# Court in Nareshbhai Bhagubhai and others v. Union of India (supra) prayer of the

- **Citation:** (2021) 9 ILRA 1072
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2019-02-11
- **Case number:** Writ C No. 4340 of 2021
- **Bench:** Rohit Ranjan Agarwal
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/court-in-nareshbhai-bhagubhai-and-others-v-union-of-india-supra-prayer-of-the-47359
- **Pages:** 15

## Headnote

A. Land Law - U.P. Revenue Code, 2006 -
Sections 89, 98, 104/105 & 230 - U.P.
Zamindari Abolition & Land Reforms Act,
1950 - Sections 154, 157-A, 157-C, 166 &
167

The Court observed that the Trust had
purchased land from the members of the
Scheduled Caste without taking any prior
permission from the Collector, which is a clear
violation of Section 157-A of the Act of 1950.
Further, any order passed in proceedings under
Section 104/105 of Code cannot be interfered
and the land has rightly been vested with the
State Government. (para 25)

As per Section 154(2) of the Act of 1950 the
State is empowered to grant permission for
transfer of land in excess of the prescribed limit
in favour of registered co-operative society or
institution established for charitable purpose,
subject to a limitation, which, if violated, the
same
stands
withdrawn.
Moreover,
the
conditions laid in permission dated 07.11.2005
has not been complied with. The Trust has also
violated the conditions laid down by the State
by not completing the construction within
stipulated period and did not submit the
statement in regard to acquisition of land and
construction made thereupon annually as well
as construction of 'mosque' over the acquired
land. (Para 28)

In addition to this, a case has been filed under
Section 134 of the Code as the Trust has
forcibly encroached upon the land of numbe rof
tenure holders whose land was adjoining the
Trust. The Chak Road, which is land of Gaon
Sabha and land adjoining the river belt has also
been included. (Para 33)

The declaration under Section 143 of the Act,
1950 will not save the case of the petitionerTrust from being hit by provisions of Section
157-A and the violation of conditions of
permission granted on 07.11.2005. Once the
transfer is viod, subsequent proceedings under
Section 143 woul dnot save the transfer made in
favour of Trust by members of Scheduled Caste.
(Para 35)

Writ Petition Rejected. (E-10)

List of Cases cited:

## Text

_Characters 0–39,729 of 48,540. This is a partial read: ask again with offset=39729 for what follows._

1072 INDIAN LAW REPORTS ALLAHABAD SERIES
to the extent of 5% and 6% of Noida and
Greater Noida land respectively." (emphasis
supplied)

37. In the present case, the relief is
being moulded by granting compensation to
the Appellants, to be assessed under Section
20G of the said Act as per the current market
value of the land. The Competent Authority is
directed
to
compute
the
amount
of
compensation on the basis of the current
market value of the land, which may be
determined with reference to Section 20-G(2)
of the Act.

38. With respect to the remaining
125 kms stretch of land, the landowners were
satisfied with the amount awarded, and have
not approached this Court. Under these
circumstances, despite our finding that the
Respondents have breached the mandatory
provisions of the Act, we do not think this is a
fit case to set aside the entire acquisition
proceedings. The relief granted in the present
case is confined to the Appellants herein, and
would not become a precedent for other landowners who have not challenged the
acquisition proceedings before this Court."

37. In this case also, as we have noticed
earlier, out of a total cost of Rs.824 crores of
the project, Rs. 614 crores have been spent up
to 29.01.2021 and, out of total length of 54.38
kms, only 1.36 kms linear length remains to
be completed due to resistance offered by few
land-owners. Importantly, the completion of
the project to the extent indicated above has
been set out in the counter affidavits of which
there is no specific denial. In these
circumstances, if we set aside the declaration
now, it would result in huge wastage of
public money as the entire alignment of the
freight corridor would have to be redone.
Thus, following the decision of the Apex
Court in Nareshbhai Bhagubhai and others
v. Union of India (supra) prayer of the
petitioners for quashing the notifications
dated 11.02.2019 and 06.11.2019 is denied. It
is however directed that the petitioners of
Writ C Nos. 2959 of 2020; 42537 of 2019;
and 42577 of 2019 shall be awarded
compensation in accordance with the law,
subject to proof of their right, calculated at
the current market rate. To that extent Writ
C Nos.2959 of 2020; 42537 of 2019; and
42577 of 2019 are partly allowed. But as the
land of writ petitioners in Writ C No. 43014
of 2019 is not subject matter of acquisition
and they have also not challenged the
notification, Writ C No.43014 of 2019 is
dismissed. The interim orders passed in all
these petitions stand discharged.

38. Before parting, we deem it
appropriate to require the respondents to hold
an inquiry against the person responsible for
submission of an incorrect report to the
Central Government that no objection was
taken by the land owners to the notification
under sub-section (1) of Section 20 A of the
1989 Act.

