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2022 DIGILAW 1755 (ALL)

Omwati v. Collector District Pilibhit

2022-11-10

YOGENDRA KUMAR SRIVASTAVA

body2022
JUDGMENT : 1. The two writ petitions are based on similar set of facts and raise common questions of law, accordingly with the consent of the parties, the petitions are being taken up for hearing together. 2. Heard Sri Siddharth Nandan, learned counsel for the petitioners and Ms. Shivi Mishra, learned Standing Counsel for the State respondents. 3. Writ C No. -31006 of 2021 seeks to raise a challenge to an order dated 9.11.2021 passed by the respondent no.1/Collector, District Pilibhit in Case No. 1307 of 2021 (Omwati vs. State of U.P.) under Section 98(1) of U.P. Revenue Code, 20061. A further prayer has been made for a direction to the respondent authorities to grant permission for executing the sale deed in pursuance of an agreement to sell dated 5.12.2019 as per terms of Section 98 of the Code, 2006 read with Rule 99 of the U.P. Revenue Code Rules, 2016[the Rules, 2016]. 4. The petitioner claims to be recorded as a bhumidhar with transferable rights over half portion of land bearing Khata no.13, Gata no. 218 area 0.679 hectares situate at Village Simraya, Tehsil Puranpur, District Pilibhit. It has been submitted that the petitioner is married and is residing with her husband at Village Mainakot, which is situate at a distance of 50 kms and since it is not possible for her to carry out agriculture over the land in question, she entered into a registered agreement to sell dated 5.12.2019 with the respondent no.3 and submitted an application dated 6.12.2019 to the Collector seeking permission under Section 98(1) of the Code, 2006. A report thereon dated 20.1.2022 was submitted by the Tahsildar concerned. The petitioner thereafter, approached this Court by filing Writ C No. 7110 of 2020 (Smt. Omwati vs. Collector, District Pilibhit and 2 Others) which was disposed of in terms of an order dated 4.5.2020 directing the respondent no.1 to pass an appropriate order on the application submitted by the petitioner within a prescribed time period. The application filed by the petitioner was subsequently rejected by the respondent no.1 by means of an order dated 6.12.2019. Being aggrieved, against the aforesaid order, the petitioner has preferred the present writ petition. 5. Writ C No. 31010 of 2021 seeks to bring into question the order dated 9.11.2021 passed by the respondent no. The application filed by the petitioner was subsequently rejected by the respondent no.1 by means of an order dated 6.12.2019. Being aggrieved, against the aforesaid order, the petitioner has preferred the present writ petition. 5. Writ C No. 31010 of 2021 seeks to bring into question the order dated 9.11.2021 passed by the respondent no. 1/Collector, District Pilibhit in Case No. 1306 of 2021 (Shiv Narayan vs. State of U.P.) under Section 98(1) of the Code, 2006. A further prayer is sought for a direction to the respondent no.1 to grant permission for execution of the sale deed in furtherance of an agreement to sell dated 9.12.2019 as per terms of Section 98 of the Code, 2006 read with Rule 99 of the Rules, 2016. The petitioner has asserted himself to be a bhumidhar with transferable rights over land under Khata no. 289, Gata no. 412, area 0.301 hectares and 2/4th of Khata no. 54, Gata no. 556 area 0.122 hectares and Khata no. 215, Gata no. 413Aa, area 0.080 hectares situate at Village Simraya, Tehsil Ghunghchihai, Tehsil Puranpur, District Pilibhit and also half share of Khata no. 002, Gata no. 301 area 3.561 hectares situate at Village Bhagwantapur, Tehsil Puranpur, District Pilibhit. It is submitted that petitioner had entered into a registered agreement to sell dated 9.12.2019 with the respondent no.3 in respect of the land in question which is situate at a distance of 18 kms and accordingly, it was not possible for him to carry out agriculture over the said land. The petitioner has also stated that he was in need of funds to repay the loan which he had taken. An application was therefore, submitted before the respondent no.1 in the prescribed format for seeking permission as per Section 98(1) of the Code, 2006. A report dated 20.1.2020 was submitted by the Tahsildar thereon. The matter remained pending and in view thereof, the petitioner had to approach this Court by filing Writ C No. 7115 of 2020 (Shiv Narayan vs. Collector, District Pilibhit and 2 Others) which was disposed of by an order dated 4.5.2020 directing the respondent authorities to pass appropriate order within a time bound period. The application of the petitioner was subsequently rejected by the respondent no.1 by an order dated 10.12.2019. It is against the aforesaid order that the writ petition has been filed. 6. The application of the petitioner was subsequently rejected by the respondent no.1 by an order dated 10.12.2019. It is against the aforesaid order that the writ petition has been filed. 