Imran Husain vs State Of U.P. Thru. Prin. Secy. Deptt. Of ...
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Allahabad High Court

Imran Husain vs State Of U.P. Thru. Prin. Secy. Deptt. Of ... on 22 May, 2025

Author: Saurabh Lavania

Bench: Saurabh Lavania

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 


				Neutral Citation No. - 2025:AHC-LKO:30648
 
Court No. - 7
 
Case :- WRIT - C No. - 4751 of 2025
 
Petitioner :- Imran Husain
 
Respondent :- State Of U.P. Thru. Prin. Secy. Deptt. Of Revenue, Lko. And Others
 
Counsel for Petitioner :- Rajiv Raman Srivastava
 
Counsel for Respondent :- C.S.C., Dilip Kumar Pandey, Ram Lakhan Vishwakarma, Sankalp Mehrotra
 

 
Hon'ble Saurabh Lavania,J.
 

1. Supplementary filed today is taken on record.

2. Heard Shri Rajeev Raman Srivastava, learned counsel for the petitioner, Shri Hemant Kumar Pandey, learned Standing Counsel for the State/opposite party Nos. 1 to 3 and Shri Sankalp Mehrotra, learned counsel for the private opposite parties and perused the record.

3. The instant petition has been preferred seeking following main relief:-

"(i) Issue a writ, order or direction in the nature of Certiorari to set aside the impugned order dated 15.03.2024 passed by Sub Divisional Officer/Assistant Collector-1, Laharpur, District Sitapur, in case no. T802024005206 (Arif Ali Khan and Asif Ali Khan) under section 80 of Uttar Pradesh Revenue Code, 2006, impugned order dated 07.01.2025 passed by Sub Divisional Officer/Assistant Collector-1, Laharpur, District Sitapur, in case no. 84/2025 under section 82 of Uttar Pradesh Revenue Code, 2006 (Imran Husain versus Arif Ali Khan and others) and as well as impugned order dated 16.04.2025 passed by Commissioner Lucknow Division, Lucknow, under section 210 of Uttar Pradesh Revenue Code, 2006, in case no. 629/2025 (Imran Husain versus Arif Ali Khan and others), in the interest of justice."

4. Vide order dated 15.03.2024, the Sub Divisional Officer/Assistant Collector-I, Laharpur, District Sitapur passed in Case No.T802024005206 (Arif Ali Khan and Asif Ali Khan), under Section 80 of Uttar Pradesh Revenue Code, 2006 (in short "Revenue Code"), allowed the application which was preferred in terms of Section 80 of the Revenue Code seeking declaration that the land is being used for the purposes not connected with agriculture.

5. Vide order dated 07.01.2025 the Sub Divisional Officer/Assistant Collector-1, Laharpur, District Sitapur rejected the application preferred by the petitioner under Section 82 of the Revenue Code (Imran Husain versus Arif Ali Khan and others), registered as Case No.84/2025, which was filed for the purposes of recall of order dated 15.03.2024 on various grounds including the ground that no objection of the petitioner is a forged and fabricated document.

6. Vide impugned order dated 16.04.2025 the opposite party No.2/Commissioner, Lucknow Division, Lucknow in Case No.629/2025 (Imran Husain versus Arif Ali Khan and others) in exercise of power under Section 210 of Revenue Code has affirmed the orders dated 15.03.2024 and 07.01.2025.

7. It is not in dispute that Munna S/o Chanda, Mohd. Mukhtar Ahmad S/o Hayad Mohammad, Arif Ali Khan S/o Sabir Ali Khan, Asif Ali Khan S/o Sabir Ali Khan and Imran Husain S/o Iqbal Hushain are co-sharers/co-bhumidhars/co-tenure holders of Gata No. 502.

8. It is also not in dispute that Munna S/o Chanda, Mohd. Mukhtar Ahmad S/o Hayad Mohammad, Arif Ali Khan S/o Sabir Ali Khan, Asif Ali Khan S/o Sabir Ali Khan, Imran Husain S/o Iqbal Hushain and Mother Saisrat Public School are co-sharers/co-bhumidhars/co-tenure holders of Gata No.503.

9. It is also not in dispute that no objections of all the co-sharers/co-bhumidhars/co-tenure holders were not filed along with the application under Section 80 of the Revenue Code.

10. It is also not in dispute that shares of co-sharers/co-bhumidhars/co-tenure holders have not been divided as per law.

11. It is stated by Shri Sankalp Mehrotra appearing for the private opposite parties that as per averment made in paragraph 17 of the writ petition Munna is no more.