39. Let a copy of this order be sent to
the Chief Secretary, Government of U.P. to
ensure an enquiry as directed above.
----------

(2021)09ILR A1072
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 06.09.2021

BEFORE

THE HON'BLE ROHIT RANJAN AGARWAL, J.

Writ C No. 4340 of 2021

Maulana Mohammad Ali Jauhar Trust,
Lucknow ...Petitioner
Versus
State of U.P. & Ors. ...Respondents
9 All Maulana Mohammad Ali Jauhar Trust, Lucknow Vs. State of U.P. & Ors.
1073
Counsel for the Petitioner:
Sri Syed Safdar Ali Khazmi

Counsel for the Respondents:
C.S.C.

A. Land Law - U.P. Revenue Code, 2006 -
Sections 89, 98, 104/105 & 230 - U.P.
Zamindari Abolition & Land Reforms Act,
1950 - Sections 154, 157-A, 157-C, 166 &
167

The Court observed that the Trust had
purchased land from the members of the
Scheduled Caste without taking any prior
permission from the Collector, which is a clear
violation of Section 157-A of the Act of 1950.
Further, any order passed in proceedings under
Section 104/105 of Code cannot be interfered
and the land has rightly been vested with the
State Government. (para 25)

As per Section 154(2) of the Act of 1950 the
State is empowered to grant permission for
transfer of land in excess of the prescribed limit
in favour of registered co-operative society or
institution established for charitable purpose,
subject to a limitation, which, if violated, the
same
stands
withdrawn.
Moreover,
the
conditions laid in permission dated 07.11.2005
has not been complied with. The Trust has also
violated the conditions laid down by the State
by not completing the construction within
stipulated period and did not submit the
statement in regard to acquisition of land and
construction made thereupon annually as well
as construction of 'mosque' over the acquired
land. (Para 28)

In addition to this, a case has been filed under
Section 134 of the Code as the Trust has
forcibly encroached upon the land of numbe rof
tenure holders whose land was adjoining the
Trust. The Chak Road, which is land of Gaon
Sabha and land adjoining the river belt has also
been included. (Para 33)

The declaration under Section 143 of the Act,
1950 will not save the case of the petitionerTrust from being hit by provisions of Section
157-A and the violation of conditions of
permission granted on 07.11.2005. Once the
transfer is viod, subsequent proceedings under
Section 143 woul dnot save the transfer made in
favour of Trust by members of Scheduled Caste.
(Para 35)

Writ Petition Rejected. (E-10)

List of Cases cited:

1. Kripa Shanker Vs Director Consolidation 1979
ALJ 693 (SC)

(Delivered by Hon'ble Rohit Ranjan
Agarwal, J.)

1. Heard Sri Syed Safdar Ali Kazmi,
learned counsel for the petitioner and Sri
Ajeet Kumar Singh, learned Additional
Advocate
General
along
with
Sri
Sudhanshu Srivastava, learned Additional
Chief Standing Counsel for the State.

2. The present petition has been
preferred for quashing of report dated
16.03.2020 submitted by Sub-Divisional
Magistrate, Rampur as well as for quashing
the order dated 16.01.2021 passed by
Additional
District
Magistrate
(Administration) Rampur/respondent No.2
in proceedings initiated under Section
104/105 of the U.P. Revenue Code, 2006
(hereinafter called as "the Code").

3. The facts, in nutshell, as disclosed in
the petition are that petitioner is a Society
registered under the provisions of Societies
Registration Act, 1860 (hereinafter called as
"Act, 1860") in the year 1995. It was in the
year 2005 that State of Uttar Pradesh enacted
U.P. Act No.19 of 2006 and thus came into
existence
the
Mohammad
Ali
Jauhar
University Act, 2005 (hereinafter called as
"Act, 2005"). The preamble of the Act, 2005
was as under :

"An
Act
to
establish
and
incorporate
a
Teaching
University
1074 INDIAN LAW REPORTS ALLAHABAD SERIES
sponsored by Maulana Mohammad Ali
Jauhar Trust at Rampur in Uttar Pradesh
and to provide for matters connected
therewith or incidental thereto."