6. Counsel for the petitioner has referred to the provisions contained under Section 98 of the Code, 2006 and Rule 99 of the Rules, 2016 to contend that in the case of Smt. Omwati (petitioner in Writ C no. 31006 of 2021) the petitioner had fulfilled the conditions mentioned in Rule 99 of the Rules, 2016 and accordingly, was entitled for being granted permission. It is submitted that the application of the petitioner has been rejected merely on the ground that she had not produced any certificate from the Gram Pradhan to the effect that no member of the Scheduled Caste/Scheduled Tribe of the village was ready to purchase the property in question and therefore, she was not entitled for grant of permission solely for the reason that the agricultural land was at a distance of 50 kms from the place where she was residing. 7. It is sought to be contended that there is no requirement under the relevant statutory provisions or the rules made thereunder with regard to filing of a certificate of the Gram Pradhan to indicate that no person belonging to the Scheduled Caste in the village was ready to purchase the property and that the petitioner having specifically stated that it was not feasible for her to travel a distance of 50 kms to cultivate the land, she was entitled for grant of permission. Learned counsel has submitted that the provision under Section 98 of the Code, 2006 read with Rule 99 of the Rules, 2016 is a beneficial piece of legislation and the discretion granted to the Collector in this regard under clause (c) of the proviso to Section 98(1) ought to have been exercised liberally and in furtherance with the intent of the legislature. Accordingly, it is urged that the order passed by the Collector rejecting her application is erroneous and legally unsustainbale. 8. As regards the case of Shiv Narayan (petitioner in Writ C no. Accordingly, it is urged that the order passed by the Collector rejecting her application is erroneous and legally unsustainbale. 8. As regards the case of Shiv Narayan (petitioner in Writ C no. 31010 of 2021), learned counsel for the petitioner has pointed out that here also the application has been rejected by assigning the reason that the petitioner had not submitted any certificate from the Gram Pradhan that no person in the village belonging to the category of Scheduled Caste/Scheduled Tribe was ready to purchase the property in question and in view thereof, the permission could not be granted only for the reason that the agricultural land was at a distance of 18 kms from the place where he was residing. 9. Learned counsel appearing for the State respondents has supported the order passed by the respondent authorities by pointing out that the petitioners having not fulfilled the conditions specified under Section 98(1) of the Code, 2006 read with Rule 99 of the Rules, 2016, the applications seeking permission have rightly been rejected. It has been submitted that the restrictions ingrained in the aforesaid statutory provisions are with a view to protect the interest of the bhumidhars belonging to Scheduled Castes and the discretion conferred on the Collector under clause (c) of the proviso to Section 98(1) is structured in the manner as prescribed under Rule 99 and cannot be extended beyond the specified terms. 10. Section 98 of the Code, 2006 and Rule 99 of the Rules, 2016 relevant for the purpose of the controversy in question are being extracted below: “98. 10. Section 98 of the Code, 2006 and Rule 99 of the Rules, 2016 relevant for the purpose of the controversy in question are being extracted below: “98. Restrictions on transfer by bhumidhars belonging to a Scheduled Caste.—(1) Without prejudice to the provisions of this Chapter, no bhumidhar belonging to a scheduled caste shall have the right to transfer, by way of sale, gift, mortgage or lease any land to a person not belonging to a scheduled caste, except with the previous permission of the Collector in writing: Provided that the permission by the Collector may be granted only when— (a) the bhumidhar belonging to a scheduled caste has no surviving heir specified in clause (a) of sub-section (2) of section 108 or clause (a) of section 110, as the case may be; or (b) the bhumidhar belonging to a scheduled caste has settled or is ordinarily residing in the district other than that in which the land proposed to be transferred is situate or in any other State for the purpose of any service or any trade, occupation, profession or business; or (c) the Collector is, for the reasons prescribed, satisfied that it is necessary to grant the permission for transfer of land. (2) For the purposes of granting permission under this section the Collector may make such inquiry as may be prescribed. Rule 99. Collector's permission for transfer of Scheduled Caste bhumidhar's land. (Section 98).