Gopalpur Cooperative Farming ... vs State Of U.P. And Others
2011 Latest Caselaw 6254 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

										    AFR
 
										Reserved
 
	Civil Misc. Writ Petition No. 44224 of 2010.
 
Gopalpur Co-operative Farming Society 
 
Ltd. and another.					 ........      Petitioners.
 
					Versus
 
State of Uttar Pradesh and others.		 ........      Respondents.
 
					----------

Present:

(Hon. Mr. Justice Amitava Lala & Hon. Mr. Justice V.K. Mathur)

Appearance:

For the Petitioners : Mr. Rajendra Kumar Pandey,

Mr. R.S. Pandey, &

Mr. Manish Goyal.

For the State Respondents : Mr. P.K. Sinha, Standing Counsel

For the Respondent Nos.17 to

24, 38, 39, 77 & 78 : Mr. Brij Raj Singh.

For the Respondent Nos. 25,

27, 30 and 64 : Mr. P.P.S. Rathore, &

Mr. V.K. Jaiswal.

For Respondent Nos.67 & 76: Mr. Anil Tiwari.

--------

Amitava Lala, J.-- Gopalpur Co-operative Farming Society Limited, District Mirzapur, which is a society constituted and registered under the Uttar Pradesh Cooperative Societies Act, 1912, is the petitioner no. 1 in this writ petition and the petitioner no. 2 is its Secretary. They have filed the present writ petition seeking for the following reliefs:

"i) issue a writ, order or direction or writ in the nature of mandamus declaring all the proceedings held of mutation for recording the names of the private respondent nos. 11 to 86 as well as all the transactions held by the members or the successors in favour of the private respondents as well as the decree, passed u/s 229B dated 26th April, 1972 without impleading the petitioner society, as null and void and the respondent nos. 3 to 7 be directed to correct the entry in the Revenue record by incorporating the name of the petitioner and deleting the names of private respondent nos. 11 to 86 and they also directed to restrain private respondents to interfere in the possession of the petitioner society over the land in question of 7252 Bigha of village Gopalpur and 2103 Bigha of village Bidauli, District Mirzapur;

ii) issue a writ, order or direction or writ in the nature of mandamus directing the District Magistrate, opposite party no. 3 to ensure that no excavation of mud and minerals be made over the land of the petitioner society and strict action be taken against the private respondents or any person doing such work and similarly District Forest Officer-respondent no. 9 and Senior Superintendent of Police-respondent no. 10 be directed that no person including private respondents be permitted to cut the trees or interfere in the physical possession of the petitioner society over the land in question;

iii) issue any other appropriate writ, order or direction in favour of the petitioners as the Hon'ble Court may deem fit in the circumstances of the case; and

iv) award the costs of the petition to the petitioner."

Briefly stated facts giving rise to the present writ petition are that the petitioner society was formed consisting of 17 members and was registered on 19th January, 1951. For the purpose of forming society, the lands measuring areas 7583-11-15 Bighas of Village Gopalpur and 2103-12-00 Bighas of Village Bidauli, District Mirzapur were taken on Patta (lease) by its Zamindars Sri Amresh Chandra Pandey and Sri Naresh Chandra Pandey on 08th January, 1951 and were pooled in the society. On 08th January, 1957 a joint sale-deed was executed by the aforesaid Zamindars in favour of all the 17 members of the society with regard to the aforesaid lands. In 1362 Fasli the name of the society along with individual members of the society was mutated over the aforesaid lands and was recorded as such in 1363-1368 Fasli, which entry continued upto 1368 Fasli. However, it appears that revenue authorities left the name of the petitioner society in the revenue record of 1369 Fasli. On 05th April, 1966 the Uttar Pradesh Co-operative Societies Act, 1965 (U.P. Act No. 11 of 1966) (hereinafter in short called as the ''Act, 1965') was enacted, under which Act also the petitioner society got its registration renewed. The Act, 1965 by its Section 134 repealed Sections 295 to 318 of the Uttar Pradesh Zamindari Abolition & Land Reforms Act, 1950 (hereinafter in short called as the ''UPZA & LR Act') that dealt with the activity of Co-operative Farms being carried by a Co-operative Farming Society. The provisions incorporated under Sections 295 to 318 of the UPZA & LR Act were omitted and included in Sections 77 to 90 of the Act, 1965 by including the said business activity and other matters relating to Co-operative Farming Society in Chapter- XI of the Act, 1965. On 15th October, 1970 certain suits were filed before the Revenue Court under Section 229-B of the UPZA & LR Act individually by the heirs of some of the members of the society without impleading the society. The said suits were contested by the said members/heirs in their individual capacity and the society had no concern with the same. The suits were decreed on 26th April, 1972. On the basis of such decree and taking undue advantage of revenue record, in which name of the petitioner society was not mentioned, various transfers of the property have been done and the right, title and interest upon the property belonging to the society have been claimed. The said claims were accepted by the State authorities, inter alia, by registering the sale deeds in favour of the transferees of the heirs of the members of the society as well as by recording their names in the revenue records. The petitioner society filed the case for correction of the entry in the revenue records under Sections 33/39 of the Uttar Pradesh Land Revenue Act, 1901, on which the Sub Divisional Officer, Marihan, District Mirzapur passed an order on 30th January, 2008 for recording the name of the petitioner society as head in the Khatauni. On the basis of such order, amal daramad was also made in the Khatauni 1413-1418 Fasli in the name of the petitioner society. According to the petitioner, such order still survives and no person challenged it. On 16th March, 2011 Naib Tehsildar, Tehsil Marihan, District Mirzapur cancelled 28 mutations made on the basis of the sale-deed in favour of the transferees. In such circumstances, the present writ petition has been filed praying for the reliefs, as aforesaid.

