शिमला। हिमाचल प्रदेश हाईकोर्ट ने कोआपरेटिव सोयाटीज की आड़ में हिमाचल में मुजारा कानून का उल्ल्ंघन कर जमीनों की खरीद फरोख्त व बाकी संपतियां बनाने के प्रदेश भर में फैले भारी घोटाले को छह महीने के भीतर खंगाल कर रिपोर्ट देने के निर्देश दिए हैं। हाईकोर्ट ने अपने आदेश में कहा है कि अब समय आ गया है कि प्रदेश में चल रहे इस तरह के जमीनी घाटालों को तबाह किया जाए। हाईकोर्ट के जस्टिस त्रिलोक चौहान ने सभी जिलों के जिलाधीशों को निर्देश दिए है कि वो ऐसी सभी सोसायटीज का पता लगाए जिनहोंने फर्जीवाड़ा कर टेनेंसी एक्ट का उल्लंघन किया है और प्रापर्टी बनाई है।जिन सोसायटियों ने इस तरह की खरीद फरोख्त की हैं उनके खिलाफ आपराधिक प्रक्रिया ही नहीं उनकी इन संपतियों को भी सरकार में शामिल करने की प्रक्रिया शुरू करे। अदालत ने कोआपरेटिव विभाग के खिलाफ भी टिप्पणियां की हैं व कहा है कि सारे कागजात उसके बाद पास आते हैं ऐसे में बिना मिलीभगत के इस तरह के घोटाले नहीं हो सकते।
जस्टिस त्रिलोक चौहान ने अपने आदेश में रजिस्ट्रार कोआपरेटिव सोसायटी के अलावा पुलिस विभाग को इस तरह की ऐसी सोसायटियों, सदस्यों जिन्होंने टैनेंसी एक्ट की अवहेलना कर प्लाटों की खरीद फरोख्त की हैं, उनकी पहचान व कार्रवाई करने में जिलाधीशें को सहयोग करें।
मामला नालागढ़ की एक सोसायटी का हैं इस सोसायटी का कायक्षेत्र नालागढ़ के गांव कत्था व बिल्लावली गांव के तहत हैं। इस सोसायटी के मेंबर इन्हीं गावों के होने चाहिए थे। लेकिन अदालत में सामने आया कि सोसायटी के 173 सदस्यों में केवल 14 इन गांवों के थे बाकी 159 सदस्य बाहर के थे। ये लोग जाती पते देकर सोसायटी के मेंबर बन गए और यहां प्लाट ले लिए।
अदालत में याचिकाकर्ता का ये सच भी सामने आया कि उसने परवाणू का जाली पता दिया और मेंबर बन गया हैं जबकि जांच होने पर सामने आया कि वो पंजाब के लुधियाना का रहने वाला था। इसके अलावा दूसरे याचिका कर्ता एमआइजी प्लाट नं 91, सेक्टर 4 परवाणू का पता देकर मेंबरशिप ले रखी थी लेकिन जांच में सामने आया कि ये प्लाट किसी कृष्ण मलहोत्रा का हैं।
प्रदेश में हुए इस जमीनी घोटाले को लेकर हाईकोर्ट के पूरे आदेश को पढ़ें यहां-:
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
CWP No. 2868 of 2008
Reserved on: 13.09.2017
Date of decision: 10.10 . 201 7
Raksha Gupta & Ors. … Petitioners
State of H.P. & Ors. …Respondent s
The Hon’ble Mr. Ju stice Tarlok Singh Chauhan , Judge.
Whether approved for reporting?
For the petitioners : Mr. Sanjeev Bhushan, Sr. Advocate,
with Ms. Abhilasha Kaundal,
For the respondents : Ms. Meenakshi Sharma, Addl. A.G.
with Mr. Neeraj K. Sharma, Dy. A.G.
for respondents No. 1, 2, 4 and 5.
Mr. R.P. Singh, Advocate, for
respondent No. 3.
Tarlok Singh Chauhan, Judge
This writ petition exposes an ingenious land scam where large scale illegal transfer of land is being carried o ut in the State contrary to Section 118 of the H.P. Tenancy and Land Reforms Act, 1972 (for short the ‘Tenancy Act ’ ) through various C o -operative Societies registered in State.
- The petitioners , who admittedly are the non -agriculturists, after becoming members of respondent No. 3 – Society , were allotted plots by respondent No. 3 – Society in contravention to not only the aforesaid provisions of the Tenancy Act but also the provisions of the bye -laws framed by respondent No. 3 – S ociety.
