JUDGMENT Alok Singh, J. Present petition is filed assailing the order dated 25.03.2013 passed by the Collector, Nainital and Orders dated 30.04.2014 and 05.11.2014 passed by the Commissioner Kumaon Division, Nainital. 2. Brief facts of the present case, inter alia, are that the petitioner, who is a resident of Delhi wanted to purchase the agricultural land in Village Bohra Gaon, Patti East Chahkhata, Tehsil and District Nainital, therefore, he applied before the Collector, Nainital for grant of permission to purchase the land under Section 154 (4) (3) (b) of the UPZA & LR Act, 1950 (as amended and applicable in the State of Uttarakhand); vide order dated 16.12.2007, Annexure No. 2 to the writ petition, learned Collector, Nainital was pleased to grant permission to the petitioner to purchase land of Khata No. 58, Khet No. 575, measuring 10 Naali, 1 Mutthi for agriculture/horticulture purpose. Pursuant to the permission dated 16.12.2007, the petitioner has purchased land measuring 7 Naali, 12 Mutthi vide sale deed dated 07.01.2008; after purchasing the land, mutation was carried out in the revenue record in favour of the petitioner; on 18.06.2010, show cause notice was issued to the petitioner stating that the petitioner is not using the land for agriculture or horticulture purpose, rather he is raising construction thereon, for Hotel, therefore, as to why land should not be directed to be vested in the State Government by exercising powers under Section 167 of UPZA & LR Act; petitioner furnished his explanation, whereupon spot inspection was carried out by the Tehsildar; learned Tehsildar submitted his inspection report dated 25.09.2010, to the effect that no construction was being raised on the spot over the land purchased by the petitioner. He, however, stated in his report dated 25.09.2010 that on the entire land only two trees of Mango, two trees of pear, one tree of Leechi, 12 trees of Malta and two trees of lemon are standing on the spot and on the remaining part of land small trees of green chilly are standing; vide order dated 25.03.2013, learned Collector, Nainital was pleased to pass impugned order vesting the land in the State Government, under Section 167 of the Act, stating therein that the entire land is not being used for agriculture/horticulture purpose and most of the land laying unused on the spot, therefore, it is violation of the sanction granted to the petitioner, therefore, the land stand vested in the State Government under Section 167 of the Act; feeling aggrieved, the petitioner moved review application before the Collector, which came to be dismissed on 1st of August, 2013; thereafter, appeal filed by the petitioner before the Commissioner, Kumaon Division was also came to be dismissed vide order dated 30.04.2014 and thereafter, review application filed by the petitioner before the Commissioner, Kumaun Division was also dismissed by order dated 05.11.2014; feeling aggrieved, the petitioner has approached this Court by way of present writ petition. 3. I have heard Mr. K.P. Upadhyay, learned counsel appearing for the petitioner, Mr. R.C. Arya, learned Standing Counsel appearing for the State/respondents, and have carefully perused the record. 4. Bare perusal of Clause No. 3 of the permission granted to the petitioner vide order dated 16.12.2007 to purchase the land would reveal that the petitioner has to use the land for agriculture/horticulture purpose within two years; if land is transferred by any means or any third party interest is created thereon for the purpose other than agriculture/horticulture, such transfer shall be void and consequences of Section 167 of the Act, shall follow. 5. Section 154 of UPZA & LR Act reads as under: “154. Restriction on transfer by a bhumidhar-(1) Save as provided in sub-section (2), no bhumidhar shall have the right to transfer by sale or gift, any land other than tea garden to any person where the transferee shall, as a result of such sale or gift, become entitled to land which together with land, if any, held by his family will in the aggregate, exceed 5.0586 hectares (12.50 acres) in Uttar Pradesh. [Explanation- For the removal of doubt it is hereby declared that in this sub-section the expression “person” shall include and be deemed to have included on June 15, 1976 a “Co-operative Society” : Provided that where the transferee is a Co-operative Society, the land held by it having been pooled by its members under Clause (a) of sub-section (1) of Section 77 of the Uttar Pradesh Co-operative Societies Act, 1965 shall not be taken into account in computing the 5.0586 hectares (12.50 acres) land held by it.] (2) Subject to the provisions of any other law relating to the land tenures for the time being in force, the State Government may, by general or special order, authorize transfer in excess of the limit prescribed in sub-section (1) if it is of the opinion that such transfer is in favour of a registered co-operative society or an institution established for a charitable purpose, which does not have land sufficient for its need or that the transfer is in the interest of general public. Explanation- For the purposes of this section, the expression ‘family’ shall mean the transferee, his or her wife or husband (as the case may be) and minor children and where the transferee is a minor also his or her parents. [(3) For every transfer of land in excess of the limit prescribed under sub-section (1) prior approval of the State Government shall