# Swami Brhamanand Saraswati Charitable Trust & Anr v. State of U.P

- **Citation:** (2014) 3 ILRA 1382
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2014-09-11
- **Case number:** Civil Misc. Writ Petition No. 47953 of 2014
- **Bench:** Dr. Dhananjaya Yeshwant Chandrachud, C.J. Dilip Gupta
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/swami-brhamanand-saraswati-charitable-trust-anr-v-state-of-u-p-43137
- **Pages:** 7

## Headnote

C.S.C.
U.P.
Zamindari
Abolution
&
Land
Reforms Act, 1950-Section-154(2) and
(3)-Petitioner
a
charitable
societysought
permission
from
state
government to purchase more than
12.50 acre land-for residence of student
3 All].
Swami Brahamanand Saraswati Charitable Trust &Anr. Vs. State of U.P.
1383
and
ancillary
purposes-earlier
while
quashing
the
impugned
orderconsidering willingness to pay the fines
petition
disposed
again
without
considering the direction-without any
finding
of
charitable-general
public
interest-rejection on ground more than
12.50 acre land purchased-held can not
be
said-no
specific
purpose/project
behind acquisition-order quashed with
direction
to
take
fresh
decision-if
required take additional evidence-after
affording full opportunity to petitioner.
Held: Para-11
In the present case, prima facie, it
cannot be held that the petitioners have
no specific project or purpose behind the
acquisition of the land. The petitioners
have submitted a detailed project report
to the State Government. The proposal
was recommended both by the District
Magistrate
as
well
as
by
the
Commissioner to the State Government.
Having
regard
to
this
factual
background, it was necessary for the
State
Government
to
take
those
recommendations of responsible officers
of the State into consideration. In the
present
case,
having
considered
all
materials on record, we have come to
the conclusion that the impugned order
does not take into account relevant and
germane circumstances and has been
passed
without
a
due
and
proper
application of mind.

## Text

1382
 INDIAN LAW REPORTS ALLAHABAD SERIES
Certificate2 from the Chief Wild Life
Warden. Notices have been issued on 31
May 2014 to all such arms licence holders,
numbering 166. In the case of 33 arms
lience holders, the Chief Wild Life Warden
found that NOC had been issued. In respect
of the balance 133 arms licence holders,
neither has any reply to the show cause
notices been received nor have any NOCs
granted by the Chief Wild Life Warden
been submitted. Consequently, fresh notices
have been issued by the Chief Wild Life
Warden on 29 August 2014 to 133 arms
licence holders for cancellation of licences
as they do not have the NOC of the Chief
Wild Life Warden, and hearing is to take
place on 20 September 2014.
7. We, accordingly, direct that the
competent authority shall take necessary
steps in accordance with law in pursuance
of notices to show cause which have been
issued on 29 August 2014 and even
earlier, in respect of those arms licence
holders who do not have the NOC of the
Chief Wild Life Warden under Section 34
(3) of the Act of 1972.
8. We also issue a general direction to
the effect that hereafter, no licence under the
Arms Act, 1959 shall be granted in the State
of U.P. without the NOC of the Chief Wild
Life Warden in those areas which fall within
the purview of Section 34 of the Act of 1972.
The State Government shall take necessary
steps to issue directions to all the District
Magistrates concerned to take steps with
reference to those arms licences which have
been granted without complying with the
provisions of Section 34 (3) in respect of
those areas which fall within a radius of ten
kilometers of a sanctuary.
9. We also clarify that since the
State Government has referred to the
position of the arms licences which were
granted between 2005 to 2008, in the
event that arms licences were granted
thereafter without complying with the
provisions of Section 34 (3) of the Act of
1972, necessary action shall be taken in
accordance with law.
10. The learned Standing Counsel
shall take steps to transmit a copy of this
order to the Principal Secretary (Home)
who shall take necessary steps for
compliance of this order by issuing
instructions to all the concerned District
Magistrates.
11. The writ petition is, accordingly,
disposed of. There shall be no order as to
costs.
