- (1.) Gopalpur Co-operative Farming Society Limited, District Mirzapur, which is a society constituted and registered under the Uttar Pradesh Cooperative Societies Act, 1912, is the petitioner no. 1 in this writ petition and the petitioner no. 2 is its Secretary. They have filed the present writ petition seeking for the following reliefs: "i) issue a writ, order or direction or writ in the nature of mandamus declaring all the proceedings held of mutation for recording the names of the private respondent nos. 11 to 86 as well as all the transactions held by the members or the successors in favour of the private respondents as well as the decree, passed u/s 229B dated 26th April, 1972 without impleading the petitioner society, as null and void and the respondent nos. 3 to 7 be directed to correct the entry in the Revenue record by incorporating the name of the petitioner and deleting the names of private respondent nos. 11 to 86 and they also directed to restrain private respondents to interfere in the possession of the petitioner society over the land in question of 7252 Bigha of village Gopalpur and 2103 Bigha of village Bidauli, District Mirzapur; ii) issue a writ, order or direction or writ in the nature of mandamus directing the District Magistrate, opposite party no. 3 to ensure that no excavation of mud and minerals be made over the land of the petitioner society and strict action be taken against the private respondents or any person doing such work and similarly District Forest Officer-respondent no. 9 and Senior Superintendent of Police-respondent no. 10 be directed that no person including private respondents be permitted to cut the trees or interfere in the physical possession of the petitioner society over the land in question; iii) issue any other appropriate writ, order or direction in favour of the petitioners as the Hon'ble Court may deem fit in the circumstances of the case; and iv) award the costs of the petition to the petitioner." Briefly stated facts giving rise to the present writ petition are that the petitioner society was formed consisting of 17 members and was registered on 19th January, 1951. For the purpose of forming society, the lands measuring areas 7583-11-15 Bighas of Village Gopalpur and 2103-12-00 Bighas of Village Bidauli, District Mirzapur were taken on Patta (lease) by its Zamindars Sri Amresh Chandra Pandey and Sri Naresh Chandra Pandey on 08th January, 1951 and were pooled in the society. On 08th January, 1957 a joint sale-deed was executed by the aforesaid Zamindars in favour of all the 17 members of the society with regard to the aforesaid lands. In 1362 Fasli the name of the society along with individual members of the society was mutated over the aforesaid lands and was recorded as such in 1363-1368 Fasli, which entry continued upto 1368 Fasli. However, it appears that revenue authorities left the name of the petitioner society in the revenue record of 1369 Fasli. On 05th April, 1966 the Uttar Pradesh Co-operative Societies Act, 1965 (U.P. Act No. 11 of 1966) (hereinafter in short called as the ''Act, 1965') was enacted, under which Act also the petitioner society got its registration renewed. The Act, 1965 by its Section 134 repealed Sections 295 to 318 of the Uttar Pradesh Zamindari Abolition & Land Reforms Act, 1950 (hereinafter in short called as the ''UPZA & LR Act') that dealt with the activity of Co-operative Farms being carried by a Co-operative Farming Society. The provisions incorporated under Sections 295 to 318 of the UPZA & LR Act were omitted and included in Sections 77 to 90 of the Act, 1965 by including the said business activity and other matters relating to Co-operative Farming Society in Chapter- XI of the Act, 1965. On 15th October, 1970 certain suits were filed before the Revenue Court under Section 229-B of the UPZA & LR Act individually by the heirs of some of the members of the society without impleading the society. The said suits were contested by the said members/heirs in their individual capacity and the society had no concern with the same. The suits were decreed on 26th April, 1972. On the basis of such decree and taking undue advantage of revenue record, in which name of the petitioner society was not mentioned, various transfers of the property have been done and the right, title and interest upon the property belonging to the society have been claimed. The said claims were accepted by the State authorities, inter alia, by registering the sale deeds in favour of the transferees of the heirs of the members of the society as well as by recording their names in the revenue records. The petitioner society filed the case for correction of the entry in the revenue records under Sections 33/39 of the Uttar Pradesh Land Revenue Act, 1901, on which the Sub Divisional Officer, Marihan, District Mirzapur passed an order on 30th January, 2008 for recording the name of the petitioner society as head in the Khatauni. On the basis of such order, amal daramad was also made in the Khatauni 1413-1418 Fasli in the name of the petitioner society. According to the petitioner, such order still survives and no person challenged it. On 16th March, 2011 Naib Tehsildar, Tehsil Marihan, District Mirzapur cancelled 28 mutations made on the basis of the sale-deed in favour of the transferees. In such circumstances, the present writ petition has been filed praying for the reliefs, as aforesaid. Upon hearing learned Counsel appearing for the parties and going through the record, we find that three basic questions are involved in this case as under: I. Whether in the facts of the present case the writ petition is maintainable? II. Whether the provision of Section 229-B of the UPZA & LR Act will be applicable when Chapter- XI of the UPZA & LR Act was repealed and special provisions contained under Chapter-XI of the Act, 1965 are applicable? III. Whether there exists any right in a member of the society to dispose of the land without prior permission of the society and without knowledge of the society? Consequently, whether the action of the State Authorities will be justified in registering the sale-deeds and ordering mutations of the names of the transferees in the revenue records?
