ORDER
1. The petitioners have filed the present writ petition under Art. 226 of the Constitution of India for quashing the order dated 25-11-82, passed by the Competent Authority and the order dated 22-2-86, passed by the District Judge, Saharanpur in proceedings under the provisions of the Urban Land (Ceiling and Regulation) Act, 1976 (hereinafter referred to as the Act.)
2. The petitioners filed a statement under S. 6(1) of the Act. On 11-3-1977 a draft statement was served upon the petitioners. The petitioners filed objection against the said draft statement. Thereafter, another amended draft statement was served on the petitioners on 24-2-1978, showing 5980 square metres as excess vacant land with petitioner No. 1 and 1990 square metres as excess vacant land with petitioners Nos. 2 & 3 each. The petitioners, further filed additional objection. On these three objections three cases were registered.
3. The objection of the petitioners was common. Their case was that plots Nos. 232 & 233 were groves and in a smaller portion of these plots there was a building. The groves contained fruit bearing trees and, therefore, such grove land was exempt from the operation of the Act. It was not covered by the definition of 'vacant land' as defined under S. 2(q) of the Act and shall not be treated as 'urban land' under S. 2(o) of the Act. The petitioners filed Khasras regarding these plots for the years 1223F, 1296F, 1383F, 1382F, 1384F and 1389F. In the case, report of the Junior Engineer of Ceiling Department andthe report of Naib Tahsildar, Urban Ceiling, was also submitted regarding the nature of the land. On 23-6-82 plots were also surveyed by a Surveyor of the Department indicating the number of trees standing on these plots and the nature of the land. The Competent Authority, the respondent No. 1, rejected the objection of the petitioners by order dated 25-11-82 declaring 14571.15 sq. m. as excess vacant land with the petitioners. The petitioners filed appeals against the said decision and these appeals were partly allowed and the area of excess vacant land was reduced to 10525.25 sq. metre by order dated 22-2-86. The respondents Nos. 1 and 2 took the view that in a portion of the plots the building was in existence and the area cannot be treated as mainly used for agricultural purpose. The petitioners have challenged these orders in this petition.
4. The first submission of the learned counsel for the petitioners is that the view taken by the Appellate Authority that even if the grove exists, but the land is not used for agricultural purposes and, therefore, it cannot be treated as agricultural land, is erroneous in law. His second submission is that even if on a portion of the plots in question any building is existing, the character of the land is not changed and the remaining area of the land was in the nature of a grove and such area should be treated as agricultural land.
5. Section 2(q) of the Act defines 'Vacant Land' as under:
'Means land, not being land mainly used for the purpose of agriculture, in an urban agglomeration.'
Section 2(o) of the Act defines 'Urban Land'. It provides that land in urban agglomeration does not include any land which is mainly used for the purpose of agriculture. There is explanation added to it which reads as under:
'Explanation -- For the purpose of thisclause and clause (q),--
(A) 'agriculture' includes horticulture, but does not include --
(i) raising of grass,
(ii) dairy farming,
(iii) poultry farming,
(iv) breeding of live-stock, and
(v) such cultivation, or the growing of such plant, as may be prescribed;
(B) land shall not be deemed to be used mainly for the purpose of agriculture, if such land is not entered in the revenue or land records before the appointed day as for the purpose of agriculture;
Provided that where on any land which is entered in the revenue or land records before the appointed day as for the purpose of agriculture, there is a building which is not in the nature of a farm-house, then, so much of the extent of such land as is occupied by the building shall not be deemed to be used mainly for the purpose of agriculture;
Provided further that if any question arises whether any building is in the nature of a farm-house, such question shall be referred to the State Government and the decision of the State Government thereon shall be final;
(C) notwithstanding anything contained in clause (B) of this Explanation, land shall not be deemed to be mainly used for the purpose of agriculture if the land has been specified in the master plan for a purpose other than 'agriculture.'
6. Horticulture is included in the definition of 'Agriculture' for the purpose of this Act. The 'Agriculture' with its grammatical variations and cognate expressions may not include horticulture, but for the purpose of this Act horticulture is included within the definition of 'Agriculture'. The derivative word is Latin 'hortus' a garden, 'cultura', to cultivate. This word has been defined in Oxford Dictionary as --
'The cultivation of garden, the art or science of cultivating or managing gardens, including the growing of flowers, fruits and vegetables.'
