# Sri Kanhaiya Lal Trust & Anr v. State of U.P. & Ors

- **Citation:** (2023) 6 ILRA 655
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2023-04-17
- **Case number:** Writ-C No. 3955 of 2022
- **Bench:** Dr. Yogendra Kumar Srivastava
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/sri-kanhaiya-lal-trust-anr-v-state-of-u-p-ors-50341
- **Pages:** 20

## Headnote

Civil Law - Uttar Pradesh Revenue Code,
2006-Petitioner a registered trust-purchased
656 INDIAN LAW REPORTS ALLAHABAD SERIES
land by registered sale deed-name mutatedobtained declaration that land used for nonagricultural purpose-but after some time due to
constraint
failed
to
establish
educational
institution -moved Application u/s 82 of the
Code, 2006- for cancellation of an earlier
declaration made u/s 80 rejected- conditions to
be satisfied u/s 82 seeking cancellation of
declaration made u/s 80- clearly specified under
the section itself-reference made in the order
impugned to any other circumstance and on the
basis thereof to reject the application of the
petitioner, would therefore render the exercise
of the discretionary power conferred on the
authority as ultra vires and invalid- remitted to
the respondent No. 3 for passing a fresh order
on the basis of the provisions u/s 82 of the
Code, 2006. (E-9)

List of Cases cited:

## Text

_Characters 0–39,967 of 67,034. This is a partial read: ask again with offset=39967 for what follows._

6 All. Sri Kanhaiya Lal Trust & Anr. Vs. State of U.P. & Ors.
655
no. 1 by the State Government at Raja
Mahendra Pratap Singh State University,
Aligarh made in provisions of the U.P. State
University Act, 1973 being lawful and
bonafide deserve to be upheld. The writ
petition being devoid of merit and liable to
be dismissed."

16. The aforesaid Government Order
dated 28.06.2019 was specifically referred
and relied by learned counsels for the
respondents in their arguments but no reply
was submitted by learned counsel for the
petitioner in this regard. Thus, so far as the
appointment of the respondent No.1 as
Interim (First) Vice-Chancellor is concerned,
the State Government by the Government
Order
No.600/lRrj-1-2019-16(114)/2010
dated 28.06.2019, has specifically provided
in para-8 thereof that the procedure for
appointment of Vice-Chancellor and Pro-Vice
Chancellor as provided in the Uttar Pradesh
State Universities Act, 1973 shall continue to
be applicable. The aforesaid government
order was issued with reference to the UGC
Regulations, 2018. Thus, so for as the
procedure
for
appointment
of
ViceChancellor
and
Pro-Vice-Chancellor
is
concerned, the State Government has not
adopted the UGC Regulations, 2018 and
instead decided that the provisions of State
Universities
Act,
1973
shall
remain
applicable. Similar view has been taken by a
coordinate Bench of this Court by judgment
dated 16.11.2015 passed in Writ-C No.62753
of 2015 (Amrit Prasad vs. State of U.P. and 5
others)
while
considering
the
UGC
Regulations, 2010. The aforesaid view also
finds support from the three judges bench
judgment of Hon'ble Supreme Court in
Jagdish Prasad Sharma and others (supra).

17. So far as the judgments relied by
the petitioner in the case of Gambhirdan
K. Gadhvi vs. State of Gujarat and
others, (2022) 5 SCC 179 (paras 2.4 and
Para-29),
Prof.
Narendra
Singh
Bhandari vs. Ravindra Jugran and
others, 2022 (16) SCALE 410 (para-9)
and Professor (Dr.) Sreejith P.S. vs. Dr.
Rajasree M.S. and others, 2022 (15)
SCALE 377 (Paras-2.3 and 8.5) are
concerned, we find that in all these
judgments, an important fact was that the
concerned State Government have adopted
the relevant UGC Regulations, 2010/ 2018.