4. Pursuant to the enactment of Act,
2005, the State Government in exercise of
power under Section 154(2) of U.P.
Zamindari Abolition & Land Reforms Act,
1950 (hereinafter called as "Act, 1950") on
07.11.2005 granted permission to Maulana
Mohammad Ali Jauhar Trust (hereinafter
called as "Trust") to acquire 400 acres of land
against ceiling of 12.5 acres (5.0586 hectare)
for establishment of University. The said
permission
was
granted
with
certain
restrictions/conditions, which are as under :

^^1⁄411⁄2 mDr Hkwfe /kkfjr djus gsrq fd;k
x;k laØe.k izpfyr vf/kfu;eksa] fu;eksa] fofu;eksa
vkfn ,oa le;≤ ij tkjh fd, x;s 'kklukns'kksa ds
v/khu gksxkA

1⁄421⁄2 mDr VaLV }kjk Hkwfe dk mi;ksx
vafdr 'kS{kf.kd laLFkkvks dh LFkkiuk@fuekZ.k gsrq ;g
vkns'k tkjh gksus ds 05 o"kZ ds Hkhrj dj fy;k tk;sxk
,oa fdlh Hkh n'kk esa mDr iz;kstu ls fHkUu iz;kstu ds
fy, ugha fd;k tk;sxkA

1⁄431⁄2 laLFkk@mlds fdlh Hkh inkf/kdkjh
}kjk Hkwfe dk dksbZ Hkh Hkkx fdlh laLFkk@O;fDr dks
fdlh Hkh :i esa 'kklu dh iwokZuqefr ds fcuk
gLrkUrj.k ugha fd;k tk;sxk] ysfdu _.k izkIr djus
ds mn~ns'; ls mDr VaLV dks iz'uxr Hkwfe fcuk dCtk
fn, foRrh; laLFkkvksa ds i{k esa cU/kd j[kus dk
vf/kdkj jgsxkA

1⁄441⁄2 VaLV }kjk izR;sd foRrh; o"kZ ds vUr
rd Ø;@/kkfjr dh xbZ Hkwfe@fuekZ.k vkfn dk
foLr`r fooj.k ftykf/kdkjh] jkeiqj }kjk 'kklu dh
izR;sd vizSy ekl esa izLrqr fd;k tk;sxkA

1⁄451⁄2 mi;qZDr fdlh Hkh 'krZ dk mYya?ku
gksus ij 12-50 ,dM ls] tks Hkh Hkwfe vf/kd gksxh] mls
jkT; ljdkj esa fufgr dj fy;k tk;sxk rFkk ,sls
fufgru ds cnys dksbZ izfrdj ugha fn;k tk,xk]
ysfdu ,sls fufgru ds iwoZ VaLV dks lquokbZ dks ,d
volj iznku fd;k tk;sxkA

1⁄461⁄2 VaLV }kjk LFkkfir fd;s tkus okys
f'k{k.k laLFkkuksa@ladk;ksa gsrq fu/kkZfjr ekud ds
vuqlkj Hkwfe rFkk mlls lEcfU/kr ,u0vks0lh0
iz'kklfud foHkkx ds fu/kkZfjr ekud ds vuqlkj izkIr
fd;k tkuk gksxkA**

5. Thereafter, on 17.01.2006, the State
Government
further
permitted
the
petitioner-Trust to purchase 45.91 acres
(18.587 hectare) land. The said permission
was in continuation with earlier order dated
07.11.2005 with the same condition.
Thereafter, on 16.9.2006, an additional
permission for purchase of 25 acres land
was granted by the State Government to the
Trust with the same conditions as was laid
down in the earlier order dated 7.11.2005.
Copies of permission granted by the State
Government have been brought on record
as Annexures 3, 4 and 5 to the writ petition.

6. According to the petitioner-Trust,
an inspection was made by Sub-Divisional
Officer,
Tanda,
District
Rampur
on
28.4.2009 and a report was submitted to the
District Magistrate, Rampur wherein it was
stated that construction was going on over
24000
Sq.Mts.
of
land.
Details
of
construction being carried out by the Trust
was given in the said report.

7 . It was in the year 2020, on report
submitted by Sub-Divisional Magistrate,
Sadar to the District Magistrate under
Section 10(2) of the U.P. Imposition of
Ceiling on Land Holdings Act, 1960
(hereinafter called as "Act, 1960") that
matter was assigned to the Additional
District Magistrate (Finance & Revenue)
Rampur. On 28.02.2020, the Additional
District Magistrate (Finance & Revenue)
directed the Sub-Divisional Magistrate to
prepare a report observing that Section
10(2) of Act, 1960 was not applicable and
was wrongly invoked. On 02.03.2020, the
District Magistrate directed the Sub-
9 All Maulana Mohammad Ali Jauhar Trust, Lucknow Vs. State of U.P. & Ors.
1075
Divisional Magistrate to prepare report in
accordance
with
the
observation
of
Additional District Magistrate (Finance &
Revenue) pursuant to which a detailed
report was submitted by the Sub-Divisional
Magistrate to respondent No.2 i.e. District
Magistrate, Rampur on 16.03.2020. On
17.03.2020, the matter was referred to
respondent No.3 by District Magistrate
directing him to adjudicate the matter on
merits under Section 104/105 of the Code.

