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IN THE HIGH COURT OF ALLAHABAD
B. K. Roy andp. K. Jain, JJ.
VAYU SENA HINDON SAHAKARI AVAS SAMITI LTD. - Appellant
Versus
STATE OF UTTAR PRADESH - Respondents
C. M. W. P. 17680 Of 1989
Decided On : 09/16/1998
LAND TRANSFER - RESTRICTION - CO-OPERATIVE SOCIETY - POST FACTO PERMISSION - U. P. Z. A. AND L. R. ACT, 1965 - SECTION 154(2) - INTERPRETATION - PUBLIC PURPOSE - VALIDITY OF POST FACTO PERMISSION - CONDITIONS - CONSEQUENCES OF VOID TRANSFER - VESTING OF LAND IN STATE GOVERNMENT - DIVESTITURE OF LAND BY STATE GOVERNMENT - L. I. C. V. ESCORTS LTD. (1986) 1 SCC 1370 - DISTINGUISHED - SMT. DAROTHI CLARE PARREIRA V. STATE OF MAHARASHTRA (1996) 6 SCC 2553 - DISTINGUISHED.
Fact of the Case:
Petitioner society, a registered cooperative society with 476 members, acquired 31.5 acres of land through negotiations with tenure-holders for developing residential colonies for its members. The society applied to the State Government for permission to purchase the land in excess of the limit prescribed under Section 154(1) of the U. P. Z. A. and L. R. Act, 1965, claiming to be a registered cooperative society which does not have land sufficient for its need and also claiming that the transfer is in the interest of its members. The State Government rejected the representation on the sole ground that the permission was sought after the transfer of the land was effected in favor of the Society.
Finding of the Court:
The court held that post facto permission under Section 154(2) of the Act could be granted by the State Government if it is of the opinion that such transfer is in favor of a registered Cooperative 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. The court further held that the consequences of transfer of land without obtaining permission and in contravention of the provisions of Section 154(1) of the Act are of far-reaching effect inasmuch as such transfer is void and the transferred land stands vested in the State Government from the date of such transfers. However, the court held that such consequences do not lead to the inevitable conclusion that post facto permission is not permissible under Section 154(2) of the act.
Issues: 1. Whether post facto permission under Section 154(2) of the U. P. Z. A. and L. R. Act, 1965, can be granted by the State Government? 2. Whether the consequences of transfer of land without obtaining permission and in contravention of the provisions of Section 154(1) of the Act lead to the inevitable conclusion that post facto permission is not permissible under Section 154(2) of the act?
Ratio Decidendi: 1. The court held that post facto permission under Section 154(2) of the Act could be granted by the State Government if it is of the opinion that such transfer is in favor of a registered Cooperative 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. 2. The court held that the consequences of transfer of land without obtaining permission and in contravention of the provisions of Section 154(1) of the Act are of far-reaching effect inasmuch as such transfer is void and the transferred land stands vested in the State Government from the date of such transfers. However, the court held that such consequences do not lead to the inevitable conclusion that post facto permission is not permissible under Section 154(2) of the act.
Final Decision: The court partly allowed the petition and quashed the order dated 21.7.89 passed by the State Government. The court directed the State Government to decide the representation of the petitioner de novo after consideration of the claim of the petitioner that it is a registered Co-operative Society meant for providing for housing facility to retired Defence personnel having its membership to the tune of 476 and that it did not have sufficient land for its need.
( 1 ) THE petitioner society, registered under the U. P. Cooperative Societies Act, 1965, having its object to achieve and improve the social and economic conditions of its members through the common ownership and democratic management of the instrument of wealth. Only retired defence personnel and their dependents numbering 476 are its members. The society originally acquired 11 acres of land through an agreement with the tenure-holders. Later on the membership of the society increased and to meet the needs of the members. the society needed additional land for purposes of developing residential colonies for its members. Till the date of filing of the petition, the society acquired total 31. 5 acres of land through negotiations with tenure-holders. After developing the land, the plots of land have been allotted to its members and the sale deeds were got registered on various dates. A notice dated 7. 5. 1988 as contained in annexure-3 under Section 154 (2) read with Section 167, of the U. P. Z. A. and L. R. Act, (hereinafter referred to as the Act) was received by the petitioner from D. M. Ghaziabad. The petitioner instead of making a representation to the District Magistrate, respondent No. 2, moved the State Government, respondent No. 1, for grant of permission to purchase the land. . The representation is contained in Annexure-4. The respondent No. 1. without considering the case of the petitioner, rejected the same vide order dated 21. 7. 89 copy whereof is appended as annexure-5. Respondent No. 2 was directed by respondent No. 1 to take possession of the land of the society (the petitioner ).
( 2 ) BY the present writ petition, the petitioner has challenged the notice Issued to it by respondent no. 2 as contained in Annexure-3 and order of respondent No. 1 as contained in Annexure-5 on various grounds. However, now this writ petition is pressed only in respect of Annexure-5 and a prayer has been made to quash the order of respondent No. 1 dated 21. 7. 1989.
( 3 ) THE main ground on which the impugned order is challenged is that respondent No. I rejected the representation on the sole ground that such a representation for permission to purchase the land in excess of the limits under Section 154 (1) of the Z. A. and L. R. Act was made after purchase of the land and such permission cannot be granted under the provisions of Section 154 (2) of the Act. which is legally erroneous.
( 4 ) THE respondents have not filed any counter-affidavit as the facts were not in dispute and only legal question was involved.
( 5 ) WE have heard Sri R. N. Singh, learned Senior Advocate, appearing for the petitioner as also sri Krishna Mohan Mlsra, learned counsel for the petitioner and Sri S. G. Hasnaln, learned additional Chief Standing Counsel, appearing for the respondents. Both the parties have also made their written submissions after they were heard at length.
( 6 ) SECTION 154 (1) of the Act provides that no Bhumtdhar shall have the right to transfer by sale or gift, any land other than tea gardens 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. Sub-section (2) of section 154 of the Act further provides that the State Government may, by general or special order, authorise transfer in excess of the limit prescribed in subsection (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.
( 7 ) THERE is no dispute that the petitioner made a representation dated 8. 6. 1989 to respondent No, 1 whereas the land (area 31. 5 acres) was acquired much prior to the said date. The question, therefore, arises if post facto permission under Section 154 (2) o
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