18. For all the reasons aforestated, the
appointment of the respondent No.1 as
Interim (First) Vice-Chancellor of the
respondent No.2 - University being in
terms of the provisions of Section 4(1-B) of
the U.P. State Universities 1973, is neither
illegal nor contrary to the statutory
provisions. Therefore, a writ of Quo
Warranto cannot be issued. The writ
petition has no merit and is, therefore,
dismissed.
----------
(2023) 6 ILRA 655
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 17.04.2023

BEFORE

THE HON'BLE DR. YOGENDRA KUMAR
SRIVASTAVA, J.

Writ-C No. 3955 of 2022

Sri Kanhaiya Lal Trust & Anr. ...Petitioners
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioners:
Sri Gaurav Singh, Sri Kumar Sreshtha

Counsel for the Respondents:
C.S.C., Sri Kaushal Kishore Mani

Civil Law - Uttar Pradesh Revenue Code,
2006-Petitioner a registered trust-purchased
656 INDIAN LAW REPORTS ALLAHABAD SERIES
land by registered sale deed-name mutatedobtained declaration that land used for nonagricultural purpose-but after some time due to
constraint
failed
to
establish
educational
institution -moved Application u/s 82 of the
Code, 2006- for cancellation of an earlier
declaration made u/s 80 rejected- conditions to
be satisfied u/s 82 seeking cancellation of
declaration made u/s 80- clearly specified under
the section itself-reference made in the order
impugned to any other circumstance and on the
basis thereof to reject the application of the
petitioner, would therefore render the exercise
of the discretionary power conferred on the
authority as ultra vires and invalid- remitted to
the respondent No. 3 for passing a fresh order
on the basis of the provisions u/s 82 of the
Code, 2006. (E-9)

List of Cases cited:

1. Commissioner of Income Tax, West Bengal,
Culcutta Vs Benoy Kumar Sahas Roy, AIR 1957
SC 768

2. Raja Mustafa Ali Khan, Through Special
Manager, Court of Wards, Utraula, District
Gonda Vs
Commissioner of Income Tax, United Provinces,
Ajmer and Ajmer Merwara, AIR 1949 PC 13

3. Commissioner of Income Tax West Bengal,
Calcutta Vs Raja Binoy Kumar Sahas Roy, AIR
1957 SC 768

4. Dilworth & ors.Vs The Commissioner of
Stamps, (1899) AC 99

5. Ramala Sahkari Chini Mills Ltd. Uttar Pradesh
Vs Commissioner, Central Excise, Meerut I,
(2010) 14 SCC 744

6. Oswal Fats and Oils Ltd. Vs Additional
Commissioner (Administration), Bareilly Division,
Bareilly & ors., (2010) 4 SCC 728

7. Bharat Diagnostic Center Vs Commissioner of
Custom, 2014 (307) ELT 632

8. South Gujarat Roofing Tiles Manufacturers
Association & anr. Vs St. of Gujarat & anr.,
(1976) 4 SCC 601

9. ESI Corpn. Vs High Land Coffee Works,
(1991) 3 SCC 617

10. Commissioner of Income Tax, Andhra
Pradesh VsTaj Mahal Hotel, Secunderabad,
(1971) 3 SCC 550

11. St. of Bombay & ors.Vs Hospital Mazdoor
Sabha & ors., (1960) 2 SCR 866

12. Lord Esher MR in R. Vs St Pancras Vestry,
(1890) 24 QBD 371

13. Associated Provincial Picture Houses, Ltd. Vs
Wednesbury Corporation, [1947] 2 All ER 680

14. Padfield & ors.Vs Minister of Agriculture,
Fisheries And Food & ors., [1968] 1 All ER 694

15. Breen Vs Amalamated Engineering Union &
ors., [1971] 2 QB 175

16. Sitaram Vs St. of U.P. & ors., [1968] 1 All ER
694

17. Omwati Vs St. of U.P. & ors., [1971] 2 QB
175

(Delivered by Hon'ble Dr. Yogendra
Kumar Srivastava, J.)

1. Heard Sri Gaurav Singh and Sri
Kumar Sreshtha, learned counsel for the
petitioners; Sri Ajit Kumar Singh, learned
Additional Advocate General appearing
along with Sri Abhishek Shukla and Sri
Amit Manohar, learned Additional Chief
Standing Counsel for the State respondents;
and Sri Kaushal Kishore Mani, learned
counsel for the respondent no.4-Gram
Sabha.

