# Smt. Bigni Devi v. U.P. Cooperative Tribunal Lko. & Ors

- **Citation:** (2025) 3 ILRA 823
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2025-03-12
- **Case number:** Writ C No. 1003067 of 2015
- **Bench:** Manish Mathur
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/smt-bigni-devi-v-u-p-cooperative-tribunal-lko-ors-53244
- **Pages:** 11

## Headnote

A. Civil Law - UP Cooperative Societies
Act, 1965 - Sections 2(c), 12, 13 & 14 -
Cancellation of allotment - Model bye
laws - Notified by the Registrar -
Modification or amendment carried in the
bye laws, but not adopted by the Society -
Applicability - Held, a model bye law
notified
by
the
Registrar
is
not
automatically applicable upon a society
and is in fact required to be first adopted
by the society whereafter procedure is
required mandatorily to be followed - It
would therefore be the bye laws of 1976
which would govern the issue in dispute
and not the bye laws of 1979 which were
never adopted by the society. (Para 31
and 35)

B. Civil law - UP Cooperative Societies Act,
1965 - Sections 2(c), 12, 13 & 14 -
Cancellation of allotment - Allotment was
made in favour of two members of the
same family - Validity challenged -
Prohibition of one family - Prohibition was
provided in the bye laws of 1976, but not
in the bye laws of 1979 - Applicability -
Held, the prohibition of one 'family' having
more than one plot in the society was not
present in the bye laws of 1976 - Since
there was no such prohibition in the bye
laws of 1976, it is held that cancellation of
petitioner's allotment of plot by means of
deed dated 24th March, 1986 was not in
accordance with law. (Para 4, 41 and 42)

Writ petition allowed. (E-1)

List of Cases cited:

## Text

3 All. Smt. Bigni Devi Vs. U.P. Cooperative Tribunal Lko. & Ors.
823
24. The writ petition succeeds and
is allowed.

25. No order as to costs.
----------
(2025) 3 ILRA 823
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 12.03.2025

BEFORE

THE HON'BLE MANISH MATHUR, J.

Writ C No. 1003067 of 2015

Smt. Bigni Devi ...Petitioner
Versus
U.P. Cooperative Tribunal Lko. & Ors.
 ...Respondents

Counsel for the Petitioner:
Sudeep Seth, Manoj Kumar, Sridhar Awasthi

Counsel for the Respondents:
C.S.C., K.S. Pawar, Rakesh Kumar Chaudhary,
Rakesh Srivastava

A. Civil Law - UP Cooperative Societies
Act, 1965 - Sections 2(c), 12, 13 & 14 -
Cancellation of allotment - Model bye
laws - Notified by the Registrar -
Modification or amendment carried in the
bye laws, but not adopted by the Society -
Applicability - Held, a model bye law
notified
by
the
Registrar
is
not
automatically applicable upon a society
and is in fact required to be first adopted
by the society whereafter procedure is
required mandatorily to be followed - It
would therefore be the bye laws of 1976
which would govern the issue in dispute
and not the bye laws of 1979 which were
never adopted by the society. (Para 31
and 35)

B. Civil law - UP Cooperative Societies Act,
1965 - Sections 2(c), 12, 13 & 14 -
Cancellation of allotment - Allotment was
made in favour of two members of the
same family - Validity challenged -
Prohibition of one family - Prohibition was
provided in the bye laws of 1976, but not
in the bye laws of 1979 - Applicability -
Held, the prohibition of one 'family' having
more than one plot in the society was not
present in the bye laws of 1976 - Since
there was no such prohibition in the bye
laws of 1976, it is held that cancellation of
petitioner's allotment of plot by means of
deed dated 24th March, 1986 was not in
accordance with law. (Para 4, 41 and 42)

Writ petition allowed. (E-1)

List of Cases cited:

1. Ishwar Nagar Cooperative Housing Building
Society versus Premanand Sharma & ors.; AIR
2011 SC 548

(Delivered by Hon'ble Manish Mathur, J.)

