IN THE HIGH COURT OF ALLAHABAD (LUCKNOW BENCH)
Civil Misc. Writ Petition (M/S) No. 581 of 2021
Decided On: 11.01.2021
Appellants: Committee of Management, Ramnidhi Vidyalaya
Vs.
Respondent: State of U.P. and Ors.
Hon'ble Judges/Coram: Sangeeta Chandra, J.
Counsels for Appellant/Petitioner/Plaintiff: Gopal Pandey
Counsels for Respondents/Defendant: C.S.C., Akash Shukla, Azad Khan and Dilip Kumar Pandey
JUDGMENT
Sangeeta Chandra, J.
1. Heard learned counsel for the petitioner and Sri Dileep Kumar Pandey, learned counsel for the Gaon Sabha.
2. This petition has been filed challenging the order dated 8.12.2020 passed by the District Magistrate/Collector, District Ayodhya and the order dated 26.8.2020 passed by the Tehsildar, Milkipur, District Ayodhya, by which proceedings under Section 67 of the U.P. Revenue Code were finalized against the petitioner and he was found to have encroached upon the Gaon Sabha land for public utility, namely, Gata No. 3065 min. ad-measuring 0.073 hectare situated in Village Kotia Tehsil Milkipur, District Ayodhya and has been asked to deposit Rs. 6,20,50,000/- for unauthorized occupation and utilization of Gaon Sabha public utility land and also to pay Rs. 5,000/- as execution expenses.
3. It is the case of the petitioner that the petitioner had bought adjoining land of Gata No. 3068 ad-measuring 0.0126 hectare situated in the same village from its recorded tenure holder through a sale-deed in 2007 and constructed Sri Ramnidhi Smriti Shiksha Niketan Madhyamik Vidyalaya over it. On the other side of the road between Gata No. 3068 and Gata No. 3065, is banjar land recorded in the name of Gaon Sabha. The allegation is that the petitioner has encroached upon 0.073 hectares.
4. It is the case of the petitioner that no survey of the area concerned was done by the Lekhpal and a false notice was issued to him under Section 67(1) of the U.P. Revenue Code, 2006 (hereinafter referred to as "the Code of 2006"), to which the petitioner submitted his objections. Because of his enmity with the Village Pradhan, however his objections were not considered even though he produced two witnesses in his favour and the Tehsildar Milkipur passed the order dated 26.8.2020 arbitrarily. The petitioner preferred an Appeal which Appeal has also been rejected by the District Collector on 8.12.2020.
5. It is the case of the petitioner that Gata No. 3065 banjar land recorded in the name of Gaon Sabha is a huge Gata wherein patta has been given to several persons, and some of them have constructed their houses and others are doing farming over the said land. The petitioner alone has been singled out for taking action against on the alleged encroachment of such land.
6. It is also the case of the petitioner that the Village Pradhan was instrumental in getting the recognition of his institution cancelled for the Academic Session 2020 on the grounds of such encroachment on village land and the petitioner filed a Writ Petition No. 32111 (M/S) of 2019, wherein this Court by way of an order dated 22.11.2019 has finally disposed of with a direction that till proceedings under Section 67 in Case No. 201904230401652: Gram Sabha v. Ram Nidhi Vidyalaya, are concluded, the cancellation orders of the petitioner's recognition shall remain in abeyance.
7. Learned counsel for the petitioner has argued that in pursuance of the order passed by the Tehsildar Milkipur, an execution notice has also been issued to him on 5.9.2020. It has also been argued by learned counsel for the petitioner that the petitioner is imparting education to the children of local area and he is performing a public duty giving public utility services, and if the school building is demolished, great loss will occur to the petitioner as also to the public services for which he is serving.
8. Learned counsel for the petitioner has placed reliance upon an order passed in Writ Petition No. 25735 (M/S) of 2020:Committee of Management S.N. Public School through its Manager Smt. Sumitra v. State of U.P. and others, wherein this Court disposed of the petition on 4.1.2021 by observing that the petitioner's application for exchange under Section 101 of the Code having been rejected on 15.1.2020, the petitioner's Revision was pending before the Additional Commissioner, Ayodhya, and during the pendency of the said Revision, the proceedings under Section 67 of the Code were finalized leading to proceedings for his eviction from the land in question being undertaken. The Court observed that since the petitioner's application for exchange of land under Section 101 of the Code can be considered to be still pending during the pendency of the Revision, no action be taken in the matter. The orders passed by the Tehsildar Milkipur and the District Collector Ayodhya were kept in abeyance till the disposal of the Revision said to be pending before the Additional Commissioner Ayodhya.