2. The present petition has been filed
seeking to raise a challenge to an order
dated 16.12.2021 passed by the respondent
no.2-Sub
Divisional
Magistrate,
Saharanpur whereby the application filed
by the petitioners under Section 82 of the
Uttar Pradesh Revenue Code, 20061 for
6 All. Sri Kanhaiya Lal Trust & Anr. Vs. State of U.P. & Ors.
657
cancellation of an earlier declaration made
under Section 80 of the Code, 2006, has
been rejected.

3. As per the facts pleaded in the writ
petition, the petitioner has asserted itself to
be a registered trust having as its aims and
objects to improve educational and social
awareness in society. The petitioner no. 2
claims to have purchased land by means of
a registered sale deed dated 25.04.2017
from its recorded tenure holders and
thereafter got itself mutated in the revenue
records.

4. The petitioner trust, thereafter,
intending to construct an educational
institution moved an application dated
14.07.2017 under Section 80 of the Code,
2006 for getting a declaration that the land
in question was being used for nonagricultural
purpose.
The
aforestated
application was allowed by the respondent
no.2 by an order dated 08.09.2017 and
declaration was made that the land was
being used for non-agricultural purpose.

5. After lapse of some time, due to
certain constraints, the petitioners failed to
establish the educational institution and
therefore,
filed
an
application
dated
24.10.2019 under Section 82 of the Code,
2006 before the respondent no.2 seeking
cancellation of the declaration obtained
earlier. Upon the aforestated application, a
report was obtained from the respondent
No.3-Tahsildar, Saharanpur which was
submitted on 02.03.2020. The report
indicated that apart from a boundary wall
of height about 4-5 feet, there existed no
other construction over the land in question
and that the land was not being utilised for
any commercial purpose. It was stated that
crops of wheat were standing over the land
and it was being utilised for agricultural
work. A similar report indicating the use of
the land for agricultural purpose was
submitted by area Lekhpal on 14.08.2020.
Since, no orders were passed by the
respondent authorities even after obtaining
the
requisite
reports,
the
petitioner
approached this Court by filing Writ C No.
10252 of 2021 (Shri Kanhaiya Lal Trust
and Another vs. State of U.P. and 3
Others) which was disposed of by an order
dated 19.7.2021/26.07.2021 directing the
Sub-Divisional Magistrate to decide the
application within stipulated time period.

6. The petitioner, at this stage,
submitted
a
fresh
application
dated
2.8.2021 upon which the area Lekhpal and
the Tehsildar submitted their report dated
25.11.2021 wherein it was stated that the
spot inspection indicated that apart from a
boundary wall of height 4-5 feet, no other
construction was existing over the land in
question. It was stated that no school had
been constructed over the land and
commercial work was being carried out by
running a nursery of decorative and timber
plants.

7. Relying upon the aforesaid report,
the Sub-Divisional Magistrate rejected the
application
of
the
petitioner
seeking
cancellation of declaration under Section
82 of the Code, 2006 by the impugned
order dated 16.12.2021. This order was
passed in compliance of the direction
issued by the High Court in Writ C No.-
10252 of 2021.

8. Challenging the aforestated order,
counsel for the petitioners has primarily
based his contention on the argument that
Section 4(2) of the Code, 2006 defines
'agriculture' as being inclusive of flower
farming and therefore, any activity relating
to nursery would be covered within the
658 INDIAN LAW REPORTS ALLAHABAD SERIES
meaning of the term 'agriculture'. Reference
has also been made to the definition of
'agricultural income' under Section 2(1A)
of the Income Tax Act, 1961 to submit that
agriculture
connotes
the
entire
and
integrated activity which is performed on
land in order to raise its produce and
consists of basic and essential operations
requiring human skill and labour such as
tilling of soil, sowing of seeds, planting and
similar
operations
and
also
other
subsequent operations. In this regard,
reliance is placed on the judgement in the
case of Commissioner of Income Tax,
West Bengal, Culcutta vs. Benoy Kumar
Sahas Roy2.