12. The issue in the case has already been dealt with by Division Bench of this Court in the case of Ishan Chaudhary and another Vs. Union of India and 04 others, [Writ-C No.10619 of 2025-Neutral Citation No.-2025:AHC:52923-DB, decided on 10.04.2025]. The relevant paras are as under :-

"15. In order to examine the contention put forth on behalf of the petitioners that as per the terms of sub-section (4) of Section 80 of the Code, 2006, once a declaration had been made under sub-section (1), that would create a presumption that the land in question had already been partitioned, we may be required to refer to the relevant statutory provisions.

16. The Uttar Pradesh Revenue Code, 2006 is an Act to consolidate and amend the law relating to land tenure and land revenue in the State of Uttar Pradesh and to provide for matters connected therewith and incidental thereto. The declaration as to non-agricultural use of land is to be made as per terms of Section 80 of the Code, 2006, which is extracted below :

"80. Use of holding for Industrial, Commercial or Residential purposes. - (1) Where a bhumidhar with transferable rights uses his holding or part thereof, for industrial, commercial or residential purposes, the Sub-Divisional Officer may, suo motu or on an application moved by such bhumidhar, after making such enquiry as may be prescribed, either make a declaration that the land is being used for the purpose not connected with agriculture or reject the application. The Sub-Divisional Officer shall take a decision on the application within forty five working days from the date of receipt of the application. In case the application is rejected, the Sub-Divisional Officer shall state the reasons in writing for such rejection and inform the applicant of his decision.

Provided that if the application for declaration is accompanied with the prescribed fee and in case of joint holding, no objection of co-tenure holders is attached in case of co-tenure holder and if the declaration is not made by the Sub-Divisional Officer within forty five days as aforesaid, then the declaration shall be deemed to have been made. Tehsildar will make a record of it in the revenue records, with the comment "subject to the order of the Sub-Divisional Officer".

If any affected party wants to file an objection in relation to the said declaration, it may file an objection in the competent court.

(2) Where a bhumidhar with transferable rights proposes to use in future his holding or part thereof, for industrial, commercial or residential purposes, the Sub-Divisional Officer may on an application moved by such bhumidhar, after making such enquiry as may be prescribed, either make a declaration that the land may be used for the purpose not connected with agriculture or reject the application, within forty five working days from the date of receipt of the application. In case the application is rejected, the Sub-Divisional Officer shall state the reasons in writing of such rejection and inform the applicant of his decision:

Provided further that if the bhumidhar fails to start the proposed non-agricultural activity within a period of five years from the date of declaration under this sub-section, then the declaration under sub-section (2) for the holding or part thereof shall lapse:

Provided also that a declaration under this sub-section (2) shall not amount to change of land use and the land shall continue to be treated as agricultural land only. However, the bhumidhar shall be entitled to obtain loan and other necessary permissions, clearances, etc. for the activity or project, proposed on the holding or part thereof, for which declaration under this sub-section has been obtained.

(3) A bhumidhar possessing declaration under sub-section (2) for his holding or part thereof, may apply to Sub-Divisional Officer for converting declaration under sub-section (2) to a declaration under sub-section (1), after completion of construction activity or start of the proposed non-agricultural activity, within a period of five years from declaration under sub-section (2). On receipt of such an application, the Sub-Divisional Officer, after making such enquiry as necessary, shall approve or reject the application within a period of 15 days from the receipt of the application. In case of rejection, he shall record in writing the reasons for such rejection :

Provided that for conversion of declaration under sub-section (2) to a declaration under sub-section (1), the bhumidhar shall be liable to pay only the balance amount of fee payable, calculated at prevailing circle rate, after adjusting the amount already paid by him for declaration under sub-section (2) earlier.

(4) No application for a declaration under sub-section (1) or sub-section (2), moved by any co-bhumidhar having undivided interest in bhumidhari land shall be maintainable, unless application is moved by all the co-bhumidhars of such bhumidhari land. In case only one of the co-bhumidhar wants to get a declaration for his share in the land with joint interest, then such an application shall be entertained only after the respective shares of the co-bhumidhars in the land have been divided in accordance with the provisions of law.

(5) The application for declaration [under sub-section (1) or sub-section (2)] shall contain such particulars and shall be made in such manner as may be prescribed.

(6) Where the application under sub-section (1) or sub-section (2) is made in respect of a part of the holding, the Sub-Divisional Officer may, in the manner prescribed, demarcate such part for purposes of such declaration.

(7) No declaration under this section shall be made by the Sub-Divisional Officer, if he is satisfied that the land or part thereof is being used or is proposed to be used for a purpose which is likely to cause a public nuisance or to affect adversely public order, public health, safety or convenience or which is against the uses proposed in the master plan.

(8) In case the land or part thereof for which a declaration under this section is being sought falls within the area notified under any Urban or Industrial Development Authority, then prior permission of the concerned Development Authority shall be mandatory.

