# Badan Singh and another v. State of U.P. and others

- **Citation:** (2002) 3 ILRA 880
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2002-10-04
- **Case number:** Civil Misc. Petition No. 42383 of 2002
- **Bench:** M. Katju, Rakesh Tiwari
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/badan-singh-and-another-v-state-of-u-p-and-others-40028
- **Pages:** 4

## Headnote

Constitution of India, Article 226- read
with U.P. Ordinance No. 10 of 2002-ord.
2 (kha)-term of managing committee
expired on 6.3.02 prior to the cut off
date -e.g. 4.7.2002-tenure cannot be
extended from 3 years to 5 years-
whether those management can claim
benefit of ordinance O 2002-whose
terms expired during existence of stay
order? Held- 'No"

Held- Para 4,5 and 8

In other words the U.P. Ordinance No.10
of 2002 will only apply to the societies
which were in existence on 4.7.2002.
Hence where the term of 3 years of any
cooperative
society
expired
before
4.7.2002 the society will not get the
benefit of U.P. Ordinance No. 10 of 2002.
It is only those societies whose 3 years
term had not expired on or before
4.7.2002 which will be entitled to
continue in existence for five years.

We also make it clear that if any
cooperative society is continuing on the
strength of an interim order of this Court
that will not get the benefit of U.P.
Ordinance No. 10 of 2002 if the original
term of 3 years had expired before
4.7.2002.

Since the petitioner, society was not
legally in existence on 4.7.2002 it could
not in its own right exist beyond the
period of 3 years of its election and
hence it cannot get the benefit of U.P.
Ordinance No. 10 of 2002. The writ
petition is, therefore, dismissed.

## Text

http://www.allahabadhighcourt.nic.in
880 INDIAN LAW REPORTS ALLAHABAD SERIES [2002
17. It may be pointed out that
section 3 (a) of the Land Acquisition Act
states :-

"(a) the
expression
'land'
includes
benefits to arise out of land, and
things attached to the earth or
permanently fastened to anything
attached to the earth."

18. The above definition shows that
even building and trees will be deemed,
by a legal fiction, to be land for the
purpose of Land Acquisition Act as they
are attached to or permanently fastened to
the earth vide Chaturbhuj Pande v.
Collector, AIR 1969 SC 255 (Paras 8 and
9), S.P. Gupta vs. State of U.P., 1980 ACJ
583, etc. Hence it cannot be said that
when land is being sought to be acquired
the buildings or trees standing thereon
have
to
be
exempted.
No
doubt
compensation has to be given for the
building and trees also, but it does not
mean that exemption from acquisition
must be granted to the buildings or trees,
or the land on which the building or trees
stands. If a contrary view is taken it can
disrupt the entire scheme for which the
acquisition is being done.

19. The allegations of the petitioner
that they had residential houses on the
land in dispute have been denied by the
respondents. The order declaring the land
in question as abadi has also been
subsequently cancelled by the SDM.
However even assuming that, there was
some construction on the land in question
this Court cannot interfere with the
acquisition because the word 'land' in
section 3 of the Land Acquisition Act
includes 'buildings and trees' also. Hence
even assuming that the land was abadi or
there were constructions on the land in
question, in our opinion, the said land can
be acquired under the Land Acquisition
Act and this Court cannot interfere.
Moreover, we are of the opinion that in
fact the land in question was agricultural
land and it was only after the notification
under Section 4 that the petitioner tried to
give colour that the land was abadi and
there were constructions.

20. In our opinion, there was no
illegality in the notification under Section
6 issued on 23.8.2000 as it was within one
year
from
the
publication
of
the
notification under Section 4 on 24.8.1999.

21. The construction of market yard
of Mandi Samiti is clearly for public
purpose as it will serve the agriculturists
and it is urgent.

22. Thus there is no merit in this
petition and it is dismissed accordingly..
No order as to costs.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 4.10.2002

BEFORE
THE HON'BLE M. KATJU, J.
THE HON'BLE RAKESH TIWARI, J.