9. Counsel for the petitioners has
further pointed out that the land in question
is not being put to any commercial use as
mentioned in the report which has been
relied upon in the order impugned. It is
asserted that the activity being carried out
by the petitioners falls within the ambit of
agricultural operations and therefore, the
order rejecting the application under
Section 82 of the Code, 2006, is illegally
unsustainable.

10. Learned Additional Advocate
General appearing for the State respondents
has submitted that the cancellation of
declaration under Section 82 of the Code,
2006 can be sought in a case where the
holding or part thereof, in respect of which
a declaration has been obtained under
Section 80 is used for any purpose
connected with agriculture. It is pointed out
that in the instant case, the report having
indicated that the use of the land in
question was being made for a commercial
purpose, the application seeking declaration
under Section 82 has been refused. Counsel
for the State respondents has also placed
reliance upon the Constitution Bench
decision of the Supreme Court in the case
of Benoy Kumar Sahas Roy (supra) in
support of his submission.

11. In order to appreciate the rival
contentions,
the
relevant
statutory
provisions are required to be adverted and
the same are as follows:-

"4. Definition.-In this Code,-

(2) ''agriculture' includes horticulture,
animal husbandry, pisciculture, flower
farming, bee keeping and poultry farming;

(14) ''land', except in Chapters VII and
VIII and Sections 80, 81 and Section 136,
means land held or occupied for purposes
connected with agriculture;

80. Use of holding for Industrial,
Commercial or Residential purposes.--
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
SubDivisional 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.

(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
6 All. Sri Kanhaiya Lal Trust & Anr. Vs. State of U.P. & Ors.
659
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 SubDivisional 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 subsection, then the declaration under subsection (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 this
holding or part thereof, may apply to SubDivisional
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 SubDivisonal 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 (2), moved by any
co-bhumidhar having undivided interest in
bhumidhari land shall be maintainable,
unless application is moved by all the cobhumidhars 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 subsection (1) or sub-section (2) is made in
respect of a part of the holding, the SubDivisional 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.
660 INDIAN LAW REPORTS ALLAHABAD SERIES

(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.

81. Consequences of declaration.--
Where a declaration has been made under
sub-section (1) of Section 80, the following
consequences shall, in respect of such
holding or part to which it relates ensue :

(a) all restrictions imposed by or under
this Chapter in respect of transfer of land
shall cease to apply to the Bhumidhar with
transferable rights ;

(b)
notwithstanding
anything
contained in Chapter XI, the land shall,
with effect from the commencement of the
agricultural year following the date of
declaration, be exempted from payment of
land revenue ;

(c) the Bhumidhar shall, in the matter
of devolution be governed by the personal
law to which he is subject.

82. 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 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.

83. Recording of declaration or
cancellation.--Every
declaration
under
Section 80 or cancellation under Section 82
shall be recorded in Record of Rights in the
manner as may be prescribed and, even
after declaration under Section 80, the
mutation order on the basis of transfer or
succession shall be passed in the manner
prescribed.

12. Section 80, as it presently stands,
was substituted by Section 8 of the U.P.
Revenue Code (Amendment) Act, 2019
[Act No. 7 of 2019] (w.e.f. 10.3.2019).
6 All. Sri Kanhaiya Lal Trust & Anr. Vs. State of U.P. & Ors.
661
Prior to its substitution, Section 80 reads as
follows:-

"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
SubDivisional 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 subsection (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 proposed 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."

13. The relevant rules, as contained in
the U.P. Revenue Code Rules, 20163,
relating
to
the
aforestated
statutory
provisions are also required to be referred
and the same are as follows:-

"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 SubDivisional 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-
662 INDIAN LAW REPORTS ALLAHABAD SERIES
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 SubDivisional 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 SubDivisional 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 subsection (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.

89.
Cancellation
of
declaration
[Section 82].--Where any holding or any
part thereof has been the subject matter of
declaration under Section 80 of the Code or
Section
143
of
the
U.P.
Zamindari
Abolition and Land Reforms Act, 1950,
and such holding or part is again used for a
purpose
connected
with
agriculture,
necessary application for cancellation of
such declaration under Section 82 may be
submitted to the Sub-Divisional Officer in
R.C. Form-26.