8. The report dated 16.03.2020
contain four major allegations against the
petitioner-Trust i.e.

(i) Violation of Condition No.1 of
the
permission
granted
by
State
Government in the year 2005 specially by
violating Section 157-A of the Act, 1950
and also wrongfully acquiring the chak
road.

(ii) Condition No.2 was also
violated as the completion time fixed in the
permission i.e. 5 years was also not adhered
to by the petitioner-Trust and a mosque was
constructed
within
the
premises
of
University.

(iii) Condition No.4, which was
in regard to the submission of annual
report,
the
status
of
purchase
and
acquisition of land and construction thereon
was to be reported to the District
Administration annually but the Trust
failed to adhere to the said condition.

(iv) The Trust was not doing any
work in public interest.

9. Taking cognizance on the report, a
notice was issued on 18.03.2020 by
respondent no.3 to the Trust. On 14.08.2020,
the petitioner Trust through an advocate had
submitted an application before respondent
No.3 that Chairman of the Trust was
languishing in Sitapur Jail and no notice was
served upon the petitioner-Trust and it came
to the knowledge only through the media
reports. It was further brought to the notice of
respondent No.3 that as the Chairman and
Secretary both are in Sitapur Jail, proper
reply could not be filed. However, on
17.09.2020, a reply was filed on behalf of the
Trust before respondent No.3 stating that
report dated 16.03.2020 was an ex parte
report.

10. The Additional District Magistrate
(Administration) Rampur (respondent No.3),
after hearing the State as well as the
petitioner-Trust, vide order dated 16.01.2021
held that the petitioner-Trust had violated the
condition laid down in the permission granted
on 07.11.2005, as such land in excess of
12.50 acre stood vested in the State in view of
Section 104/105 of the Code.

11. Sri Syed Safdar Ali Kazmi, learned
counsel for the petitioner submitted that all
the active members of the Trust such as
Mohammad Azam Khan (President), Dr.
Tazeen Fatima (Secretary) and Abdullah
Azam Khan (Member) are in Sitapur Jail
since 26.02.2020 and no notice was served
upon them in jail. The objection was filed
only on behalf of the Trust on 17.09.2020 and
preliminary objection regarding jurisdiction
was filed which was wrongly rejected on
14.10.2020. The said order is under challenge
before the Board of Revenue. He further
contended that written submission, which
was submitted by the State was not served
upon the petitioner and they were not granted
time to rebutt the same.

12. Learned counsel emphasised that
once the Trust was granted permission
under Section 154(2) of the Act, 1950, the
1076 INDIAN LAW REPORTS ALLAHABAD SERIES
land purchased from different tenure
holders, details of which have been given
in para 16 of the writ petition and
declaration under Section 143 of the Act,
1950 was made for large part of the land.
Further,
the
inspection
report
dated
28.4.2009 fortifies the fact that condition
No.2 was fulfilled by the Trust as
construction was made over 24000 Sq.Mts.
of land.

13. Sri Kazmi further submitted that
no
land
has
been
purchased
in
contravention of Section 157-A of the Act
of 1950 and the proceedings, which was
initiated, was turned down by the SubDivisional
Magistrate,
Rampur
and
Commissioner, Moradabad on 17.7.2013
and 7.11.2013, and the said orders were
challenged before the Board of Revenue
after considerable delay and the Board of
Revenue, on 14.01.2020, reversed the
orders of Sub-Divisional Magistrate and
Commissioner,
which
is
pending
consideration before this Court.

14. As far as finding recorded for
violation of Condition No.4 of the
permission is concerned, he submitted that
the District Authorities are well aware of
the sale deeds executed in favour of the
Trust and the report dated 28.4.2009 is
ample proof for the said charge. He further
tried to impress upon, that University was
doing a great public work by imparting
education in 23 different streams and was
catering to large area of population. Lastly,
it was contended that if the land was
acquired in excess of permission granted
under Section 154(2) of the Act, 1950, the
same is saved by provisions of Section
154(3), which provides for approval of the
State Government, if any application is
filed and the approval is made after deposit
of fine, as contained in the explanation to
the said section.

15. Opposing the writ petition,
learned Additional Advocate General Sri
Ajit Kumar Singh, submitted that the order
impugned under Section 104/105 of the
Code was revisable under Section 210 of
the Code and writ petition was not
maintainable.