Upon hearing learned Counsel appearing for the parties and going through the record, we find that three basic questions are involved in this case as under:

I. Whether in the facts of the present case the writ petition is maintainable?

II. Whether the provision of Section 229-B of the UPZA & LR Act will be applicable when Chapter- XI of the UPZA & LR Act was repealed and special provisions contained under Chapter-XI of the Act, 1965 are applicable?

III. Whether there exists any right in a member of the society to dispose of the land without prior permission of the society and without knowledge of the society? Consequently, whether the action of the State Authorities will be justified in registering the sale-deeds and ordering mutations of the names of the transferees in the revenue records?

So far as first point regarding maintainability of the writ petition is concerned, Mr. Manish Goyal, learned Counsel appearing for the petitioners, has submitted before this Court that the writ petition will be fully maintainable. The relief prayed for in the writ petition can be granted as the petitioners have prayed for quashing of the decree passed under Section 229-B of the UPZA & LR Act and for correction of revenue records as well as destruction of the property at the hands of the private persons. All the aforesaid relief can be granted within the extraordinary jurisdiction of this Court under Article 226 of the Constitution of India. He further submitted that the writ petition can even be filed for quashing of a sale deed or for a declaration that the sale deed is null and void. There is no prohibition or bar placed in the exercise of jurisdiction under Article 226 of the Constitution where facts are not in dispute. The issue is about the competence to execute the sale deed and there is no issue between the parties on facts regarding execution of the sale deed. The execution of sale deed being essentially a matter in realm of a contract, a prayer for quashing of the same can very well be granted by this Court. Moreover, in the facts of the present case a peculiar situation has been arrived at and relegating the petitioners to any other remedy will be opening up of a Pandora box and different authorities and Courts will be flooded with litigation that will only cause delay, multiplicity and complexities in adjudication of dispute. Thus, no other remedy is efficacious and open to the petitioners. The parameters on which the exercise of jurisdiction under Article 226 of the Constitution is permissible are well settled, which are (a) without jurisdiction; (b) violation of Part-III of the Constitution of India; and (c) breach of natural justice. In the present case, the action of the State authority is totally without jurisdiction as stated above. Moreover, there is a breach of natural justice as a fundamental error occurred without impleading the petitioner society and orders were passed behind the back of the petitioners to the prejudice of the petitioner society and depriving it of its legal rights to hold the property. Hence, the action of the respondent State is to be decided on the touchstone of Article 14 and 300-A of the Constitution of India. In support of his contentions, Mr. Goyal has relied upon the judgements reported in JT 1995 (4) SC 366 (L.I.C. of India & anr. Vs. Consumer Education & Research Centre & ors.), 2004 (3) SCC 553 (ABL International Ltd. and another Vs. Export Credit Guarantee Corporation of India Ltd. and others), AIR 2003 SC 3032 (T.K. Rangarajan Vs. Govt. of Tamil Nadu and others), AIR 2008 SC 336 (BCPP Mazdoor Sangh & anr. Vs. N.T.P.C. & ors.) and 2003 (3) AWC 2458 (Smt. Shiv Patti Devi Vs. District Magistrate,Gorakhpur and others).

In respect of second point, Mr. Goyal has relied upon Chapter- XI of the Act, 1965 and submitted that Section 79(6) thereof provides that the provision of UPZA & LR Act shall be applicable only if they are not inconsistent with the provision of the Act, 1965. Section 90 of the Act, 1965 prescribes that the provisions of Chapter-XI shall override the provisions of the Act, 1965 as well as any other Act. Therefore, the provisions of Chapter-VIII of UPZA & LR Act are not applicable particularly when the society can not be treated as Bhumidhar with transferable rights, Asami or a Government lessee. The Co-operative Society forms a class by itself and as such will not be covered by classes of tenure provided under Section 129 of the UPZA & LR Act. Further a perusal of Section 229-B of the UPZA & LR Act confines the claim to be made against the land holder for declaration of rights as Asami in holdings. Once the property stands pooled to a Co-operative Farming Society, a declaration of the right as Asami is not available to any individual member and such land having passed into the possession, control and management of the Cooperative Farming Society, a declaration as contemplated under Section 229-B of the UPZA & LR Act can not be granted. In fact, the provisions of Section 229-B stands eclipsed by provisions of Section 79(1)(2) read with Sections 70 and 111 of the Act, 1965. Hence, after coming into force of the Act, 1965 the provisions of Chapter VIII and particularly of Section 229-B of the UPZA & LR Act will not be applicable, as per the maxim generalia specialibius non-derogant and in view of the overriding effect of Section 90 of the Act, 1965.

Regarding third point, Mr. Goyal has placed reliance on Sections 79 (2) and 79 (3) of the Act, 1965, which place a complete bar upon a member of the Co-operative Farming Society to make any disposition of the land and even testamentary disposition can be done only with the prior permission of the Co-operative Societies. He also relied upon the Uttar Pradesh Cooperative Societies Rules, 1968 (hereinafter in short called as the ''Rules, 1968'), particularly Rules 296 and 297, which prescribe the ground as to when a disposition can be made and further the right of pre-emption being available to the society. It is an admitted position on record that neither any permission was taken from the society by any of the members or their heirs for disposition of the property nor any claim was given to the society. It is further admitted position that none of the grounds prescribed under Rule 296 (a) of the Rules, 1968 were available to the members for the purpose of making the disposition of the property. Therefore, there existed no right in any member of the society to dispose of the land by treating his individual holdings as separate from the entity of the society.