9. The order of the Co-ordinate Bench on which reliance has been placed by learned counsel for the petitioner is clearly inapplicable in the case of the petitioner as there are no pleadings on record in the entire petition that the petitioner has made any application for exchange under Section 101 on which prior proceedings are underway.
10. Learned counsel for the petitioner has argued that Hon'ble Supreme Court in the case of Jagpal Singh and others v. State of Punjab and others, MANU/SC/0078/2011 : 2011 (11) SCC 396, has permitted exchange of land and regularization of unauthorized occupation of public utility land. The petitioner has placed reliance upon paragraphs 14 and 22 of the said judgment.
11. This Court has carefully perused the entire judgment which refers to several earlier binding precedents of Hon'ble Supreme Court clearly prohibiting all encroachment on public utility land, changing of its nature, exchange of said land and creating of bhumidhari rights thereon. It has referred to the judgment rendered in M.I. Builders (P) Ltd. v. Radhey Shyam Sahu, 1999 (6) SCC 464, and also the judgment rendered in Hinch Lal Tiwari v. Kamala Devi, AIR 2001 SC 3215, that public utility land must not be allotted to anybody for construction of houses or for any allied purpose. The Hon'ble Supreme Court has further observed in paragraph-23 as follows:
"23. 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/unauthorised occupants of the 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 regularising the illegal possession. Regularisation should only be permitted in exceptional cases e.g. where lease has been granted under some Government notification to landless labourers or members of the Scheduled Castes/Scheduled Tribes, or where there is already a school, dispensary or other public utility on the land."
12. It has also been submitted by learned counsel for the petitioner that this Court has in a similar case set aside the huge cost/damages imposed for encroachment upon public utility land/Gaon Sabha land. He has referred to the judgment of Co-ordinate Bench in Writ Petition No. 826 (Consolidation) of 2005; decided on 23.5.2017.
13. This Court has carefully perused the judgment, of Co-ordinate Bench which arises out of the orders passed by the Deputy Director of Consolidation under Section 48(3) of the U.P. Consolidation of Holdings Act, whereby the name of the writ petitioner Abdul Aziz was directed to be struck off in revenue record in respect of a plot of land ad-measuring two bigha situated in Village Kushmana, Pargana Haveli Avadh, Tehsil Sadar, District Faizabad and the name of Gaon Sabha was directed to be recorded in such land.
14. It is apparent from a perusal of the order passed by the Co-ordinate Bench that the Deputy Director of Consolidation under Section 48(3) of the Consolidation of Holdings Act had initially found that the name of the petitioner over the land in question had been recorded as Asami by playing fraud and forgery in the khatauni of 1376-1378 fasli. The said order was challenged by the writ petitioner in Writ Petition No. 689 (Consolidation) of 1999, which was allowed on 23.12.1999 by the Court and the matter was remitted to the Deputy Director of Consolidation for fresh consideration.
15. The Deputy Director of Consolidation in his order dated 5.3.2001 maintained his earlier order and directed the land to be recorded as Banjar land in the name of the Gaon Sabha. The writ petitioner challenged the order dated 5.3.2001 in Writ Petition No. 610 (Consolidation) of 2001, which was allowed by this Court on 26.4.2005 directing the Deputy Director of Consolidation to decide the matter afresh. In pursuance of such order passed by this Court, the impugned order in the writ petition was passed. The Court after considering the entire facts of the case came to the conclusion that lease had been granted to the petitioner under Section 133 of the U.P.Z.A. & L.R. Act but under Section 132 of the U.P.Z.A. & L.R. Act, no bhimdhari rights could have been created over such land reserved for public utility. The Court observed that there was no law, including provisions contained in U.P.Z.A. & L.R. Act, which conferred any bhumidhar rights to the lease holder who had been granted Asami lease over land mentioned in Section 132. The Court also observed that even if the case of the writ petitioner therein that he was Sirdar under Section 134 whose rights have matured was taken into account, the fact remained that the writ petitioner could not produce any admissible evidence to show that he was ever permitted to pay twenty times of the land revenue and his possession as Sirdar regularised. He continued to remain a Sirdar if the lease, if any, that was granted to him in 1966 was taken into account.
