JUDGMENT : IRSHAD ALI, J. 1. Heard Sri Jai Prakash Mishra, learned counsel for the petitioner and Sri Rajiv Srivastava, learned Additional Chief Standing Counsel for the State-respondent. 2. By means of the present writ petition, the petitioner is challenging the orders dated 31.12.1999, passed by the prescribed authority and 7.11.2002, passed by the appellate court. 3. Factual matrix of the case is that a notice under Section 10 (2) of U.P. Imposition of Ceiling on Land Holdings Act, 1960 was issued to the petitioner on 13.7.1999. In pursuance thereof, the petitioner submitted his objection on 12.8.1999. The prescribed authority passed the impugned order, holding 1.9 acres land as surplus, against which, appeal was filed before the Commissioner, Lucknow Region, Lucknow, who has passed an order on 7.11.2002, affirming the order of the prescribed authority. 4. Submission of learned counsel for the petitioner is that while passing the impugned order, the prescribed authority has not complied with Section 4-A of the U.P. Imposition of Ceiling on Land Holdings Act and has proceeded to decide the proceeding illegally. The prescribed authority has also not examined the report submitted by the Advocate Commissioner on the ground that he did not examine personally to depose the report to be correct. The burden lies on the court to summon the Advocate Commissioner to record the statement and on his failure, the contents of the report is to be examined before passing the order. The prescribed authority has not examined the same and has committed apparent illegality in the eyes of law. 5. Next submission is that the appellate authority on examination of material, has stated that burden lies to produce khasra of 1378-1380 fasli on the appellate, which is incorrect. In this regard, it is submitted that it is settled law that the burden lies on the State to produce the khasras, therefore, his submission is that non-compliance to produce the khasras to examine the nature is wholly misconceived and unjustified. Next submission is that the appellate court has wrongly affirmed the order of the prescribed authority and has proceeded to pass the impugned order. 6. In support of the submission advanced, learned counsel for the petitioner placed reliance upon the following judgments :- (i) Jaswant Singh Vs. State of U.P. & others, 1978 SCC OnLine All 345 (ii) Vyas Prasad Vs. 6. In support of the submission advanced, learned counsel for the petitioner placed reliance upon the following judgments :- (i) Jaswant Singh Vs. State of U.P. & others, 1978 SCC OnLine All 345 (ii) Vyas Prasad Vs. Additional Commissioner, Gorakhpur , 2018 (1) AWC 863 (iii) Adi Kumar Jain Vs. Additional Commissioner, Faizabad , 2016 (2) JCLR 337 (All) (LB) 7. On the ground of married daughter, submission of learned counsel for the petitioner is that relevant date for consideration is 8.6.1973, which is the date of amendment. Notice was issued in the year 1999 and on the relevant point of time when notice was issued, she was married. 8. On the other hand, learned Additional Chief Standing Counsel submits that there was no occasion to comply with Section 4-A of U.P. Imposition of Ceiling on Land Holdings Act, the material was before the court below and on that basis, the order is passed. Next submission is that the burden to produce the khasras lies on the person, whose land was taken under U.P. Imposition of Ceiling on Land Holdings Act. After making submission, learned Additional Chief Standing Counsel submits that in case the impugned orders are set aside, the matter is to be remanded to the prescribed authority to consider the same and pass the order. 9. After having heard the submission advanced by learned counsel for the parties, I perused the material on record as well as the law report cited by petitioner's counsel. 10. For deciding the controversy involved, relevant paragraphs the judgments relied upon on the point that the burden to produce the relevant khasras lies on the State and not on the appellant are being quoted as under :- (i) Jaswant Singh (Supra). Relevant paragraphs 9 to 13 are being quoted as under :- "9. A perusal of the above would show that Sec. 4-A makes it obligatory on the Prescribed Authority, to examine khasras for the years are 1378, 1379 and 1380 Faslis. It further makes it obligatory for the Prescribed Authority also to examine the latest village map. It then confers a discretion on the Prescribed Authority to examine such other records as it may consider necessary and also to make local inspection, if that too be necessary. It further makes it obligatory for the Prescribed Authority also to examine the latest village map. It then confers a discretion on the Prescribed Authority to examine such other records as it may consider necessary and also to make local inspection, if that too be necessary. The section then proceeds to say that thereafter, if the Prescribed Authoriiy be of opinion, as mentioned in sub-sections Firstly, Secondly and Thirdly, he shall determine the land to be ‘irrigated land.’ The word ‘thereupon’ occurring in Sec. 4-A of the Act, to our mind, is meaningful. According to Webster's New International Dictionary, the word ‘thereupon’ means “as a result of some specified things.” Reading the word ‘thereupon’ occurring in Sec. 4-A in that manner, the mandate contained in Sec. 4-A appears to be that the opinion specified in sub- sections Firstly, Secondly and Thirdly of Sec. 4-A has to be formed by the Prescribed Authority upon the khasra for the years 1378, 1379 and 1380 faslis, upon the village map, upon such other records as it may consider necessary and upon local inspection, if the Prescribed Authority considers it necessary to make one. There are no words in Sec. 4-A to justify anything other than that specified therein to be made use of by the Prescribed Authority for the formation of opinion on the points specified in sub-sections Firstly, Secondly and Thirdly thereof. The legislature thought it fit to confine the scope of enquiry to the examination of documents and local inspection presumably because almost everything that is mentioned in various sub-sections of Sec. 4-A was capable of being ascertained on the basis thereof and, indeed, where any fact can be ascertained on the basis of documents, oral evidence can serve no useful purpose. 10. In order to illustrate what we have said above, we may briefly refer to various sub-sections of Sec. 4-A. Accordingly to sub-section, Firstly of Sec. 4-A, the Prescribed Authority has to form an opinion (a) whether 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 the notification dated March 31, 1953, as amended from time to time, (ii) any lift irrigation canal, (iii) any State tube-well or private irrigation work, and (b) whether that at least two crops were grown in such land in any one of the aforesaid years. 11. Now the information regarding source of irrigation as well as the information regarding crops grown in any plot in any year can be gathered from village record. There may be some dispute about the existence of some private irrigation work inasmuch as one party may confirm its existence and the other may deny it. To resolve that conflict the Prescribed Authority can himself make a local inspection which would reveal beyond any shadow of doubt whether or not any private irrigation work exists. It would thus appear that no oral evidence is necessary for forming an opinion on what is stated in clause ‘Firstly’ of Sec. 4-A. 12. According to clause Secondly of Sec. 4-A the Prescribed Authority has to form an opinion whether 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 or coming into operation and the date of issue of notice under Sec. 10. Now, the fact whether or not any irrigation facility became available to any land by a State irrigation work coming into operation subsequent to the commencement of the Amending Act, 1972, is a fact which can best be established by documents. Similarly the fact whether or not two crops are grown in such land in any agricultural year between the date of such work coming into operation and the date of the issue of notice under Sec. 10 came also be conclusively established by documents particularly the khasra. For purposes of clause Secondly also, therefore, oral evidence can hardly serve any purpose. 13. For purposes of clause Secondly also, therefore, oral evidence can hardly serve any purpose. 13. This takes us to clause Thirdly of Sec. 4-A, what the Prescribed Authority has to conclude thereunder is; (a) whether the land is situated within the effective command area of a life irrigation canal of a State tube-well or a private irrigation work; and (b) whether the class and composition of its soil is such that it can grow at least two crops in an agricultural year." (ii) Vyas Prasad (Supra). Relevant paragraphs 24, 25, 26 and 28 are being quoted as under :- "24. Thereafter, the Division Bench of this Court has observed that provisions of the section 4-A make it obligatory on the Prescribed- Authority, to Texamine Khasras for the years are 1378, 1379 and 1380 Faslis. It further makes it obligatory for the Prescribed Authority also to examine the latest village map. It then confers discretion on the Prescribed Authority to examine such other records as it may consider necessary “and also to make local inspection, if that too be necessary. The section then proceeds to say that thereafter, if the Prescribed Authority be of opinion, as mentioned in sub-sections Firstly, Secondly and Thirdly, he shall determine the land to be ‘irrigated land.” There are no words in section 4-A to justify anything other than that specified therein to be made use of by the Prescribed Authority for the formation of opinion on the points specified in sub-sections Firstly, Secondly and Thirdly thereof.