# Fiza Parveen v. Indian Oil Corporation Ltd. Head Office Bandra (East), Mumbai & Ors

- **Citation:** (2021) 2 ILRA 292
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2020-03-20
- **Case number:** Writ C No. 18738 of 2010
- **Bench:** Arun Tandon, Mrs. Rekha Dikshit
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/fiza-parveen-v-indian-oil-corporation-ltd-head-office-bandra-east-mumbai-ors-44318
- **Pages:** 3

## Headnote

Lease - U.P.Z.A. & L.R. Act - S.165 - Lease
in contravention of S. 157 - Where the
total area of the land holding of the lessee
along with his family members is less than
12.5
acres,
then
lessee
becomes
bhumidhar with non-transferable right-
U/s
142
- bhumidhar
with
nontransferable rights can use the land only
for
the
purposes
connected
with
Agriculture,
Horticulture,
Animal
Husbandry, Pisciculture, Poultry Farming,
Social Forestry - Held - such land cannot
be offered for the purposes of setting up
of a retail outlet.

Writ Petition dismissed. (E-4)

## Text

292 INDIAN LAW REPORTS ALLAHABAD SERIES

6. The principle of audi alteram
partem is a fundamental principle of the
rules of natural justice and it requires the
decision maker to give prior notice of the
proposed decision to the person who is to
be affected and to provide an opportunity to
make representation. The right to be given
a notice containing the charges and the
proposed action is a basic right and its
violation
amounts
to denial
of
fair
opportunity to the person concerned.

7. The order impugned cancelling the
petitioner's licence, having thus travelled
beyond the bounds of notice, is clearly
impermissible to that extent, and cannot be
legally sustained.

8. In taking this view we are fortified
by the decisions in Mahipal Singh Tomar
Vs. State of U.P. and others2 and Keshav
Mills Company Ltd. Vs. Union of India
and others3.

9. That apart, in the impugned order,
no finding has been recorded by the
respondent no. 6 that any provision of the
relevant rules governing the terms of
licence have been violated by the petitioner,
which may result in cancellation of his
licence.

10. Under the circumstances, the
impugned order dated 20.03.2020 passed
by the respondent no. 6 cannot be sustained
and is hereby quashed.

11. The writ petition is allowed.
----------
(2021)02ILR A292
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 11.04.2017

BEFORE
THE HON'BLE ARUN TANDON, J.
THE HON'BLE MRS. REKHA DIKSHIT, J.

Writ C No. 18738 of 2010

Fiza Parveen ...Petitioner
Versus
Indian Oil Corporation Ltd. Head Office
Bandra (East), Mumbai & Ors.
 ...Respondents

Counsel for the Petitioner:
Sri K. Ajit

Counsel for the Respondents:
Sri P. Padia, S.C.

Lease - U.P.Z.A. & L.R. Act - S.165 - Lease
in contravention of S. 157 - Where the
total area of the land holding of the lessee
along with his family members is less than
12.5
acres,
then
lessee
becomes
bhumidhar with non-transferable right-
U/s
142
- bhumidhar
with
nontransferable rights can use the land only
for
the
purposes
connected
with
Agriculture,
Horticulture,
Animal
Husbandry, Pisciculture, Poultry Farming,
Social Forestry - Held - such land cannot
be offered for the purposes of setting up
of a retail outlet.

Writ Petition dismissed. (E-4)

(Delivered by Hon'ble Arun Tandon, J.
&
Hon'ble Mrs. Rekha Dikshit, J.)

1. Heard learned counsel for the
parties.

2. This writ petition is directed
against the order of the Indian Oil
Corporation dated 17.3.2010.

3. On a complaint being received with
regards to the correctness or otherwise of
the land documents submitted by the writ
petitioner for setting up the Kisan Seva
2 All. Fiza Parveen Vs. Indian Oil Corporation Ltd. Head Office Bandra (East), Mumbai & Ors. 293
Kendra as per the advertisement published
by Indian Oil Corporation, the matter was
examined and it has been found that the
lease deed said to have been executed by
the recorded tenure holder in favour of the
writ petitioner was hit by provision
156/157 of the U.P.Z.A. & L.R. Act, 1950.
Therefore, it has been held that in light of
Section 165 the petitioner had no right to
construct for over such land. It has also
been noticed that the petitioner subsequent
by purchased the land and on the the date
of interview i.e. 8.2.2008. Under the
subsequent deed earlier lease deed had
been cancelled.

