IN THE HIGH COURT OF ALLAHABAD
Writ-C. No. 44025 of 2015
Decided On: 29.10.2015
Janta Inter College
Vs.
Collector/D.M., Basti and Ors.
Hon'ble Judges/Coram: Anjani Kumar Mishra, J.
Counsels:
For Appellant/Petitioner/Plaintiff: Dinesh Pathak and Rakesh Pathak
For Respondents/Defendant: C.S.C. and D.D. Chauhan
JUDGMENT
Anjani Kumar Mishra, J.
1. Heard Sri Dinesh Pathak learned Counsel for the petitioner, learned Standing Counsel for the State respondents and Sri D.D. Chauhan who has accepted notice on behalf of the respondent No. 1 (Gram Panchayat). This writ petition arises out of proceedings under section 122-B of the U.P. Zamindari Abolition & Land Reforms Act and seeks quashing of the order dated 27.3.2014 passed by the Tehsildar and the order dated 31.3.2015 passed by the Collector affirming the order of the Tehsildar.
2. The dispute in the writ petition pertains to Plot No. 700 areas 1.423 and 243 area 1.393 situated in Village Pok-hramay Hasanpur, Tappa-Nawai, Pargana-Nagar Paschim, Tehsil-Haraiya, District-Basti which are recorded as banjar in the revenue records.
3. The defence of the petitioner in these proceedings were that he had been allotted a patta on 23.9.1977 and that a school is running thereon and therefore the notice in Form 49-A was liable to be withdrawn.
4. It appears that the petitioner claimed on the basis of the alleged patta before the Consolidation Courts. This matter travelled upto this Court where a Writ Petition No. 33049 of 2009 (Janta Ucchatar Madhyamik Vidyalay through its Manager and another v. Deputy Director of Consolidation, Basti and others) was filed. The respondent No. 2 in the said writ petition was Deena Nath Pandey S/o. Satya Narain Pandey. This writ petition was dismissed vide order dated 7.1.2010. The operative portion of the order is quoted here under:--
"Accordingly, it is abundantly clear that petitioners had played fraud to usurp Gaon Sabha property and the reference was rightly accepted by the D.D.C. There is therefore no merit in the writ petition, hence it is dismissed."
5. However, perusal of this order reveals that the name of the petitioner was ordered to be recorded in the revenue records by an order passed by the Assistant Consolidation Officer. The Court observed that the Assistant Consolidation Officer has no jurisdiction to pass the order which could have been passed by the Consolidation Officer alone. The Court has also referred to the counter affidavit filed on record of this writ petition sworn by the Consolidation Officer wherein it was alleged that no valid allotment took place in favour of the petitioners and Satya Narain Pandey was the Manager of the school as well as Pradhan at the time of the alleged allotment. The Court went to hold that in the instant case it was found that in fact no patta was made and secondly if a patta is void ab-initio then it can be declared as void in other proceedings also. For this purpose reliance was placed on a decision of the Supreme Court rendered in U.P. State Sugar Corporation v. D.D.C. 2000 (91) RD 165 (SC) : 2000 (38) ALR 798.
6. From a perusal of this judgment it is therefore, abundantly clear that the alleged patta which is the basis of the claim of the petitioner in the instant writ petition has already been held to be fraudulent.
7. Learned Counsel for the petitioner has failed to point out anything to show that the order of the Writ Court dated 7.1.2010 passed in Writ Petition No. 33049 of 2009 has ever been challenged before any forum. Under the circumstances, it would be safe to assume that this order has attained finality and is therefore, binding upon all concerned.
8. The Revisional Court has referred to the order of the Writ Court aforementioned, while rejecting the claim of the petitioner. It has further observed that in pursuance of the order of the Writ Court the name of the Gaon Sabha has been recorded over the land in question and also that there exists no provision for granting a patta in favour of a school and has therefore, dismissed the revision.
9. The only contention of learned Counsel for the petitioner is that since an educational institution is running over the land in question and it is the only educational institution available in the area, and the land in question is being used for a public purpose. This Court should therefore take a compassionate view in the matter. In this connection, he has relied upon a decision of the Apex Court in the case of Jagpal Singh v. State of Punjab AIR 2011 SC 1123 : 2011 (85) ALR 500 (SC) : 2011 (113) RD 329 : 2011 (99) AIC 88 specially paragraph 7 of the said judgment which is quoted below:--
"In M.I. Builders (P) Ltd. v. Radhey Shyam Sahu, 1999 (6) SCC 464 : 1999 (37) ALR 4 (Sum.) the Supreme Court ordered restoration of a park after demolition of a shopping complex constructed at the cost of over 100 crores. In Friends Colony Development Committee v. State of Orissa, this Court held that even where the law permits compounding of unsanctioned constructions, such compounding should only be by way of an exception. In our opinion this decision will apply with even greater force in cases of encroachment of village common land. Ordinarily, compounding in such cases should only be allowed where the land has been leased to landless labourers or members of Scheduled Castes/Scheduled Tribes, or the land is actually being used for a public purpose of the village e.g. running a school for the villagers, or a dispensary for them."
10. Reliance upon the judgment cited is misconceived inasmuch as the said judgment holds against the petitioner.
11. Moreover, there exists no provision under the U.P. Zamindari Abolition & Land Reforms Act for regularising unauthorised and fraudulent occupation of land by an individual. as has been held by the Division Bench of this Court in the case of Jagat Narain & 15 others v. State of U.P., Writ Petition No. 54062 of 2013, vide judgment & order dated 9.2.2015.
12. The second submission made is that the Writ Petition No. 33049 of 2009 had been filed challenging an order dated 2.4.2009. The operative portion of this order states that the reference made was accepted by the Deputy Director of Consolidation yet, the Court observed that the parties in case they so desire, could furnish evidence before the Consolidation Officer, (Record Operations). He submits that since the writ petition was dismissed this observation was still operating and in pursuance thereof the matter is pending before the Consolidation Officer. Although it is true that the order dated 2.4.2009 stands affirmed by this court, yet in view of the findings that have been returned by the Writ Court itself, in my considered opinion, the proceedings before the Consolidation Officer are not liable to be continued with.
13. Besides it is not in dispute that the educational institution that has been established upon land belonging to the Gaon Sabha on the basis of a grossly fraudulent allotment, which allotment has been set aside and I do not find any merit in the submissions made by learned Counsel for the petitioner. I also do not see any justification for taking a compassionate view in the matter merely because a private educational institution is on the grant in aid list. The would not make it a Government owned institution. It would still remain a private institution which has been set up over land of the Gaon Sabha, by resorting to fraud.
14. Accordingly and in such view of the matter I do not see any justification for interfering with the impugned orders. The petitioner institution has been established by resorting the fraud and therefore, no equity lies its favour. The petitioner therefore, is not entitled to any relief in exercise of equity jurisdiction under Article 226 of the Constitution of India.
15. The writ petition is accordingly dismissed. It is further provided that learned Standing Counsel as also learned Counsel appearing for the Gram Panchayat shall ensure that copy of this order as also the order of this Court passed in Writ Petition No. 33049 of 2009 are placed on the record of the proceedings which are alleged to be pending before the Consolidation Officer in pursuance of the order dated 2.4.2009 passed in Reference No. 452 under section 48 of the U.P. Consolidation of Holdings Act (Gram Panchayat v. Janta Madhyamik Vidyalaya).
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