--------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 11.09.2014
BEFORE
THE HON'BLE DR. DHANANJAYA YESHWANT
CHANDRACHUD, C.J.
THE HON'BLE DILIP GUPTA, J.
Civil Misc. Writ Petition No. 47953 of 2014
Swami Brhamanand Saraswati Charitable
Trust & Anr.
.
.Petitioners
Versus
State of U.P.
...Respondent
Counsel for the Petitioners:
Sri Tarun Agarwal
Counsel for the Respondent:
C.S.C.
U.P.
Zamindari
Abolution
&
Land
Reforms Act, 1950-Section-154(2) and
(3)-Petitioner
a
charitable
societysought
permission
from
state
government to purchase more than
12.50 acre land-for residence of student
3 All].
Swami Brahamanand Saraswati Charitable Trust &Anr. Vs. State of U.P.
1383
and
ancillary
purposes-earlier
while
quashing
the
impugned
orderconsidering willingness to pay the fines
petition
disposed
again
without
considering the direction-without any
finding
of
charitable-general
public
interest-rejection on ground more than
12.50 acre land purchased-held can not
be
said-no
specific
purpose/project
behind acquisition-order quashed with
direction
to
take
fresh
decision-if
required take additional evidence-after
affording full opportunity to petitioner.
Held: Para-11
In the present case, prima facie, it
cannot be held that the petitioners have
no specific project or purpose behind the
acquisition of the land. The petitioners
have submitted a detailed project report
to the State Government. The proposal
was recommended both by the District
Magistrate
as
well
as
by
the
Commissioner to the State Government.
Having
regard
to
this
factual
background, it was necessary for the
State
Government
to
take
those
recommendations of responsible officers
of the State into consideration. In the
present
case,
having
considered
all
materials on record, we have come to
the conclusion that the impugned order
does not take into account relevant and
germane circumstances and has been
passed
without
a
due
and
proper
application of mind.
(Delivered by Hon'ble Dr. Dhananjaya
Yeshwant Chandrachud, C.J.)
1. The first petitioner is a public
charitable trust and the second petitioner
is its authorized representative. The trust
was set up with the object to revive and
resuscitate Vedic Science and promote its
study as a primary source of knowledge,
establish the correlation of Vedic Science
and other branches of knowledge and with
the discipline of life and to disseminate
the same amongst people. Clause 3 of the
Deed of Trust contains an exhaustive
enumeration of the objects of the trust.
2. The first petitioner applied on 10
June 2000 for the grant of permission for
the purchase of land in excess of 12.50
acres,
in
public
interest
for
the
accomplishment of a proposed project
which envisaged setting up educational
institutions for the dissemination of Vedic
knowledge, construction of residences for
students and for ancillary purposes. The
permission was sought in order to enable
the trust to purchase land in excess of
12.50 acres, as mandated by Section 154
of the Uttar Pradesh Zamindari Abolition
and Land Reforms Act, 19501. When no
action was taken, the petitioners again
applied to the Commissioner, Kanpur
Division, Kanpur on 21 August 2000 for
the grant of permission under Section 154
(2) for the purchase of 725.50 acres of
land spread over 21 villages on the banks
of river Ganges of Kanpur Nagar. On 21
October
2000,
the
Commissioner
recommended to the State Government
for the grant of permission as sought by
the first petitioner. Thereafter, there was
an exchange of correspondence regarding
certain queries being raised with the
petitioners.
3. On 14 December 2006, the State
Government passed an order to the effect
that since the petitioners had purchased
land admeasuring 544 acres in excess of
the prescribed limit under Section 154 (1)
without the permission of the State
Government, the land stood vested in the
State under Section 167 of the Act. The
order was challenged in Writ - C No.
2982 of 2007 which was disposed of by a
Division Bench of this Court on 11 March
2010. The Division Bench recorded the
statement of the petitioners that an
1384
 INDIAN LAW REPORTS ALLAHABAD SERIES
application would be filed under Section
154 (3) before the State Government
which was directed to pass an appropriate
order in accordance with law, after
furnishing
to
the
petitioners
an
opportunity of being heard.
