Allahabad High Court
Sunita Agarwal vs State Of U.P. And 2 Others on 11 September, 2018
Bench: Siddhartha Varma
HIGH COURT OF JUDICATURE AT ALLAHABAD
A.F.R.
Court No. - 37
Case :- WRIT - C No. - 23469 of 2018
Petitioner :- Sunita Agarwal
Respondent :- State Of U.P. And 2 Others
Counsel for Petitioner :- Nipun Singh
Counsel for Respondent :- C.S.C.
Hon'ble Siddhartha Varma,J.
Personal affidavit on behalf of respondent no. 3 has been filed today.
The petitioner had got agricultural plot no. 4118 declared as non-agricultural on 04.04.2008. Thereafter, the petitioner again applied under Section 82 for the cancellation of the earlier declaration. The application was dismissed on 14.08.2017 saying that the petitioner by getting the declaration cancelled wanted to save stamp duty. It was further observed that the application under Section 82 was not maintainable. The petitioner filed a Revision which was dismissed on 22.12.2017. The instant writ petition was, thereafter, filed.
Instructions were called and on 13.08.2018 they were filed by the learned Standing Counsel before the Court. The revenue entries at page 9 of the instructions clearly show that plot no. 4118 was being used for agricultural purposes.
Learned counsel for the petitioner submits that since agricultural work was going on as was noted in the Khasras in the revenue records for the land in question there was no difficulty in reversing the declaration dated 04.04.2008. The last entry showing that no agricultural work was going on in all probability was there because of the declaration dated 04.04.2008. The instructions as have been received thus clearly indicate that the plot in question was being used for agricultural purposes and therefore, learned counsel for the petitioner submits that there was no difficulty in withdrawing the declaration. Learned counsel has tried to explain the averment made in the counter affidavit filed by the Sub-Divisional Magistrate which states that upon a spot inspection the Revenue Inspector had indicated that the plot was vacant and no agricultural work was found to be done. He submits that this was probably because of the declaration and also if the land was vacant it did not mean that the land was being used for purposes other than agriculture. Learned counsel, to elucidate his submission read out Section 82 of the U.P. Revenue Code, 2006 which is being reproduced here as under:-
"Cancellation of declaration.- (1) Whenever any holding or part thereof in respect of which a declaration has been made under section 80 is used for [any purpose connected with agriculture]1 the Sub-Divisional Officer may, of his own motion or on an application made in that behalf and after making such inquiry as may be prescribed, cancel such declaration.
(2) where a declaration is cancelled under sub-section (1) the following
consequences shall, in respect of the holding or part to which it relates ensue namely:
(a) the holding or part shall become subject to all restrictions imposed by or under this chapter in matters of transfer and devolution;
(b) the holding or part shall become liable to payment of land revenue with effect from the commencement of the agriculture year in which the order for cancellation of the declaration is made:
Provided that until any land revenue is reassessed on such holding or part in accordance with the provisions of this Code, the land revenue payable or deemed to be payable in respect of such holding or part before the grant of declaration under section 80 shall be deemed to be the land revenue payable in respect of such holding or part,
(c) where the land is in possession of any person other than the bhumidhar
thereof on the basis of a contract or lease, and the terms of such contract or lease are inconsistent with the provisions of this Code, such contract or lease shall, to the extent of the inconsistency, become void and the person in possession shall be liable to ejectment on the suit of the bhumidhar:
Provided that a mortgage with possession existing on the date of the cancellation of the declaration shall, to the extent of the amount due and secured on such land, be deemed to be substituted by a simple mortgage carrying such rates of interest as may be prescribed;"
Learned counsel submits that Section 82 clearly says that if the land in question was being used for any purpose connected with agriculture then the declaration could be reversed. He submits that even if the Revenue Inspector had found that no agricultural work was being done then definitely he could not have given a report that the declaration could not be reversed. He submits that if a land is vacant it could be always used for agriculture.
Learned Standing Counsel however, submitted that the reversal of the declaration was malafidely being sought as the petitioner wanted to sell the land and save stamp duty.
Having heard learned counsel for the parties and after going through records, I am definitely of the opinion that the order dated 22.12.2017 passed by Additional Commissioner (Administration) Saharanpur Mandal, Saharanpur and order dated 14.08.2017 passed by Sub-Divisional Magistrate Sadar District Muzaffar Nagar cannot be sustained in the eyes of law and are thus to be quashed. If a land is vacant it could never be concluded that it would never be used for agriculture. Unless a building comes up the land could always be used for agriculture. Matter is remanded back to the Sub-Divisional Magistrate, Muzaffar Nagar to pass orders afresh within two weeks from the date of presentation of a certified copy of this order.
The writ petition is allowed.
Order Date :- 11.9.2018
Mohit Kushwaha