16. However, on merits, he contended
that the permission granted on 07.11.2005
was very specific and it provided that any
land, which was acquired, was subject to the
provisions of the Act and Rules. In the
present case, land was acquired from
members of Scheduled Caste community
such as Laxman Singh, Bhagwan Das,
Rajveer, Mahesh, Chandrawati, Ram Prasad
and Ram Chandra Singh, all resident of
Village Seegankhera as well as Bansi Singh,
who is a lease holder under Section 4-A of
the Act, 1960, without obtaining mandatory
permission under Section 157-A of the Act,
1950 i.e. Section 89 of the Code. Not only
the land of Scheduled Caste community was
taken without permission, but also the Chak
Road and the land adjoining the river, which
is a public utility land of Gaon Sabha, was
also taken over by the Trust. Further, the
land of number of tenure holders had been
forcibly taken by the Trust and the
proceedings under Section 134 of the Code
is pending before the Revenue Authorities.
It was further contended that not only this,
the
tenure
holders
had
lodged
first
information report against the Trustees. It is
also contended that the petitioner-Trust had
taken over the land of enemy property.
About 26 farmers had lodged a first
information report against the Chairman of
the Trust Mohammad Azam Khan for land
grabbing.
9 All Maulana Mohammad Ali Jauhar Trust, Lucknow Vs. State of U.P. & Ors.
1077

17. Replying to the argument of
petitioner that no land from the Scheduled
Caste/Scheduled Tribe was purchased by
the Trust without consent of District
Magistrate, it was contended that after the
order
of
Board
of
Revenue
dated
14.01.2020 petitioner -Trust preferred Writ
-B No.437 of 2020 (Maulana Mohammad
Ali Jauhar Trust vs. State of U.P. and
Another) and this Court on 21.10.2020 had
dismissed the petition filed by the Trust in
which the counsel, after filing the writ
petition, did not appear before the Court.
Once the writ was dismissed, and it was
held that the sale deed executed by person
belonging to Scheduled Caste in favour of
the member of general category being hit
by provision of Section 157-A, the
condition No.1 stands violated.

18. Secondly, the permission granted
on 7.11.2005 was specific in regard to
completion of work within five years, while
the report dated 28.4.2009 only takes note
of the fact that certain constructions were in
progress over certain part of land and the
petitioner has not brought any material on
record to prove that construction was
completed within the time fixed by the
State Government and the intimation was
given. Sri Singh further contended that
construction of a mosque inside the
University premises was against the spirit
of
sanction
granted
by
the
State
Government
on
07.11.2005
which
categorically provided that the land was
strictly to be used for educational Trust and
not otherwise.

19. I have heard rival submissions of
the parties and perused the material
available on record.

20. Before proceeding to decide the
issue in hand, a necessary glance of
certain provisions of Act, 1950 as well as
Code is necessary. Relevant Sections
154, 157-A, 157-C, 166 and 167 of the
Act, 1950 and Sections 89, 98, 104, 105
and
230
of
Code
are
extracted
hereasunder:

Provisions of Act, 1950

"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, authorise transfer in excess of the
limit prescribed in sub-section (1), if it is of
the opinion that such transfer is in favour
1078 INDIAN LAW REPORTS ALLAHABAD SERIES
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.

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 transferee is a minor
also his or her parents.

(3) For every transfer of land in
excess of the limit prescribed under
subsection (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"

"157A. Restrictions on transfer
of land by members of Scheduled Castes. -
(1) Without prejudice to the restrictions
contained in Sections 153 to 157, no
bhumidhar or asami belonging to a
Scheduled Caste shall have the right to
transfer any land by way of sale, gift,
mortgage or lease to a person not
belonging to a Scheduled Caste, except
with
the
previous
approval
of
the
Collector:

Provided that no such approval
shall be given by the Collector in case
where the land held in Uttar Pradesh by
the transferor on the date of application
under this section is less than 1.26 hectares
or where the area of land so held in Uttar
Pradesh by the transferor on the said date
is after such transfer, likely to be reduced
to less than 1.26 hectares.

(2) The Collector shall, on an
application made in that behalf in the
prescribed manner, make such inquiry as
may be prescribed."

"157C. Mortgage of holdings by
members of Scheduled Caste or Scheduled
Tribe
in
certain
circumstances. -
Notwithstanding anything contained in
Sections 157-A and 157-B, a bhumidhar or
asami belonging to a Scheduled Caste or
Scheduled Tribe may mortgage without
possession his holding or part thereof in
the circumstances specified in sub-section
(3) of Section 152.

Explanation.- In. this chapter, the
expressions
'Scheduled
Castes'
and
'Scheduled Tribes' shall mean respectively
the Scheduled Castes and the Scheduled
Tribes specified in relation to Uttar
Pradesh under Articles 341 and 342 of the
Constitution."

"166.
Transfer
made
in
contravention of the Act to be void.- Every
transfer made in contravention of the
provisions of this Act shall be void."

"167. Consequences of void
transfers- (1) The following consequences
shall ensue in respect of every transfer
9 All Maulana Mohammad Ali Jauhar Trust, Lucknow Vs. State of U.P. & Ors.
1079
which is void by virtue of Section 166,
namely-

(a) the subject-matter of transfer
shall with effect from the date of transfer,
be deemed to have vested in the State
Government free from all encumbrances;

(b) the trees, crops and wells
existing on the land on the date of transfer
shall, with effect from the said date, be
deemed to have vested in the State
Government free from all encumbrances;
and

(c) the transferee may remove
other moveable property or the materials of
any immovable property existing on such
land on the date of transfer within such
time as may be prescribed.