…………… “……………The legislature thought it fit to confine the scope of enquiry to the examination of documents and local inspection presumably because almost everything that is mentioned in various sub-sections of section 4-A was capable of being ascertained on the basis thereof and, indeed, where any ‘.fact can be ascertained on the basis of documents, oral evidence can serve no useful purpose …………………… It is worthy of notice that the documents, which it is obligatory for the Prescribed Authority to examine under section 4-A, include the village map. It can be found out on an examination of the village map coupled with the Khasra, whether or not particular land is situate within the effective command area of any State or private irrigation work, Even if there remains any doubt after examining the Khasras, the village map, or such other records as may be available, the Prescribed Authority can himself visit the site and inspect it to himself find out whether the land in question does or does not fall within the command area of any State or private irrigation work. As far composition of soil, that too is mentioned in village records. In any case, oral evidence regarding composition of soil can be most conflicting and consequently, if on any particular case village records do not contain any information regarding composition of soil, that fact as well can be ascertained by local inspection. It would thus appear that on all the points “specified in the various subjections of section 4-A the. Prescribed Authority can form an opinion on the basis of records and local inspection. The legislature,’ therefore thought it fit that the enquiry under section 4-A should remain confined to examination or records and local inspection and not to production and examination of oral evidence. ……………” 25. Counsel for the petitioner has relied upon. Division Bench judgment of this Court in the case of Jaswant Singh (supra). More or less the same view has been taken by the Hon'ble Supreme Court in Knllu v. State of U.P. wherein the Hon'ble Supreme Court observed thus: “Para 6. On 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 land is irrigated land or not for the purpose of determining the ceiling area of tenure-holder. On 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 land is irrigated land or not for the purpose of determining the ceiling area of tenure-holder. The two broad tests are (I) availability of irri-gation facilities and (II) the factum of raising the capability of the soil for, raising at least two crops in an agricultural year………………” “Para.……… In order’ to form an opinion whether irrigation facility was available for any land from one of the sources mentioned in subclauses (i), (ii) and (iii) in respect of any crop in any one of the aforesaid Book Page Page: 148 years, viz., Fastis 1378 to 1380, 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 local inspection whenever it is necessary. Hence, there is no scope for contending that. Prescribed Authority may form his opinion without reference to relevant material, in an arbitrary or capricious manner to the detriment of tenure- holder as regards the availability of assured irrigation facility to land from one of the enumerated sources….” 26. It is true that other arguments raised by learned Counsel for the petitioner for challenging the -order impugned passed by the Prescribed Authority may not hold on merit, but most certainly the argument with regard to determination of irrigated land having been made on the basis of oral evidence of the Lekhpal, without examining the Khatuani of the relevant dates or examining other relevant records including village map or making local inspection still holds good. 28. It is also the case of the Counsel for the petitioner that all these grounds were raised in appeal before the Appellate Authority i.e. Additional Commissioner, Gorakhpur Division, Gorakhpur, but the Appellate Authority failed to look into the same and decided the appeal in summary manner, learned Senior Counsel has relied upon section 38 of the Rural Ceiling Act, wherein it has been provided that Civil Procedure Code shall apply to all appeals before the Appellate Authority. He has relied upon the judgment rendered by the Hon'ble Supreme Court in Madhukar v. Sangram,1 that it is the duty of the Court of first appeal that it must record its finding only after dealing with all issues of law as well as facts and with the evidence, oral as well as documentary led by the parties. In case, the Court of first appeal does not fulfill its obligation to consider all oral and documentary evidence placed before it on behalf of the both the parties, it fails to discharge its obligation and therefore, the valuable right of the parties that is right to be heard on both questions of law and fact is defeated." (iii) Adi Kumar Jain (Supra). Relevant paragraphs 16 to 18 are being quoted as under:- "16. According to section 4-A of the Act, after examination of khasra 1378-F, 1379-F and 1380-F, latest village map and such other records, Prescribed Authority was required to record a findings that land of the petitioner were irrigated from State or private irrigation work and at least two crops were grown in 1378-F, 1379-F and 1380-F or new irrigation facility became available and composition of soil is such that it is capable of growing at least two crops in an agricultural year. No such finding has been recorded. 