is prescribed for Dashahri and 50 feet for Langra trees. Prescribed distance between two Desi mango trees is more than 50 feet as Desi trees when they are fully grown occupy quite large area as they are amply spread on all the sides. Sometimes in an acre there are hardly 15 to 20 Desi mango trees completely occupying the whole area. Learned commissioner after prescribing unusually small distance in between two mango trees opined that in an area of about 20 Bigha (Pucca) there must be about 760 trees while in fact in the land in dispute there were only 250 mango trees apart from 155 other trees. No finding was recorded by the learned Commissioner that all the 250 trees were Dashahri. Even giving a margin of 30 feet between two Dashahri mango trees total number of mango trees in the area in question comes to about 600 trees and not 760 trees.
5. Ranjit Singh in his book ‘FRUITS’ published by National Book Trust, India, Second Edition (199