- Respondent No. 3-Society came to be registered under the provisions of H.P. Co -operative Societies Act, 1968 (for short the ‘Act’ ) on 12.07.1990 vide registration No. 554 with the following objects as enumerated in Clause 4 of the bye laws, which read s
“4. The objects of the society shall be:-
(i) To purchase, take on long lease or acquire by exchange or otherwise land for construction of houses or housing colonies.
(ii) To construct, hire or acquire buildings for the individual and collective benefit of the members.
(iii) To sell or to exchange house sites with members, rent out or lease buildings for common use, surrender or accept surrender of houses or house sites.
(iv) To purchase and sell to members requisite material for construction and repair of houses.
(v) To establish and carry sanitary, social, educational and recreational activities for the benefit of the members.
(vi) To raise funds and to give loans to members for the construction of houses by themselves or on their behalf.
(vii) To prescribe house plans.
(viii) To undertake measure to s pread knowledge of co-operative principles and practices.
(ix) To undertake such other activities as are conducive to the attainment of the above objects. ”
- As would be evident , the object of the society amongst other was to purchase, take on long lease o r acquire by exchange or otherwise land for construction of houses or housing colonies and then to sell or to exchange house sites with members, rent out or lease buildings for common use, surrender or accept surrender of houses or house sites.
- In ter ms of the bye-laws of the Society, the ar ea of operation as per Rule 11(1) of the H.P. Cooperative Societies Rules, 1971 (for short the ‘Rules’) in order to make one eligible for admission as member of the Society, apart from others was that one must be an ordinary resident of villages Kattha and Billawalli in Tehsil Nalagarh. Even though the petitioners did not reside in the said villages within the area of operation of the Society, yet they were enrolled memb ers by furnishing fake addresses, for example, the petitioner No. 1 had furnished the Address: MIG plot No. 91, Sector -4, Parwanoo, however, on enquiries made by the Society, it was revealed that the plot belonging to one Krishna Malhotra and not the petitioner No. 1.
- Even otherwise, it is not in dispute that none of the petitioners belong to the area of operation of the Society , rather out of 173 members only 14 members were found to be resident of area of operation of the Society , whereas remaining 159 members including the petitioners herein were found to be belonging to areas outside the operation of the Society.
Therefore, their enrollment was illegal not only in terms of the bye laws of the Society but even the provisions of Section 118 of the Tenancy Act. Even otherwise , the addresses furnished by the petitioners of Parwanoo did not entitle them to be enrolled as members as the same admittedly fell outside the area of the operation of the Society.
- The petitioners by way of this petition have assailed the cancellation of their membership as also the cancellation of plots which orders have been upheld by the authorities constituted under the Act and have been impugned herein . All the authorities have found the petitioners to have submitted fake affidavits in order to get membership by furnish ing the address i.e. House No. 91, Sector -4, Parwanoo, whereas they are permanent residents of Ludhiana (Punjab).
- Rule 11 (1) of the Rules lays down the condition of membership, of an individual and one of the essential condition as per clause (e) is t hat the individual should be resident of area of operation of Society for the last more than six months. It is apt to reproduce Rule 11 (1) of the Rules, which reads thus:-
- Condition of membership of individuals –
(1) No person shall be eligible for adm ission as a member of the society if he: –
(a) is an applicant to be adjudicated a bankrupt or an insolvent or is an uncertified bankrupt; or is an undischarged insolvent; or
(b) has been sentenced for any offence involving moral turpitude and such sentence has not been reversed, or has not been pardoned; or
(c) is a minor, except when he happens to be minor heir, or nominee of a deceased member; or
(d) is of unsound mind; or
(e) is not a resident of the area of operation of the society, for the last six mon ths; or
(f) carries on business similar to that conducted by the society of which he wishes to become a member; or (g) does not fulfil such other conditions as specified in the bye – laws of the society.
- Whereas Section 118 of the Tenancy Act, reads th us:-
“118. Transfer of land to non -agriculturists barred.- (1) Notwithstanding anything to the contrary contained in any law, contract, agreement, custom or usage for the time being in force, but save as otherwise provided in this Chapter, no transfer of land (including transfer by a decree of a civil court or for recovery of arrears of land revenue) by way of sale, gift, will, exchange, lease, mortgage with possession, creation of a tenancy or in any other manner shall be valid in favour of a person who is not an agriculturist.