90.
Inquiry
before
cancellation
[Section 82].--On receipt of the application
under rule 89, the Sub-Divisional Officer
shall make an inquiry and follow the
procedure laid down in rules 85 to 88
before the declaration is cancelled in
accordance with Section 82.

91.
Mode
of
declaration
and
cancellation
[Section
83].--(1)
Every
declaration made under Section 80 and
cancellation thereof under Section 82 shall
be duly signed by the Sub-Divisional
6 All. Sri Kanhaiya Lal Trust & Anr. Vs. State of U.P. & Ors.
663
Officer and shall bear the seal of his Court
and shall contain the following particulars:

(a) Section under which it was made.

(b) Number and area of the plot in
respect of which it was made.

(c) The land revenue, if any, of the
plots in question.

(d) Name of the village and Tahsil and
district where the plot was situate.

(e) Name, parentage and address of the
bhumidhar in whose favour the declaration
was made.

(f) The date of the declaration.

(2) Such a declaration need not be
registered under the Registration Act, 1908,
but the same shall be recorded in the record
of rights.

92. Rate of interest [Section 82].--
When a mortgage with possession is
substituted by a simple mortgage under the
proviso to clause (c) of Section 82(2), then
such simple mortgage shall carry interest at
the rate of 4 percent per annum."

14. It would be apposite to refer to the
similar provisions relating to declaration
under the repealed Uttar Pradesh Zamindari
Abolition & Land Reforms Act, 1950. The
same are as follows:-

143. Use of holding for industrial or
residential purposes. - [(1) Where a
[bhumidhar with transferable rights] uses
his holding or part thereof for a purpose not
connected with agriculture, horticulture or
animal
husbandry
which
includes
pisciculture and poultry farming, the
Assistant Collector-in-charge of the subdivision may,
suo
motu or on
an
application, after making such enquiry as
may be prescribed, make a declaration to
that effect.

(1-A) Where a declaration under subsection (1) has to be made in respect of a
part of the holding the Assistant Collectorin-charge of the sub-divisions may in the
manner prescribed demarcate such part for
the purposes of such declaration.]

(2) Upon the grant of the declaration
mentioned in sub-section (1) the provisions
of this chapter (other than this section) shall
cease to apply to the [bhumidhar with
transferable rights] with respect to such
land and he shall thereupon be governed in
the matter of devolution of the land by
personal law to which he is subject.

[(3)
Where
a
bhumidhar
with
transferable rights has been granted, before
or after the commencement of the Uttar
Pradesh Land Laws (Amendment) Act,
1978, any loan by the Uttar Pradesh
Financial Corporation or by any other
Corporation owned or controlled by the
State Government, on the security of any
land
held
by
such
bhumidhar,
the
provisions of this Chapter (other than this
section) shall cease to apply to such
bhumidhar with respect to such land and he
shall thereupon be governed in the matter
of devolution of the land by personal law to
which he is subject.]

144. Use of land for agricultural
purposes.- (1) Whenever any land held by
a bhumidhar which is not used for the
purposes
connected
with
agriculture,
horticulture or animal husbandry which
includes pisciculture and poultry farming,
has become land used for such purposes,
the [Assistant Collector-in-charge of the
sub-division may suo motu or on an
application, after making such enquiry as
may be prescribed], make a declaration to
that effect and thereupon the bhumidhar
shall, as respects the land, be subject to the
provisions of this chapter.

(2) Upon the grant of the declaration
under sub-section (1) in respect of any land
664 INDIAN LAW REPORTS ALLAHABAD SERIES
any person other than the bhumidhar in
possession of the plot shall-

(a) if he holds it under any contract or
lease which is inconsistent with any of the
provisions of this chapter, be deemed to be
an occupant liable to ejectment under
Section 209; and

(b) if he holds it under any contract or
lease which is not inconsistent with any of
the provisions of this chapter, be entitled to
the rights in the land determined in
accordance with the provisions thereof.