1. Heard Mr. Sudeep Seth learned
Senior Counsel assisted by Mr. Shridhar
Awasthi learned counsel for petitioner,
learned State Counsel for opposite party
No.1, Mr. Rakesh Kumar Chaudhary
learned counsel for opposite party No.2 and
Mr. Rakesh Srivastava learned counsel for
opposite party No.3.

2.

Petition
has
been
filed
challenging order dated 23rd July, 2010
passed in an arbitration case No. 128-E of
2008 upholding cancellation of plot of
petitioner. Also under challenge is the
judgment and order dated 7th May, 2015
whereby appeal No.161 of 2015 preferred
by petitioner has been rejected.

3. Learned counsel for petitioner
submits
that
petitioner
submitted
an
application dated 5th November, 1985 for
being admitted as a member of the opposite
party No.3 Sri Saraswati Cooperative
Housing Society Limited, Kanpur, which
was allowed and in pursuance thereof,
registered lease deed in perpetuity was
824 INDIAN LAW REPORTS ALLAHABAD SERIES
executed in favour of petitioner vide deed
dated 24th March, 1986 allotting plot No.
45 situate in Daheli, Sujanpur, Kanpur
whereupon
petitioner
constructed
a
residence in the year 1993 and is being
duly assessed for house tax. It is submitted
that petitioner is residing alongwith her
younger daughter on the said plot.

4. It is further submitted that
without any prior notice to petitioner and in
an ex parte manner, the aforesaid lease has
thereafter been cancelled by the society
vide resolution dated 26th October, 2008 on
twin grounds that petitioner's husband, Mr.
Haridwar had earlier been allotted plot No.
44 in the same society vide deed dated 10th
October, 1984 and therefore in terms of bye
laws applicable upon the society, two
members of the same family could not have
been
allotted
plots
in
the
society
simultaneously.
Second
ground
for
cancellation was that petitioner failed to
make
any
permanent
residential
construction over the plot in question
within a period of three years from the date
of allotment as stipulated in the bye laws of
the society.

5. Learned counsel for petitioner
submits that at the time of allotment of plot
in favour of petitioner, it was the model bye
law of 1976 which was applicable and as
per bye law 5 thereof, no such prohibition
was indicated prohibiting two persons of
the same family from being allotted a plot
simultaneously.

6. It is also submitted that the
petitioner
even
otherwise
has
made
permanent construction over the plot in
question within the stipulated period of
three years; a fact which has been noticed
in the impugned order as well and therefore
there
was
no
occasion
to
uphold
cancellation of plot of petitioner on that
ground.

7. It has been further submitted
that the allotment having been made in the
year 1986, even otherwise could not have
been cancelled after a period of more than
22 years and was therefore barred by
limitation.

8. Learned counsel for opposite
party
No.3
has
refuted
submissions
advanced by learned counsel for petitioner
with the submission that at the time of
allotment in favour of petitioner vide lease
deed dated 24th March, 1986, it was in fact
the model bye laws of 1979 which were
prevalent in the society and not bye laws of
1976. It is submitted that since petitioner's
husband had already been allotted and
transferred plot No.44 in the same society,
petitioner was ineligible to become a
member of the society and for allotment of
plot in terms of bye law 5 of the bye laws
of 1979.

9. It is also submitted that as per
bye law-3 (11) of the bye laws of 2004, the
petitioner had not constructed a house over
plot No.45 within stipulated time limit and
by merely constructing a room measuring
10 ft x 12 ft, the same would not come
within connotation; 'residential house',
since in terms of bye law 3(11) of Bye laws
of 2004, a residential house connotes a
complete dwelling unit comprising a living
room, a kitchen, latrine and a bathroom as
defined therein.

10. It is submitted that it was
during proceedings initiated against one
Smt. Pratima in an arbitration case filed
against her by the society that the
discrepancies in allotment in favour of
petitioner
came
to
light
whereafter
3 All. Smt. Bigni Devi Vs. U.P. Cooperative Tribunal Lko. & Ors.
825
resolution dated 26th October, 2008 was
passed by the society cancelling deed dated
24th March, 1986 in favour of petitioner
and in pursuance of provisions of U.P.
Cooperative Societies Act, 1965, the
arbitration case was filed against petitioner
who was accorded full opportunity to
defend her case.