Civil Misc. Petition No. 42383 of 2002

Badan Singh and another
...Petitioner
Versus
State of U.P. and others ...Respondents

Counsel for the Petitioners:
Sri K.G. Srivastava
Sri Rahul Srivastava

Counsel for the Respondents:
S.C.
http://www.allahabadhighcourt.nic.in
3 All] Badan Singh and another V. State of U.P. and others 881
Constitution of India, Article 226- read
with U.P. Ordinance No. 10 of 2002-ord.
2 (kha)-term of managing committee
expired on 6.3.02 prior to the cut off
date -e.g. 4.7.2002-tenure cannot be
extended from 3 years to 5 years-
whether those management can claim
benefit of ordinance O 2002-whose
terms expired during existence of stay
order? Held- 'No"

Held- Para 4,5 and 8

In other words the U.P. Ordinance No.10
of 2002 will only apply to the societies
which were in existence on 4.7.2002.
Hence where the term of 3 years of any
cooperative
society
expired
before
4.7.2002 the society will not get the
benefit of U.P. Ordinance No. 10 of 2002.
It is only those societies whose 3 years
term had not expired on or before
4.7.2002 which will be entitled to
continue in existence for five years.

We also make it clear that if any
cooperative society is continuing on the
strength of an interim order of this Court
that will not get the benefit of U.P.
Ordinance No. 10 of 2002 if the original
term of 3 years had expired before
4.7.2002.

Since the petitioner, society was not
legally in existence on 4.7.2002 it could
not in its own right exist beyond the
period of 3 years of its election and
hence it cannot get the benefit of U.P.
Ordinance No. 10 of 2002. The writ
petition is, therefore, dismissed.

(Delivered by Hon'ble M. Katju, J.)

1. By means of this writ petition, the
petitioners have prayed for a writ of
certiorari to quash the impugned orders
dated
23.4.2002
and
26.4.2002,
Annexures 3 and 4 to the writ petition and
for a mandamus directing the respondents
not to interfere with the functioning of the
petitioner
no.
2
as
committee
of
management of the cooperative society in
question till 6.3.2004.

2. The petitioners are relying on the
U.P.
Cooperative
Societies
(Amendments) Ordinance, 2001, being
Ordinance No. 27 of 2001 copy of which
is Annexure 2 to the writ petition. By
means of this Ordinance the term of the
society has been extended from 3 years to
5 years.

3. In Committee of Management
Versus Registrar, Cooperative Societies,
2002 (2) AWC 1353, a Division Bench of
this Court held that if the term of the
Committee of Management has not
expired
before
the
date
of
the
promulgation of the above Ordinance on
24.12.2001, its term will continue for five
years in view of the above Ordinance.
However, subsequently the same Bench in
Civil
Misc.
Modification
Application/Review Petition No. 87293 of
2002 in Writ Petition No. 8375 of 2002
reviewed
its
own
judgment
dated
16.3.2002 (referred to above) and has held
that since the Ordinance has lapsed hence
the term of the committee of management
will only be 3 years and not five years.
Accordingly the Division Bench allowed
the review application.

4. Thereafter another development
took place namely that on 4.7.2002 the
U.P. Govt. issued another Ordinance
being U.P. Ordinance No. 10 of 2002 a
copy of which is Annexure 5 to the
petition. Section 2 (ka) of the said
Ordinance states that the term of the
committee of management will be five
years. However, Section 2 (kha) of the
said Ordinance states that this Ordinance
will be applicable to the society which is
in existence on the date of the Ordinance.
http://www.allahabadhighcourt.nic.in
882 INDIAN LAW REPORTS ALLAHABAD SERIES [2002
In other words the U.P. Ordinance No.10
of 2002 will only apply to the societies
which were in existence on 4.7.2002.
Hence where the term of 3 years of any
cooperative
society
expired
before
4.7.2002 the society will not get the
benefit of U.P. Ordinance No. 10 of 2002.
It is only those societies whose 3 years
term had not expired on or before
4.7.2002 which will be entitled to
continue in existence for five years.

5. We also make it clear that if any
cooperative society is continuing on the
strength of an interim order of this Court
that will not get the benefit of U.P.
Ordinance No. 10 of 2002 if the original
term of 3 years had expired before
4.7.2002.

