# Lakhanpur Co-op. Housing Society Ld. & another v. Board of Revenue & others

- **Citation:** (2007) 3 ILRA 845
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2007-09-10
- **Case number:** Civil Misc. Writ Petition No. 32283 of 1994
- **Bench:** Krishna Murari
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/lakhanpur-co-op-housing-society-ld-another-v-board-of-revenue-others-41084
- **Pages:** 4

## Headnote

Sri Lalji Sinha
Sri Sanjay Kumar Om

U.P. Zamindari and Land Reform ActSection
166,167-Transfer
of
landbeyond ceiling limit made in 1968-69suit filed in Dec. 1976-beyond 8 yearsheld-rightly dismissed as barred by
limitation.

Held: Para 10

From the findings of fact recorded by
trial court as well as lower appellate
Court, it is clear that all the suits filed by
respondent no. 4 in December 1976 with
regard to sale deeds executed in favour
of petitioner in the years 1967, 1968 and
1969 were apparently filed beyond the
prescribed period of limitation of six
years and thus were rightly dismissed as
barred by limitation.
Case law discussed:
1979 RD-80

## Text

3 All] Lakhanpur Co-op. Housing Society Ld. & another V. Board of Revenue & others
845
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 10.09.2007

BEFORE
THE HON'BLE KRISHNA MURARI, J.

Civil Misc. Writ Petition No. 32283 of 1994
Connected with
Civil Misc. Writ Petitions No. 37405,
37407, 37408, 37409, 37461, 37464,
37465, 37466, 37467, 37468, 37469 and
37472 of 1994

Lakhanpur Co-operative Housing Society
limited and another

...Petitioner
Versus
Board of Revenue, Uttar Pradesh at
Allahabad and others
 ...Respondents

Counsel for the Petitioner:
Sri R.L. Singh
Sri Arun Kumar Singh
Sri V.K. Singh
Sri A.K. Singh
Sri Ashok Trivedi
Sri R.P. Gupta

Counsel for the Respondents:
Sri Lalji Sinha
Sri Sanjay Kumar Om

U.P. Zamindari and Land Reform ActSection
166,167-Transfer
of
landbeyond ceiling limit made in 1968-69suit filed in Dec. 1976-beyond 8 yearsheld-rightly dismissed as barred by
limitation.

Held: Para 10

From the findings of fact recorded by
trial court as well as lower appellate
Court, it is clear that all the suits filed by
respondent no. 4 in December 1976 with
regard to sale deeds executed in favour
of petitioner in the years 1967, 1968 and
1969 were apparently filed beyond the
prescribed period of limitation of six
years and thus were rightly dismissed as
barred by limitation.
Case law discussed:
1979 RD-80

(Delivered by Hon'ble Krishna Murari, J.)

1. These are 13 connected writ
petitions raising common question of law
and facts and are directed against
common judgement and order dated
2.9.1994 passed Board of Revenue
deciding 13 Second Appeals.

2. Heard Sri Ashok Trivedi, learned
counsel appearing for the petitioner,
learned standing counsel and Sri Lalji
Sinha assisted by Sri Sanjay Kumar Om
appearing for respondent no. 7.

3. The petitioner a registered society
purchased certain land on various dates in
the years 1966, 1967 and 1968 from
various tenure holders through different
registered sale deeds. In December 1976,
respondent no. 4 filed 13 suits under
section 163 of U.P. Zamindari abolition &
Land reforms Act (for short the 'Act') on
the ground that petitioner-society has
acquired more than 12.50 acres of land by
means of various sale deeds without
permission of the State Government and
thus was liable to be ejected from the
surplus land and the same was liable to be
vested in the State. All the suits were
consolidated. On the basis of pleadings
between the parties Additional Collector
1st Class framed various issues. One of the
issue, was whether the proceedings are
barred by time. Respondent no. 3 finding
that the proceedings were barred by time
vide common order dated 29.5.1979
dismissed all the 13 cases. Respondent
no.4 went up in appeals. Appellate court
vide order dated 26.5.1981 dismissed all
the
appeals.
Appellate
order
was
846 INDIAN LAW REPORTS ALLAHABAD SERIES [2007
challenged by respondent no. 4 by filing
13 second appeals. Board of Revenue
vide order dated 2.9.1994 allowed the
same holding that sale deeds were void
under section 166 of the Act and the
surplus land was liable to be vested In the
State under Section 167. Aggrieved,
petitioner has approached this Court.