11. It is further submitted that
although earlier the society was governed
by the model bye laws of 1976 in terms of
notification dated 15th June, 1976 issued
by the State Government in exercise of
power under Section 3(2) of the Act 1965,
all the urban cooperative housing society
were registered in terms thereof and the
model bye laws issued from the office of
Housing Commissioner in the year 1965
were made applicable upon all such
cooperative
housing
societies
which
continued till the year 2004 when new
model bye laws as framed by the Housing
Commissioner were enforced in terms of
Section 14 of the Act 1965 and were
adopted by the society with information of
such adoption being submitted to the
Deputy Housing Commissioner vide letter
dated 26th December, 2004 and the earlier
bye laws of 1979 was surrendered.

12. It is therefore submitted that in
terms of bye law 3(10) of the bye law of
1979, the term 'family' has been defined to
include husband, wife and dependent
children and it is in accordance with bye
law 5(1) of the said bye laws of 1979 that
two or more members of the same family
are prohibited from being allotted a plot in
the society simultaneously. It is also
submitted that the unfurnished small room
constructed by petitioner over plot No. 45
in the society is inhabitable and even
otherwise, the petitioner never resided
therein and is in fact is a resident of 122/9,
Labour Colony (J.K. Colony), Jajmau,
Kanpur Nagar and the fact of petitioner's
actual residence was proved by evidence.

13. He has also adverted to bye
law 3(11) of the bye laws of 2004 to submit
that the construction made by petitioner
over plot No.45 does not come within
definition of a 'house' in terms of the said
provision of bye laws of 2004, which he
submits would have retrospective effect. It
is in such circumstances that the committee
of management of the society in its meeting
held on 26th October, 2008 resolved to
cancel petitioner's allotment over plot
No.45.

14. It is also submitted that since
knowledge with regard to illegal allotment
in favour of petitioner came to notice of the
society
in
another
arbitration
case
pertaining to one Smt. Pratima in the month
of September-October, 2008 in terms of
pleadings made in written statement
therein, it cannot be said that there is any
inordinate delay in passing of resolution in
cancellation of petitioner's allotment.

15. Learned counsel for opposite
party No.2 on the basis of instructions
submits
that
office
of
Housing
Commissioner does not have any copy of
the model bye laws of 1979 available with
them but has brought on record various
other model bye laws of the year 1979 as
applicable to other societies. He further
submits that the model bye laws are
required to be implemented upon the
society concerned in terms of Section 14 of
the Act of 1965.

16. Learned counsel for petitioner
in rebuttal thereof submits that the
procedure for amendment of earlier bye
laws or even adoption of model bye laws
826 INDIAN LAW REPORTS ALLAHABAD SERIES
framed from the office of the Housing
Commissioner are required to be enforced
and implemented in terms of procedure
indicated in the Act of 1965, which has not
been followed with regard to bye laws of
1979, which are not registered in the office
of Registrar and therefore it is only
approved bye laws of 1976 which governed
the case of petitioner.

17.

Upon
consideration
of
submissions advanced by learned counsel
for parties and perusal of material on
record, the questions required to be
adjudicated upon in the present petition are
framed as follows:-

(1)
Whether
allotment
pertaining to petitioner would be
governed by the bye laws of 1976,
1979 or 2004?
(2) Whether cancellation of
allotment of plot in favour of
petitioner in view of bye law 5 of
the bye laws of 1979 is valid ?
(3)
Whether
the
constructions raised by petitioner
over plot No. 45 in the society in
question in pursuance of allotment
in her favour are in terms of the bye
laws applicable upon the society ?