— (1) An application under section 98 (1) or under section 98 (1) read with section 107, for permission to transfer land by way of sale or gift or for permission to bequeath land by will, as the case may be, shall be made by a Bhumidhar with transferable rights belonging to Scheduled Caste to the Collector in R.C. Form-27. (2) An application under section 98 (1), for permission to mortgage his interest in the land shall be made by a bhumidhar, belonging to a Scheduled Caste to the Collector in R.C. Form-28. (3) An application under section 98 (1), for permission to let out land shall be made by a bhumidhar belonging to a Scheduled Caste to the Collector in R.C. Form-29. (4) On receipt of an application under section 98 (1) the Collector shall make such inquiry as he may, in the circumstances of the case, deem necessary. (3) An application under section 98 (1), for permission to let out land shall be made by a bhumidhar belonging to a Scheduled Caste to the Collector in R.C. Form-29. (4) On receipt of an application under section 98 (1) the Collector shall make such inquiry as he may, in the circumstances of the case, deem necessary. He may also depute an officer not below the rank of Naib Tahsildar for: (a) verification of the facts stated in the application; and (b) reporting the circumstances in which permission for transfer is sought. (5) The inquiry officer referred to in sub-rule (4) of this rule shall submit the report in duplicate within the period of fifteen days, from the date of receiving the order of such inquiry. (6) A copy of the report shall be supplied to the applicant free of charge, from the office of the Collector where such report has been submitted. (7) The applicant may file objection against the report submitted by the inquiry officer within the period of seven days from the date of receipt of the copy of the report. (8) After receiving the report submitted under sub-rule (3) and the objection, if any, if the Collector is satisfied that- (a) the conditions of clause (a) or clause (b) of subsection (1) of section 98 are fulfilled; or (b) the tenure holder or any member of his family is suffering from any fatal disease regarding which the certificate has been issued by any physician or surgeon specialist in the disease concerned and the permission for transfer is necessary to meet out the expenses for the treatment of such disease; or (c) the applicant is seeking permission under section 98(1) of the Code for the proposed transfer to purchase any other land from the consideration of such proposed transfer and the facts in this regard in the application are supported with certified copy of a registered agreement to sell in favour of the applicant; or (d) the area of land held by the applicant on the date of application does not, after such transfer, reduce to less than 1.26 hectares, and (e) if the permission is being sought for transfer by sale the consideration for the transfer of the land is not below the amount calculated as per the circle rate fixed by the Collector; he may grant the permission by recording the reasons. Explanation. Explanation. —For the removal of doubt it is a hereby clarified that if the condition enumerated in clause (d) of this sub-rule is not fulfilled but any condition enumerated in clauses (a) to (c) of this rule is fulfilled the permission under section 98(1) of the Code may be granted by Collector. (9) An application referred to in sub-rule (2) or sub-rule (3) of rule 99 for permission to mortgage or to let out land, as the case may be, may be granted by the Collector on his being satisfied that the mortgage or letting out, as the case may be, is not possible in favour of a person belonging to a Scheduled Caste or Scheduled Tribe. (10) An application referred to in sub-rule (1) of rule 99 for permission to bequeath land by will, may be granted by the Collector on his being satisfied that the bequeath of the land was not possible in favour of the person belonging to a Scheduled Caste or a Scheduled Tribe. (11) The Collector shall make an endeavor to dispose of the application under section 98(1) within the period of fifteen days from the date of receiving the report submitted by the inquiry officer and if the application is not disposed of within such period the reason for the same shall be recorded.” 11. Section 98 of the Code mandates that no bhumidhar belonging to a scheduled caste shall have the right to transfer, by way of sale, gift, mortgage or lease any land to a person not belonging to a scheduled caste except with the previous permission of the Collector in writing. The previous permission of the Collector is therefore, a condition precedent before any bhumidhar of scheduled caste can seek to transfer his land to a person not belonging to a scheduled caste. In the absence of such permission having been obtained, the transfer would be rendered void as per Section 104, and would be subject to the consequences provided under Section 105. 12. In the absence of such permission having been obtained, the transfer would be rendered void as per Section 104, and would be subject to the consequences provided under Section 105. 