Mr. Goyal further submitted that the State Government failed in its duty to record the name of the petitioner society at the head of Khatauni and there is no plausible reason available on record as to why the name of the petitioner society vanished from the head of the Khatauni from 1369 Fasli. No reasons have been given in the counter affidavit in this regard. The officers of the State Government failed in their duty to correctly maintain the revenue records and therefore, the petitioner society can not be made to suffer. The State Government on account of first mistake being committed, the consequent mistake of permitting the registration of the sale-deeds and on that basis permitting mutation in the revenue records of the transferees was committed. Such actions on the part of the State Government are totally illegal, contrary to law and without jurisdiction. There also exists failings on the part of the State Government to permit consolidation proceedings with regard to the land belonging to the petitioner society as no consolidation proceedings are permissible in view of the special provisions contained under Section 84 of the Act, 1965. Hence, preparation of the consolidation forms is dehors the provisions prescribed under Section 84 of the Act, 1965 read with Rules 299 to 308 of the Rules, 1968.

Mr. P.K. Sinha, learned Standing Counsel appearing for the State respondents, has contended before us that the petitioners have filed the present writ petition seeking following directions:

A. Recording of the names of respondent nos. 11 to 86 in mutation proceeding, without taking permission or consent of the petitioner society with respect to the land of the petitioner society, to be declared null and void.

B. The execution of sale deeds of petitioner society's land by its members or their heirs/successors or claiming title by any source by any third party, without petitioner society's permission be declared null and void ab-initio.

C. The declaratory decree dated 26th April, 1972 passed under Section 229-B of the UPZA & LR Act by Smt. Nagina and others without impleading the petitioner society, be declared null and void and consequently, the entry in the revenue record be corrected.

D. The respondent nos. 11 to 86 (purchasers of the petitioner society's land through its members) be restrained from interfering with the possession of the petitioner society over its land admeasuring 7583-11-15 bigha in village Gopalpur and 2103-12-00 in village Bidauli.

E. A direction to the District Forest Officer/respondent no. 9 and Superintendent of Police/respondent no. 10 be issued that no person including respondent nos. 11 to 86 be permitted to cut the trees standing on the land of the petitioner society.

F. Direction to the District Magistrate/respondent no. 3, to ensure that no excavation of mud and minerals be made over the petitioner society's land.

The petitioner society claims over two pieces of land situated in Village Gopalpur and Bidauli of District Mirzapur admeasuring 7583-11-15 bigha of Gopalpur and 2103-11-00 bigha of Village Bidauli, pooled in the society, firstly on the basis of Patta (lease-deed) executed by Zamindar namely Sri Amresh Chandera Pandey and Naresh Chandra Pandey on 08th January, 1951 and later on through sale-deed dated 08th January, 1957 executed by the aforesaid Zamindars.

The name of the petitioner society along with joint members was recorded/ mutated in the Khatauni of 1363-1368 Fasli but name of society was left over in 1369 Fasli, for which an application under Section 33/39 of the Land Revenue Act was made for correction of revenue record before the Sub Divisional Officer, Marihan (numbered as Case No. 2/2/3). The said application under Section 33/39 was allowed by an order dated 30th January, 2008 and petitioner society's name was again recorded in the revenue record of 1413-1418 Fasli. During this intervening period, when name of the petitioner society was not recorded in the revenue record, the members of their successors/ heirs, claiming either on the basis of will or as heirs, started selling the land without taking the permission of petitioner society. Various litigations against mutation of purchasers (respondent nos. 11 to 86) are pending before various authorities i.e. Sub Divisional Officer, Consolidation Officer, Commissioner (in appeal against mutation).

Smt. Nagina and others sought declaration claiming adverse possession over the land alleged to be owned by petitioner society's member, against Abhay Kumar and others (society's members) under Section 229-B in Case No. 106/221 clubbed together with Suit No. 10 of 70, which was declared on 26th April, 1972. Consequently, names of Smt. Nagina and others were mutated in the revenue record. The order dated 26th April, 1972 became final and absolute. Respondent nos. 11 to 86 are allegedly purchasers of the land of petitioner society without its permission and against the mandate of provisions of Section 79 of the Act, 1965.

At the time of admission of the writ petition, a Division Bench of this Court was pleased to pass an interim order on 29th July, 2010, relevant portion of which is as follows:

"The dispute raised in the writ petition is relating to void sale deeds which have been executed by individual member of the Cooperative Farming Societies without resolutions of the Cooperative Societies authorizing them to sell the land. Such sale deeds prima facie appears to be void being contrary to the provision of Section 79 of U.P. Co-operative Societies Act, therefore, the sale deeds are liable to be ignored.

Accordingly, the order passed by the authorities mutating the names of the vendees and declaring their title under Section 229-B are kept in abeyance henceforth till the disposal of the writ petition.

The S.S.P. concerned shall ensure that the vendees shall not interfere with the property of the Cooperative Farming Society, namely, Gopalpur Cooperative Farming Society Ltd."

It is stated in the counter affidavit filed by Sri Vijay Bahadur Singh, Sub Divisional Magistrate, Marihan, Mirzapur (on behalf of respondent nos. 3, 4 and 5) that in pursuance of this Court's order dated 29th July, 2010 the petitioners' appeals against mutation/ entry in the revenue record have been allowed vide order dated 16th March, 2011. After cancelling the mutation order passed by Tehsildar, entry has been recorded in the Khatauni. 25 mutation orders of Gopalpur and 3 mutation orders of Bidauli have been cancelled and the orders passed by the authorities mutating the names of Smt. Nagina and others on the basis of declaratory decree dated 26th April, 1972 have been kept in abeyance till the final decision of the present petition. In this manner, the petitioners have already been granted the main relief regarding cancellation of mutations of various vendees.

