State of U.P. vs Board of Revenue and Another

B.S. Verma, J.—By means of this writ petition the State of U.P. has challenged the judgement and Order 08-12-1988, passed by the Board of Revenue, U.P. Allahabad in Revision No. 15 of 1986-87 Dokhan Tibettan Foundation Tibettan Colony, Clement Town Dehradun v. State of U.P. and Anr. whereby the revision was allowed and the judgement and order dated 13-2-1987 as well as dated 11-12-1985 passed by the Additional Commissioner, Pauri Garhwal as well as Sub-Divisional Officer, Dehradun.

By the judgement and order dated 11-12-1985 passed in Suit No. 62/1984-85 u/s 166 Z.A. and L.R. Act, the learned Sub-Divisional Officer, Dehradun ordered that the lanid of Khasra No. 2353 M. area 26-85 Acre and Khasara No. 2361 M. area 5-15 Acre situate in Mauza Arkedia Grant, Pargana Pachhawa Doon in existing in the name of Tibettan Memorial Foundation be deleted and the land be entered in the name of Forest Department, State of Uttar Pradesh as before. Aggrieved by this order, the Respondent No. 2 preferred a Revision before the Additional Commissioner, Pauri Garhwal which was ultimately dismissed by his order dated 13-2-1987. Aggrieved by both the orders, passed by the S.D.O. Dehradun dated 10-12-1985 and order passed by Additional Commissioner, Pauri Garhwal, dated 13-2-1987, by which he dismissed the revision, the Respondent No. 2 preferred a revision before the Board of Revenue U.P. at Allahabad which was registered as Revision No. 15 of 1986-87. The Board of Revenue vide order dated 08-12-1988 allowed the Revision and set-aside both the orders dated 13-02-1987 as well as 10-12-1985 passed by the Courts below holding them without jurisdiction because the provisions of Section 154, 154-A and 166 of the Act No. 1 of 1951 and corresponding provisions of rules were not applicable in the present proceedings.

Aggrieved by the order dated 08-12-1988 the State has filed the present writ petition.

Brief facts giving rise to the writ petition are that Tibettan Nehru Memorial Foundation was recorded as Sirdar over the land of Khasra plot No. 2353 and 2361 situate in village Arkedia Grant and the proceedings were initiated on behalf of the Petitioner for correction and mutation of its name over the said plots. The land of Khasara Plot No. 742/1 measuring 32 acres of Khata No. 170, village Tauli District Dehradun was entered in the name of Bhoodan Yagya Samiti in the Khatauni in the years 1377 Fasli to 1379 Fasli. By the order dated 12-2-1970 passed by Naib Tehsildar Dehradun plot No. 742/1 was recorded in the name of Dokham Tibettan Foundation-Respondent No. 2. By Government Notification dated 08-1-1971 the land of the said plot was declared as reserved forest under the provisions of the Forest Act. On a representation made by the Respondent No. 2 before the Settlement Officer (Forest) Dehradun, an order was passed recommending to the State Government for modification of the Notification dated 8-1-1971 relating to demarcation of the area of aforesaid 32 acres of plot No. 742/1. The State Government by its order dated 26-12-1974 rejected the recommendation on the ground that no person or Institution or society has got any right in the land, which has been declared as reserved forest area under the provisions of Section 20 of the Forest Act and as such no modification in the Notification published is liable to be made. It was also pointed out that the land of reserved forest cannot be given by the Gaon Sabha, Bhoodan Yagya Samiti or Forest Settlement Officer. Subsequently, vide letter dated 30-4-1979 the Deputy Conservator of Forests sent to Forest Settlement Officer Dehradun, it was directed that the name of Tibettan Nehru Memorial Foundation is to be recorded over the land of plot No. 2353 and 2361 measuring 32 acre of village Arkadia Grant belonging to the Forest Department. It was further directed that in lieu thereof 32 acres of land of plot No. 742/1 of village Tauli be recorded in the name of the Forest Department. According to the Petitioners, Tibettan Nehru Memorial Foundation and Dokham Tibettan Foundation are two distinct and separate societies and Institutions, therefore the direction given by the Deputy Conservator of Forest in the letter dated 30-4-1979 was mistaken so far as the land of plot No. 742/1 measuring 32 acres of village Tauli belonged to reserved forest area under the Government Notification dated 8-1-1971 and the said plot was never recorded in the name of Tibettan Nehru Memorial Foundation. As such no question of exchange could arise.

The main ground of challenge in the present Writ Petition is that no foreigner or any foreign society can hold land or acquire right in the disputed plot and the transfer of land and entry in the name of the Respondent No. 2 was liable to be removed from the record, therefore, the order of the Respondent No. 1 setting aside the orders of the Sub Divisional Officer and the Additional Commissioner Pauri Garhwal was illegal. It was contended that the learned Sub-Divisional Officer was justified in ordering removal of the name of Tibettan Nehru Memorial Foundation, which was confirmed by the Revisional Court. It was also contended that the exchange of plot No. 742/1 of village Tauli, which is Forest Area, is not permissible under the law and the Respondent No. 1 has not appreciated the provisions of Section 154, 154-A and 166 of the U.P. Z.A. and L.R. Act.