(3) Any contract or lease referred to in
sub-clause (a) of sub-section (2) which is
inconsistent with the provisions of the
chapter shall, to the extent of the
inconsistency, become void with effect
from the date of declaration :

Provided that any mortgage with
possession existing on any such land shall,
to the extent of the amount due and secured
on such land, be deemed to have been
substituted by a simple mortgage carrying
such rate of interest as may be prescribed.

145. Registration of the declaration
granted under Sections 143 and 144. - A
copy of every declaration made under
Sections 143 and 144 shall be forwarded by
the [Assistant Collector-in-charge of the
sub-division]
to
the
Sub-Registrar
concerned
who
shall,
notwithstanding
anything
contained
in
the
Indian
Registration Act, 1908 (U.P. Act XVI of
1908), register the same free of cost in the
manner prescribed.

15. Section 82 of the Code, 2006
relates to cancellation of declaration made
under Section 80, and in terms thereof
whenever any holding or any part thereof in
respect of which a declaration has been
made under section 80 is used for 'any
purpose connected with agriculture', the
Sub Divisional Officer may, of his own
motion or on an application made in that
behalf and after making such enquiry as
may be prescribed, cancel such declaration.

16. The corresponding provision
contained under Rule 89 of the Rules, 2016
provides that where any holding or any part
thereof has been the subject matter of
declaration under Section 80 of the Code or
Section 143 of the Uttar Pradesh Zamindari
Abolition and Land Reforms Act, 1950,
and such holding or part is again used for a
purpose
connected
with
agriculture,
necessary application for cancellation of
such declaration under Section 82, may be
submitted to the Sub Divisional Officer in
the prescribed form, whereupon the Sub
Divisional Officer shall make an enquiry
and follow the procedure laid down in
Rules 85 to 88 before the declaration is
cancelled in accordance with Section 82.

17. In the case at hand the application
filed by the petitioners under Section 82 of
the Code, 2006, seeking cancellation of the
declaration made earlier under Section 80,
has been rejected by assigning a reason that
the land in question was being used as
'nursery', which indicates that the land is
being used for a commercial purpose and
not for an agricultural purpose. The
respondent authority on the said basis has
drawn an inference that the land use was
non-agricultural and commercial, and as a
consequence
thereof,
rejected
the
application.

18. The term 'agriculture' in its root
sense is derived from the Latin ager (field)
and colo (cultivate) signifying, when
combined the Latin agricultura (field or
land tillage). The word agriculture, has
come to subsume a very wide spectrum of
activities that are integral to agriculture and
have various descriptive terms assigned to
them.
6 All. Sri Kanhaiya Lal Trust & Anr. Vs. State of U.P. & Ors.
665

19. Referring to the dictionary
meaning of the term 'agriculture' The New
Lexicon Webster's Dictionary4 describes
it as:-

"the science or practice of large-scale
soil cultivation (cf. HORTICULTURE),
farming[F]."

20. In Bouvier's Law Dictionary5
'agriculture' is defined as:-

"The cultivation of soil for food
products or any other useful or valuable
growths of the field or garden; tillage,
husbandry; also, by extension, farming
including any industry practised by a
cultivator of the soil in connection with
such cultivation, as breeding and rearing of
stock, dairying etc. The science that treats
of the cultivation of the soil. Stand. Dict.
The term refers to the field or farm, with all
its wants, appointments and products, as
distinguished from horticulture, which
refers to the garden, with its less important
though varied products: Dillard Vs. Webb,
55 Ala. 468.

A person is actually engaged in
agriculture when he derives the support of
himself and family in whole or in part from
the cultivation of land; it must be
something more than a garden, though it
may be less than a field, and the uniting of
any other business with this is not
inconsistent with the pursuit of agriculture;
Springer
v.
Lewis,
22
Pa.193.
See
Bachelder v. Bickford, 62 Me. 526; Simons
v. Lovell, 7 Heisk. (Tenn.) 515.

Within the meaning of an exemption
law, one who cultivates a one acre lot and is
also a butcher and day laborer is not
engaged in agriculture."

21. Corpus Juris Secundum6
defines the term 'agriculture' as :-

"(1) Agriculture is a science that treats
of the cultivation of the soil.