(2) Where any land or other
property
has
vested
in
the
State
Government under sub-section (1), it shall
be lawful for the Collector to take over
possession over such land or other
property and to direct that any person
occupying such land or property be evicted
therefrom. For the purposes of taking over
such
possession
or
evicting
such
unauthorised occupants, the Collector may
use or cause to be used such force as may
be necessary."

Provisions of Code

"89. Restrictions on transfer by
bhumidhar.-(1) No bhumidhar shall have
the right to transfer any holding or part
thereof where such transfer contravenes
or is likely to contravene the provisions
of sub-section (2) or sub-section (3).

(2) Subject to the provisions of
sub-section (3), no person shall have the
right to acquire by purchase or gift any
holding or part thereof from a bhumidhar
with
transferable
rights,
where
the
transferee shall, as a result of such
acquisition, become entitled to land
which together with land, if any, held by
such transferee and where the transferee
is a natural person, also together with
land, if any, held by his family shall
exceed 5.0586 hectares in Uttar Pradesh.

(3) The State Government or an
officer authorized for this purpose under
this Act may approve an acquisition or
purchased done or propose to be done, in
excess of the limits specified in subsection (2), if such acquisition or
purchase is in favour of a registered firm,
company,
partnership
firm,
limited
liability partnership firm, trust, society or
any
educational
or
a
charitable
institution; and if it is of opinion that the
acquisition or purchase would be in
public interest and likely to generate
economic
activities
(other
than
agricultural) and provide employment. In
such case, the provisions of the Uttar
Pradesh Imposition of Ceiling on Land
Holdings Act, 1960 shall not apply to
such acquisition :

Provided that where the land
has been acquired or purchased by a
registered firm, company, partnership
firm, limited liability partnership firm,
trust, society or any educational or a
charitable institution, without obtaining
prior approval under this sub-section the
State
Government
or
an
officer
authorized for this purpose under this
Act,
may
give
its
approval
for
regularizing such acquisition or purchase
afterwards on payment of an amount as
fine, which shall be five percent of the
cost of the land in excess of the limit
1080 INDIAN LAW REPORTS ALLAHABAD SERIES
prescribed
under
sub-section
(2),
calculated as per the circulated as per
the circle rate prevailing at the time of
making the application.

(4) Permission under sub-section
(3) for acquisition or purchase of land by a
registered firm, company, partnership firm,
limited liability partnership firm, trust,
society or any educational or a charitable
institution in excess of limits prescribed
under sub-section (2) shall be granted, on
the
conditions
and
in
the
manner
prescribed, by:-

(i) the Collector concerned for
acquisition or purchase of land upto
20.2344 hectares ;

(ii) the Commissioner concerned
for acquisition or purchase of land more
than 20.2344 hectares and upto 40.4688
hectares ;

(iii) the State Government for
acquisition or purchase of land more than
40.4688 hectares:

Provided that if the applicant fails to
set up the project within a period of five years
from the date of grant of permission under sub
section (3), the same shall lapse and the land
acquired or purchased in excess of the limit
prescribed under sub-section (2) shall vest in
the State and the consequences of section 105
shall become applicable:

Provided further that the State
Government may extend the period of
permission granted under sub section (3) for a
further period of maximum three years, after
recording reasons for the same."

"98. Restrictions on transfer by
bhumidhars belonging to a scheduled caste-
(1) Without prejudice to the provisions of this
Chapter, no bhumidhar belonging to a
scheduled caste shall have the right to transfer,
by way of sale, gift, mortgage or lease any land
to a person not belonging to a scheduled caste,
except with the previous permission of the
Collector in writing:

Provided that the permission by the
Collector may be granted only when-

(a) the bhumidhar belonging to a
scheduled caste has no surviving heir specified
in clause (a) of sub-section (2) of Section 108 or
clause (a) of Section 110, as the case may be;
or

(b) the bhumidhar belonging to a
scheduled caste has settled or is ordinarily
residing in the district other than that in which
the land proposed to be transferred is situate or
in any other State for the purpose of any service
or any trade, occupation, profession or
business; or

(c) the Collector is, for the reasons
prescribed, satisfied that it is necessary to grant
the permission for transfer of land.

(2) For the purposes of granting
permission under this section, the Collector
may make such inquiry as may be prescribed."

"104. Every Lease or transfer of
interest in any holding or part thereof made by
a bhumidhar or any asami in contravention of
the provisions of this Code shall be void."

