JUDGMENT
S.U. Khan, J.
1. Heard learned Counsel for the parties.
2. Ceiling proceedings were initiated and finalised against petitioner’s father Shanti Swaroop and it was held that Sri Shanti Swaroop did not posses 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 Khasri 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 trees 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 (1992) has observed on pages 37-38 as follows:
Seedling trees also grow very large and require to be planted up to 60 feet apart, (seed ling tree in local dialect is called Beejua or Tukhmi; Beej and Tukhmi (means ‘seed’ in English). It is also mentioned in the said book on page 38 that ” a variety like’Langra needs to be planted 50 feet apart, whereas a distance of 30 to 35 feet is adequate for Dashehri under the same conditions.
6. In respect of Desi mango trees on page 19 of the said book, it is mentioned as follows:
A classic example is the Chhappar tree in village Burail near Chandigarh in the Punjab. This tree has a trunk with a girth of 32 feet and branches 80 feet long and 12 feet in circumference. It covers an area of 2700 square yards, (slightly more than half acre) and the average yield of the tree is 450 mounds (37000 pounds).
7. The definition of grove is given under Section 3 (8) of the Ceiling Act which is quoted below:
Grove land’ means any specific piece of land in a holding having trees not including [guava, papaya, banana or vine plants] planted thereon before January 24, 1971, in such numbers that they preclude, or when full grown will preclude, the land or any considerable portion thereof from being used primarily for any other purpose, and the trees of such land constitute a grove.
8. The words “considerable portion thereof” and “used primarily for any other purpose” indicate that in order to hold a particular plot of land or portion thereof to be grove it is not necessary that the trees when full grown must fully cover the plot or the portion. Similar view has been taken in Hamid Hussain v. State 1978 AWC 574. Para 7 and 8 of the said authority is quoted below:
7. The words ‘considerable portion thereof are significant. If considerable portion due to planting of trees can not primarily be used for any other purpose the entire land will be grove. In other words even if smaller area is cultivable or denuded of trees the character of the land does not cease. The emphasis of the learned Counsel for the State on word. ‘specific place of land’ does not carry conviction. It can not be read in isolation. The definition of grove in the U.P. Tenancy Act was more or less similar. It was adopted in Z.A Act as well.
8. It is thus clear that the entire specific piece of land consisting 16.31 acres was grove. In a plot of 16 acres trees are bound to dry and fall down. The new trees on the porter may be planted. The plantation of new trees on the portion where trees have fallen down can not change the nature of the grove if the considerable portion was planted before 24.1.1971. The case of fresh plantation in a small portion car: not be worse than cultivating it or leaving it fallow. As the considerable portion of the grove was planted before 24.1.1971 the entire piece of land was grove. The date or 24.1.1971 has been mentioned to ensure that a tenure holder may not take advantage and adopt contrivances to defeat the provisions of law but where it is found that the major portion of the grove consisted of trees planted before 24.1.1971 there is no escape from the conclusion that the entire plot should be deemed to be a grove and the mere fact that some trees were planted after 24.1.1971 in a portion of it could not furnish a ground for coming to the conclusion that that portion should be treated as irrigated area.
This definition of grove may be compared and contrasted with the definition of Taungya plantation given under the explanation to Section 21 of UPZALR Act which is quoted below:
The expression ‘Taungya plantation means the system of afforestation in which the plantation of trees is in the earlier stages, done simultaneously with the cultivation of agricultural crops which ceases when the frees so planted begin to form a canopy rendering the cultivation of agricultural crops impossible.
9. Unlike the definition of Taungya plantation in the definition of grove land there is no such requirement that trees when fully grown must form canopy and render the cultivation of agricultural crops impossible. similarly in Mohd Yamin v. State 1978 AWC 793, it has been held that number of trees can not be the sole index to the question whether particular land is a grove land or not. One must also consider the age, and develop kind and character of the trees.
10. Learned commissioner further held that in Khasra of 1380 fasli in plot No. 1512 wheat, maize and gram were shown to have been grown and similar was the position in 1382 fasli. learned Counsel for the petitioner has invited attention to Annexure 5 which is compendium of copies of Khasras of different years. In the Khasra of 1387 fasli in plot No. 1512 on page 52 of the paper book only trees are shown and no crop is shown to have been grown.
11. If in a portion of grove some old trees become dry and after removing them fresh saplings are planted then in between he said saplings for 4 or 5 years crop may be grown. In a grove some trees are bound to dry up or die after sometime and they are to be replaced by the new trees. Tree being living creature is bound to die at some point of time. If some space in a grove becomes a clearing due 10 natural death of the trees and new trees are planted at the place of the old ones then it can not be said that the entire grove or particular portion thereof has deased to be grove. Moreover, learned commissioner even though recorded a finding that about 400 trees were there in plot No. 1512 still it did not hold any part of the said plot to be grove. This was patently erroneous in law. Moreover, it is important to note that prescribed authority had not treated petitioner’s entire land as grove.
12. Accordingly, find that the judgement and order passed by the learned commissioner is erroneous in law and liable to be set-aside. Writ petition is therefore allowed. Judgement and order passed by the appellate court is set aside. Judgement and order passed by the prescribed authority is restored.