(2) Agriculture is the art or science of
cultivating the ground, especially in fields
or
large
quantities,
including
the
preparation of the soil, the planting of
seeds, the raising and harvesting of crops,
and the rearing, feeding, and management
of live stock."

22. The aforesaid meanings ascribed
to
the
term
'agriculture'
in
various
dictionaries indicate that the term has been
used both in narrow sense of cultivation of
field and wider sense of comprising
activities in relation to the land including
horticulture, forestry, breeding and rearing
of live stock, floriculture etc.

23. The question as to whether the
narrower or the wider sense of meaning of
the term 'agriculture' is to be adopted in a
particular case would depend upon the
provision contained in the statute and also
upon the facts and circumstances of each
case.

24. The term 'agriculture', at one point
of time was understood in its primary sense
of cultivation of field. However, there was
another view which gave to the term
'agriculture' an extended meaning and
included within its connotation not only the
products raised by the cultivation of land
but also allied activities, thus bringing
within its compass not only the basic
agricultural operations but also the further
operations performed on the products of the
land.

25. The central idea which emerges is
that there should be tillage of land, sowing
of seeds or planting or similar work on the
land which invests the operation with the
characteristic of agricultural operations and
666 INDIAN LAW REPORTS ALLAHABAD SERIES
whenever this central idea is fulfilled there
is user of land for agricultural purposes. In
the wider sense, the term 'agriculture' has
been interpreted so as to include all
activities in relation to the land, even
though they did not comprise these basic
agricultural operations.

26. The meaning and connotation of
the term 'agriculture' and 'agricultural
purposes' came up for consideration before
the Privy Council in Raja Mustafa Ali
Khan, Through Special Manager, Court
of Wards, Utraula, District Gonda Vs.
Commissioner of Income Tax, United
Provinces, Ajmer and Ajmer Merwara7, in
the context of an exemption being sought
under Section 2(1) of the Income Tax Act,
1922, and an opinion was expressed that
unless there is some measure of cultivation
of land and some expenditure of skill and
labour upon it, the land cannot be said to be
used for agricultural purposes.

27. The term 'agriculture' was thus in
effect held to mean some measure of
cultivation of land and some skill and
labour upon it and unless the operations
conformed with this meaning they could
not be styled as agricultural operations so
as to lead to the inference that the land on
which they were performed was being used
for agricultural purposes.

28. The test which was laid down for
finding out when land is said to be used for
agricultural purposes was that there must
be some measure of cultivation of land and
some expenditure of skill and labour upon
it.

29. The meaning of the term
'agriculture' and 'agricultural purposes' was
again subject matter of consideration in the
context
of
the
definition
of
term
'agricultural income' under Section 2(1) of
the Income Tax Act, in the case of
Commissioner
of
Income
Tax
West
Bengal, Calcutta Vs. Raja Binoy Kumar
Sahas Roy8 and after a detailed discussion
of the earlier decisions on the point, it was
observed as follows:-

"95. We have, therefore, to consider
when it can be said that the land is used for
agricultural
purposes
or
agricultural
operations are performed on it. Agriculture
is the basic idea underlying the expressions
"agricultural purposes" and "agricultural
operations" and it is pertinent therefore to
enquire what is the connotation of the term
"agriculture".

As we have noted above, the primary
sense in which the term agriculture is
understood is agar -- field and cultra --
cultivation i.e. the cultivation of the field
and if the term is understood only in that
sense, agriculture would be restricted only
to cultivation of the land in the strict sense
of the term meaning thereby, tilling of the
land, sowing of the seeds, planting and
similar operations on the land.

They would be the basic operations
and would require the expenditure of
human skill and labour upon the land itself.
There are however other operations which
have got to be resorted to by the
agriculturist and which are absolutely
necessary for the purpose of effectively
raising the produce from the land.

They are operations to be performed
after the produce sprouts from the land e.g.
weeding, digging the soil around the
growth, removal of undesirable undergrowths and all operations which foster the
growth and preserve the same not only
from insects and pests but also from
depradation from outside, tending, pruning,
cutting, harvesting, and rendering the
produce fit for the market. The latter would
6 All.