12. The proviso to Section 98 enumerates the conditions under which permission may be granted by the Collector, and the same are as follows: (i) the bhumidhar belonging to a scheduled caste has no surviving heir specified in clause (a) of sub-section (2) of section 108 or clause (a) of section 110, as the case may be; or (ii) the bhumidhar belonging to a scheduled caste has settled or is ordinarily residing in the district other than that in which the land proposed to be transferred is situate or in any other State for the purpose of any service or any trade, occupation, profession or business; or (iii) the Collector is, for the reasons prescribed, satisfied that it is necessary to grant the permission for transfer of land. 13. The reasons prescribed, as referred to under clause (c) of the proviso to Section 98(1), upon which the Collector is to record its satisfaction that it is necessary to grant permission for transfer of the land, are specified under sub-rule (8) of Rule 99 of the Rules, 2016, and the same are as follows: (i) the conditions of clause (a) or clause (b) of subsection (1) of section 98 are fulfilled; or (ii) the tenure holder or any member of his family is suffering from any fatal disease regarding which the certificate has been issued by any physician or surgeon specialist in the disease concerned and the permission for transfer is necessary to meet out the expenses for the treatment of such disease; or (iii) the applicant is seeking permission under section 98(1) of the Code for the proposed transfer to purchase any other land from the consideration of such proposed transfer and the facts in this regard in the application are supported with certified copy of a registered agreement to sell in favour of the applicant; or (iv) the area of land held by the applicant on the date of application does not, after such transfer, reduce to less than 1.26 hectares, and (v) if the permission is being sought for transfer by sale the consideration for the transfer of the land is not below the amount calculated as per the circle rate fixed by the Collector; 14. The conditions under which permission may be granted for transfer to a bhumidhar belonging to a scheduled caste can thus be summarised as follows:- (i) in the absence of surviving heir specified in clause (a) of sub-section (2) of section 108 or clause (a) of section 110; (ii) the transferor has settled or is ordinarily residing in the district other than that in which the land proposed to be transferred is situate or in any other State for the purpose of any service or any trade, occupation, profession or business; (iii) for the reasons prescribed under the Rules, i.e. (a) the tenure holder or any member of his family is suffering from any fatal disease; or (b) the applicant is seeking permission for the proposed transfer to purchase any other land from the consideration of such proposed transfer; or (c) the area of land held by the applicant on the date of application does not, after such transfer, reduce to less than 1.26 hectares, and (d) if the permission is being sought for transfer by sale the consideration is not below the amount calculated as per the circle rate fixed by the Collector. 15. The explanation to Rule 99 clarifies that in a situation where any condition enumerated in clause (a) to (c) of sub-rule (8) of Rule 99 is fulfilled, the permission may be granted even if the holding of the bhumidhar (transferor) after such transfer reduces to less than 1.26 hectares. 16. The procedure for obtaining permission for transfer under Section 98 is provided for under Rule 99 of the Rules, 2016 and as per sub-rule (3) thereof an application seeking permission to transfer land by way of sale or gift or for permission to bequeath land by will, as the case may be, is to be made by a bhumidhar with transferable rights belonging to scheduled caste to the Collector in RC-Form 27. Upon receipt of such an application, the Collector under sub-rule (4) shall make an enquiry as he may, in the circumstances of the case deem necessary. For the purpose he may depute an officer not below the rank of Naib Tehsildar for : (a) verification of the facts stated in the application; and (b) reporting the circumstances in which permission for transfer is sought. For the purpose he may depute an officer not below the rank of Naib Tehsildar for : (a) verification of the facts stated in the application; and (b) reporting the circumstances in which permission for transfer is sought. Thereafter, under sub-rule (5), the inquiry officer shall submit the report in duplicate within a period of 15 days from the date of receiving the order of such enquiry. The copy of the report is to be supplied to the applicant under sub-rule (6) whereupon the applicant may file objections against the report within a period of seven days and thereafter the Collector upon being satisfied that any of the conditions under sub-rules (8)(a) to (d), and sub-rule (8)(e) of Rule 99, are fulfilled, he may grant permission after recording reasons. 17. In a case where the application has been made as per the prescribed procedure and upon due enquiry as provided under the Rules, 2016 either of the aforestated conditions are held to be satisfied, the permission is required to be granted for transfer under Section 98. 18. The aforementioned legal position with regard to the interpretation of the provisions contained under Section 98 of the Code, 2006 and Rule 99 of the Rules, 2016 which relate to the restrictions on transfer by bhumidhars belonging to a Scheduled Caste and the manner in which permission may be granted for the purpose by the Collector, were subject matter of consideration in a recent decision of this Court in Sitaram vs State of U.P. and others, 2022 (155) RD 178, which has been relied upon by counsel for both the parties. 