(2.) So far as first point regarding maintainability of the writ petition is concerned, Mr. Manish Goyal, learned Counsel appearing for the petitioners, has submitted before this Court that the writ petition will be fully maintainable. The relief prayed for in the writ petition can be granted as the petitioners have prayed for quashing of the decree passed under Section 229-B of the UPZA & LR Act and for correction of revenue records as well as destruction of the property at the hands of the private persons. All the aforesaid relief can be granted within the extraordinary jurisdiction of this Court under Article 226 of the Constitution of India. He further submitted that the writ petition can even be filed for quashing of a sale deed or for a declaration that the sale deed is null and void. There is no prohibition or bar placed in the exercise of jurisdiction under Article 226 of the Constitution where facts are not in dispute. The issue is about the competence to execute the sale deed and there is no issue between the parties on facts regarding execution of the sale deed. The execution of sale deed being essentially a matter in realm of a contract, a prayer for quashing of the same can very well be granted by this Court. Moreover, in the facts of the present case a peculiar situation has been arrived at and relegating the petitioners to any other remedy will be opening up of a Pandora box and different authorities and Courts will be flooded with litigation that will only cause delay, multiplicity and complexities in adjudication of dispute. Thus, no other remedy is efficacious and open to the petitioners. The parameters on which the exercise of jurisdiction under Article 226 of the Constitution is permissible are well settled, which are (a) without jurisdiction; (b) violation of Part-III of the Constitution of India; and (c) breach of natural justice. In the present case, the action of the State authority is totally without jurisdiction as stated above. Moreover, there is a breach of natural justice as a fundamental error occurred without impleading the petitioner society and orders were passed behind the back of the petitioners to the prejudice of the petitioner society and depriving it of its legal rights to hold the property. Hence, the action of the respondent State is to be decided on the touchstone of Article 14 and 300-A of the Constitution of India. In support of his contentions, Mr. Goyal has relied upon the judgements (L.I.C. of India & anr. Vs. Consumer Education & Research Centre & ors., 1995 4 JT 366), (ABL International Ltd. and another Vs. Export Credit Guarantee Corporation of India Ltd. and others, 2004 3 SCC 553), (T.K. Rangarajan Vs. Govt. of Tamil Nadu and others, 2003 AIR(SC) 3032), (BCPP Mazdoor Sangh & anr. Vs. N.T.P.C. & ors., 2008 AIR(SC) 336) and (Smt. Shiv Patti Devi Vs. District Magistrate,Gorakhpur and others, 2003 3 AWC 2458).
(3.) In respect of second point, Mr. Goyal has relied upon Chapter- XI of the Act, 1965 and submitted that Section 79(6) thereof provides that the provision of UPZA & LR Act shall be applicable only if they are not inconsistent with the provision of the Act, 1965. Section 90 of the Act, 1965 prescribes that the provisions of Chapter-XI shall override the provisions of the Act, 1965 as well as any other Act. Therefore, the provisions of Chapter-VIII of UPZA & LR Act are not applicable particularly when the society can not be treated as Bhumidhar with transferable rights, Asami or a Government lessee. The Co-operative Society forms a class by itself and as such will not be covered by classes of tenure provided under Section 129 of the UPZA & LR Act. Further a perusal of Section 229-B of the UPZA & LR Act confines the claim to be made against the land holder for declaration of rights as Asami in holdings. Once the property stands pooled to a Co-operative Farming Society, a declaration of the right as Asami is not available to any individual member and such land having passed into the possession, control and management of the Cooperative Farming Society, a declaration as contemplated under Section 229-B of the UPZA & LR Act can not be granted. In fact, the provisions of Section 229-B stands eclipsed by provisions of Section 79(1)(2) read with Sections 70 and 111 of the Act, 1965. Hence, after coming into force of the Act, 1965 the provisions of Chapter VIII and particularly of Section 229-B of the UPZA & LR Act will not be applicable, as per the maxim generalia specialibius non-derogant and in view of the overriding effect of Section 90 of the Act, 1965.;