A Counter Affidavit has been filed in the writ petition by the Secretary of Dokham Tibettan Foundation, Tibettan Colony, Claimant Town, Dehradun, wherein contents of paragraph No. 1 of the writ petition were admitted. It was stated that the name of the Respondent No. 2 was inadvertently omitted, therefore, proceeding u/s 39 of the Land Revenue Act was initiated by it. It was also pleaded that in pursuance of the grant dated 05-10-1969 by Bhoodan Yagya Samiti, the name of the Respondent No. 2 was mutated vide order dated 12-2-1970. It was pleaded in reply 6 of the petition that the contention of the alleged G.O. dated 26-12-1974 has been misunderstood and that the same has no relevance in view of a judicial order dated 22-2-1980 permitting exchange of area. The most important point to be mentioned is that the Respondent No. 2 has stated that an application was given by the Respondent No. 2 for. correction of record, which was registered as case No. 7 of 1984 and another case No. 62 of 1984-85 was initiated before the S.D.O. Dehradun on the basis of the report of Tehsildar Dehradun u/s 166 of the Zamindari Abolition Act and both the cases were registered for being heard and decided together. It was asserted that the Petitioner is not entitled to invoke the jurisdiction of the High Court under Article 226 of the Constitution of India. In the last it was stated that the Forest Department was not impleaded in the writ petition, therefore, the same is not maintainable.

I have heard learned Counsel for both the parties and have perused the entire material on record.

The main contention of the Petitioner is that the Tibettan Memorial Foundation Society and Dokham Tibettan Foundation Society are foreign national and they have no right to acquire the land without the prior permission of the State Government.

It is not disputed that Dokham Tibbettan Foundation Society is registered under the Societies Registration Act, 1860. A Photostat true copy of the renewal certificate is on record, which has been filed by the Secretary of Dokham Tibettan Foundation Clement Town, Dehradun, In this case it has to be seen whether the Respondent No. 1 committed an error in appreciating the provisions of Section 154A and 166 of the U.P.Z.A. and L.R. Act.

So far as the contention of the Petitioner that the aforesaid society is foreign national is concerned, I find no force in the submission made on behalf of the Petitioner-State. A similar case came before the Allahabad High Court in the case of Inter-Mission Industrial Development Association (IID) Dehradun v. Sub-Divisional Officer Dehradun and Anr. 1994 AWC 575 : 1994 R.D. 278 in that case Their Lordship of the Allahabad High Court dealt with the provisions of 154 A of the U.P.Z.A. and L.R. Act 1950. In paragraph No. 8 is has been observed that "Coming to the impugned order and also the arguments raised on behalf of the State what is contended is that since some of the members are of foreign national and donation is coming from outside India it would be a case of purchase of land by the foreign national, hence would be hit by Section 154-A(1) of the Act even after the amendment. The argument raised on behalf of the Respondent is misconceived. A society registered under the Societies Registration Act under the Indian law could never be termed as a foreign national. There is no statutory definition to bring-forth a society within the ambit of a foreign national. Even if few members could be said to be foreign national and society or association is registered under the statutory authority recognizing it as legal entity and if transfer is made in favour of such society Or association or said legal entity that society, be a legal entity as recognized under the law and hence finding to the contrary recorded in the impugned order cannot be sustained. We further would like to observe that in each of the aforesaid four sale-deeds the Petitioner, the vendee, has been described as the aforesaid Association, hence admittedly, the sale-deeds are in favour of the said Association.

In the present case the permission to exchange the plots u/s 161 of the U.P. Act No. 1 of 1951 was given by the Sub-Divisional Officer concerned on 22-2-1980.

Section 161 deals with exchange, which is reproduced as under:

Exchange-(1) A Bhumidhar may exchange with-

(a) any other bhumidhar and held by him, or

(b) any Gaon Sabha or local authority, lands for the time being vested in it u/s 117.

Provided that no exchange shall be made except with the permission of an Assistant Collector who shall refuse permission if the difference between the rental value of land given in exchange and of land received in exchange calculated at hereditary rates is more than 10 per cent of the lower rental value.

(1-A) Where the Assistant Collector permits exchange he shall also order the relevant annual registers to be corrected accordingly.

(2) On exchange made in accordance with Sub-section (1) they shall have the same rights in the land so received in exchange as they had in the land given in exchange.

The State Government has not challenged the order of exchange of land made by the Assistant Collector. The State has challenged the proceedings of Suit No. 7 of 1984 before the Forest Settlement Officer/S.D.O. Dehradun on the ground that the societies are foreign national. As already observed above, this point has been answered in the negative holding that a Society Registered.