105. Consequences of transfer by
bhumidhar in contravention of the Code.- (1)
Where transfer of interest in any holding or
part made by a bhumidhar is void under
Section 104, the following consequences shall,
with effect from the date of such transfer, ensue,
namely-
9 All Maulana Mohammad Ali Jauhar Trust, Lucknow Vs. State of U.P. & Ors.
1081

(a) the subject matter of such
transfer shall vest in the State Government
free from all encumbrances;

(b) the trees; crops, wells and
other improvements; existing on such
holding or part shall vest in the State
Government free from all encumbrances;

(c) the interests of the transferor
and the transferee in the properties specified
in clauses (a) and (b) shall stand extinguished;

(d) the extinction of interest of the
transferor under clause (c) shall operate to
extinguish the interest of any asami holding
under him;

(e) the provisions of this section
shall not apply to any lease made under
section 94.

(2) Where any land or other
property has vested in the State Government
under subsection (1) it shall be lawful for the
Collector to take over possession of such land
and other property, and to direct that any
person occupying such land or property be
evicted therefrom, and for that purpose, the
Collector may use or cause to be used such
force as may be necessary and the provisions
of Section 59 mutatis mutandis shall apply to
such property."

230. Repeal.- (1) The enactments
specified in the First Schedule are hereby
repealed.

(2)
Notwithstanding
anything
contained in sub-section (1), the repeal of
such enactments shall not affect-

(a) the continuance in force of
any such enactment in the State of
Uttarakhand;

(b) the previous operation of any
such enactment or anything duly done or
suffered thereunder; or

(c) any other enactment in which
such
enactment
has
been
applied,
incorporated or referred to; or

(d) the validity, invalidity, effect
or consequences of anything already
done or suffered, or any right, title or
obligation or liability already acquired,
accrued
or
incurred
(including,
in
particular, the vesting in the State of all
estates and the cessation of all rights,
title and interest of all the intermediaries
therein), or any remedy or proceeding in
respect thereof, or any release or
discharge of or from any debt, penalty,
obligation, liability, claim or demand, or
any indemnity already granted or the
proof of any past act or thing; or

(e) any principle or rule of law or
established jurisdiction, form or course of
pleading practice or procedure or existing
usage,
custom,
privilege,
restriction,
exemption, office or appointment:

Provided that anything done or
any action taken (including any rules,
manuals, assessments, appointments and
transfers made, notifications, summonses,
notices, warrants, proclamations issued,
powers
conferred,
leases
granted,
boundary marks fixed, records of rights
and other records prepared or maintained,
right acquired or liabilities incurred) under
any such enactment shall, in so far as they
are not inconsistent with the provisions of
this Code, be deemed to have been done or
taken under the corresponding provisions
of this Code, and shall continue to be in
force accordingly, unless and until they are
superseded by anything done or action
taken under this Code."
1082 INDIAN LAW REPORTS ALLAHABAD SERIES

21. The provisions of Section 89 of
Code is corresponding to Section 154 of
Act, 1950. Similarly, Section 98 of Code is
corresponding Section 157-A of the Act,
1950. Further, Section 104 and 105 of the
Code are corresponding to Sections 166
and 167 of the Act, 1950 while Section 230
of the Code was introduced on 11.2.2016
repealing the enactment enlisted in the First
Schedule and Act of 1950 finds place at
Serial No.19. Thus, from 11.2.2016, Act,
1950 stood repealed.

22. The proceedings, which had
commenced in the year 2020 on the basis
of report of Sub-Divisional Magistrate,
Rampur was registered under Section
104/105 of the Code. The report indicated
that the land purchased by the Trust
pursuant to the permission granted on
07.11.2005, 17.01.2006 and 16.09.2006
was in contravention to the provisions
contained in Section 157-A of Act of 1950,
which is pari materia to Section 89 of the
Code. The opening words lay a restriction
upon bhumidhar or asami, belonging to
Schedule Caste, to transfer any land by way
of sale, gift, mortgage or lease to a person
not belonging to a Scheduled Caste, except
with the previous approval of the Collector.
Thus, the mandatory requirement contained
in Section 157-A of Act, 1950 has to be
adhered to before any transaction is entered
into between the parties in respect of any
land belonging to members of Scheduled
Caste. Explanation to Section 157-C
defines the expression ''Scheduled Castes'
and ''Scheduled Tribe', which means
Scheduled Castes and Scheduled Tribes
specified in relation to Uttar Pradesh under
Articles 341 and 342 of the Constitution.