Answer to question No.(1)

18.
With
regard
to
aforesaid question, it would be
relevant to advert to Section 2(C)
of the Act of 1965, which defines
bye laws as registered bye laws of a
cooperative society for the time
being in force. Section 7 of the said
Act pertains to registration of the
proposed bye laws and indicates
that if the Registrar is satisfied that
the proposed bye laws of the
society are not inconsistent with the
provisions of the Act and the rules
and complies with requirements
thereunder, the said bye laws would
be registered. Section 12 of the Act
1965 pertains to amendment of bye
laws of cooperate society and
prescribes
that
a
cooperative
society may, subject to provisions
of the Act and Rules, amend its bye
laws in the manner prescribed and
that no such amendment would be
valid and operative unless it has
been registered under this Act. The
relevant provision is as follows:-

"12.
Amendment
of bye-laws of a Cooperative Society.- (1) A
co-operative society may,
subject to the provisions of
this Act and rules, amend
its bye-laws in the manner
prescribed ;
Provided that no
such amendment shall be
valid and operative unless
it has been registered under
this Act.
(2) The proposal
for an amendment of the
bye-laws
shall
be
forwarded to the Registrar
and if the Registrar is
satisfied that the proposed
amendment-
(i) is not contrary
to the objects specified in
section 4 of the Act ; and
[(ii) is not contrary to the
other provisions of the Act
or the rules, he shall
register
the
amendment
within one month from the
date of receipt of such
3 All. Smt. Bigni Devi Vs. U.P. Cooperative Tribunal Lko. & Ors.
827
proposal. If the Registrar
does
not
register
the
amendment
within
one
month then it will be
deemed that he has refused
to register the amendment
and in this case it will be
obligatory for the Registrar
to
intimate
the
society
within next one month, the
reasons for not registering
the amendment.]
(3) [* * * * *]2"

19. Section 13 of the Act indicates
that an amendment of bye laws of a
cooperative society would come into force
on the day it is expressed to come into
operation
on
a
particular
day
after
registration or in other cases on the day on
which it is registered.

20. It is Section 14 of the Act of
1965, which has been relied upon by
learned counsel for opposite parties to
indicate enforcement of the bye laws of
1979, in terms of which allotment of
petitioner has been cancelled. Section 14 of
the Act is as follows:-

"14.
Power
to
direct
amendments in bye-laws.- (1)
Where the registrar is of the
opinion,
whether
on
the
representation of a member of a cooperative society, or otherwise, that
an amendment in the bye-laws of a
co-operative society is necessary or
desirable in the interests of such
society, or in public interest, he
may, under such circumstances as
may be prescribed, by order in
writing issued to the society by
registered post, require the society
to make the amendment within such
time as he may specify in the order.
(2) If the society fails to
make the amendment within the
time specified, the Registrar may,
after
giving
the
society
an
opportunity of being heard, [X X
X]3 register such amendment and
issue to the society by registered
post a copy of the amendment
certified by him as a copy and such
copy shall be conclusive evidence
that the amendment has been duly
made and such copy registered."

21. The aforesaid provision clearly
pertains to amendment of bye laws which
have already been approved by the
Registrar for its enforcement.

22. With regard to notification of
model bye laws for the purposes of
implementation upon a cooperative society,
it is Chapter III of the U.P. Cooperative
Societies Rules, 1968 which is relevant.

23. Rule 13 of the said Rules
indicates that a Registrar may frame model
bye laws for each class of society or
societies and makes such changes therein
from time to time as he may consider
necessary. Rule 14 provides that the model
bye law as are appropriate for a society in
the opinion of Registrar may be adopted by
such society with such modifications, if
any, as may be considered necessary by the
society having regard to its requirements.

24. A conjoint reading of Rules 13
and 14 therefore clearly indicate that
although model bye laws may be framed
and notified by the Registrar but are
required to be adopted by the society
having regard to its requirements and
828 INDIAN LAW REPORTS ALLAHABAD SERIES
therefore would not be automatically
applicable.