Mr. Sinha further submitted that the next point for determination is regarding applicability of Section 79 (2) of the Act, 1965 vis-a-vis society. The word "cooperative society with limited liability" has been defined under Section 2 (g) of the Act, 1965 and "committee of management" has been defined under Section 2 (e). The management of every co-operative society shall vest in a committee of management constituted in accordance with this Act. The petitioners have nowhere whispered in the entire petition that the petitioner's society is duly elected committee as per provision of Section 29(2)(c) of the Act, 1965.

The question of existence of duly constituted committee of society, which is entitled to present the present writ petition, as well as whether any duly constituted committee was in existence at the time of execution of various sale deeds, is pure factual aspect of the matter and requires evidence and documents for establishing these facts. Hence, the same being out of purview of writ jurisdiction can only be decided suitably before the Civil Court. The Commissioner has also doubted about the validity of the petitioner society by observing number of members as 105 in his order dated 08th May, 1982. So far as relief for declaring the declaratory decree dated 26th April, 1972 under Section 229-B of the UPZA & LR Act as null and void is concerned, the petitioner society has every right of statutory remedy of appeal under the UPZA & LR Act, therefore, by no stretch of imagination, this Court can award a declaratory decree by setting aside the decree that too under writ jurisdiction. The relief of injunction against individuals is also misconceived as no such relief of injunction can be granted against individual under writ jurisdiction.

So far as direction to the District Magistrate to ensure that no excavation of mud and minerals be made over the petitioner society's land and further a direction to the District Forest Officer/ Superintendent of Police to ensure that no person be permitted to cut the trees standing on the land of petitioner society are concerned, those are apprehensive in nature, as no specific or particular complaint has been made against any particular person. Apart from it, had there been any incidence, the petitioners first should have approached the concerned authority. It is well settled principle of law that before invoking the extra-ordinary jurisdiction of the writ Court, the petitioners must approach the concerned authority. In this regard he has relied upon the judgement reported in 2003 (3) AWC 1813 (DB) (Om Prakash and another Vs. Secretary, Regional Transport Authority, Aligarh and another).

On behalf of the respondent no. 6/ Sub-Registrar, being registering authority, Mr. Sinha has also made his submissions and contended that according to the provisions of Section 241 of the Uttar Pradesh Registration Manual, the registering authority has no concern with the legal validity of the document presented for registration. The registering authority has only liability to check about the proper payment of stamp duty and the vendor and vendee are the real persons and vendor has been fully paid the consideration and the execution of the deed is with free will and without any threat or coercion. The registering authority has no right to refuse the deed presented for registration except on these above mentioned reasons. Section 241 of the U.P. Registration Manual, being relevant for the purpose, is quoted hereunder (as per the English translation):

"241-- The registering authority to have no concern with the validity of a document-

The registering authorities should note that they have no concern with the validity of the documents presented to them for registration and it will be wrong to deny the registration of any document for any of the following reasons:

1. That the executor is entering into the transaction of any property which is not his own.

2. That the document is infringing on the interests of any third person, who is not a party to the document.

3. That the transaction involves fraud or is against the public policy.

4. That the executor does not agree with some terms and conditions of the document.

5. That the executor is not acquainted with the contents of the document.

6. That the executor has declared that he has been duped into the execution of the document.

7. That the executor is blind and can not do the counting.

These or such type of matters, if need be, shall be determined by the competent Courts, and the registering authority as such has nothing to do in this regard. If a document is presented in a proper manner by a competent person in a proper office within the time stipulated by the law; and if the registering authority is satisfied that the said executor is the same person as he claims to be and if such person agrees to the execution, then, the registering authority, without having any regard to its likely results, is bound to do its registration. But the aforesaid types of objections as mentioned against serial numbers 1 to 7, which are brought to his knowledge, should be noted by the registering authority in the endorsement to be done under Section 58."

Mr. Anil Tiwari, learned Counsel appearing for the private respondent nos. 67 and also 76, has taken the following stands:

(I) The claim of the petitioners in this writ petition is contrary to their claim taken by them in ceiling proceedings initiated in the year 1974, which can be seen from the records of the proceeding being Writ Petition No. 364 of 1990.

(II) The petitioners have not annexed the list of 105 members, as they claimed to be original founder members who pooled their land for the management by the Co-operative society.

(III) The petitioners have not disclosed the proceedings pertaining to ceiling and their stand taken in those cases.

(IV) The petitioners have already taken the benefit of the judgement passed under Section 229-B of the UPZA & LR Act and, therefore, can not go back.

(V) The consolidation proceeding is initiated and was finalized in the year 1993 and on the basis of said proceedings the respondents have been entered in the revenue records. In the said proceedings, the petitioners have never objected.

(VI) All the sale deeds are registered sale deeds and can only be set aside by the Civil Court of competent jurisdiction.

(VII) The tenure holders, who have transferred the land by the sale deeds in question, are the Bhumidhar of the said land, as under the Act, 1965 only the management of the land has been transferred to the society for the purpose of meeting uneconomic agriculture. Since in the present case the society was not conducting any kind of agriculture since its inception, the petitioners are raising only technical objection, which has tendency to defeat the purpose of cooperative principles.

