A. P. Misra, J. - (1.) IN spite of repeated times being granted to the learned Standing Counsel no counter affidavit has been filed. IN fact, on the last occasion, on 20th September, 1993, three weeks and no more further time was granted, Despite aforesaid, no counter affidavit has been filed. Almost little less than nine years have expired. Hence, we are disposing of these cases finally without the counter affidavit.
(2.) WE have heard learned counsel for the parties and are disposing of all the three writ petitions by means of a common judgment as they raise common questions. The petitioner seeks quashing of order dated 23rd July, 1985 passed by the Sub-Divisional Officer, Dehradun holding the land purchased by the petitioner through sale-deeds to be void being in contravention of section 154-A of the U. P. Zamindari Abolition and Land Reforms Act, 1950 (hereinafter referred to as the Act) and further staying the eviction of petitioner as a consequence of the said order on account of the said declaration from the disputed land. The petitioner-society Inter Mission Industrial Development Association (IID) (hereinafter referred to as the Association) has been registered under the Societies Registration Act (Act No. XXI of I860) having its registered office at Madras. The society has its bye laws and the memorandum of association and is being governed accordingly under the aforesaid Act, the memorandum of association and the byelaws, Under byelaw No. 5 the 'Act' referred to therein means the Tamil Nadu Societies Registration Act, 1975. The Association was established with a view to provide assistance, rehabilitation, technical skills and education to the destitutes and the poor such as orphans, handicapped, slumdwellers, children of leper parents, poor women and an alphabets. In furtherence of the said object the petitioner society purchased land by means of three sale-deeds dated 1st October, 1981, viz. for plot no. 352/1/7, purchased from Raj Emanuel, Dehradun, next for. plots nos. 353/1/8. 353/1/6 and 353/1/7 from Daniel H. J. Singh, and third for plot no. 353/1/4 from H. J. Singh of Dehradun, which are in controversy in Writ Petitions Nos. 13080 of 1985 and 13082 of 1985. While the sale-deed by the Association from one Dhanpat Rai for plot no 122/4 is in question in Writ Petition No. 13079 of 1985. After the purchase of the said land the Association moved an application for demarcation of plots purchased by it. It is during this proceeding that proceedings were initiated by the Sub- Divisional Officer for the declaration that all the aforesaid sale deeds are void being in contravention of section 154-A of the Act.
(3.) LEARNED counsel for the petitioner firstly urged that the Sub- Divisional Officer had no authority in a proceeding for demarcation of the said plots to declare the said sale-deeds to be void. Here, we find that during the said proceedings before passing the impugned order the said authority issued notice to the petitioner and gave an opportunity to which replies were filed by the petitioner and after obtaining the report of the respondent State the said order was passed. In fact, the objection was filed on behalf of the Collector before the said authority. The argument, that in a proceeding for demarcation the said authority could not declare the sale- deed to be void, has no force. The principle is well settled, any transaction which is void could be declared as such by any authority even in an ancillary proceedings if it finds that any document which is subject matter of consideration under the law is void. Of course, before making such a declaration an opportunity should be given, which has been given in this case hence we do not find any illegality by the said authority in initiating proceedings for declaration of the said document to be void. Coming to the merits of the petition, the only ground on which the impugned order has been passed is that the aforesaid sale-deeds are for a transfer of Bhumidari land to the said association, having foreign nationals then under section 154-A such a transfer is void. The contention on behalf of the petitioner is that the transfer of the Bhumidhari land has been made to the petitioner, which is a society registered under the Societies Registration Act and it could not be said to be foreign national. On the other hand, learned Standing Counsel relied on clause 22 of the memorandum of association/bye laws of the association wherein there is an arbitration clause that any matter of dispute referred therein is to be decided by the president of Inter- Mission, West Germany, as long as the society is in the receipt of donations from Inter-Mission. We find from the impugned order, reliance has been placed on this very byelaw. The said order further relies and refers to two members, viz. mentioned at serial nos. 7 and 15 of the list of members of Inter-Mission Industrial Development Association to be foreign nationals. Since interpretation of section 154-A of the Act is involved, as it stood then, is quoted hereunder :- "154-A. Foreign national not to acquire land - (1) Notwithstanding anything contained in this Act or any other law for the time being in force, no person shall have the right to acquire any land by sale of gift without prior permission in writing from the State Government, unless he is an Indian citizen. (2) No bhumidhar shall have the right to transfer any land to any person in contravention of sub-section (1). (3) Every transfer made in contravention of the provisions of this section shall be void." It is significant that this section was later amended retrospectively by U. P. Act No. XXXI of 1985, the Uttar Pradesh Zamindari Abolition and Land Reforms (Amendment) Act, 1985. It is also significant, on the date when this impugned order was passed this amendment was brought in later and the effect of the amendment is from the inception and thus would be relevant for the purpose of disposal of the present disputed question. Accordingly, sections 2 and 3 of the Amending Act is quoted as under :- "2. Amendment of section 154-A of U. P. Act No. 1 of 1951. In section 154-A of the Uttar Pradesh Zamindari Abolition and Land Reforms Act, 1950, hereinafter referred to as the principal Act, for sub-section (1), the following sub-section shall be substituted and shall be deemed always to have been substituted, namely :- ''(1) Notwithstanding anything to the contrary contained in this Act or any other law for the time being in force' no foreign national shall acquire any land by sale or gift without prior permission in writing from the State Government. 3. Validation-Not with standing anything to the contrary contained in the principal Act, any transfer made before the commencement of this Act which is not in contravention of the provisions of sub-section (1) of section 154-A of the principal Act substituted by this Act. shall not be deemed to be void merely because it was in contravention of that sub-section as it stood before such commencement and the subject matter of such transfer, if such transfer is otherwise valid, shall not be deemed ever to have ever vested in the State Government." In section 154-A, as it stood prior to its amendment, there was a bar in acquiring any right over any lany land by sale or gift without prior permission in writing from the State Government unless he is an Indian citizen and similarly sub-section (2) provided a bar even to a seller that no Bhumidhar shall have right to transfer any land to any person in contravention of sab-section (1). Thus whenever any Bhunidhar has to transfer the land then it can only transfer to an Indian citizen but if it is other than Indian citizen prior approval of the State Government is necessary. Similarly, no person except the Indian citizen have a right to acquire any land by sale or gift without prior permission of the State Government. Admittedly, the society which is registered under the Societies Registration Act may be said to be a juristic person, but it would not be an Indian citizen, hence could not acquire any land except with the prior permission of the State Government. It seems, in this light, the objection to the case of the petitioner filed by the Collector also takes this very stand that the society cannot be an Indian citizen, hence it would have no right to acquire the said land. We find, the impugned order does not take this into consideration, but declares the said sale-deeds to be void since among the members of the said society at serial nos. 7 and 15 persons referred are foreign nationals. He thus records since few members of the said society are foreign nationals (even though the said society is registered in Madras) and since it receives donations from outside it would be a case covered under section 154-A being foreign nationals thus the sale-deeds are void. It seems that the Sub-Divisional Officer while passing the impugned order refers to foreign national in view of the heading of the said section as it stood then, though the contents of the section does not refer to the same. Perusing the said order without looking to the amendment, about which we shall be referring hereinafter the impugned order cannot be said to be illegal though for a different reason and not what is recorded in the impugned order. It cannot be doubted, that under the section as it stood then, even a society which cannot be termed as an Indian citizen, has to detain permission in writing from the State Government prior to acquiring any right in the land by way of sale. It is not the case of the petitioner that any such permission was obtained.;