6. Learned counsel for the petitioner
referred to the Supreme Court decision in
T. Venkata Reddy V. State of A.P., 1985
(3) S.C.C. 198 (vide para 19). We have
carefully perused the said decision and
find that it is distinguishable. In that
decision the facts were that the A.P.
Abolition of Posts of Part-time Village
Officers Ordinance, 1984 had abolished
the posts of part-time village officers in
Andhra Pradesh. Since that Ordinance
lapsed it was urged that the posts of part
time village officers revived. Repelling
this contention the Supreme Court held
that
abolition
of
posts
was
an
accomplished fact. In the present case a
perusal of the new Ordinance (U.P.
Ordinance No. 10 of 2002) shows that it
has
specifically
been
mentioned
in
S.2(kha) that only those committees
existing on the date of the Ordinance
(i.e.4.7.2002)
will
have
their
term
extended to 5 years. Hence the petitioner
can derive no help from the above
mentioned Supreme Court ruling. If a
contrary view is taken then it will mean
that despite the clear language of Section
2 (kha) that the term of only those
committees existing on 4.7.2002 will be
extended, the term of committees whose 3
years term expired prior to 4.7.2002 will
also stand extended. This will create an
anomaly, and hence such an interpretation
is to be avoided.

7. The petitioner no. 2 was elected
on 6.3.99 and its three years term expired
on 6.3.2002. It only continued in
existence because of U.P. Ordinance No.
27 of 2001 but that Ordinance had lapsed
as stated in the order of this Court in
Review Petition No. 87293 of 2002.
Hence, the petitioners cannot get the
benefit of U.P. Ordinance No. 27 of 2002,
nor of U.P. Ordinance No. 10 of 2002.

8. Since the petitioners society was
not legally in existence on 4.7.2002 it
could not in its own right exist beyond the
period of 3 years of its election and hence
it cannot get the benefit of U.P. Ordinance
No. 10 of 2002. the writ petition is,
therefore, dismissed.

9. Since a large number of similar
writ petitions are pending in this Court,
we make it clear that this judgment will
be applicable to all the pending writ
petitions in which similar points are
involved, and will not be confined to this
petition alone.
---------
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3 All] Saraswati Vidhya Mandir Rewatipur, Ghazipur V. State of U.P. and others 883
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 20.9.2002

BEFORE
THE HON'BLE A.K. YOG, J.

Civil Misc. Petition No. 4651 of 2000

Saraswati
Vidhya
Mandir
Rewatipur,
District Ghazipur

...Petitioner
Versus
State of U.P. through Secretary and
others

 ...Respondents

Counsel for the Petitioner:
Sri Shamim Ahmad
Sri Om Prakash Chaubey

Counsel for the Respondents:
Sri G.K. Pandey
S.C.

Constitution of India- Article 226 the
petition has not been filed on behalf of
the committee of management or on
behalf of the society, if any, registered
under the Societies Registration Act.
Obviously, the school or the Manager
cannot be aggrieved on behalf of the
committee of Management. It is the
Society
and
the
committee
of
Management which is legally entitled to
challenge the orders of the Deputy
Director of Education- the Manager is not
the Managing committee or the Society
and he cannot maintain a writ petition in
this Court unless he is authorized to do
so. (Held in para 13).

Learned
counsel
for
the
Petitioner,
however, submitted that he be allowed
time to correct the description. This
cannot be permitted by amendment as
has been held in the V.V. Inter College
(Supra). However, by dismissal of the
Writ Petition management/society of the
institution,
which
own,
runs
and
manage, shall not be precluded from
approaching the concerned authority to
seek redressal of his grievance and recall
the impugned order dated 16th July,
1999 providing review its decision after
affording
opportunity
to
the
management/society
running
the
institution to file documents and such
information as may be required by such
authority and holding enquiry as may be
required.

(Delivered by Hon'ble A.K. Yog, J.)

1. Heard Sri Shamim Ahmad,
Advocate, appearing on behalf of the
petitioner and Sri G.K. Pandey, learned
Standing Counsel, on behalf of the
respondents.

2. Petitioner before this Court is
'Saraswati Vidhya Mandir Rewatipur,
District Ghazipur through its Manager
Smt. Ram Sakhi Devi' purporting to be
an institution, called 'Saraswati Vidhya
Mandir Rewatipur', which is not a legal
entity.

3. This Court in Writ Petition no.
10663 of 1976, Sardar Patel Higher
Secondary School, Dev Nagar, Mathura
Versus
The
Deputy
Director
of
Education, Agra Region, Agra and
others, 1976 AWC (Journal)18, vide
judgment and order dated 1.3.1976
observed-

"Sri N.C. Upadhya, learned counsel
for the respondent no. 3, Babu Lal
Sharma raised a preliminary objection to
the maintainability of the petition at the
instance of the Manager Kedar Nath. He
urged that the Committee of Management
had authority to hold enquiry and to
dismiss the petitioner from service, its
proposal to dismiss respondent no. 3 was
disapproved by the Deputy Director of
Education
in
appeal,
therefore
the