25. Chapter IV of the Rules 1968
pertains to procedure regarding amendment
of bye laws. Rules 24,29, 31, 32 and 33 of
the said Rules are as follows:-

"24. An amendment in the
bye-laws of a co-operative society
including substitution of the entire
set of bye-laws by new bye-laws
may be made by a resolution
passed by the votes of at least twothirds of the members of the
general body of the society present
and voting at the general meeting
called for the purpose: Provided
that in case of model bye-laws of
amendment previously approved by
the
Registrar
or
amendment
required by the Registrar to be
made under sub-section (1) of
Section 14, the resolution may be
passed by simple majority only.
29. Where the Registrar
registers an amendment under Rule
28(1), he shall-
(a) make or cause to be
made under his signature-
(i)
an
entry
regarding
amendment in the relevant column
of the registration register,
(ii)
an
endorsement
regarding amendment in the office
copy of the original bye-laws in his
office,
(b) retain for his office
record one copy of the amendment
so registered,
(c) send or cause to be sent
a certified copy of the registered
amendment-
(i)
to
the
co-operative
society concerned,
(ii) to the central society, if
any, to which the society concerned
is affiliated,
if in his opinion the said
amendment is of any significance to
the central society,
(d) return or cause to be
returned to the society,-
(i)
the
registration
certificate noting therein the date of
registration of amendment of byelaws, and
(ii) the original bye-laws
with
endorsement
regarding
amendment.
[29A. Where the bye-laws
of a co-operative society are
substituted by a new set of byelaws. The Registrar may nominate
the
First
Committee
of
Management
including
the
Chairman and the Vice-Chairman.
The
nominated
Committee
of
Management shall hold office till
the Committee of Management is
duly constituted:
Provided that the Registrar
shall nominate the Committee of
Management only in those Societies
where
elected
Committee
of
Management is not existing. In case
of the societies where the bye- laws
have been substituted by a new set
of
bye-laws
but
the
elected
Committee of Management is still
existing, the Registrar shall have
powers to nominate the Committee
of Management only after the
expiry of term of the elected
Committee of Management]

31. Where the Registrar
issues an order for amendment of a
bye-law under sub- section (1) of
Section 14, the order shall contain-
3 All. Smt. Bigni Devi Vs. U.P. Cooperative Tribunal Lko. & Ors.
829
(a) the text of proposed
amendment;
(b) the period within which
such amendment is required to be
adopted by the society;
(c) reasons for proposing
the amendment.
32. If the society objects to
make the proposed amendment the
Registrar
shall
consider
the
objections of the society and if
satisfied that the objections of the
society are correct, he may drop
further proceedings, and if not
satisfied, he shall take further
action as provided under subsection (2) of Section14.
33. Where an amendment
has been registered under subsection (2) of Section 14, an entry
thereof shall be made in the
register maintained for the purpose
in Form 'I' and a copy of the
amendment so registered shall be
sent to the co-operative society
concerned. Action as provided in
sub-rules (a), (b) and (c) of Rule 29
shall also be taken in regard to that
amendment. If the society has sent
registration certificate and original
registered
bye-laws
to
the
Registrar, action as provided under
sub-rule (d) of Rule 29, shall also
be taken."

26. A conjoint reading of Sections
12,13 and 14 of the Act of 1965 and the
rules indicated herein above make it
evident that either in case of amendment of
existing bye laws of society or in case of
applicability of model bye laws as notified
by the Registrar, the same are not
automatically
applicable
upon
a
cooperative society. The provisions of Rule
13 and 14 make it evident that once model
bye laws have been framed, they are
required to be adopted by the society which
such modifications, if any, as may be
considered necessary.

27. Similarly in the case of
amendment in existing bye laws of a
society, the same is required to be adopted
by a resolution passed by votes of at least
two thirds of the members of the general
body of society present and voting at the
general meeting called for that purpose in
terms of rule 24 of the Rules 1968. The
proviso to Rule 24 also indicates that in
case of amendment required to be made of
existing bye laws due to model bye laws,
the same are also required to be adopted in
terms of Section 14(1) of the Act of 1965
by a resolution of the general body is
required to be passed by a simple majority.
Thus even in case of amendment in existing
bye laws of a cooperative society in terms
of model bye laws issued by the Registrar,
its adoption by the society in the manner
contemplated under Rule 24 of Rules 1968
is mandatory.