4. The petitioners, thereupon, made
a representation on 23 August 2010 to the
Commissioner, Kanpur Division which
was forwarded to the State Government
on 1 September 2010. The petitioners
have stated that the District Magistrate
had also duly recommended to the State
Government the grant of an exemption
under Section 154 (2), and that the
Tehsildar, in the course of an enquiry in
April 2011, had opined that the activities
proposed by the first petitioner were in
the interest of the general public. A
separate recommendation was made by
the District Magistrate on 2 September
2011. The State Government, however,
rejected the application on 25 June 2012
on the ground that the purpose for which
the land was purchased, did not qualify as
a public purpose.
5.

The
order
of
the
State
Government was challenged by the
petitioners in Writ-C No. 45114 of 2012.
During the pendency of the petition, the
petitioners
made
an
unconditional
statement
of
their
readiness
and
willingness to deposit an amount of fine
as required by the first proviso to Section
154 (3). On 17 April 2013, the Court was
apprised on behalf of the State that in
view of the readiness expressed by the
petitioners, a decision was expected
shortly by the State Government under
Section 154 (3). On 31 May 2013, the
application submitted by the petitioners
was once again rejected, following which
the earlier writ petition was disposed of as
infructuous with liberty to file a fresh writ
petition. Thereupon, the petitioners filed a
fresh writ petition, being Civil Misc Writ
Petition No 67058 of 2013 for challenging
the order dated 31 May 2013. The
Division Bench allowed the petition on 9
December 2013 with the following
observations:
"Once land in question belonged to
private land holders and petitioners have
proceeded to purchase the same for
charitable
purpose,
and
educational
purpose and provision for post facto
ratification of the said transaction, on
fulfillment of terms and conditions as
contained in the first proviso to subsection 3 of Section 154 of U.P.
Zamindari Abolition and Land Reforms
Act,
1950, then request
made
by
petitioner ought to have been considered
by reasoned order as to why petitioners'
request cannot be accepted. Merely
because mutation has been made in favour
of the State Government, same cannot be
made foundation and basis for not
considering the request of the petitioners.
Mutations are made for a specific
purpose, and are always subject to
transactions and proceedings that take
place. Once there is a provision, then the
claim of petitioners should have been
considered
on
merit,
instead
of
proceeding to non suit the claim of
petitioners, merely on the premises that
mutation has taken place.
6.
Consequently, in view of the fact
stated above, order dated 31.5.2013 passed
by the State Government is hereby quashed
and set aside and the State Government is
directed to take a fresh decision in the matter
in accordance with law, preferably within
period of next four months from the date of
production of certified copy of this order.
3 All].
Swami Brahamanand Saraswati Charitable Trust &Anr. Vs. State of U.P.
1385
With these observations, writ petition
is allowed."
Following the order of remand, a fresh
order has been passed by the Principal
Secretary
(Revenue)
to
the
State
Government on 14 August 2014 rejecting
the representation. The Principal Secretary
has held that the petitioners had acquired
land in excess of the prescribed limit under
Section 154 (1) without the approval of the
State Government and without any precise
policy or project and, hence, it was not
appropriate to grant permission.
Section 154 of the Act provides as
follows:
"154. Restriction on transfer by a
bhumidhar.-(1) Save as provided in subsection (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 of a registered co-operative 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 the 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."
7. Sub-section (1) of Section 154
imposes a limit of 12.50 acres beyond
1386
 INDIAN LAW REPORTS ALLAHABAD SERIES
which, save as provided in sub-section
(2), no bhumidhar shall have the right to
transfer, by way of sale or gift, any land
to any person where the transferee shall,
by virtue of the sale or gift, be entitled to
land which together with land, if any, held
by his family, in the aggregate, exceeds
12.50 acres. However, the limit under
sub-section (1) of Section 154 is expressly
subject to sub-section (2), as the opening
words of sub-section (1) would indicate.
