HIGH COURT OF JUDICATURE AT ALLAHABAD
WRIT C No. 26438 of 2018
Petitioner : Gyan Bharti Madhyamik Vidyalaya Chak Kaluti And Another
Respondent :- Additional Collector And 4 Others
Counsel for Petitioner :- Vishnu Singh, Anil Kumar Rai
Counsel for Respondent :- C.S.C., Nikhil Kumar
Hon'ble Siddhartha Varma,J.
This writ petition has been filed for quashing the order dated 3.7.2018 of the Additional Collector, Bhadohi.
A case under Rule 115-P read with Section 122-C(6) of the U.P.Z.A. & L.R. Rules and U.P.Z.A. & L.R. Act, respectively was filed for setting aside the resolution/approval dated 20.1.1989 and 15.8.1992 by which certain plots were settled on the petitioners. By the order dated 20.1.1989, the Additional Collector, Gyanpur, had resolved that certain plots of the Goan Sabha could be used by the petitioners for establishing their schools and by the order dated 15.8.1992 certain plots of the petitioners were exchanged with the Gaon Sabha over which school buildings of the petitioners were constructed.
Learned counsel for the petitioners has assailed the order dated 3.7.2018 by which the orders of the Sub Divisional Officer dated 20.1.1989 and 15.8.1992 were set aside on the following grounds:-
I. The case which as was instituted under Section 122-C (6) read with Rule 115-P of the U.P.Z.A. & L.R. Act and U.P.Z.A. & L.R. Rules, could not have been filed at all as by the orders dated 20.1.1989 and 15.8.1992, no plot was given in allotment to the petitioners. Learned counsel for the petitioners, in fact, submitted that the plots in question were earmarked for being given to educational institutions under Section 126 of the U.P.Z.A.&L.R. Act, 1950.
II. Learned counsel for the petitioners further submitted that the counsel who was appearing for the applicants in the case filed for setting aside the orders dated 20.1.1989 and 15.8.1992 was not authorized to contest the case on behalf of the Gaon Sabha.
III. Further, learned counsel submitted that the orders dated 20.1.1989 and 15.8.1992 were always known to the respondents and they chose to get them set aside after a very long lapse of time, in the year 2013.
IV. In the end, learned counsel for the petitioners relied upon JT 2011 (1) SC 617 (Jagpal Singh & Ors. v. State of Punjab & Ors.) and submitted that the possession of the petitioners' institution should have been regularized even if the buildings were found to be irregularly constructed. The institutions were such schools which were recognized by the State Government for imparting education till the Intermediate level and were catering to the requirements of a large number of students of the area. Learned counsel read out paragraph 22 of the aforesaid judgement which is being reproduced here as under:
22. Before parting with this case we give directions to all the State Governments in the country that they should prepare schemes for eviction of illegal/unauthorized occupants of Gram Sabha/Gram Panchayat/Poramboke/Shamlat land and these must be restored to the Gram Sabha/Gram Panchayat for the common use of villagers of the village. For this purpose the Chief Secretaries of all State Governments/Union Territories in India are directed to do the needful, taking the help of other senior officers of the Governments. The said scheme should provide for the speedy eviction of such illegal occupant, after giving him a show cause notice and a brief hearing. Long duration of such illegal occupation or huge expenditure in making constructions thereon or political connections must not be treated as a justification for condoning this illegal act or for regularizing the illegal possession. Regularization should only be permitted in exceptional cases e.g. where lease has been granted under some Government notification to landless labourers or members of Scheduled Castes/Scheduled Tribes, or where there is already a school, dispensary or other public utility on the land.
Learned Standing Counsel, in reply, however, submitted that since there was no regular allotment of any land to the petitioners everything which happened in pursuance of the orders dated 20.1.1989 and 15.8.1992 was illegal. Learned counsel further submitted that after the Government Order dated 16.7.1975 was rescinded no private institution could have been established on the Goan Sabha land.
Learned counsel appearing for one Shiv Deo Yadav who was doing pairavi for the Gaon Sabha had also filed a short counter affidavit on behalf of the respondent no. 4 and submitted that unless there was a pleading, no argument could be made by the petitioners that the land in question was settled under Section 126 of the U.P. Z.A. & L.R. Act, 1950. He further submitted that since the orders of 20.1.1989 and 15.8.1992 were passed on the sly, no question of limitation arose and he submitted that fraud could be challenged at all times. Still further learned counsel for the caveator submitted that as no land of the Gaon Sabha could have been allotted, the orders were correctly passed.
Having heard the learned counsel for the parties, what emerges is that the order dated 20.1.1989 did not allot any land to the petitioners. Further, what can be gleaned from the record is that definitely a School was built over the plots in question which has now been recognized by the State of U.P. and by the Intermediate Education Board and in the college quite a few students are studying. What is still further clear from the record is that after a very long lapse of time, the orders dated 20.1.1989 and 15.8.1992 were being challenged.
Undoubtedly, when there was no proper allotment, it cannot be said that the school was built in accordance with law. However, there is no averment in either the impugned order or in the affidavit filed by the caveator that there was any fraud committed by the petitioners facilitating the passing of the orders dated 20.1.1989 and 15.8.1992. However, as Gaon Sabha land could not be allotted in favour of the petitioners to build the building in which the institution was housed, I cannot, under Article 226 of the Constitution of India, interfere with the order impugned. Thus, no interference is warranted.
However, since the Supreme Court in JT 2011 (1) SC 617 had mandated regularization of existing schools which had been constructed, I think it appropriate that the District Magistrate Bhadohi may refer the case to the State Government which shall consider the regularization of the petitioners buildings as per the law laid down JT 2011 (1) SC 617 (supra).
The writ petition is, accordingly, disposed of.
Till the date, the State Government passes orders for the regularization of the petitioner's constructions, no demolition shall take place.
Order Date: 21.12.2018
(Siddhartha Varma, J.)
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