(9) The State Government may fix the scale of fees for declaration under this section and different fees may be fixed for different purposes:

Provided that if the applicant uses the holding or part thereof, for his own residential purpose, no fee shall be charged for the declaration under this section."

17. It would be pertinent to take note of the provision, as it originally stood prior to being substituted by Section 8 of the U P Revenue Code (Amendment) Act, 2019 (Act No.7 of 2019), which reads as under:

"80. Use of holding for Industrial, Commercial or Residential purposes. - (1) Where a Bhumidhar with transferable rights uses his holding or part thereof, for industrial, commercial or residential purposes, the Sub-Divisional Officer may, suo motu or on an application moved by such Bhumidhar, after making such inquiry as may be prescribed, either make a declaration that the land is being used for the purpose not connected with agriculture or reject the application. The Sub-Divisional Officer shall state the reasons in writing of such declaration or rejection and inform the applicant of his decision within forty five working days from the date of receipt of the application:

Provided that no such declaration under this section shall be made merely on the ground that the holding or part thereof is surrounded by boundary wall or is "Parti" on the spot:

Provided further that no application for the declaration under this sub-section moved by any co-bhumidhar having undivided interest in Bhumidhari land shall be maintainable, unless application is moved by all the co-bhumidhars of such bhumidhari land or their interests therein are divided in accordance with provisions of law.

(2) The application for declaration under sub-section (1) shall contain such particulars and shall be made in such manner as may be prescribed.

(3) Where the application under sub-section (1) is made in respect of a part of the holding, the Sub-Divisional Officer may, in the manner prescribed, demarcate such part for purposes of such declaration.

(4) No declaration under this section shall be issued by the Sub-Divisional Officer, if he is satisfied that the land is to be used for a purpose which is likely to cause a public nuisance or to affect adversely public order, public health, safety or convenience or against uses purposes in the Master Plan.

(5) The State Government may fix the scale of fees for declaration under this section and different fees may be fixed for different purposes:

Provided that if the applicant uses the holding or part thereof for his own residential purpose, no fee shall be charged for the declaration under this section."

18. The relevant rules related to Section 80 of the Code, 2006, under the U P Revenue Code Rules, 20163 are also reproduced below :

"85. Application for declaration (Section 80). (1) A bhumidhar with transferable rights using his holding or any part thereof for a purpose not connected with agriculture may apply to the Sub-Divisional Officer for a declaration under section 80(1) in R.C. Form-25.

(2) The applicant shall pay the required amount of declaration fee which shall be one percent of the amount calculated as per the circle rate for agricultural purpose fixed by Collector of the district concerned or as per the rate fixed by State Government from time to time.

(3) On receipt of the application under sub-rule (1), the Sub-Divisional Officer may cause an inquiry to be made through a revenue officer not below the rank of a Revenue Inspector for the purpose of satisfying himself that the holding or part thereof is really being used for a non-agricultural purpose. The concerned officer shall, after spot verification submit his report to the Sub-Divisional Officer indicating the purpose for which the holding or part thereof is being actually used.

86. Notice to the bhumidhar (Section 80). - Where the proceedings under section 80(1) has been initiated by the Sub-Divisional Officer on his own motion, he shall issue notice to the bhumidhar concerned, and the inquiry referred to in rule 85(3) shall be held after the reply, if any, of the bhumidhar is submitted.

87. Grant of declaration (Section 80). - If after scrutinizing the report of the revenue officer, the Sub-Divisional Officer is satisfied:

(a) that the entire holding is being used for a purpose not connected with agriculture; and

(b) that the conditions specified in section 80(4) are complied with, he may make a declaration under section 80(1), in respect of such holding.

88. Apportionment of Land Revenue (Section 80). - (1) If only a part of the holding is being used by a bhumidhar with transferable rights for a non-agricultural purpose, and the Sub-Divisional Officer is satisfied that the provisions of the second proviso to section 80(1) have not been contravened, he may make a declaration only with respect of such part, provided that the cost of demarcation as per sub-rule (2) of the rule 22 is deposited by the bhumidhar before such declaration.

(2) Where the proceeding for declaration in respect of a part of the holding is initiated by the Sub-Divisional Officer suo motu, the cost of such demarcation shall be recovered by the Sub-Divisional Officer as arrears of land revenue.

(3) In every case of declaration under sub-rule (1) or sub-rule (2), the demarcation shall be made on the basis of the existing survey map, and the Sub-Divisional Officer shall apportion the land revenue payable by such bhumidhar.

(4) The Sub-Divisional Officer shall make an endeavor to conclude the proceeding for declaration under sub-section (1) of section 80 within the period of 45 days from the date of registration of the application and if the proceeding is not concluded within such period the reasons for the same shall be recorded."