be necessary : Provided that where the prior approval of the State Government is not obtained under this sub-section, the State Government may on an application give its approval afterward in such manner and on payment in such manner of an amount, as fine, equal to twenty five per cent of the cost of the land as may be prescribed. The cost of the land shall be such as determined by the Collector for stamp duty.] [Provided further that where the State Government is satisfied that any transfer has been made in public interest, it may exempt any such transferee from the payment of fine under this sub-section] [UTTARAKHAND] AMENDMENT [(3) A bhumidhar with transferable rights may sell his land to any of the categories of tenure holders in the State of Uttaranchal as mentioned in Section 129 or such owner of any immovable property in Uttaranchal who has acquired it on or before 12.09.2003 or to any member of the ‘family’, which means husband, his wife and their children, including step or adopted children, and includes parents, grandparents, brothers and unmarried, widowed, separated and divorced sisters of such tenure holder of the owner, as the case may be. [(4)(1)(a) Subject to other restrictions and save as otherwise provided in this Act, “any person for his own or on behalf of his family (which means husband, his wife, minor children, unmarried sons, unmarried daughters and dependent parents) even though he is not a tenure holder under Section 129 or the owner of any immovable property in Uttarakhand, may purchase land not exceeding 250 sq. mts. for residential purpose in his lifetime without the permission;] (b) A registered agreement to sell the land executed on or before 12.09.2003 shall be valid if the sale deed on the basis of such agreement is executed on or before 31.03.2004, irrespective of any time limit provided in the agreement, unless extended by the Collector of the district for reasons to be recorded in writing. (2) Nothing in sub-section 154 (3) shall be deemed to prohibit the transfer of land by any person in favour of- (a) the State Government or Central Government or a Government company, as defined in Section 617 of the Companies Act, 1956 or a Statutory Body or Corporation or Board established by or under a Statute and owned and controlled by the State or Central Government; (b) a person who has become a non-tenure on account of- (i) acquisition of his land for any public purpose under the Land Acquisition Act, 1894; or (ii) vestment of his land in the tenants under this Act; (c) a non-tenure holder who purchases or intends to purchase land for the construction of a house or shop or purchases a built-up house or shop from the State Housing Board or from a Development Authority or from any other Statutory Corporation set up under any State or Central enactment; (d) [***] (e) a person or company according to industrial Policy of Uttaranchal in (i) Intergrated Industrial Development Centre, (ii) Industrial Area, (iii) Industrial Estates; (f) a person, society or trust for religious purposes; (g) a landless labourer of the Uttaranchal; or (h) a landless person belonging to a Scheduled Caste or Scheduled Tribe of the Uttaranchal; or (i) a village artisan of the Uttaranchal; or (j) a landless person carrying on an allied pursuit of the Uttaranchal. (3)(a) Subject to restrictions contained in Section 154, a person, society or corporate body may purchase land for the following purposes, other than those for Agriculture and Horticulture purposes, with the prior sanction of the Government in the State of Uttaranchal as may be prescribed- (i) Medical or health purposes, if it conforms to the Health and Population Policy of Uttaranchal; (ii) Hotel, Lodge, Guest House, Restaurant, Bar, Spa, way side amenities or resort, if it conforms to the Tourism Policy of the State; (iii) Educational purposes, on the recommendations of the Department of Education; (iv) Cultural Purposes; and (v) For industrial purposes in areas other than those mentioned in Section 154(4)(2)(e) or for other purposes. (b) A person, society or company may purchase land with prior sanction of the Collector of the district for Agricultural or Horticultural purposes, as may be prescribed, on furnishing an affidavit to the effect that such land will be used for Agricultural or Horticultural purposes and for uses incidental to and connected with Agriculture or Horticulture only. (b) A person, society or company may purchase land with prior sanction of the Collector of the district for Agricultural or Horticultural purposes, as may be prescribed, on furnishing an affidavit to the effect that such land will be used for Agricultural or Horticultural purposes and for uses incidental to and connected with Agriculture or Horticulture only. If the land use of such land as mentioned in the Affidavit is changed, the said transfer shall be void and consequences of Section 167 shall follow: Provided that a person who is a nontenure holder but purchases land either under Section 154 (4)(1)(a), 154 (4)(2)(e) and 154 (4)(2)(f) or under the sanction granted under Section 154(4)(3) shall, irrespective of such purchase of land, continue to be a bhumidhar of special category as provided under Section 129-B and such bhumidhar shall be eligible to purchase land in future only with the permission, of the State Government or Collector of the district as the case may be: Provided further that such bhumidhar may mortgage or hypothecate such land for