23. Learned Additional Advocate
General had pointed out from the order
impugned the names of various persons
such as Laxman Singh, Bhagwan Das,
Rajveer,
Mahesh,
Chandrawati,
Ram
Prasad, Ram Chandra Singh and Banshi
Singh, belonging to Scheduled Caste
category and no prior permission was taken
from Collector by the Trust before entering
into transaction, as contemplated under
Section 157-A of the Act, 1950. The
argument of petitioner's counsel to the
extent that once permission was granted by
the State Government on 07.11.2005, the
Trust proceeded to purchase the land
cannot be accepted. Furthermore, reliance
upon
the
order
of
Sub-Divisional
Magistrate, Rampur and Commissioner,
Moradabad
dated
17.7.2013
and
07.11.2013 regarding permission being
granted by District Magistrate cannot be
accepted as the said orders were quashed
by the Board of Revenue on 14.01.2020
and writ petition filed before this Court was
dismissed
on
21.10.2020,
wherein
following order was passed :

"Case called out in the revised
list. None has appeared to press this writ
petition.

Similar has been the situation on
earlier occasions.

I have perused the impugned
orders and do not find any illegality,
therein.
Land, which was subject matter of sale
deed executed by a person belonging to the
scheduled caste in favour of member of the
general category has been found to be hit
by Section 157-A of the U.P. Zamindari
Abolition and Land Reforms Act having
been executed without having obtained
prior approval/ permission for the same.

As a consequence and in view of
Section 167 and 166 of the said Act, the
9 All Maulana Mohammad Ali Jauhar Trust, Lucknow Vs. State of U.P. & Ors.
1083
land subject matter of this illegal sale deed
has been ordered to vest in the State free
from all encumbrances.

No evidence or order granting
permission for executing the sale deed is
filed with the writ petition, apart from the
document which has been discarded by the
Courts below for cogent reasons.

Accordingly, this Court finds that
the impugned orders are perfectly justified
and call for no interference.

The writ petition is accordingly,
dismissed."

24. Once the order of Board of
Revenue became final and the writ petition
was dismissed, the stand of the petitioner
looses ground that transfer of land was not
in contravention to Section 157-A of Act,
1950.

25.

The
finding
recorded
by
respondent No.3 as to the transfer made by
members of Scheduled Caste has not been
denied by the petitioner-Trust in the writ
petition to the extent that they have not
purchased the land from the persons
mentioned in the said judgment. Bare
averment that provisions of Section 157-A
of Act, 1950 is not violated will not suffice,
as order clearly mentions the name of
members of Scheduled Caste and the area
of land, which was transferred by them.
Once such finding has come and the same
having not been assailed in the writ
petition, the order passed in proceedings
under Section 104/105 of Code cannot be
interfered and the land has rightly been
vested with the State Government.

26. Now coming to the argument of
the petitioner' counsel as to compliance of
condition
laid
in
permission
dated
07.11.2005 and of year 2006, which is
reflected from the report of Sub-Divisional
Magistrate dated 28.4.2009 appears to be
not convincing as the condition laid down
in permission granted on 07.11.2005
specifically provided for construction to be
completed within five years.

27. The report of the year 2009 only
indicates that construction work was in
progress over 24,000 Sq.Mts. of land.
Moreover,
no
document
was
either
produced before the authorities, nor placed
before this court to sustantiate that the
condition was fulfilled. Finding recorded
by respondent No.3 as to the construction
constrution of ''Mosque' is also in violation
of condition of sanction/permission as the
Trust was required to use land only for
educational purpose. The argument that the
campus
had
residential
premises
for
teaching as well as non-teaching staff, a
''Mosque' was constructed for them cannot
be accepted as it goes against the
permission granted by the state.

28. As Section 154(2) of Act, 1950
clearly empowers the State to grant
permission for transfer of land excess of the
prescribed limit in favour of registered cooperative society or institution established
for charitable purpose, the said permission
comes with certain restriction/condition,
which, if violated, the same stands
withdrawn.

29. In the present case, permission for
transfer of land in excess to 12.50 acres
was granted solely for establishing an
educational institution. The establishment
of a ''mosque' was against the permission
granted on 07.11.2005 thus the Trust
violated the conditions and Condition no.5
clearly provided that in case of violation of
any of the condition, land excess of 12.50
1084 INDIAN LAW REPORTS ALLAHABAD SERIES
acres will vest in the State Government
after affording opportunity of hearing.
Neither in the reply before respondent No.3
nor before this court petitioner-Trust could
justify the action for establishing a
''mosque' which was in clear violation of
the condition laid down in the permission
order dated 07.11.2005.

30. Coming to the next argument
which relates to submission of annual
reports and information in regard to the
land and construction to the District
Magistrate in the month of April every
year, the petitioner-Trust could not place
any
document
to
substantiate
that
compliance of Condition No.4 was made.
From bare reading of permission granted
on 07.11.2005, it appears that Condition
no.2 and 4 are quite inter-related as the
intention
of
the
State
in
granting
permission was clear that the construction
was to be made within five years and the
Trust was required to submit annual
report regarding status of purchase of
land as well as construction made over it
before the Collector in the month of
April.

31.