28. Once the procedure pertaining
to amendment of existing bye laws in terms
of Rule 24 of the Rules 1968 has been
implemented, the Registrar is required to
register that amendment in terms of Rule
29 of the Rules as indicated herein above.

29. Since the opposite parties have
placed reliance upon Section 14 of the Act
of 1965 to submit that model bye laws of
1979 were automatically applicable upon
the society, consideration of Rules 31, 32
and 33 of Rules of 1968 is required and as
per which, once an order under Section
14(1) of the Act is made, an order for
amendment of bye law is required to be
issued containing specifications indicated
in Rule 31.
830 INDIAN LAW REPORTS ALLAHABAD SERIES
30. It is only in case if the society
objects
to
implement
the
proposed
amendment that the Registrar is required to
take action as provided under Section 14(2)
of the Act read with Rule 32 of the Rules of
1968. Rule 33 of the Rules provides that
where an amendment has been registered
under section 14(2) of the Act, an entry
thereafter is required to be made in the
Register in Form 'I' and a copy of the
amendment is also to be sent to the
cooperative society concerned whereafter
proceedings in terms of Rule 29 is required
to be undertaken.

31. Considering aforesaid aspects,
it is evident that a model bye law notified
by the Registrar is not automatically
applicable upon a society and is in fact
required to be first adopted by the society
whereafter
procedure
indicated
herein
above is required mandatorily to be
followed. The same is the situation with
regard to amendment of any existing bye
laws even if the same has been issued in
terms of Section 14 of the Act of 1965.

32. Upon applicability of aforesaid
provision
in
the
present
facts
and
circumstances of the case, it is obvious
from pleadings made on behalf of opposite
parties 2 and 3 that no such approved bye
laws of 1979 have been brought on record.
Not only that, the said opposite parties have
failed to bring on record any order passed
under Rule 31 or any document in terms of
Rule 33 of the Rules of 1968, which is an
imperative aspect.

33. Considering the Sections of the
Act 1965 and the Rules of 1968 which have
been quoted herein above, the submission
of opposite parties that the bye laws of
1975 are automatically implemented upon
the societies is hereby rejected.
34. The opposite parties in their
pleadings have clearly admitted the fact
that prior to issuance of the model bye laws
of 1979, the bye laws of 1976 were
applicable upon the society.

35. In view of what has been held
herein above, this Court finds that it would
therefore be the bye laws of 1976 which
would govern the issue in dispute and not
the bye laws of 1979 which were never
adopted by the society.

36. So far as the bye laws of 2004
are concerned, although learned counsel for
opposite party No.3 has submitted that the
provisions thereof would be applicable
retrospectively, an examination of the bye
laws of 2004 however make it evident that
there is no provision therein making the
said bye laws effective retrospectively. The
aspect of bye laws or rules applicable upon
an cooperative society being retrospective
in nature has been considered by Supreme
Court in the case of Ishwar Nagar
Cooperative Housing Building Society
versus Premanand Sharma and others,
AIR 2011, Supreme Court 548 in the
following manner:-