4. It has been urged by learned
counsel for the petitioner that law as it
stood at the time of execution of sale
deeds would apply to the case and the
Board of Revenue without considering the
provisions of Section 163 as it then stood
has wrongly and illegally allowed the
second appeals holding that the suit would
not be barred by limitation and wrongly
relying upon Section 167 has held the
transfers to be void.

5. In reply, it has been submitted
that since there is a ceiling on holding
more than 12.50 acres of land in the State
of Uttar Pradesh and consequently any
transfer made in violation of the said
provision would be void in accordance
with the provisions if contained in section
166 and it is immaterial whether the sale
deed was executed before deletion of
section 163 from the statue or thereafter.

6. I have considered the arguments
advanced on behalf of learned counsel for
the parties and perused the record.

Section 163 relevant for the purpose
of the case as it stood originally reads as
under,

"163. Transfer in contravention of
this Act- Where a transfer of any holding
or part thereof has been made in
contravention of the provision of Section
154 or 157-A, the transferee and every
person who may have thus obtained
possession of the whole or part of the
holding shall, notwithstanding anything in
any law, be liable to ejectment from such
holding or part on the suit of the Gaon
Sabha, which shall thereupon become
vacant land; but nothing in this section
will prejudice the right of the transferor
to realize the whole or portion of the price
remaining unpaid or the rights of any
other person other than the transferee to
proceed against such holding or land in
enforcement of any claim thereto.
(2)
..................
(3)
.................."

Section 154 as it stood at the relevant time
reads as under;

"154. No bhumidhar shall have the
right to transfer by sale or gift, any land
other than tea gardens to any person
(other than institution established for a
charitable purpose) Where such person
shall as a result of the sale or gift, become
entitled to land which together with land,
If any, held by himself or together with his
family will, in the aggregate, exceed
12.50 acres in Uttar Pradesh.
Explanation 1.- For the purposes of
this section a family shall include the
transferee himself, his wife or husband, as
the case may be, an his minor children."

7. Section 154 as it then stood in the
statute only placed restriction on the
transfers
by
the
bhumidhar.
The
consequences of any transfer in breach of
the restriction imposed was not specified
in the said section rather it was contained
in Section 163 quoted above which
provided that where ever a transfer is
made in contravention of the provision of
Section 154, the transferee shall be liable
to be ejectment on the suit at the instance
3 All] Lakhanpur Co-op. Housing Society Ld. & another V. Board of Revenue & others
847
of
Gaon
Sabha
to
the
extent
of
contravention that is to say to the extent
of transfer made in excess of the
prescribed limit.

8. By an amendment in Section 163
of the Act made by U. P. Act XXXV of
1976 it was provided for the first time that
a transfer by Bhumidhar in contravention
of Section 154 could be declared Void by
an Assistant Collector, 1st Class either
suo motu or on the application by any
person,
after
an
enquiry.
The
consequences were contained in Subsection (2) which mainly provided that
subject matter of transfer, with effect
from the date of order made under Section
(1) shall be deemed to be vested in State
Government free from all encumbrances.
Section 163 of the Act was later on
deleted from the statute vide U.P. Land
Laws (Amendment) Act (Act No. 20 of
1982) with effect from 3.6.1981 and a
new
Section
166
was
introduced
prescribing
every
transfer
made
In
contravention of provisions of the Act to
be
automatically
void
and
the
consequences were contained in Section
167 amended to have been vested in the
State
Government
free
from
all
encumbrances.