7. In Murugesa Chetti v. Chinnathambi Goundan, ILR (1901) 24 Madras 421, the Court was considering the definition of'Agriculture' and Bhashyam Ayyangar, J. defined 'Agriculture' in the following terms;
'Agriculture as distinguished from horticulture includes not only all field cultivation by village but also all garden cultivation for purposes chiefly of procuring vegetables or fruits as food for man or beast and other products fit for human consumption by way of luxury, if not as an article of diet.'
8. If agriculture is taken to confine to tillage of the land for the purpose of growing the crops, the horticulture also contemplates planting of the trees, manuring it, irrigating it and on its growth, grooming, tendering and preservation of the plant from insects, posts and animals and thereafter plucking the fruits from the trees. The operation and the labour required for it also to great extent, are the same which is required in agricultural operation. The view of the respondent No. 2 that even if on the land in question grove exists but it cannot be treated as agricultural land, is erroneous in law.
9. The petitioners had filed various Khasras which indicated that there was a grove on the plots in question and such entry was confirmed by the report of the Junior Engineer, the report of the Tehsildar and the report of the Surveyor. The respondent failed to consider such material evidence and record finding asto whether the grove existed on the appointed date. The respondent further took the view that in the Khewat extracts, which were filed indicated that it was recorded as 'Abadi Zer Khothiat.'
10. The learned counsel for the petitioners contended that the respondents failed to consider the area which was mentioned in the Khasras and the Khewat. The area of plot No. 232 (old Plot No. 185) is 2 Bighas 1 Biswa and of plot No. 233 (old plot No. 192) is 4 Bighas 7 Biswas. In Khasra 1323 Fasli plot No. 183, area 3 Bighas 1 Biswa has been shown as a grove and plot No. 192, area 4 Bighas 7 Biswas has been shown as a grove. In 1384 Fasli over plot No. 232 abadi has been shown in 6 Biswas and the remaining 2 Bighas 15 Biswas 'Bagh' has been shown and the number of trees have been indicated as 84mangoes, 50 guavas, 6 leechis, 1 kathal, 3 amaltash, 12 shiras and 2 simbhals. In plot No. 233 (new) 4 Bighas 7 Biswas has been shown as grove and a well exists on this plot. There are number of trees on this plot also. Only in a small portion of land of plot No. 232 existence of building has been shown. If in a small portion of this big land, a building is existing, it cannot be taken that the land is not used mainly for agriculture purposes. The respondents were to consider the extent of the land where the grove is existing and the extent of the area on which the construction is existing. The report of the Junior Engineer of the Ceiling Department, the report of Naib Tahsildar, Urban Ceiling and the report of Surveyor of the Survey Department were on record. The respondents failed to consider these material evidence and without considering these evidence rejected the objection of the petitioners.
11. The Appellate Authority, respondent No. 2, is directed to decide the extent of the grove which was in existence on the appointed date on the plots in question and the nature of the grove. The respondent will take into consideration all such trees which were fruit bearing trees and whether they were in the nature of the grove on the appointed date. The extent of the land which was grove having fruit bearing trees shall be treated as agricultural land and shall not be treated as vacant land, as defined under S. 2(q) of the Act.
12. The learned counsel for the respondents urged that the petitioner will be granted benefit of such agricultural land provided the land was not specified in the Master Plan for a purpose other than agriculture. The clause (C) of the explanation to the definition of 'Urban Land' as defined under S. 2(o) of the Act makes exception regarding agricultural land which has been specified in a Master Plan for a purpose other than agriculture. The respondents have not considered this aspect of the matter. The respondent No. 2, after taking into consideration the evidence, will record a finding whether the land in question was specified in a Master Plan for a purpose other than agriculture. If such land has beenspecified in a Master Plan other than agriculture, such land shall not be exempted while determining the excess vacant land. The respondent No. 1 may take additional evidence to record finding on this question. It shall also record a finding in regard to the date on which the Master Plan, if any, came into existence.
13. In the result, the writ petition is allowed, orders passed by respondents 1 and 2 dated 25-11-82 and 22-2-86 respectively, are quashed and the respondent No. 2 is directed to redetermine the excess vacant land in the light of the observations made above, within three months from the date of production of a certified copy of this judgment before him.
The parties shall bear their own costs.
14. Petition allowed.