Sub-section (2) empowers the
State
Government, either by a general or
special order, to authorise a transfer in
excess of the prescribed limit in subsection (1) if the State Government is of
the opinion that such a transfer is in
favour of a registered co-operative society
or an institution established for a
charitable purpose, which does not have
land sufficient for its need or where the
transfer of the land is in the interest of the
general public. Under sub-section (3), for
every transfer in excess of the prescribed
limit under sub-section (1), prior approval
of the State Government is necessary.
However, under the first proviso to subsection (3), the State Government is
empowered to grant its approval post
facto, subject to the payment of an
amount equal to 25 percent of the cost of
the land as prescribed. The second
proviso
to
sub-section
(3)
further
empowers the State Government to
exempt from the payment of fine, where it
is satisfied that any transfer has been
made in public interest.
8. In the present case, it is apparent
that the State Government has repeatedly
disabled itself from applying its mind to
the considerations relevant to the exercise
of the power under sub-section (2) or, as
the case may be, sub-section (3) of
Section 154 of the Act. As the record
before the Court would indicate, the
orders passed by the State Government
have been interfered with in the exercise
of the writ jurisdiction under Article 226
of the Constitution by directing the
Government to apply its mind to the
requirements which are contained in subsection (2) and the provisos to sub-section
(3) of Section 154 at various stages. The
State Government, in the present case, has
declined to exercise the discretion which
has been conferred upon it under subsection (3) of Section 154 on the ground
that the petitioners have acquired land in
excess of the prescribed limit and, hence,
there was no reason or justification to
grant approval. The second reason which
has weighed for the rejection is that the
petitioners have proceeded to purchase
the land without any specific purpose or
project in mind.
9. We find merit in the contention of
the learned counsel appearing on behalf of
the petitioners, that the State Government
has, once again, rejected the application
without considering the circumstances
which are relevant and germane to the
exercise of the power. The fact that the
holding of the petitioners would exceed
the limit prescribed under sub-section (1)
cannot be a reason, in itself, to reject the
application. As a matter of fact, subsection (1) of Section 154 begins with an
expression that save as provided in subsection (2), no bhumidhar shall have the
right to transfer land in excess of the limit
as prescribed, where the transferee shall,
as a result of the sale or gift, become
entitled to land which together with his
existing holding exceeds 12.50 acres. The
provisions of sub-section (2) indicate that
the State Government is duly empowered,
by general or special order, to authorise a
transfer in excess of the limit prescribed,
3 All].
Swami Brahamanand Saraswati Charitable Trust &Anr. Vs. State of U.P.
1387
where it is satisfied that (i) the transfer is
in favour of a registered cooperative
society; or (ii) the transfer is in favour of
an institution established for a charitable
purpose which does not have land
sufficient for its need; or (iii) that the
transfer is in the interest of the general
public. Obviously, if the limit of 12.50
acres is to be an inflexible norm which
does not admit of any exception, there
was no occasion for the legislature to
make a provision under sub-section (2)
for transfer in excess of the limit
prescribed under sub-section (1). Subsection (3) of Section 154 mandates the
prior approval of the State Government.
The first proviso to sub-section (3) also
contemplates a situation in which a post
facto permission can be granted, the
discretion being vested in the State
Government to do so, subject to the
payment of a fine. The second proviso to
sub-section (3) further authorises the State
Government to dispense with the payment
of fine, where it is satisfied that the
transfer has been made in public interest.