(VIII) The remedy in the writ petition is against the private respondents and therefore, the writ petition is not maintainable.

(IX) The petitioners have not come with clean hand and therefore, their case cannot be considered on merits and is liable to be dismissed on this count alone.

(X) The petitioners had filed the writ petition with great delay without explaining the laches.

Respondent nos. 17 to 23 and also respondent nos. 38, 39, 77 and 78 have filed their respective counter affidavits taking similar stand and Mr. Brij Raj Singh, learned Counsel appearing on behalf of all such respondents, has submitted before this Court that the respondent nos. 11 to 86 are not the purchasers of the land of the heirs after the death of the members of the society but some of them were the owners of the disputed land on the basis of declaration of their right under Section 229-B of the UPZA & LR Act and their names have also been mutated in the revenue record and some of the respondents have acquired the right over the land on the basis of succession, and some of the respondents have acquired the right on the basis of will deed, and as such the names of the respondents have been mutated in the revenue record. It is further submitted that the petitioners have not challenged the orders passed in favour of the respondents for declaration of their right under Section 229-B of the UPZA & LR Act and also the right acquired by the respondents on the basis of the succession and also on the basis of will deed in a proper proceeding and the present writ petition has been filed before this Court for issuing a writ of mandamus declaring all the proceedings null and void. The present writ petition is not maintainable on the ground of availability of effective alternative remedy. The answering respondents have no knowledge about the Gopalpur Co-operative Farming Society Ltd. because the respondent nos. 38 and 39 have purchased the land by sale deeds on 17th June, 2000 and 19th June, 2000 and the respondent nos. 77 and 78 have acquired the right and title over the land in dispute on the basis of registered will deed executed by Shridhar Upadhyay, and as such the answering respondents are in possession over the land in dispute. The petitioners have not filed any proof regarding the aforesaid 17 members, who formed the aforesaid society known as Gopalpur Co-operative Farming Society Limited, apart from that the area of the land, which has been taken on Patta by Zamindar Amresh Chandra Pandey and Naresh Chandra Pandey, and all the village Gopalpur has not been shown in the revenue records, therefore, it can not be said that the land has been acquired by the petitioners from the Zamindar on Patta. The petitioners are claiming their right on the basis of the annexure annexed in paragraph 6 of the writ petition dated 08th January, 1952, while it is not a sale deed but is a photostat copy of Patta granted by Zamindar and, therefore, in absence of proper averment in the para under reply the same is denied. Since long time the Gopalpur Co-operative Farming Society is not in possession over the land in dispute nor the name of the aforesaid society was recorded in the revenue records and, therefore, it can not be said that the aforesaid society was recorded in the revenue record and, therefore, it can not be said that the land in dispute is belonging to the members of the Gopalpur Co-operative Farming Society Limited. The existence of the aforesaid society came to an end and, therefore, the names of the individuals members have come on record and the same was continued till the execution of the sale deed by them. The members of the petitioner society have not contested the case with the name of the society but they have contested the case on the basis of the individual capacity. The order passed by the Sub Divisional Officer, Marihan, dated 30th January, 2008 was exparte order, however, the same was challenged by one of the plot holders, namely, Sri Jaya Prasad Singh by filing a revision before the Board of Revenue and the learned members of the Board of Revenue stayed the order of the Sub Divisional Officer vide order dated 27th February, 2008. The order passed by the Consolidation Officer dated 29th August, 20008 was exparte order, against that order the aggrieved respondents have moved the application for recalling of the order, however, the order was recalled and against that order an appeal is pending before the Settlement Officer Consolidation. The answering respondents have purchased the land from rightful owner and they have been given peaceful possession over their plots from the date of execution of the sale deeds and the answering respondents are paying the Malguzari to the Government. The respondent nos. 17 to 23 have acquired the right and title over the land in dispute on the basis of the sale deed and after registration of the sale deed some of the respondents constructed their house and are coming down peaceful possession. The Bhumidhars of the land have full right to execute the sale deed and accordingly they have executed the sale deed. The Bhumidhars of the plot have rightly executed the sale deed in bonafide manner, and on the basis of the sale deed the answering respondents and other purchasers are in possession over the plot. The rightful owners have executed the sale deed in favour of the respondents and on the basis of sale deeds the respondents have been given peaceful possession over their respective plots. The answering respondents have acquired the right and title over the land in dispute on the basis of will deed executed by Shridhar Upadhyay and the names of the answering respondents have also been mutated in the revenue records. The person, who has got Bhumidhari right over the land in dispute, has a right to execute the sale deed and it cannot be said that the sale deed executed by the rightful owner is void. The writ petition is a reiteration of Chapter- XI of the Act, 1965, which deals with the co-operative farming societies, and also discloses the other sections of the Act, 1965, therefore, being a legal is subject to the scrutiny by this Court. The decree passed under Section 229-B of UPZA & LR Act will prevail till the competent court sets aside that decree. It is well settled principle of law that a person who have a decree passed by the competent court, has full right over the land in dispute unless and until the decree passed by the competent court is set aside by the superior Court. No Bhumidhar has violated any provision of the Act, 1965 by execution of the sale deed. The petitioners have not chosen the rightful forum for their grievance and the writ petition has no legal ground and the same is liable to be dismissed with cost.

Mr. V.K. Jaiswal, learned Counsel appearing for the respondent nos. 25, 27, 30, 64 and 76, has also made similar submissions as made by Mr. Brij Raj Singh.

