Ravindra Maithani, J
1. By means of the instant petition, the petitioner seeks the following reliefs:-
“(i) Issue Writ or Order in the nature of certiorari quashing the order dated 16.03.2023, passed by the respondent no.1 (contained as Annexure
No.5 to the writ petition).
(ii) to issue writ, order in the nature of mandamus directing the respondent no.1 to grant license to the petitioner in terms of Section 241 of U.P.
Municipalities Act 1916 on the application moved by the petitioner 19.08.2022 (contained as Annexure No.2 to the writ petition).
(iii) Issue any other Writ, Order or direction, which this Hon’ble Court may deem fit and proper in the circumstances of the case; and
(iv) Award the cost of the writ petition in favour of the petitioners.â€
2. Heard learned counsel for the parties and perused the record.
3. It has been the case of the petitioner that he has been running a weekly haat bazaar for the last 10 years on Khasra No.310 and 311, area 0.0720
and 0.9930 hectares situated in revenue village, Mehmudpur, Mustakam, which was recorded in the name of the petitioner as Bhumidar with
transferable rights.
4. In the year 2019, Nagar Panchayat was established in the area. Therefore under Section 241 of the U.P. Municipalities Act, 1916, the petitioner
applied for license to run the weekly haat bazaar, but no action was taken on it. Thereafter, the petitioner filed Writ Petition (M/S) No.2781 of 2022,
Mohabbat Ali Vs. Nagar Panchayat, before this Court (“the petitionâ€). In the petition, on 24.02.2023, an interim order was passed and the
petitioner was permitted to hold weekly haat bazaar over the land subject to payment of license fees at the rate of Rs.500 per day. Subsequent to it,
the license was rejected on multiple grounds by the respondent no.1, Nagar Panchayat Piran Kaliyar on 16.03.2023. It is impugned herein.
5. Nagar Panchayat has filed its objections. In view of the development that took place during pendency of the petition, the detail objection need not be
noted. Fact remains that on 17.05.2024, No Objection Certificate (“NOCâ€) was granted by the respondent no.1, Nagar Panchayat, to the
petitioner subject to five conditions, one of which is condition no.4, which is as follows:-
“4. Land utility certificate issued by the Revenue Department.â€
6. The petitioner is not aggrieved by other conditions imposed by the respondent no.1 on 17.05.2024 for grant of NOC. He is aggrieved by the
condition no.4 with regard to declaration under Section 143 of the Act.
7. Learned counsel for the petitioner would submit that declaration under Section 143 of the U.P. Zamindari Abolition and Land Reforms Act, 1910
(“the Actâ€) is not at all required and it does not create any hindrance for the petitioner in running the haat bazaar. He would submit that at the
most, if such declaration is not sought and the land is used for purposes other than agriculture, horticulture or animal husbandry, which includes
pisciculture and poultry farming, the land shall not be governed by the provisions of the Act. Therefore, it is argued that the condition no.4 in NOC
dated 17.05.2024, issued by the respondent no.1 is liable to be struck down.
8. Learned counsel for the respondents would submit that the petitioner has not sought declaration under Section 143 of the Act. Therefore, unless
such declaration is sought, the NOC issued on 17.05.2024 by the respondent no.1 shall not come into force and the petitioner is under obligation to
seek such declaration.
9. In fact, earlier also, on 16.03.2023, when the respondent no.1 rejected the grant of license to the petitioner, one of the grounds was that the land
being agricultural is proposed to be used for commercial purposes.
10. Learned counsel for the respondents would submit that the petitioner is required to seek declaration under Section 143 of the Act. This is so as to
ensure the public safety. He would also submit that such declaration is also necessary so as to ensure that the land is fit for the purpose for which it is
intended to be used.
11. Section 143 of the Act reads 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 sub-division 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 sub-section (1) has to be made in respect of a part of the holding the Assistant Collector-in-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.
12. In fact, land, as such, is defined under Section 3(14) of the Act, which reads as follows:-
3. Definitions.
.............
14) ""Land"" except in Sections 109, 143 and 144 and Chapter VII means land held or occupied for purposes connected with agriculture, horticulture or
animal husbandry which includes pisciculture and poultry farming.â€
13. What would be its effect of non-declaration under Section 143 of the Act has been considered by this Court in the case of Sashi Bhushan Vs. Lalit
Mohan Singhal, Manu/UC/0190/2020. Referring to the earlier decision on the subject, in Para 12 in the case of Sashi Bhushan s(upra), this Court
observed as follows:-
12. After going through the case-laws cited by the learned counsel for the parties, it transpires that there are contradictory decisions of the Court on
this particular issue. Thus, the judgments cited above are of no assistance to any of the party. Recently, this Court in WPMS No.2180 of 2018 State of
Uttarakhand vs. Amandeep Singh and others, decided on 28.07.2020, has discussed the effect of declaration or non-declaration u/s 143 of UPZA &
LR Act and has accordingly held that as soon as a declaration is made under Section 143 of the Act, the land as defined under Section 3(14) of the
Act comes out from the purview of the Act, but in the case where the declaration has not been made but in fact land is being used for the purposes
not connected with agriculture, horticulture or animal husbandry which includes pisciculture and poultry farming, the effect of non-declaration under
Section 143 of the Act would also lead to the position that the suit property shall be deemed to be excluded from the provisions of the Act. Relevant
paragraphs of the said judgment are reproduced hereunder:
………………………………………………………………………………………………………………………………………â
€¦â€¦â€¦â€¦â€¦â€¦â€¦â€¦â€¦â€¦â€¦â€¦â€¦â€¦â€¦â€¦â€¦â€¦â€¦â€¦â€¦â€¦â€¦â€¦â€¦â€¦â€¦â€¦â€¦â€¦â€¦â€¦â€¦â€¦â€¦â€¦â€
14. And finally, in Para 13, the Court concluded the effect of non-declaration under Section 143 of the Act, and held as follows:-
13. In view of the above, the contention of learned counsel for the revisionist that due to non-declaration u/s 143 of the UPZA & LR Act whereupon
construction has been made, the property shall vest in the State u/s 156 of the Act, is misconceived. As held by this Court in aforesaid judgment, in
such a situation, the suit property shall be deemed to be excluded from the provisions of the Act.
15. In view of the settled law, in case declaration under Section 143 of the Act is not sought, the land shall be deemed to be excluded from the
provisions of the Act. If the petitioner runs the haat bazaar without seeking declaration under Section 143 of the Act, such land shall not be governed
by the provisions of the Act. But non-declaration under Section 143 of the Act does not bar the petitioner to run the weekly haat bazaar. As stated, its
effect would be that the land would be not governed by the provisions of the Act.
16. In view of it, this Court is of the view that the condition no.4, as imposed by the respondent no.1 in its NOC dated 17.05.2024, which is Annexure
No.1 to the supplementary affidavit dated 19.05.2024 of the respondent no.1 is bad in the eye of law. Accordingly, the condition no.4 deserves to be
struck down.
17. The respondent no.1 has already issued NOC dated 17.05.2024 to the petitioner to run the weekly haat bazaar. The condition no.4 of the NOC
dated 17.05.2024 is struck down.
18. The petition stands disposed of, accordingly.