19. The second proviso to sub-section (1) of Section 80 of the Code, 2006, as it originally stood, provided, in clear terms, that no application for declaration under sub-section (1) moved by any co-bhumidhar having undivided interest in bhumidhari land shall be maintainable, unless the application is moved by all co-bhumidhars of such bhumidhari land or their interests therein are divided in accordance with the provisions of law.

20. Rule 88 of the Rules, 2016, which related to apportionment of land revenue consequent to the declaration made under Section 80 of the Code, 2006 provides for a demarcation in case declaration had been sought only for a part of the holding which was being used for non-agricultural purpose. The demarcation in the said case is to be made as per the procedure prescribed under Rule 22 of the Rules, 2016, which relates to settlement of boundary disputes envisaged under Section 24 of the Code, 2006.

21. In terms of Section 8 of the U P Revenue Code (Amendment) 2019 (Act No.7 of 2019), Section 80 of the Code, 2006, as it originally stood, has been substituted in its entirety. Sub-section (4) of Section 80 of the Code, 2006, as it presently stands, provides, in clear terms, that no application for declaration under sub-section (1) or sub-section (2) moved by any co-bhumidhar, having undivided interest in a bhumidhari land shall be maintainable, unless the application is moved by all the co-bhumidhars of such bhumidhari land. It further provides that in case only one of the co-bhumidhars wants to get a declaration for his share in the land with joint interest, then such an application shall be entertained only after the respective shares of the co-bhumidhars in the land have been divided in accordance with the provisions of law. The division of holding consequent to which shares of co-bhumidhars in a land can be divided, is to be as per the terms of Section 116 of the Code, 2006.

22. As a consequence of division of holding under Section 116 of the Code, 2006, it is enjoined upon the court concerned, as a duty under sub-section (1) (b) of Section 117, to apportion the land revenue payable in respect of each such division. The procedure pertaining to division of holdings is provided under Rules 107, 108 and 109 of the Rules, 2016 and in terms of Rule 109 (8) (c), it is provided that at the stage of the final decree, the Court concerned shall apportion the land revenue payable by the parties.

23. Sub-section (4) of Section 80 of the Code, 2006 contains a clear interdict against any application, being moved by any co-bhumidhar having undivided interest in the bhumidhari land, for a declaration under sub-section (1) or sub-section (2), unless the application is moved by all co-bhumidhars of such bhumidhari land. It further provides that in case only one of the co-bhumidhars is desirous of getting a declaration for his share in the land with joint interest, then such an application shall be entertained only after the respective shares of the co-bhumidhars in the land are divided in accordance with the provisions of law.

24. A plain reading of the aforesaid provisions would make it clear that the application, at the instance of a co-bhumidhar having his share in the land with joint interest, would have to be preceded by the determination of shares of the co-bhumidhars in the land in question in accordance with the provisions of law. This would mean that an application for declaration under sub-section (1) or sub-section (2) at the behest of any co-bhumidhar, having undivided interest in the bhumidhari land, would be maintainable only upon fulfilment of the necessary pre-condition that the land in question had been divided in accordance with the provisions of law, i.e. as per the provisions contained under Section 116 of the Code, 2006 and the relevant Rules.

25. The argument which has been raised on behalf of the petitioners that the declaration under Section 80 (1) of the Code, 2006 would necessarily mean that the land in question had already been divided, cannot be accepted for the reason that as per the provisions contained in sub-section (4) of Section 80 of the Code, 2006, the division of holding and the determination of shares of the co-bhumidhars in a joint holding, is a pre-condition for seeking declaration under sub-section (1) or sub-section (2) of Section 80 of the Code, 2006; however the reverse implication cannot be inferred.

26. In the instant case, no document has been placed on record to demonstrate that the division of property in question had been made between all the co-owners as per the provisions contained in Section 116 of the Code, 2006."

13. Taking note of the aforesaid observation made in the judgments referred above as also the language couched under Section 80 of the Revenue Code itself as also the fact that no objection of all the co-sharers/co-bhumidhars/co-tenure holders were not filed as also that respective shares of co-sharers/co-bhumidhars/co-tenure holders were not devided as per law, this Court finds that interference in the impugned orders is required.

14. Accordingly, the orders referred in prayer clause, quoted above, are hereby set aside/quashed.

15. The matter is remanded back to the Sub Divisional Magistrate concerned to decide the case afresh after taking note of observations made in the judgment passed in the case of Ishan Chaudhary and another Vs. Union of India (supra) within a period of three months from the date of production of certified copy of this order.

16. With the aforesaid, the petition is allowed. Cost made easy.

Order Date :- 22.5.2025

ML/-