Mr. Preet Pal Singh Rathore, learned Counsel who has also appeared on behalf of respondent no. 64, has submitted before this Court that against the order passed by the Tehsildar in proceedings of Section 34 of the Land Revenue Act, an appeal under Section 120 of the Land Revenue Act is entertainable but the order passed by a Tehsildar may not be challenged by either party under Article 226 of the Constitution before this Court, therefore, the present writ petition is not maintainable. He further submitted that although 17 members were the members of the society in question but the land in question was purchased by them in their individual capacity. The status and capacity of the answering respondent may better be verified from the sale deed dated 08th January, 1957, as there is no such description throughout the sale deed that the land is being purchased in the capacity of members of Gopalpur Co-operative Farming Society Ltd., District Mirzapur. The names of purchasers were maintained in the revenue record in accordance with sale deed dated 08th January, 1957. As there was no such description throughout the sale deed that the land in question is being sold out either for such Society or to its member, so its name could not be described in the relevant revenue record during the time of mutation proceeding, therefore, there is no infirmity in not recording the name of the petitioner society in the revenue record. The land in question was sold out to its 17 vendees, as given in paragraph no. 6 of the writ petition, by way of registered sale deed dated 8th January, 1957, then, the description of the name of petitioner society in the relevant revenue record in 1362-1365 Fasli has no relevance in the eye of law. Upto 1368 Fasli, the name of the petitioner society remain mutated in the revenue record as Sirdar not as Bhumidhar, because the land in question was leased out to the 17 persons, as given in paragraph no. 6 of the writ petition, by way of registered sale deed dated 08th January, 1957. Therefore, the vendees, as mentioned in paragraph no. 6 of the writ petition, became actual owner and bhumidhar of the land in dispute, so their names were rightly mutated in the relevant revenue record. When the name of 17 purchasers were mutated in relevant revenue record, then for what the petitioner society passed resolution on 1st September, 1979 has not been disclosed by him. Since the very beginning Mandavi Singh, who is so-called Secretary of the Society, was trying to grab the property of vendees, as given in paragraph no. 6 of the writ petition, so he was fraudulently initiating different proceeding in the shape of proxy litigation and against the mutation proceeding Mandavi Singh has filed an appeal under Section 210 of the Land Revenue Act, which was allowed on same day by SDM concerned. On the other hand, in the shape of proxy litigation, he has filed present writ petition through one Baij Nath Singh in order to mislead this Court. It is also relevant to mention at this stage that for the first time the petitioner society claimed to be bhumidhar of the property by way of initiating proceeding in the year 2008. It is also relevant to mention at this stage that present case has been filed by Dhirendra Singh posing himself as Secretary, while this writ petition has been filed by Baij Nath Singh posing himself as Secretary of the Society. The parentage and address of Baij Nath Singh is not transcribed in the memo of writ petition, from which it is evident that the present writ petition has been filed by Mandavi Singh fraudulently under the name of Baij Nath Singh. The order dated 30th January, 2008 has been challenged by way of filing Revision No. 1811/2007-08, in which stay order was passed on 27th February, 2008. It is relevant to mention at this stage that the order dated 30th January, 2008 was obtained by Mandavi Singh by misrepresentation and concealment of facts and playing fraud with the court below because in the above noted case either the vendee or subsequent purchasers were never impleaded and arrayed as opposite parties, so the order dated 30th December, 2008 was quite exparte and arbitrary and is also against the principle of natural justice. The petitioners have either an appropriate remedy to file an appropriate suit in the competent court for cancellation of sale deed or they should file a declaratory suit under Section 229-B of UPZA & LR Act in the court concerned. The name of the answering respondent has also been mutated in the relevant revenue record during consolidation operation vide order dated 06th May, 2006. Admittedly, the petitioners have challenged the mutation order by way of filing appeal, which has himself been admitted by him. Therefore, the present writ petition is also barred by Section 5 and 49 of the Uttar Pradesh Consolidation of Holdings Act. Mandavi Singh tried to mutate the name of the petitioner society in the year 2008, which was mutated in exparte manner, against which revision was filed in which interim order was granted. Then, there is no reason for the petitioners to initiate separate proceeding for same cause of action. Petitioners have an alternative remedy for either to file a declaratory suit under Section 229-B of UPZA & LR Act before concerned court to file a suit for cancellation of sale deed, except this, five different proceedings have been initiated either by bhumidhar of the land in question or by the society and are already pending, so the present writ petition is not maintainable and liable to be dismissed with cost.

In reply to the averments made on behalf of the respondent no. 64, Mr. Goyal submitted that the provisions of the Land Revenue Act are not applicable and the provision of the Act, 1965 override the provisions contained under the Land Revenue Act. Hence, the orders passed by the Tehsildar are non est and therefore, of no consequence. As such, the proceeding being without jurisdiction, the petitioners are well within their right to approach this Court in extraordinary jurisdiction under Article 226 of the Constitution of India. The plea of alternative remedy and that too at this belated stage, is not acceptable particularly when this Court has entertained the writ petition and called for the counter affidavit to be filed by the parties as well as admitted the present writ petition. He further submitted that once a person becomes the member of the Co-operative Farming Society, it becomes evident that the entire land possessed by him forms part of the pool and is a contribution of such person to the Co-operative Farming Society. In this respect, the provisions of Section 298 of the UPZA & LR Act that were applicable at the time when the Co-operative Farming Society was registered, is quoted hereudner:

"298. Land held by a member to be transferred to the farm.

When a co-operative farm has been registered under Section 297, all land in the circle held by a member, whether as bhumidhar, sirdar or their asami, shall, for so long as the registration of the co-operative form is not cancelled, be deemed to be transferred to and held by the co-operative farm which shall thereupon hold such land in accordance with the provisions of this chapter, and may, notwithstanding anything contained in this Act, use it for any purpose mentioned in Section 146 or the development of cottage industries."

