The main legal point established is that the Assistant Collector has the authority to declare land as Abadi suo motu under Section 143 of the Zamindari Abolition and Land Reforms Act, and that the declaration must be in accordance with the provisions of the Act and Rules.

Learned counsel for the parties are ready to argue the writ petition finally today itself at the admission stage.

2. The petitioners have prayed for issue a writ in the nature of certiorari quashing the impugned orders dated 3-3-2005 and 4-4-2007 passed by the respondent nos. 2 and 1 respectively (Annexure Nos.6 and 9). By order dated 3-3-2005 the Assistant Collector 1st Class/S.D.M. Dehradun has declared land measuring 0.528 Hectare out of the suit land as Abadi, as mentioned in the impugned order. The revision preferred against the said order has been dismissed by the Additional Commissioner vide order dated 44-2007 passed in Revision No. 7/2004-05.

3. Brief facts, giving rise to the present writ petition, are that initially the suit under Section 176 of the Zamindari Abolition and Land Reforms Act (for short Z.A.& L.R Act) was filed by respondent no.3 Bhangu Singh for partition of holdings. The suit is being contested by the petitioner as well as other private respondents.

4. In the written statement filed by the petitioner it was contended in paragraph no. 14 that the major part of the suit land is covered by Abadi hence the suit for partition was not maintainable.

5. The learned trial court framed Issue whether Abadi exists in the disputed land or not. The Assistant Collector Incharge of the Sub Division before whom the suit for partition is pending for disposal called for the report from the Tahsildar and the Tahsildar, in turn, further directed the Supervisor Kanungo to submit his report regarding the existence of Abadi in the disputed land. The report was submitted by Supervisor Kanungo dated 29-1-2005 and Tahsildar forwarded the same to the Assistant Collector concerned.

6. Before the Assistant Collector both the parties have filed their objection against the report dated 29-1-2005 disputing the existence of Abadi over certain area. The Assistant Collector concerned after hearing both the parties had declared land measuring 0.528 Hectare of Khasara Nos. 36,39,41,47,59,64,141/4,144/1,146/1,146/3,148/1,164/1 and 109/1 Abadi area (other than agricultural land) as detailed in paragraph no. 3 of the impugned order dated 3-3-2005.

7. Aggrieved by the said order passed by the Assistant Collector concerned, the defendant-petitioners preferred revision before the Additional Commissioner, which was registered as Revision No. 7/ 2004-05 Balbeer Singh and others Vs. Bhangu Singh and others. The revision was dismissed by the Additional Commissioner on the ground that the Assistant Collector in-charge of the sub-division may, suo motu declare the land as such, which is not being used for a purpose not connected with agriculture, horticulture or animal husbandry which includes pisciculture and poultry farming under Section 143 of the Z.A. & L.R. Act.

8. I have heard learned counsel for the parties and perused the record.

9. Learned counsel appearing for the petitioners, Ms. Prabha Noliyal, has vehemently urged that no opportunity was given by the Assistant Collector to the petitioners to adduce evidence against the report of Supervisor Kanungo, although objections were filed by both the parties in the suit. It has been submitted that only on the basis of the report of Supervisor Kanungo and the Tehsildar, the Assistant Collector has declared Abadi under Section 143 of the said Act.

10. Learned counsel for the petitioners further argued that there was no application under Section 143 of the said Act before the Assistant Collector, rather he was trying the suit for partition under Section 176 and was not dealing with the application under Section 143 of the Z.A. & L.R. Act, therefore, the action taken by the Assistant Collector is without jurisdiction and he has committed jurisdiction error. The impugned order, therefore, cannot be sustained.

11. On the other hand, learned counsel for the respondent no.3 Sri M.S.Tyagi and Sri Nagesh Agarwal have submitted that under Section 143 of the Act, the Assistant Collector is not required to act