V. N. Khare, J. - (1.) THIS writ petition under Article 226 of the Constitution of India is directed against the order and judgment of learned District Judge, Dehradun dated 19-8-1976 passed in appeal under section 17 of the Indian Forest Act. By the impugned order learned District Judge has set aside the order of Forest Settlement Officer dated 22-11-1972 allowing the objection of the petitioner.
(2.) BRIEF facts of this case are these : Doon Housing Private Limited (hereinafter referred to as Society) purchased land measuring 1158 acres situate in village Arcadia Grant, Pargana Pachura Dass in the district of Dehradun from Dehradun Tea Company Limited on 28-10-1942. The Society further purchased 386 acres of land situate in village Arcadia Grant, Pargana Pachura Dass, district Dehradun from Krishna Lal and others. The land measuring 299.11 acres out of 386 acres of land purchased by Society was Sir of the proprietors and rest of the area 87 acres of land was open piece of land (non-agricultural land). On 1-7-1952 U. P. Zamindari Abolition and Land Reforms Act came into force and zamindari in the district of Dehradun was abolished. On 6-7-1956 the State Government issued a notification stating that the U. P. Zamindari Abolition and Land Reforms Act will not apply to the area where the plots in dispute are situate and in the meantime the Society may carry out the building operations over; the area acquired by them. On 21-1-1966 Society entered into agreement with one Narain Dutt for transfer of the certain land including plots in dispute in the present writ petition. It appears that agreement did not materialise. Subsequently Society entered in an agreement dated 21-6-60 for sale of plots in dispute in favour of petitioner. In pursuance of agreement Society sold to the petitioner land measuring 8 bighas out of plot no. 2044 through a registered sale deed in favour of the petitioner. On 1-9-1969 provisions of U. P. Zamindari Abolition and Land Reforms Act were enforced in the area where the plot in dispute is situate. On 13-10-1970 a notification under section 4 of the Indian Forest Act was promulgated. The petitioner filed objection before Forest Settlement Officer to the effect that the land in dispute was his Khudkasht and as such he has become its Bhumidhar, and that he being a Bhumidhar no reserve forest can be constituted over the land in dispute. The Forest Settlement Officer accepted the objection of petitioner. The State of Uttar Pradesh aggrieved against the order of the Forest Settlement Officer preferred an appeal before the learned District Judge, Dehradun who allowed the appeal of State of Uttar Pradesh. Learned Counsel for the petitioner urged that the view taken by the learned District Judge in holding that the Khudkasht rights in plots in dispute were lost in view of the fact that that proprietor seized to cultivate the land, is erroneous. The learned Chief Standing Counsel urged that the learned Distt. Judge has wrongly assumed that the land was Khudkasht of the proprietors of the land. According to him at no point of time Khudkasht rights accrued to the proprietor in respect of the land in dispute. In view of contention of learned Chief Standing Counsel it is to find out as to whether the land in dispute was Khudkasht of the proprietor or not. Section 3 sub-section (9) of the U. P. Tenancy Act defines " Khudkasht " means land other than Sir cultivated by a landlord, an under- proprietor or a permanent tenure holder as such either himself or by servants or by hired labour. This definition shows that if the land is cultivated without any authority of the landlord the Khudkasht rights will not accrue on such land. In light of definition of " Khudkasht " it has to be determined as to whether landlord either himself or by servants or hired labour cultivated the land in dispute. The case of petitioner is that one Narain Dutt who entered into agreement for sale of land cultivated the land and such Khudkasht rights accrued in respect of plots in dispute. The agreement entered into between the proprietor and Narain Dutt is not before me. There is only Khatauni for the years 1366F. to 1376F. showing that the land was cultivated by Narain Dutt. There is no document before me to show that the land in dispute was cultivated by the landlord himself or through his servants or hired labour or Narain Dutt cultivated as agent of landlord. The learned District Judge without entering into this question assumed that land in dispute is Khudkasht of landlord. This approach of learned District Judge was not correct. The learned District Judge ought to have made enquiry as to how the land in dispute became Khudkasht land of landlord. The learned District Judge has not recorded any finding to this effect. He has wrongly assumed that the land was Khudkasht land. Since the learned District Judge has not recorded any finding on this question the case must be sent back to the learned District Judge for deciding the appeal afresh. The second question that arises for determination is as to whether Khudkasht right in the land will be lost if landlord for some time did not cultivate it either himself or through his hired labour. In Ram Dayal v. Misri Lai 1972 AWR 232 the learned single Judge of this Court held that mere omission to cultivate Khudkasht land for one year will not deprive landlord of his 'Khudkasht rights. Landlord if has cultivated the land other than Sir Khudkasht rights would accrue to him in respect of that land and land if not cultivated for some time would not result in forfeiture of Khudkasht rights. It is, therefore, not correct that no Bhumidhari rights would accrue to the land in respect of Khudkasht land if it was not cultivated on the date of vesting. The view taken by the learned District Judge that the land in question was not in actual cultivation of the appellant on the date of vesting he could, therefore, not become a Bhumidhar thereof, is erroneous in law. But since the matter requires reconsideration in respect to character of the land prior to the abolition of Zamindari the case is sent back to the learned District Judge, Dehradun.
(3.) THE writ petition succeeds and is allowed. THE order and judgment of the learned District Judge, Dehradun dated 19-8-1976 is set aside. THE case is sent back to the learned District Judge, Dehradun who will decide the appeal of State of Uttar Pradesh in the light of observation made in this judgment. In the circumstances of the case there will be no order as to costs. Petition allowed.;