The provisions under Section 298 of the UPZA & LR Act adopts the fiction for treating transfer of the land held by a member as the land held by the Co-operative Farming Society. Therefore, the land purchased by the individual member is deemed to be the land of the Co-operative Farming Society once person becomes the member of the Co-operative Farming Society. Under such circumstance, the execution of sale-deed dated 08th January, 1957 in favour of all the aforesaid 17 members of the Co-operative Farming Society clearly establishes the fact that the land was held and transferred to the Co-operative Farming Society. If it would have been the intention then there would have been separate sale deeds with respect to individual members separately and the entire land would not have been clubbed together. The name of the petitioner society ought to have been recorded in view of the fiction created by Section 298 and on account of the fact that the petitioner society stood registered on 08th January, 1951. 1368 Fasli corresponds to the calender year 1961. In case if the averments mentioned in the counter affidavit are believed, then the name of the society was liable to be struck out in the calender year 1957. However, the name remained mutated in the revenue records and the land was held by Co-operative Farming Society for the purpose of Chapter-XI of the UPZA & LR Act. It is totally incorrect to state that vendee mentioned in paragraph 6 of the writ petition become actual owner and bhumidhar of the land in dispute. The status of the holding of the individual member is of no consequence and said status and rights were conferred under the Act upon the Co-operative Farming Society. It is misconceived to state that the Co-operative Farming Society came to be recorded as Sirdar and not as Bhumidhar. As per the scheme under the old Act, the interest of the individual member as Bhumidhar was not disturbed but his right to transfer the land and other rights could not be exercised by him except with the prior permission of the Co-operative Farming Society. Therefore, even though the individual member continued to remain Bhumidhar, the land was utilized for the agricultural purpose and the status of holding was that of a Co-operative Farming Society and not as a Bhumidhar. The mutation of individual names in the revenue record was totally illegal and contrary to the provisions of Part-XI of the UPZA & LR Act. The proposal was made by the Tehsildar for auctioning the land of Co-operative Farming Society and it was not the resolution passed by the society against itself. The affidavit in reply has been prepared by misreading the contents of paragraph 15 of the writ petition. The auction notice issued on 01st September, 1979 only fortifies the fact that the holding of the land in question was registered in the name of the Co-operative Farming Society. It is totally incorrect to state that Mandavi Singh is trying to grab the property of the vendors. There is no proxy litigation initiated by him as wrongly stated in the paragraph 13 of the counter affidavit. Mandavi Singh happens to be the Chairman of the petitioner society and Baijnath Singh happens to be the Secretary of the petitioner society. The last election of the petitioner society was held on 02nd September, 2009 wherein Mandavi Singh was elected as the Chairman of the Society. Baijnath Singh is continuing as Secretary of the petitioner society since 29th September, 2007. Hence, there is full authority vested in Baijnath Singh as well as Mandavi Singh to safeguard the interest of the petitioner society. It is totally incorrect to state that the petitioner society claimed to be Bhumidhar of the property by initiating proceeding in the year 2008. The society has been taking steps throughout and this is evident from the assertion made in paragraph 16 and 17 of the writ petition where the members were authorized by the society to take action for and on behalf of the society. The present writ petition has been instituted by Baijnath Singh and his parentage and address has already been stated in the affidavit filed along with the writ petition. The aforesaid fact can be ascertained from page 608 of the writ petition. Therefore, it is incorrect to state that parentage and address of Baijnath Singh is not transcribed in the memo of the writ petition. Full description having been given of Baijnath Singh in his affidavit that forms an integral part of the writ petition itself, there is no such defect as wrongly pointed out in the paragraph 13 of the counter affidavit. It is incorrect to state that the order dated 30th January, 2008 was obtained by Mandavi Singh by misrepresentation and concealment of facts. The order that was passed on 30th January, 2008 has been recorded and the name of the society has been mutated in the Khatauni. It is incorrect to state that the order dated 30th August, 2008 was exparte and arbitrary. The order dated 27th February, 2008, filed as Annexure-CA-2 to the counter affidavit, stands already vacated and thus the order of 30th January, 2008 is still in operation. This is evident from the latest Khatauni already brought on record as Annexure-SA-1 and SA-2 to the supplementary affidavit. There is no appropriate infirmity of either filing a suit in the competent Court for cancellation of the sale deed or for filing declaratory suit under Section 229-B of the UPZA & LR Act. The provisions of UPZA & LR Act are not applicable and no declaratory suit can be filed under Section 229-B of the said Act. The dispossession of the property being void, registration of the same by the Sub-Registrar is without jurisdiction and therefore, the petitioners have rightly approached this Court praying for the relief to which it is legitimately entitled and action of the State authorities being contrary to the law besides being without jurisdiction, the present writ petition is fully maintainable and is liable to be allowed by this Court. The report dated 06th June, 1979 fortifies the submission of the petitioners having not been denied at any stage and will be deemed to be a document that establishes the rights of the petitioner society relating to 5000 acres of land and its utility for agricultural purpose. The order dated 06th May, 2006 has been set aside on 09th June, 2011 by the Consolidation Officer. The said document was very much in the knowledge of the respondents but deliberately the same has not been filed even though the counter affidavit was sworn by him on 18th July, 2011. It is totally incorrect to state that the writ petition is barred by Section 5 and Section 49 of the Uttar Pradesh Consolidation of Holdings Act. There is a separate procedure prescribed under Chapter XI of the Act, 1965 that prescribes the mode of consolidation and by virtue of Section 90 of the Act, 1965 the said provision override the provision of the Uttar Pradesh Consolidation of Holdings Act. Therefore, the present writ petition can not be termed to be barred by Section 5 and Section 49 of the Uttar Pradesh Consolidation of Holdings Act. The right, title and ownership is not in question and the fact that aforesaid membership is being disputed the land is being held by Co-operative Farming Society. Therefore, no sale by individual members is permissible and action on the part of the members and its subsequent registration by the State authorities is non est in the eyes of law.