"12. The learned counsel
for
the
respondent-1
further
contended that the Rule 25 is not
applicable to the respondent-1's
case as the said rule is not
retrospective
and
the
alleged
`disqualification' of purchasing the
said property had incurred prior to
the adoption of the Rules. We are of
the considered opinion that the
aforesaid contention of the learned
counsel for the respondent-1 is
misconceived. Merely because a
person who had become a member
of the society at a point of time
3 All. Smt. Bigni Devi Vs. U.P. Cooperative Tribunal Lko. & Ors.
831
when
the
disqualification
mentioned in Rule 25 was not in
existence and because of the said
rule would now cease to be a
member of the society does not
necessarily mean that the said rule
is retrospective. "A statute is not
properly called a retrospective
statute because a part of the
requisites for its action is drawn
from a time precedent to its
passing". (See Craise on Statute
Law. 17th edition page 386).
Reference may also be made to
Queen v. Vina reported at (1875)
10 Q.B 195 wherein the Statute
enacted that every person convicted
of
felony
shall
be
for
ever
disqualified from selling spirits by
retail.
It
was
held
that
the
disqualification applied to every
convicted felon irrespective of
whether he was so convicted prior
to or after the Act came into
operation.
15.The most concrete cases
wherein
laws
are
made
retrospective are those in which the
date of commencement is earlier
than enactment, or which validate
some invalid law, otherwise, every
statute affects rights which would
have been in existence but for the
statute and a statute does not
become a retrospective one because
a part of the requisition for its
action is drawn from a time
antecedent to its passing. Applying
that to the present case, the
conclusion is inescapable, that
Rule 25(2) is not retrospective. All
that Rule 25(2) does is that it
operates in future, though the basis
for taking action is the factum
acquiring a plot in the past. Thus
when by virtue of Rule 25(2), a
member is deemed to have ceased
to be a member of the society, the
cessation operates from April 2,
1973, when the rules came into
force."

37. In view of aforesaid judgment
and the fact that there is no specific
condition indicated in the bye laws of 2004
pertaining to its retrospective application,
the submission of learned counsel for
opposite
party
No.3
pertaining
to
restrospective application of the bye laws
of 2004 is hereby rejected.

38.

Upon
consideration
of
aforesaid discussion, it is evident that it is
only the bye laws of 1976 which would be
applicable in the case of petitioner.

39. Question No.1 therefore is
answered in favour of petitioner.

Answer to Question No.(2)

40. Once it has been held as
discussed herein above that it is bye laws of
1976 and not of 1979 which would
operate, consideration of the said bye laws
of 1976 become relevant. It is relevant that
in paragraph 18 of the writ petition, it has
been stated that as per bye law 5 of the bye
laws of 1976, the only stipulation was that
any person residing in the area of operation
of society and did not have his residence,
could become a member of the Society. It is
also stated that in bye law 42 of the said
bye laws, it was provided that no member
would be permitted to be allotted/possessed
of more than one plot. It is also stated that
the word 'family' has not been mentioned or
defined in said bye laws. These averments
have not been denied in paragraph 16 of the
counter affidavit filed by opposite party
832 INDIAN LAW REPORTS ALLAHABAD SERIES
No. 3 which only places reliance on the
model bye laws of 1979.

41. Thus it is evident that the
definition of the term 'family' has been
incorporated for the first time in the model
bye laws of 1979 and the prohibition of one
'family' having more than one plot in the
society was not present in the bye laws of
1976.

42. In view thereof, since there
was no such prohibition in the bye laws of
1976, it is held that cancellation of
petitioner's allotment of plot by means of
deed dated 24th March, 1986 was not in
accordance with law.

43. The question therefore is
answered in favour of petitioner.

Answer to Question No.3

44. With regard to the aforesaid
question, it has been submitted by learned
counsel for petitioner that in terms with the
by laws prevalent in the year 1976 and in
terms of allotment order, a dwelling unit
was constructed upon plot No. 45 in the
society by petitioner within stipulated time
period.

45. The aforesaid aspect has not
been disputed either by the opposite parties
in their counter affidavit or even in the
impugned orders.

46. On the contrary a perusal of
award dated 23th July, 2010 clearly refers to
a spot inspection report to the effect that
construction of a room having an area of 10
ft. x 12 ft. is existing over the said plot with
trees and garden existing over remaining
area. Despite recording such a finding, the
impugned award thereafter holds that the said
plot is not being utilized for residential
purpose.

47. The opposite party No.3 in its
counter affidavit has placed reliance on the
bye laws of 2004 to submit that the
construction made by petitioner on the said
plot did not answer the definition of a house
as contained in the said bye laws since the
construction made did not have room for a
kitchen, toilet and bath room as defined in
bye law 3(11) of bye laws of 2004.

48. The counter affidavit does not
advert at all to any definition of a house or
dweling unit in terms of the bye laws of
1976.