4. The Corporation has found that such
change of right over the land of offered
subsequent to the last date of application does
not material effect the marks awarded under
the various heads including the facility of
infrastructure/land which had to be computed
with reference to the averments made in the
application
form.
Accordingly,
the
Corporation has held that the petitioner was
not entitled for restoration of letter of intent.
This order has been passed in compliance
with the direction issued by the Writ Court in
Writ Petition No.23187 of 2009 decided on
5.5.2009 filed by the present petitioner
herself.

5. On behalf of the petitioner, it is
contended that a similar issue has been
examined by a Division Bench of this Court
in the Case of Padam Singh Vs. Indian Oil
Corporation Ltd. and others and it has been
held that the provisions of Section 157 read
with Section 165 of the U.P.Z.A. & L.R. Act,
do not in any way affect the Clauses of
brochure providing for the valuation of the
land offered by the respective candidate.

6. Sri K. Ajit, counsel for the petitioner
vehemently contended before us that in view
of the said judgment, the order passed by the
Corporation needs to be quashed.

7. We have heard learned counsel for
the parties and examined the records of the
present writ petition. We may record that
under Section 165 of U.P.Z.A. & L.R. Act,
any lease executed in violation of Section 157
of the U.P.Z.A. & L.R. Act, 1950 result in
two consequences;-

(a) Where the total area of the
land holding of the lessee along with his
family members is found to be less than
12.5 acres, in that circumstance he becomes
bhumidhar with non transferable right

(b) While under Clause (b) of the
same Section, if the total area of the lessee
along with his family members exceeds
12.5 acres then the consequences as
contained in Section 154 and 163 shall
mutatis mutandis apply.

8. Counsel for the petitioner would
contend that the petitioner would get a
better title because of the lease having been
executed in violation of Section 157 of
U.P.Z.A. & L.R. Act, 1950.

9. If the petitioner claims benefit of
Clause (1) of Section 154 he is further
required to demonstrate that the total area
of land holding in his name as well as name
of other family members including the area
of transfer land does not exceed 12.5 acres,
we may record that there is no such
pleading in the entire writ petition, if
Clause (b) is attracted and the total area
exceeds 12.5 acres then the provisions of
Section 154 would mutatis mutandis
applied meaning thereby that there cannot
transfer sell of the land in excess of 12.5
acres without a written permission of the
State Government reference Section 154
Sub Clause (3). Since admittedly, no
294 INDIAN LAW REPORTS ALLAHABAD SERIES
permission has been taken from the
Government has been obtained the transfer
would be bad in violation of law

10. We are, further, of the opinion that
the Corporation has committed no wrong is
not relying upon the document of transfer
of rights in respect of immovable property,
which has been made in violation of law.

11. Another aspect of the matter,
which does need consideration is with
regards to the provision of Section 142 of
the U.P.Z.A. & L.R. Act, 1950. The said
Section is in two parts which provides as
under:-

12. Sub-section (1) discloses that
bhumidhar with transferable rights will
have the right to exclusive possession over
the land and to use it for any purpose
whatsoever.

13. Sub-section (2) defines the
rights of bhumidhar with non transferable
rights. It is clarified that while he will
have right to exclusive possession of all
land of which he bhumidhar but the land
can be put to use it for the purposes
connected with Agriculture, Horticulture
and Animal Husbandry which included
the Pisciculture, Poultry Farming and
Social Forestry.

14. It is therefore, the consequences
under Section 165 because of the lease
being in violation of Section 157 of the
U.P.Z.A & L.R. Act, 1950 would be that
the petitioner would have acquired the
right of bhumidhar with non transferable
rights therein, in that circumstances the
provision of Section 142 would come into
play and the land cannot be used except
for
the
purpose
of
Agriculture
Horticulture
and
Animal
Husbandry
including
with
Pisciculture,
Poultry
Farming and Social Forestry.

15. The Indian Oil Corporation
appears to be more than correct in
contending that such land cannot be
offered for the purposes of setting up of a
retail outlet.

16.

In
the
totality
of
the
circumstances on record, we see no
reason to interfere with the order of
Indian Oil Corporation, however, we
leave it open to the petitioner to
demonstrate before the Corporation that
because of the sale deed having been
executed in his favour his right over the
land, which was offered along with the
application have become better and it was
for the Corporation to examine and take
appropriate action in accordance with
law.

17. The writ petition is dismissed
subject to the observations made above.
----------
(2021)02ILR A294
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 16.12.2020

BEFORE

THE HON'BLE SURYA PRAKASH
KESARWANI, J.
THE HON'BLE DR. YOGENDRA KUMAR
SRIVASTAVA, J.

Writ C No. 20203 of 2020

Matsya Jivi Sahkari Samiti Ltd. Karauta,
Gorakhpur ...Petitioner
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Sri Vijay Kumar