According to us, all the issues involved herein are connected with each other. Prayers are cumbersome in nature. But the contesting parties have filed their respective affidavits and made their submissions on merit irrespective of the question of maintainability, if any, therefore, at this belated stage the writ petition can not be thrown out on such ground alone. Moreover, the question of maintainability is part and parcel of the mixed questions of law and facts involved herein, which can not be overlooked. In any event, after going through the merit of the case if we find that any affirmative order can be passed, then the reliefs can be moulded. The petitioner-society is a Co-operative Farming Society. Section 79 of the Act, 1965 speaks that when a Co-operative Farming Society is registered under Section 77, all land in the circle held by a member, whether bhumidhar or sirdar, other than land in possession of his asami, till such time as it is so held by the asami, shall be deemed to have passed into the possession, control and management of the Co-operative Farming Society, which shall thereupon hold such land in accordance with the provisions of this Chapter and may use the same for any of the purposes mentioned in sub-section (1) of Section 77. Certain contingencies arose in respect of such old Co-operative Society. Such contingencies are either in the nature of loose administration or in the nature of improper activities or on the basis of recording the name in the proper record at least of 1369 Fasli, but under no circumstances the Co-operative Society was wound up or dissolved from being a Co-operative Societies. No material is available before us about the cancellation of registration of such Co-operative Society. Against this background, transfer of any property by the members to third parties and to get seal and signature thereon under Section 229-B of the UPZA & LR Act seem to be outcome of fraud or suppression of material facts. Question of fraud or fraudulent practice or suppression of material facts can be reopened at any time and, therefore, bringing of notice on that score before the writ Court can not be said to be not maintainable. Moreover, we find that the suit, which has been filed by the members and/or third party, who purchased the land from them, seems to be for declaration to them as asami of a holding or any part thereof. Therefore, if such declaration is made by the competent Court i.e. Revenue Court under Section 229-B of the UPZA & LR Act, such parties will get rid of Section 79 of the Act, 1965 because that will be applicable to the Bhumidhar or Sirdar but not to the Asami, and make themselves free from the applicability of the Act, 1965. In further, Section 229-B of the UPZA & LR Act is made for the same. Previously the question of Co-operative Farms were covered under the UPZA & LR Act, 1950 in view of Sections 295 to 318 thereof, which were subsequently repealed by the Act, 1965. Such repealing effect has also been recorded under Section 134 (3) of the Act, 1965. As per sub-section (4) of Section 134 of the Act, 1965, all references to Co-operative Farms contained in the UPZA & LR Act shall be construed as references to Co-operative Farming Societies registered or deemed to be registered in this Act. Section 79 (3) of the Act, 1965 restricts a Bhumidhar in making testamentary disposition of any land without the permission of the Co-operative Farming Society. However, Section 169 of the UPZA & LR Act will be applicable only in respect of bequests. Section 79 (6) of the Act, 1965 provides that the provisions of the UPZA & LR Act shall, in so far as they are not inconsistent with the provisions of this Act, continue to govern land and the holder thereof, meaning thereby that it will be restricted to the testamentary disposition. Section 90 of the Act, 1965 speaks that the provisions of this Chapter shall take effect notwithstanding anything to the contrary in this Act or any other enactment for the time being force. Therefore, the Act, 1965 has prevailing effect over other laws.

Against this background, we are of the view that declaration of asami under the UPZA & LR Act ignoring the existence of the Co-operative Society is non-est in the eye of law. Therefore, the petitioners are entitled to proceed before the appropriate Revenue Court/s in accordance with law to obtain an appropriate order. The mutation/registration having consequential effect of such declaratory decree of Revenue Court can not also have any valid existence. Hence, the interim order, which has been passed by this Court, on 29th July, 2010 stands confirmed. The members can not have any right to dispose of the land without prior knowledge or permission of the society. The administration and the police authorities will render all possible help to the Co-operative Society in maintaining their landed properties for the purpose of carrying on their business. Any interference or action on the part of the private respondents contrary to the interest of the Co-operative Society will be taken up by such authorities seriously without giving relaxation particularly in respect of excavation of land and destruction of the greenery. However, before taking all such steps, a breathing time will be given to the private respondents for a period of sixty days to negotiate with the Co-operative Society to save their interest, if any, failing which the law will take its own course.

The writ petition is accordingly disposed of, however, without imposing any cost.

(Justice Amitava Lala)

I agree.

(Justice V.K. Mathur)

Dated: 01st December, 2011.

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Hon'ble Amitava Lala, J.

Hon'ble V.K. Mathur, J.

Under the authority of the Hon'ble Chief Justice additional cause list has been printed for the purpose of delivery of judgement and the same has been delivered at 2.00 P.M. in the Court upon notice to the parties.

The writ petition is disposed of, however, without imposing any cost.

Dt./- 01.12.2011.

SKT/-

For judgement and order, see order of the date passed on the separate sheets (twenty-six pages).

Dt./-01.12.2011.

SKT/-