10. In the present case, a statement
was made on behalf of the petitioners in
earlier writ proceedings that they were
ready and willing to deposit the fine as
required by the first proviso to sub-section
(3) of Section 154. Hence, there would be
no occasion to dispense with the condition
of a fine, as is contemplated in the second
proviso, where the State Government is
satisfied that the transfer is in public
interest. But more importantly, the State
Government has to exercise its discretion
on objective considerations and the statute
itself
provides
the
guidelines
and
circumstances in which the discretion can
be exercised. Sub-section (2) of Section
154 provides the circumstances in which
the State Government may authorise a
transfer in excess of the limit prescribed
under sub-section (1). There is absolutely
no reference in the impugned order to
whether the petitioners satisfy any of the
guiding factors which are stipulated in the
statutory provision. There has been no
application of mind to whether the
institution is established for a charitable
purpose; whether it does not have land
sufficient for its need; or whether the
transfer is in the interest of the general
public. Merely holding that the petitioners
had acquired land in excess of the
prescribed limit under sub-section (1)
does not, by itself, disable the State
Government from exercising the powers
vested in it by sub-section (2) and by the
first proviso to sub-section (3) of Section
154. The infirmity in the impugned order
lies in the fact that the State Government
has abdicated its discretion and has
rejected
the
application
without
considering circumstances relevant and
germane to the exercise of discretion
under the statute. Where an application is
made to the State Government for the
exercise of its discretion under subsection (2) or the first proviso to subsection (3) of Section 154, the burden lies
on the institution to establish the element
of public interest or, as provided in subsection (2), to demonstrate that the
institution is established for a charitable
purpose.
Where
an
institution
has
purchased a tract of land in excess of the
prescribed limit without the approval of
the State Government, this judgment
should not be construed to mean that the
State Government is bound to grant its
permission without application of mind to
whether the institution has a concrete
proposal or project which would subserve its charitable purpose or which has
an element of public interest. The
petitioners would have to duly establish
1388
 INDIAN LAW REPORTS ALLAHABAD SERIES
the purpose that is involved and the public
interest that would be subserved by the
project. The prescribed limit of 12.50
acres has been introduced as a part of the
legislation which subserves the wider
social policy of the State, made in
pursuance of the Directive Principles of
State
Policy
in
the
Constitution.
Consequently, any dispensation from the
prescribed limit of 12.50 acres will have
to meet the conditions of exemption
which have been stipulated in the statute
and it is only subject to compliance with
those conditions that a dispensation can
be granted in the exercise of discretion by
the State.
11. In the present case, prima facie,
it cannot be held that the petitioners have
no specific project or purpose behind the
acquisition of the land. The petitioners
have submitted a detailed project report to
the State Government. The proposal was
recommended
both
by
the
District
Magistrate
as
well
as
by
the
Commissioner to the State Government.
Having regard to this factual background,
it was necessary for the State Government
to
take
those
recommendations
of
responsible officers of the State into
consideration. In the present case, having
considered all materials on record, we
have come to the conclusion that the
impugned order does not take into
account
relevant
and
germane
circumstances and has been passed
without a due and proper application of
mind.
12. In view of the above, the petition
deserves
to
be
allowed
and
is,
accordingly, allowed. The order dated 14
August 2014 passed by the Principal
Secretary (Revenue) is set aside. The
matter
is
remanded
to
the
State
Government for a decision afresh, which
shall be made after furnishing to the
petitioners a reasonable opportunity of
being heard.
13. We grant liberty to the
petitioners to produce any additional
material upon which they seek to place
reliance before the State Government. We
also leave it open to the State Government
to direct the petitioners to produce further
information and material, as may be
required by the State Government to
arrive at a proper conclusion for the
exercise of its discretion, in accordance
with the provisions of Section 154 (3) of
the Act.
14. The petition is accordingly
disposed of. In the circumstances of the
case, there shall be no order as to costs.
--------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 15.09.2014
BEFORE
THE HON'BLE AMRESHWAR PRATAP SAHI, J.
THE HON'BLE VIVEK KUMAR BIRLA, J.
Civil Misc. Writ Petition No. 49075 of 2014
M/S Jupiter Information Tech. Pvt. Ltd.,
Delhi
...Petitioner
Versus
State of U.P. & Ors.
...Respondents
Counsel for the Petitioner:
Sri V.K. Jaiswal, Sri H.R. Mishra
Counsel for the Respondents:
C.S.C., Sri Shivam Yadav
Constitution
of
India,
Art.-226Restoration of allotment of plot
-on
certain
default-considering
huge
investment-as per clause 'L' of the
policies
&
Procedures for
industrial