19. In Omwati's case (Writ C no. 31006 of 2021), the respondent authority taking note of the fact that the principal ground for seeking permission was that the land in question was situate at a distance of 50 kms from the place where she was residing with her husband, has held that the petitioner had not produced any certificate from the Gram Pradhan to the effect that no person in the village belonging to the category of Scheduled Caste/Scheduled Tribe was ready to purchase the property in question and that consequent to the sale transaction, the petitioner will be left with no land and would become landless. In the light of the aforesaid fact, the respondent authority has arrived at a conclusion that merely the reason that the land in question was situate at a distance of 50 kms from the place where the petitioner was residing would not be a valid ground for grant of permission under Section 98 of the Code, 2006. 20. In the case of Shiv Narayan (Writ C no. 31010 of 2021), the contention of the petitioner that the land in respect of which permission was sought was at a distance of 18 kms from the place where he was residing has been taken note of by the respondent authority and in this case also it has been held that since the petitoner had not produced any certificate from the Gram Pradhan to the effect that no person in the village belonging to Scheduled Caste/Scheduled Tribe was ready to purchase the property in question, the requisite permission could not be granted only for the reason that the land in question was situate at a distance of 18 kms from the place of residence of the petitioner. 21. The requirement of submission of a certificate from the Gram Pradhan that no person in the village belonging to the category of Scheduled Caste/Scheduled Tribe was ready to purchase the property in question is not one of the conditions specified under Section 98 of the Code, 2006 read with sub rule (8) of Rules 99 of the Rules, 2016, and therefore, the same cannot be said to be a condition precedent for the purpose of grant of permission under Section 98 of the Code, 2006. 22. As per the statutory scheme laid down under Section 98(1) of the Code, 2006 read with Rule 99 of the Rules, the Collector may grant permission for transfer by bhumidhars belonging to scheduled caste upon fulfilment of either of the five specified conditions: (i) in the absence of a surviving heir; (ii) the transferor has settled or is ordinarily residing in a different district or State; (iii) the tenure holder or any member of his family is suffering from any fatal disease; (iv) the applicant is seeking permission for transfer to purchase any other land from the consideration of such proposed transfer; (v) the area of the land held by the applicant on the date of application does not, after such transfer, reduces to less than 1.26 hectares. This is subject to a further condition that the consideration for the transfer of the land is not below the amount calculated as per the circle rate fixed by the Collector. The condition with regard to the area of the land, held by the applicant, consequent to the transfer of the land being reduced to less than 1.26 hectares, is not mandatory subject to the fulfilment of any of the other conditions 23. In this regard, it would be relevant to reiterate the view taken by this Court in the case of Sitaram (supra) to the effect that in exercise of its discretionary power, if the concerned authority ignores or does not take into account considerations which are relevant to the purpose of the statute in question, then its action would be invalid. This would be more so where the statute conferring discretion on the authority has structured the discretion by expressly laying down the consideration which should be taken into account by the authority for exercise of the discretion. In such a case, if the exercise of the discretionary power has been influenced by considerations that cannot lawfully be taken into account or by disregard of the relevant considerations required to be taken into account, the decision arrived at by the authority would be invalid. 24. The authority while exercising the discretionary power in a case where the discretion of the authority has been structured while laying down specific conditions would be required to exercise the discretionary power taking into account only the relevant considerations and disregarding the consideration which are irrelevant. 25. The legal position in this regard has been summarised in the case of Sitaram by referring to the decisions in R. vs. St Pancras Vestry, (1890) 24 Q.B.D. 371, Associated Provincial Picture Houses, Ltd. vs. Wednesbury Corporation, [1947] 2 All E.R. 680, Padfield And Others vs. Minister of Agriculture, Fisheries And Food And Others, [1968] 1 All E.R. 694 and Breen vs. Amalamated Engineering Union And Others, [1971] 2 Q.B. 175. The relevant observations made in the case of Sitaram are being extracted below:- “21. The “irrelevant considerations” doctrine was stated by Lord Esher MR in R. vs. St Pancras Vestry by observing as follows: “But they must fairly consider the application and exercise their discretion on it fairly, and not take into account any reason for their decision which is not a legal one. The “irrelevant considerations” doctrine was stated by Lord Esher MR in R. vs. St Pancras Vestry by observing as follows: “But they must fairly consider the application and exercise their discretion on it fairly, and not take into account any reason for their decision which is not a legal one. If people who have to exercise a public duty by exercising their discretion take into account matters which the Courts consider not to be proper for the guidance of their discretion, then in the eye of the law they have not exercised their discretion.” 