Explanation. – For the purpose of this sub- section, the expression “transfer of land” shall not include, –
(i) transfer by way of inheritance;
(ii) transfer by way of gift made or will executed, in favour of any or all legal heirs of the donor or the testator, as the case may be;
(iii) transfer by way of lease of land or building in a municipal area; but shall include –
(a) a benami transaction in which land is transferred to an agriculturist for a consideration paid or provided b y a non – agriculturist; and
(b) an authorization made by the owner by way of special or general power of attorney or by an agreement with the intention to put non- agriculturist in possession of the land and allow him to deal with the land in the like manne r as if he is a real owner of that land.
(2) Nothing in sub- section (1) shall be deemed to prohibit the transfer of land by any person in favour of.-
(a) a landless labourer, or
(b) a landless person belonging to a scheduled caste or a scheduled tribe ; or
(c) a village artisan; or
(d) a land less person carrying on an allied pursuit; or
(dd) a person who, on commencement of this Act worked and continues to work for gain in an estate situated in Himachal Pradesh; for the construction of a dwelling house, shop, or commercial establishment in a municipal area, subject to the condition that the land to be transferred does not exceed:-
(i) in case of dwelling house – 500 square metres; and
(ii) in the case of shop or commercial establishment – 300 square metres: Provided that such person does not own any vacant land or a dwelling house in a municipal area in the State;
(e) the State Government or Central Government, or a Government Company as defined in section 617 of the Companies Act,1956 or a Company incorporated under the Companies Act, 1956 for which land acquired through the State Government under the Land Acquisition Act,1894, or a statutory body or Corporation or Board established by or under a statute and owned and controlled by the State or Central Government;
(f) a person who has become non- agriculturist on account of-
(i) acquisition of his land for any public purpose under the Land Acquisition Act, 1894; or
(ii) vestment of his land in the tenants under this Act; or ;
(g) a non- agriculturist who purchases or intends to purchase land for the construction of a house or shop, or purchases a built up house or shop, from the Himachal Pradesh State Housing and Urban Development Authority, established under the Himachal Pradesh Housing and Urban Development Authority Act,2004, or from the Development Authority constituted under the Himachal Pradesh Town and Country Planning Act,1977 or from any other statutory Corporation set up for framing and execution of house accommodation schemes in the State under any State or Central enactment, or
(h) a non – agriculturist with the permission of the State Government for the purposes that may be prescribed:
Provided that that a person who is non- agriculturist but purchases land either under clause (dd) or clause (g) or with the permission granted under clause (h) of this sub -section shall, irrespective of such purchase of land, continue to non- agriculturist for the purposes of this Act:
Provided further that a non – agriculturist who purchases land under clause (dd) or in whose case permission to purchase land is granted under clause
(h) of this sub – section shall put the land to such use for which the permission has been granted within a period of two years or a further such period not exceeding one year, as may be allowed by the State Government for reasons to be recorded in writing, to be counted from the day on which the sale deed of land is registered and if he fails to do so or diverts, without the permission of the State Government, the said use for any other purpose or transfer by way of sale, gift or otherwise, the land so purchased by him shall, in the prescribed manner, vest in the State Government free from all encumbrances;
(3) No Registrar or the Sub – Registrar appointed under the Indian Registra tion Act,1908 (16 of 1908), shall register any document pertaining to a transfer of land, which is in contravention of sub – section (1):
Provided that the Registrar or the Sub – Registrar may register any transfer –
(i) Where the lease is made in relation to a part or whole of a building; or
(ii) Where the mortgage is made for procuring the loans for construction or improvements over the land either from the Government or from any other financial institution constituted or established under any law for the time being in force or recognized by the State Government.
(3 – A) Where-
(a) the Registrar or the Sub- Registrar, appointed under the Indian Registration Act, 1908, before whom any document pertaining to transfer of land is presented for registration comes to know or has reason to believe that the transfer of land is in contravention of sub – section (1); (b) a Revenue Officer either on an application made to him or on receipt of any information from any source comes to know or has reason to believe that any land has been transferred or is being transferred in contravention of the provisions of sub – section (1);
Such Sub- Registrar, the Registrar or the Revenue Officer, as the case may be, shall make reference to the Collector of the District, in which land or any part thereof is situate, and the Collector, on receipt of such reference or where the Revenue Officer happens to be the Collector of the District himself, he either on an application made to him or on receipt of any information from any source comes to know or has reason to believe that any land has beentransferred or is being transferred in contravention of the provisions of sub- section (1), shall after affording to the persons who are parties to the transfer, a reasonable opportunity of being heard and holding an enquiry, determine whether the transfer of land is or, is not in contravention of sub – section (1) and he shall, within six months from the date of receipt of reference made to him or such longer period as the Divisional Commissioner may allow for reasons to be recorded in writing record his decision thereon and intimate the findings to the Registrar, Sub – Registrar or the Revenue Officer concerned.