49. Once it has already been held
that bye laws of 2004 would not be
applicable in the present dispute, the
definition of a 'house' as is being relied upon
by answering opposite party, deserves to be
rejected.

50. The award dated 23th July, 2010
clearly indicates the fact that a permanent
construction exists over plot in question and
therefore it can naturally be deduced that the
said construction has been made by petitioner
within stipulated time period. The bye laws of
1976 not adverting to any specifications
pertaining to a 'house' or 'dwelling unit', in the
considered opinion of this Court, the said
construction would come within the definition
of a house in terms of bye laws of 1976.

51.

Considering
aforesaid
discussion, it is evident that cancellation of
allotment in favour of petitioner on the
aforesaid ground is also liable to be
rejected.

52. The question is therefore
answered
in
favour
of
petitioner.
3 All. Surya Lal & Ors. Vs. State of U.P. & Ors.
833
53. In view of discussions made
herein above, this Court comes to the
conclusion that cancellation of allotment in
favour of petitioner vide resolution dated
26th October, 2008 by the society and its
being upheld by means of award dated 23d
July, 2010 passed in case No. 128-E of
2008 and by the Cooperative Tribunal vide
judgment and order dated 7th May, 2015
passed in appeal No. 161 of 2015, being
against provisions of law are hereby
quashed by issuance of writ in the nature of
Certiorari. A further writ in the nature of
Mandamus is issued commanding the
opposite parties not to interfere in peaceful
possession of petitioner over plot No. 45
situate in Scheme No.2, Daheli, Sujanpur,
Kanpur.

54.

Resultantly
the
petition
succeeds and is allowed. Parties to bear
their own cost.
----------
(2025) 3 ILRA 833
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 10.03.2025

BEFORE

THE HON'BLE IRSHAD ALI, J.

Writ C No. 3000181 of 1997

Surya Lal & Ors. ...Petitioners
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioners:
Balram Yadav, Mohammad Aslam Khan, Mohd
Aslam Khan, Mohd. Sartaj Ahmad, Mohd. Aslam
Khan

Counsel for the Respondents:
C.S.C.

A. Ceiling Law - UP Imposition of Ceiling on
Land Holdings Act, 1960 - Sections 5(6), 10
(1) & 10(2) - Surplus land - Notice for
declaration issued - Sale-deed regarding
share of land, in question was executed
prior to 24.01.1971 - Effect - How far
Prescribed Authority has jurisdiction to
decide the validity of Sale-deed - Held, the
Prescribed Authority had no jurisdiction to
put the validity of sale deed to test since its
jurisdiction arose only when the deed of
transfer had been effected on or after the
appointed day - Sub-section 6 of Section 5
did not confer jurisdiction on the authorities
to determine the validity of the sale and
therefore the findings recorded by such an
authority on the contents of the sale deed or
the adequacy or otherwise of the sale
consideration could also not be gone into -
Ramadhar Singh's case relied upon. (Para
36)

Writ petition allowed. (E-1)

List of Cases cited:

1. Raja Mahipal Singh (Deceased) through LRs
Vs St. of U.P. & ors.; 2007 SCC Online All 2334 :
(2007) 102 RD 792

2. Writ C No. 55503 of 2002; Vyas Prasad Vs
Addl. Commissioner, Gorakhpur & ors.decided
on 20.07.2017

3. Civil Appeal Nos. 5798-5799 of 2008; Bachhaj
Nahar Vs Nilima Mandal & ors. decided on
23.09.2008 (S.C.)

4. St. of U.P. Vs Amar Singh etc.' AIR 1997
Supreme Court 1534

5. Ramadhar Singh Vs Prescribed Authority &
ors.; 1994 Supp (3) SCC 702

(Delivered by Hon'ble Irshad Ali, J.)

1. Heard Mohd. Arif Khan, learned
Senior Counsel assisted by Sri Mohd.
Aslam Khan, learned counsel for the
petitioners and Sri S.P. Maurya, learned
Additional CSC for respondent - State.

2. By means of present writ
petition, the petitioners are challenging the