17. If entire area of 48-1-1 bigha of plot 939 was un-irrigated then its area in terms of irrigated land would be 32-14-0 bigha and the petitioner would be entitled to benefit of 16-7-0 bigha but Prescribed Authority gave benefit of 7-7-1 bigha. It is not possible to say that only an area of 22-1-1 bigha was un-irrigated and remaining land is irrigated. In any case specific findings that land was irrigated from State/private irrigation work is required to be recorded. Findings of Prescribed Authority regarding irrigated land is illegal. 18. Usar land has to be determined according to the provisions of Rule 3- A, which provides that any land included in the holding, was not used for growing crop during 1376-F to 1380-F due to presence of salinity, stone, grit or kankar, shall be treated to be usar land. Admittedly, some part of plot No. 939 was not used for growing crop in the aforesaid years. Kulvant Singh, Lekhpal of village Tipahar, has stated that over a part of the land, due to salinity, it was unfit for growing crop. Admittedly, some part of plot No. 939 was not used for growing crop in the aforesaid years. Kulvant Singh, Lekhpal of village Tipahar, has stated that over a part of the land, due to salinity, it was unfit for growing crop. Prescribed Authority has illegally ignored the statement of Lekhpal and contined his finding only on the basis of khasra although khasra are relevant for examination as to whether crops were grown in it or not. In khasra of relevant years, some part of the land was shown to be not used for growing crops and reason has been given in the oral statement of Lekhpal that soil was having salinity and unfit for growing crops, which was admissible in evidence, but it has been illegally ignored." 11. On perusal of the judgments relied upon, it is evident that burden to produce the relevant khasras lies on the State, therefore, the finding recorded in the impugned appellate order that no khasras of 1378-1380 fasli was produced before the authority concerned and the burden lies upon the appellant to produce the same, is wholly erroneous in nature and not justified in law. 12. For ready reference, Section 4-A is being quoted below :- "4A. Determination of irrigated land - 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 :- 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 Section 10; or 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 purposes of this Act. Explanation I. - For the purposes of this section the expression' effective command area' means an area, the farthest field whereof in any direction was irrigated- (a) in any of the years 1378 Fasli, 1379 Fasli. 1380 Fasli; or (b) in any agricultural year referred to in the clause 'secondly'. Explanation II. - The ownership and location of a private irrigation work shall not be relevant for the purpose of this section. Explanation III. - Where sugarcane crop was grown on any land in any of the years 1378 Fasli, 1379 Fasli and 1380 Fasli, it shall be deemed that two crops were grown on it any of these years, and that the land is capable of growing two crops in an agricultural year." 13. On its perusal, it is clear that while passing the order by the prescribed authority and appellate court, the relevant provision of Section 4-A was not taken into consideration and the matter was decided without considering the same. The provision of Section 5 (3) (b) was also not taken into consideration while deciding the dispute in regard to the proceeding initiated against the petitioner under Section 10 (2) of the U.P. Imposition of Ceiling on Land Holdings Act. 14. The provision of Section 5 (3) (b) was also not taken into consideration while deciding the dispute in regard to the proceeding initiated against the petitioner under Section 10 (2) of the U.P. Imposition of Ceiling on Land Holdings Act. 14. The judgment placed by learned counsel for the petitioner is fully applicable to the present facts and circumstances of the case. The prescribed authority has failed to take into consideration that the land is irrigated or not without examining the khasra of the year 1378-80 and other relevant records including the village map or by making local inspection, therefore, the impugned order is not sustainable in law and is liable to be set aside. 15. The appellate court has also erred in law in affirming the judgment of the prescribed authority without examining the aforesaid facts and circumstances of the case. 16. Submission advanced by learned Additional Chief Standing Counsel that the burden lies upon the appellant to produce the relevant khasras is not correct. In fact, the burden lies on the State to produce the relevant khasras of the aforesaid years, therefore, the argument advanced is not admissible in law. In regard to the married daughter, the controversy in regard to that shall again be decided by the authority concerned. 17. In view of the aforesaid reasons, the impugned orders dated 31.12.1999, passed by the prescribed authority and 7.11.2002, passed by the appellate court are hereby quashed. The writ petition succeeds and is allowed. 18. However, the matter is remanded to the prescribed authority to consider the grievance of the petitioner afresh and pass order in accordance with law after affording fullest opportunity of hearing to the parties concerned within six months.