(3 – B). T he person aggrieved by the findings recorded by the Collector that a particular trans fer of land is in contravention of the provisions of sub- section (1), may within a period of 30 days from the date on which the order recording such findings is made by the Collector or such longer period as the Divisional commissioner may allow for reasons to be recorded in writing file an appeal to the Divisional Commissioner, to whom such Collector is subordinate, and the Divisional Commissioner may, after giving the parties an opportunity of being heard of the case from the Collector reverse, alter or confirm the order made by the collector and the order made by the Divisional Commissioner shall be final and conclusive.
(3 – C). (a) The Financial commissioner may, either on a report of a Revenue Officer or on an application or of his own motion, call for the record of any proceedings which are pending before, or have been disposed of by, any Revenue Officer subordinate to him and in which no appeal lies thereto, for the purpose of satisfying himself as to the legality or propriety of such proceedings or o rder made therein and may pass such order in relation thereto as he may think fit.
(b) No order shall be passed under this sub- section which adversely effects any person unless such person has been given a reasonable opportunity of being heard; (3 – D) Where the Collector of the District under sub -section (3A), in case an appeal is not made within the prescribed period or the Divisional Commissioner in appeal under sub- section (3- B) or the Financial Commissioner in revision, under subsection (3C), decides that the transfer of land is in contravention of the provisions of sub – section (1), such transfer shall be void abinitio and the land involved in such transfer together with structures, buildings or other attachments, if any, shall in the prescribed manner, vest in the State Government free from all encumbrances; and
(4) It shall be lawful for the State Government to make use of the land which is vested or may be vested in it under sub – section (2) or sub – section (3D) for such purposes as it may deem fit to do so.
Explanation – I. For the purpose of this section, the expression “land” shall include-
(i) land recorded as “Gair -mumkin”, “Gair- mumkin makan” or any other Gair-mumkin land, by whatever name called in the revenue records, and
(ii) land which is a site of a building in a town or a village and is occupied or left out not for agricultural purposes or purposes subservient to agriculture, but shall not include a built up area in a municipal area;
Explanation – II. – For the purpose of this section the expression “municipal area” means the territorial area of a Nagar Panchayat, Cantonment Board, Municipal Council or a Municipal Corporation constituted under any law for the time being in force.
- Evidently, Section 118 of the Tenancy Act starts with non obstante clause and it is well known that a non obstante clause is a legislative device which is usually implied to give overriding effect s to certain provisions over contrary provisions that may be found either in the same enactment or some other enactment, that is to say , to avoid operation and effect of contrary provisions.
- In Chandavarkar Sita Ratna Rao vs. Ashalata S. Guram (1986) 4 SCC 447, the scope of non obstante clause was explained in the following words:
A clause beginning with the expression “ notwithstanding anything contained in this Act or in some particular provision in the Act or in some particular Act or in any law for the time being in force, or in any contract ” is more often than not appended to a section in the beginning with a view to give the enacting part of the section in case of conflict an overriding effect over the provision of the Act or the contract mentioned in the non obstante clause. It is equivalent to saying that in spite of the provision of the Act or any other Act mentioned in the non obstante clause or any contract or document mentioned the enactment following it will have its full operation or that the provisions embraced in the non obstante clause would not be an impediment for an operation of the enactment.
- It is otherwise elementary that a provision of the Act statutory enactment will override the provisions of the Rules framed under any Act and thus the provisions of Section 118 of the Tenancy Act would essentially have an overriding effect over the provisions of Rule 11(1) of the Rules.
- While construing provisions of the Cooperative Act, the Court is not oblivious to the fact that more than 5000 different types of Societies registered as business entity under the Act, some of which are ; PACS, Thrift and Credit N/A, Urban Co -operative Banks, Housing Coop. Societies, Consumer Stores, Weaver Societies, Industrial Societies, Dairy and Animal Husbandry, Marketing and Processing, Fisheries, Transport Societies, Labour and Construction, Other Non Agri. Societies, State and Central Coop. Banks and Agri. & Rural Dev. Bank etc.