22. The scope of interference by Courts in matters relating to exercise of discretion conferred by a statute upon an authority was subject matter of consideration in Associated Provincial Picture Houses, Ltd. vs. Wednesbury Corporation wherein it was stated by Lord Greene, M.R. as follows: “… The law recognises certain principles on which the discretion must be exercised … They are perfectly well understood. The exercise of such a discretion must be a real exercise of the discretion. If, in the statute conferring the discretion, there is to be found, expressly or by implication, matters to which the authority exercising the discretion ought to have regard, then, in exercising the discretion, they must have regard to those matters. Conversely, if the nature of the subject-matter and the general interpretation of the Act make it clear that certain matters would not be germane to the matter in question, they must disregard those matters. …. the court is entitled to investigate the action of the local authority with a view to seeing whether it has taken into account matters which it ought not to take into account, or, conversely, has refused to take into account or neglected to take into account matters which it ought to take into account.” 23. The circumstances under which exercise of discretionary powers by a statutory authority may be held to be invalid were stated in Padfield And Others vs. Minister of Agriculture, Fisheries And Food And Others, wherein Lord Upjohn observed as follows: “Unlawful behaviour by the Minister may be state with sufficient accuracy … (a) by an outright refusal to consider the relevant matter, or (b) by misdirecting himself in point of law, or (c) by taking into account some wholly irrelevant or extraneous consideration, or (d) by wholly omitting to take into account a relevant consideration.” 24. The principle laid down in the decision of the House of Lords in Padfield’s case (supra) was reiterated by Lord Denning, M.R. in Breen vs. Amalamated Engineering Union And Others, by stating as follows: “The discretion of a statutory body is never unfettered. It is a discretion which is to be exercised according to law. That means at least this: the statutory body must be guided by relevant considerations and not by irrelevant. If its decision is influenced by extraneous considerations which it ought not to have taken into account, then the decision cannot stand. No matter that the statutory body may have acted in good faith; nevertheless the decision will be set aside.” 25. The proposition can thus broadly be laid down by stating that a decision by an authority exercising discretionary power under a statute must be arrived at by taking into account the relevant considerations and eschewing the irrelevant considerations, in the absence of which the action would have to be held as ultra vires and void.” 26. The conditions which are required to be satisfied while considering grant of permission by the Collector to a bhumidhar belonging to a scheduled caste seeking to transfer land belonging to him having been clearly specified under the proviso to subsection (1) of Section 98 read with sub-rule (8) of Rule 99, the reference made in the orders impugned to any other circumstance and on the basis thereof to reject the application of the petitioner seeking grant of permission to transfer, would therefore render the exercise of the discretionary power as ultra vires and invalid. The orders impugned having been passed in the absence of consideration of the relevant provisions and being based on wholly irrelevant consideration, are accordingly held to be legally unsustainable and are set aside. 27. In both the writ petitions, the matter is remitted to the Collector for passing of fresh order on the basis of the provisions contained under Section 98 of the Code, 2006 read with sub-rule (8) of Rule 99 of the Rules, 2016 in the light of the discussion made hereinabove. The respondent authority would be expected to pass appropriate orders on the applications of the petitioners under Section 98 seeking grant of permission for transfer, expeditiously, and preferably within a period of three months from the date of presentation of a certified copy of this order. 28. The respondent authority would be expected to pass appropriate orders on the applications of the petitioners under Section 98 seeking grant of permission for transfer, expeditiously, and preferably within a period of three months from the date of presentation of a certified copy of this order. 28. The writ petitions are allowed to the extent indicated above.