obtaining loan from banks and financial institutions or deriving any other benefit accruing from his bhumidhari rights under Section 129: Provided further that a non-tenure holder who has purchased land under Section 154 (4)(2)(e), 154(4)(2)(f) and who purchased land under Section 154(4)(3) under the sanction of Government or Collector, as the case may be, shall put land to such use for which the sanction has been granted within a period of two years or further such period as may be allowed by the State Government for reasons to be recorded in writing, to be counted from the date of registration of sale deed and if he fails to do so or diverts the use of the land for which it was sanctioned or transfers the land by way of sale, gift or otherwise except for the purpose for which it was purchased, such transfer shall be void for the purpose of this Act, and consequences of Section 167 shall follow- (5) Where,- (a) the Registrar or Sub-Registrar appointed under the Indian Registration Act, 1908 before whom any document pertaining to transfer of land is presented for registration comes to know or has reason to believe that the transfer of land is in contravention of Section 154(3) or 154(4)(3); or (b) a Revenue Officer either on an application submitted to him or on receipt of any information from any source comes to know or has reason to believe that the land has been transferred in contravention of the provisions of Section 152-A, 154(3), 154(4)(2)(e), 154(4)(2)(f) or 154(4)(3), such Sub-Registrar, Registrar or Revenue Officer, as the case may be, shall make a reference to the Collector of the district, who shall determine whether the transfer is in contravention of the provision of this Act in the manner prescribed and the consequences of Section 167 shall follow in respect of every transfer which is void; (c)(i) The State Government may, either on the report of a Revenue Officer or on an application by any person or of its own motion, call for the records of any proceedings or case for the purpose of satisfying itself as to the legality or propriety of such proceedings or order made therein and may pass such order in relation thereto as it may think fit; and (ii) No order shall be passed under this sub-section which adversely affects any person unless such person has been given a reasonable opportunity of being heard.” 6. Bare perusal of sub Section (4) (3) (b) of Section 154of the Act, would reveal that if the land use of such land for which permission is granted is changed then transfer made pursuant to the permission shall be void and consequences of Section 167 shall follow. The careful reading of sub Section (4) (3) (b) of Section 154 of the Act, would further reveal that it nowhere provides that for non user of the land for quite a long time for agriculture or horticulture purpose land shall vest in the State Government under Section 167 of the Act, it only provides that if land use is changed, then transfer shall be void and land shall stand vested in the State Government. 7. In my humble opinion, there is a difference between the “non user” and the “change of user”. In my further humble opinion, Clause (b) of sub Section (4) (3) of Section 154 of the Act, speaks about the change of user of the land for vesting the land in the State Government under Section 167 of the Act. Sub Section (4) (3) (b) of Section 154 of the Act does not provide that for non user for long time Section 167 of the Act shall be applied. 8. In the present case, land is being used for horticulture purpose, since, fruit bearing trees and plants of green chilly have been planted and are standing thereon. Consequently, this is not a case where entire land purchased by the petitioner is laying barren 9. Section 154 of the Act, nowhere provides that the entire land should be covered by the trees or crops. Undisputedly, no construction was found on the spot, as mentioned in the show cause notice rather trees and plants were found on the spot as reported by learned Tehsildar. 10. There is another aspect of the matter i.e. although permission to purchase the land dated 16.12.2007 provides that land has to be used for agriculture or horticulture purposes within two years from the date of purchase, however, it does not provide that if land is laying on spot unused for more than two years, it would vest in the State Government under Section 167 of the Act. Moreover, terms and conditions of the permission to purchase the land are always subject to provisions of sub Section (4) (3)(b) of Section 154 of the Act. Moreover, terms and conditions of the permission to purchase the land are always subject to provisions of sub Section (4) (3)(b) of Section 154 of the Act. No terms and conditions beyond the scope of sub Section (4) (3) (b) of Section 154 of the Act, can allow vesting of the land in the State. As held hereinbefore that sub-Section (4) (3) (b) of Section 154 of the Act does not provide that for nonuser of the land for quite long time same shall vest in the State, therefore, from every angle impugned orders are bad in law and are beyond the jurisdiction vested in the Revenue Authorities. 11. Therefore, for the reasons as discussed hereinbefore, impugned orders do not sustain in the eyes of law. Consequently, writ petition succeeds and is hereby allowed. Impugned orders dated 25.03.2013 passed by the Collector, Nainital and orders dated 30.04.2014 and 05.11.2014 passed by the Commissioner, Kumaon Division, Nainital are hereby quashed.