- In Primary Agriculture Credit Societies (PACS) and the Agricultural and Rural Development Banks, the membership is only given to the agriculturists or bonafide residents of Him achal Pradesh because the services rendered by these societies are directly related to agriculture and purposes subservient to agriculture. The ownership of land is one of the basic criteria for acquiring membership in these societies and thus, the bye-law s of these societies provide for the same in view of the provision contained in clause (g) of sub-rule (1) of Rule 11 of the Rules.
- In Urban Co -operative Banks and Non- Agriculture Thrift and Credit Societies (NATC), the membership consists of business men, salary earners, non -agriculturists, etc. For their financial needs persons of these categories become members of such societies and get the services. In order to avail the services, it is necessary to become member in such societies. It is not required that salary earners and traders must be from out of the categories of agriculturists or bona fide residents for, a large number of these persons belong to States other than the H.P. Therefore, the membership in these type of societies is given to the ordinary residents of the area of operation of the societies who have been residing there for the last six months and are in occupation of some legitimate profession.
In case any restriction is imposed qua the ordinary residence, a large number of individual would be deprived of the services rendered by these societies. It is also clarified that these societies cannot deal with non-members as for rendering or availing financial services it is imperative to make them members to bring them within the ambit of arbitration clause under the Act for securing safety of societies’ funds in case of default by any one of them.
- Likewise, in other categories of societies viz. transport,fisheries, industrial, weaver, labour and construction, consumer stores, etc. ordi nary residents residing in the area of operation of the concerned society for the last six months are made members for fulfilling their specific needs and earning livelihood. As the objects of these societies vary from society to society therefore, the class of membership and their requirement also differ. For example, the labour and construction societies, weaver societies, fisheries societies, transport societies, etc. are registered with a specific object to earn livelihood. In case clause (e) supra is construed to mean permanent or bona fide residents, the ordinary residents intending to acquire membership of such societies would be discouraged and lose their right of livelihood.
17 . Insofar as membership in housing societies is concerned, if a housing society is formed by agri culturists and consists membership of that class only, it can allot plots to its members. But in the case of other House Building cooperative Societies where ordinary residents or non-agriculturist are enrolled as members such societies could only allot flats or houses to its members and not the plots.
- As already observed above, out of 173 members of the Society only 14 members were found the residents of the area of the operation of the Society whereas remaining 159 members including the petitioners were found outside the area of the operation of the Society. This clearly proves the large scale land scam that is existing in the State.
- As per Chapter VIII of the Act, the accounts of the respondent department is assigned a nd entrusted work of audit, inquiry, inspection and, therefore, it is difficult to imagine that the Society continue to enroll members contrary to the law when the officials of the Cooperative department being in peridelicto with those responsible for the scam. After all despite there being large scale bungling and manipulation, there i s hardly any proper supervision. Such malpractices and irregularities are offence s not only against the Society as a whole but against the system established by law. The members of the Society have committed forgery by playing systematic fraud in a pre-planned scheme by inventing a novel device to defy the law i.e. the provisions of Section 118 of the Tenancy Act.
- It is, therefore, high time that there is crack down on su ch land scam s . Accordingly, all the Deputy Commissioners of the State are directed to conduct a thorough probe and identify such societies and members who have blatantly violated the provisions of the Tenancy Act and ensure that not only criminal cases are registered agains t them but appropriate proceedings for having the properties vested in the State are also initiated .
The Registrar, Cooperative Societies as also the other government agencies including the Police Department are directed to ensure all nec essary assistance for identifying such societies / members who have allotted plot s or purchased plots contrary to the provisions of the Tenancy Act. It is clarified that this order shall not apply to the societies or members who have purchased built up structure as is permissible under the provisions of the Tenancy Act.
- Adverting to the facts, since the petitioners admittedly are not only non-agriculturists but are not even the residents of the area of the society and have themselves blatantly violated the law, no relief or indulgence can be shown in favour of such litigants.
- Consequently, the writ petition , as regards reliefs claim ed therein , merits dismissal and is accordingly dismissed. The Deputy Commissioners are directed to submit their repor ts within a period of six months and for that purpose case be listed on 10.4.2018.
October 10, 2017 (Tarlok Singh Chauhan)
(Sanjeev ) Judge