9. From a reading of provisions of
Section 154, Section 163, Section 166 and
Section 167 together before and after the
amendment clearly demonstrate that prior
to amendment made under Section 163
vide amending Act XXXV of 1976 which
came into force on 15.6.1976, any transfer
made by a bhumidhar in excess of ceiling
limit prescribed under Section 154 would
entail ejectment of the transferee at the
instance of Gaon Sabha and the ejectment
from the excess land transferred in
contravention of the prescribed limit in
section 154 could have been directed only
in a suit for ejectment filed by Gaon
Sabha. The view taken by me finds
support from the Judgement of Hon'ble
Apex Court in the case of Kripashankar
Vs. Director of Consolidation and Others
1979 RD 80 wherein it has been held that
under
unamended
Section
163
any
transfer
by
a
bhumidhar
made
in
contravention of Section 154 is not void
but voidable only at the instance of Gaon
Sabha only to the extent of contravention
that is to say only to the extent of excess
transfer over and above the prescribed
limit. The limitation for filing such a suit
as provided in Appendix III was six years.
In case where the Gaon Sabha failed to
bring a suit within the prescribed period
its claim would stand barred by limitation.
10. From the findings of fact
recorded by trial court as well as lower
appellate Court, it is clear that all the suits
filed by respondent no. 4 in December
1976 with regard to sale deeds executed
in favour of petitioner in the years 1967,
1968 and 1969 were apparently filed
beyond the prescribed period of limitation
of six years and thus were rightly
dismissed as barred by limitation.

11. The Board of Revenue illegally
failed to consider that in accordance with
law prevailing at the time of execution of
sale deeds, transfer made in excess of
ceiling limit was not void but voidable at
the instance of Gaon Sabha. Without
considering that offending sale will attract
the law as it stood on the date of sale,
wrongly applying the amended provisions
the Board of Revenue declared the sale
deed to be void.

12. In view of the aforesaid
discussions
all
the
suits
filed
by
respondent no. 4 were rightly dismissed
848 INDIAN LAW REPORTS ALLAHABAD SERIES [2007
by the trial court as well as lower
appellate court as barred by limitation and
the Board of Revenue fell in error in
allowing the second appeals. Thus, all the
writ petitions succeed and are allowed.
Common judgement and order dated
2.9.1994 passed by Board of Revenue
deciding all the 13 second appeals stands
quashed.

13. However, in the facts and
circumstances, there shall be no order as
to costs.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 22.08.2007

BEFORE
THE HON'BLE TARUN AGARWALA, J.

Civil Misc. Writ Petition No. 785 of 1992

Shri Mahendra Pratap Singh ...Petitioner
Versus
State of U.P. and another ...Respondents

Counsel for the Petitioner:
Sri B.P. Srivastava
Sri S.S. Tomar

Counsel for the Respondents:
Sri A.K. Mishra
Sri Subodh Kumar
S.C.

Uttar Pradesh Development Authorities
Services Rules, 1985-Criation of PostPublic Relation Officer-petitioner initially
appointed as care taker-Development
Authority by resolution 21.1.85 directed
to work as P.R.O.-disapproved by state
Government-without
disclosing
any
reason as to how the Development
authority has no jurisdiction-impugned
order Quashed-with direction to the
State Government to create post-in case
of selection preference be given-salary
drawn
by
petitioner
shall
not
be
refunded-petitioner
reverted
to
his
original post.

Held: Para 8

The State Government, in the impugned
order, has nowhere stated, as to why,
the post of the Public Relation Officer
could not be created in Ghaziabad
Development
Authority.
The
State
Government has not addressed the
matter on this aspect and based the
impugned order on the sole ground that
the Ghaziabad Development Authority
had no right to make an appointment.
The State Government has not passed
any order for the creation of the post of
Public Relation Officer.
Case law discussed:
2007 (1) SCC-4081
2006 (4) SCC-667
2006 (8) SCC-67

(Delivered by Hon1ble Tarun Agarwala, J.)

1. The petitioner was appointed as a
Caretaker in Ghaziabad Development
Authority on 9.8.1984. The Ghazlabad
Development Authority in its meeting
dated 21.1.1985 unanimously resolved to
create a post of Public Relation Officer.
This resolution was sent to the State
Government for its approval, inasmuch
as, the power to create and sanction a post
lies with the State, Government. Pending
consideration for the creation of the post
before
the
State
Government,
the
Ghaziabad Deve1opment Authority, by its
order dated 3.4.1986 nominated the
petitioner to work as an Assistant Public
Relation Officer, in addition to the work
of a Caretaker. Subsequently, by another
order dated 2.9.1998, the petitioner was
directed to work as a Public, Relation
Officer till further orders, but was not
entitled to be given the perks and benefits
attached to the post of a-Public Relation