Heard Dr. L.P. Misra, learned counsel for the petitioner and Sri Vinay Bhushan, learned counsel for the State.
This writ petition has been filed for a writ of certiorari seeking quashment of the orders dated 26.06.2013 & 08.02.2013 passed by Additional Commissioner (Judicial), Lucknow and Sub-Divisional Magistrate/Assistant Collector (Sadar), Lucknow respectively.
Briefly stated petitioner's case is that petitioner-society was registered in the year, 1986 for charitable purpose with an object to qualify the Scientific, Professionals and Social Studies on environment between Scientists, Researchers etc. from all over the world amongst other charitable objects. Since it is a charitable institution, it is exempted under Section 12-A of the Income Tax Act. Certificate proclaiming the same has been issued to the petitioner by the Income Tax Department w.e.f. 1989.
After obtaining no objection certificate, building of the Institution was raised and three educational institutions are being run by the Society. Society also decided to establish a Medical College and Hospital as such needed at least 10 Acres of land and the same was purchased on 15.05.2012, 20.06.2012, 06.01.2012 and 07.05.2013 by way of registered sale-deeds. Mutation in khatauni was also done by the Revenue Authorities.
It appears that a note was made by some officer that Society owns more than 12.50 Acres of land which is contrary to provisions of Section 154 of UPZA & LR Act ('Act' in short). This note was followed by a notice issued on 26.09.2012 which was duly replied.
Deputy Collector has passed order on 08.02.2013 whereby 2.0503 Hectare land was ordered to be vested with the State Government. The order passed by Deputy Collector on 08.02.2013 was confirmed in Revision by Additional Commissioner (Judicial), Lucknow on 26.06.2013. These two above-mentioned orders have been challenged in this petition.
Submission of Dr. L.P. Misra is that petitioner-Society being a charitable Society, is not covered within the definition of "Person" occurring in Section 154 of the Act, as such, impugned orders are absolutely without jurisdiction.
Section 154 of the Act is being reproduced below:
"[154. Restriction on transfer by a bhumidhar:-(1) save as provided in sub-section (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 provision of any other law relating to the land tenures for the time being in force, the State Government may, by general or special order, authorize 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 wise or husband (as the case may be) and minor children and where the transferee is a minor also his or her parents."
Submission of the petitioner is that Society, not being a "Person" as provided under Section 154 of the Act, was not required to obtain any permission from the State Government. Learned counsel for the petitioner has relied upon the decision of Hon'ble Apex Court rendered in the case of State of Uttarakhand and others Vs. Guru Ram Das Educational Trust [(2012) 11 SCC 648], wherein Hon'ble Apex Court held that a "charitable institution" is not included within the meaning of the expression "any person" occurring in Section 154 of the Act.
It is held in Paragraph 7 of the judgment that "any person" occurring in Section 154(1) of the Act did not include legal or artificial person. Relevant para 7 of the judgment is being reproduced below:
"A close look at the above expression would show that the Legislature intended to cover only natural person. It is so because the words 'any person' are followed in the sentence by the words 'his family'. 'Family' is explained in the explanation appended to Section 154 which means the transferee, his or her wife or husband, as the case may be, and minor children and where transferee is a minor, his or her parents. This makes it clear that a legal person is not intended to be included in the expression 'any person'. The word 'person', in law, may include both a natural person and a legal person. Sometimes it is restricted to the former. Having regard to the text of Section 154(1) and also the scheme of that provision, there remains no doubt that the expression 'any person' refers to a natural person and not an artificial person. This is fortified by the fact that in 1997 the Legislature inserted Explanation by U.P. Act No. 20 of 1997 declaring that in sub-section (1) the expression 'person' shall include and be deemed to have been included on June 15, 1976 a 'Co-operative Society'. Had the expression 'person' included artificial person, no explanation was necessary. Since the expression 'person' in Section 154 did not include legal or artificial person, the Legislature brought in Co-operative Society by way of an Explanation. The Explanation came to be added in 1997 in a declaratory form to retrospectively bring 'Co-operative Society' within the meaning of expression 'any person'."
(emphasis supplied) Case set up in the counter affidavit is that petitioner ought to have obtained prior approval of the State Government for purchasing the land in excess as prescribed under Section 154(3) of the Act.
Section 154(3) of the Act is being reproduced below:
"[(3) For every transfer of land in excess of the limit prescribed under sub-section (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]."
From the above discussion, it is apparent that for every transfer of excess land referred to in Section 154(1) of the Act, prior approval of the State Government is necessary. In proviso, power to give ex-facto permission has been conceded. Ceiling of 12.50 acres has been prescribed for a 'natural person'. Thus, transfer to a legal or artificial person is not covered under Section 154(3) of the Act, as such, in the opinion of Court, no prior approval is necessary when Section 154(1) itself is inapplicable to such cases, Section 154(3) cannot be invoked for any purpose.
In view of above, in my opinion, Section 154(3) of the Act is not at all attracted to artificial or legal person.
Since Society's charitable purpose is not disputed in the counter affidavit, this petition deserves to be allowed.
Writ petition is accordingly allowed. Impugned orders dated 26.06.2013 & 08.02.2013 passed by Additional Commissioner (Judicial), Lucknow and Sub-Divisional Magistrate/Assistant Collector (Sadar), Lucknow respectively, are hereby quashed.
Order Date :- 30.10.2014 kkv/