1 HIGH COURT OF UTTARAKHAND AT NAINITAL (Court’s order whether the case is or not approved for reporting) (Chapter VIII, Rule 32(2)b)) Description of the case WPMS No. 1642 of 2006 Guru Ram Das Educational Trust Society Vs. Divisional Commissioner & Ors. Decided on 5.9.2009 Approved for reporting Date: 5-9-08 Initials of Judge: 2 Court No.2 IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL Writ Petition (M/S) No. 1642 of 2006 Guru Ram Das Educational Trust Society ………….. Petitioner Versus Divisional Commissioner & Others ……….. Respondents. ………………………. Sri Alok Singh, assisted by Sri Ram Ji Srivastava, learned counsel for the petitioner. Sri Sudhir Kumar, learned Brief Holder for the respondents. Date: Sep. 05, 2008. Hon’ble P.C. Verma, J. By means of this writ petition the petitioner has challenged the judgment and Order dated 20-09-2006 passed in Revision No. 19 of 2005-06, Guru Ram Das Educational Trust Society Vs. State, by which the appellate authority the learned Commissioner, Pauri Garhwal affirmed the Order of the Assistant Collector Ist Class, Dehradun dated 27-01-2006 passed in case no. 2/2002-03 U/s 166/167 of the U.P. Zamidari Abolition and Land Reforms Act, 1950. Heard Sri Alok Singh, Senior Advocate learned counsel for the petitioner as well as Sri Sudhir Kumar, learned State Counsel appearing on behalf of the State. Learned Counsel for the parties agree that the petition may be disposed of as only a short question of interpretation of law is involved. Accordingly, I proceed to decide the writ petition finally. The brief facts of the case are that a notice U/s 166/167 under the U.P. Zamidari Abolition and Land Reforms Act, 1950 was issued to the petitioner requiring him to appear on 25-09-2002 to file his objection and evidence, if any, in response to the notice. The basis of notice was the report of the Tehsildar Dehradun dated 12-07-2002 who has reported that the petitioners have purchased 2.121 hectares land in violation of Section 154 of the Act, therefore, the excess land was liable to be declared and vested in the State U/s 166/167 of the 3 Act. In response to the notice, the petitioner filed an objection stating therein that the petitioner is an educational charitable trust running various institutions and the land in dispute referred in the notice being used from last 10 years for non-agricultural purpose, therefore, provisions of Chapter-8 of the U.P. Zamidari and Land Reforms Act, 1950 including Section 157 were not applicable. The Assistant Collector rejected this plea on the ground that the land was not declared as “non-agricultural land” as provided under Section 143 of the said Act. The Assistant Collector accordingly declared the transfer of 1.626 hectares of land as is being void and ordered and declared the land having vested in the State Government, with a further direction to correct the revenue records accordingly. Against this Order dated 27-01-2006. The revision was preferred. Revisional Authority also recorded the finding to the same effect and confirmed the Order of Assistant Collector. Learned Senior counsel for the petitioner submitted that the petitioner was entitled to use his land for any purpose of whatsoever, in view of sub-Section 1 of Section 142 and Section 143 is directory in nature. According to Learned Senior Advocate if in fact, the land was not being used for agricultural purpose and building was existing thereon as it was being used for the purpose of educational institutions, the non-declaration under Section 143 will not change the factual position. In order to appreciate the argument of the learned Senior counsel for the petitioner, it is necessary to reproduce Section 142(1) and 143(1) as under; 142(1) “A bhumidhar with transferable rights shall, subject to the provisions of this Act, have the right to exclusive possession of all land of which he is a bhumidhar and to use it for any purpose whatsoever. 143(1) “Where(bhumidhar with transferable rights), uses his holding or part thereof for a purpose ot connected with agriculture, horticulture or aninal husbandary which includes pisciculture and poultry farming, the Assistant Collector in- charge of the sub-division may, sou motu or on an application, 4 after making such enquiry as may be prescribed, made a declaration to that effect. It is undisputed that the petitioner purchased the bhumidhari land and thereafter started running educational institution. In fact the land was not being used for the agriculture purpose as he was entitled to use it for any purpose whatsoever in view of sub-Section (1) of Section 142. Learned State Counsel Sri Sudhir Kumar submitted that since the land used was changed after the purchase. Therefore, Section 142(1) will not apply and Section 154 will apply with full force. Argument, prima facie, is attractive; but in its scrutiny in depth, it comes out that when a bhumidhar transfers his land then the transferee becomes the bhumidhar and Section 142(1) uses the word bhumidhar. There can only be one bhumidhar of a land at one time and there cannot be two separate bhumidhars of one land. Therefore, the argument of the learned counsel for the respondent is without force and is rejected. A perusal of Section 143 shows that when the land is being used by a Bhumidhar for a purpose not connected with the agriculture, horticulture and animal husbandry which includes pisciculture and poultry farming, the Assistant Collector in-charge of the sub- division May sou motu or an application, make an enquiry as may be prescribed and make a declaring to that effect. Use of word ‘May’ in this section itself makes a section directory as there is no penal consequence provided for use of the land for non-agriculture purposes without declaration. It further reveals that a duty is cast upon the Assistant Collector to make an enquiry and to declare it as non- agricultural land in the khasras and prepare the record for every agricultural year to every fasli. Lekhpal report to the Tehsildar and Tehsildar submits the report to the Assistant Collector. If the land is not being used, in fact for agricultural purpose for more than last 10 years, the Assistant Collector ought to have declared it as non- agricultural land. 5 The fact that the land was being used for non-agricultural purpose from last 10 years have not been disputed before the Assistant Collector by any document. Therefore, non-declaration under Section 143 is not for any fault on the part of the petitioner. Since, the fact of use of land for the purpose other than that of agriculture, and the building exists there on which the educational institution is running, the land cannot be treated as agricultural land. Thus the provisions of Section 154will not apply for the reasons recorded above I quashed the Order of the Commissioner dated 20-09-2006 (Annexure 6) as well as the order of the Assistant Collector dated 27-01-2006 (Annexure 5) and discharge the notice issued by Assistant Collector U/s 166, 167 of U.P. Zamidari Abolition and Land Reforms Act, 1950. Petition is allowed no Order as to costs. (P.C. Verma, J.) 05-09-2008 Bhaskar