The Court also observed that the Deputy Director of Consolidation under Section 48 could certainly pass the order impugned in the petition in view of the mandate of Section 11(C) of the Act. However, the Court observed that even though the petitioner would be treated as illegal trespasser, proceedings under Section 122(B) of the U.P.Z.A. & L.R. Act and Section 67 of the U.P. Revenue Code could be initiated against him, and therefore, just by striking off the name of the petitioner from the revenue records under Section 48(3), huge costs could not be imposed upon him by the Deputy Director of Consolidation as damages for being in possession of the land of the Gaon Sabha since 1966.
16. It is evident from the observations made hereinabove with regard to the judgment and order dated 23.5.2017 that the case of the petitioner cannot in any way be said to be similar to that of the writ petitioner Abdul Aziz of the aforecited judgment.
17. Learned counsel for the petitioner has placed reliance upon the Government Order No. 745/Ek-1-2016-20(5)/2016 issued by the Principal Secretary Revenue, with regard to changing of nature of land reserved in Gram Sabha and in local authorities for "public purpose".
18. From a perusal of the said Government Order, it is apparent that "public purpose" has been defined to have the same meaning as given in the Land Acquisition Act and it gave power to the State Government to change the nature of land reserved for public utility, for any other "public purpose" on specific recommendation being made in this regard by the District Magistrate and in unavoidable circumstances and in exceptional cases. The conditions for change in nature of land of public utility have been mentioned in paragraph-4 of the said Government Order. In so far as the change in the nature of public utility land for the private purpose is concerned, the proceedings under Section 101 for exchange of land could also be considered by the State Government, if specific proposal in this regard is sent with detailed reasons by the District Magistrate with 25% of the Circle Rate having been deposited by the applicant for consideration of the application for change in user.
19. Learned counsel for the petitioner has placed reliance upon a Government Order No. 11/2020/689/Ek-1-2020-20(5)/2016. dated 6.7.2020, wherein the Government Order dated 3.6.2016 has been amended to the extent that the power of permitting of exchange under Section 101 can now be exercised by the Collector in certain cases where the cost of the land did not exceed Rs. 40 lakhs and in all other cases has been given to the Additional Commissioner of the Division.
20. The petitioner has not filed any application in pursuance of the Government Order dated 3.6.2016 or 6.7.2020.
21. This Court has gone through the orders impugned in the petition. It finds therein that the Tehsildar/Assistant Collector, Milkipur, Ayodhya, by means of a detailed order has referred to the encroachment carried out by the petitioner on Gaon Sabha land. On survey, it was found that the petitioner has encroached a part of Gata No. 3065 ad-measuring 0.073 hectare enclosing it within his boundary wall and put up a gate and constructed toilets therein. The petitioner had been issued notice under Section 67(1) of the Code to which the petitioner had sought time to submit the reply in his letter dated 10.5.2019 and actually submitted reply on 14.8.2020.
In the said reply the petitioner said that he has not encroached upon pashuchar land and the Area Lekhpal had given a false report. The Gaon Sabha through its counsel had argued that the petitioner had encroached upon pashuchar land. The Lekhpal in his evidence had also supported the case of the Gaon Sabha. The petitioner had disputed the value of the land that was calculated in the notice sent to him and also the proposed damages of Rs. 6,20,00,000/- and odd. The petitioner had also disputed the evidence of the Lekhpal saying that he did not belong to the area in question and referred to certain orders passed by this Court, namely; Satendra v. Sub Divisional Magistrate/Assistant Collector, Gautam Buddh Nagar, and Jagpati v. Chief Revenue Officer Allahabad and others, to substantiate his claim.
22. The Tehsildar Milkipur considered each and every objection made by the petitioner including the objection that four-five other persons had also constructed their houses over plot No. 3065 on the basis of patta granted to them by the Gaon Sabha. After referring to C.H. Form 45 wherein Khata No. 1260, land of Gata No. 3065 ad-measuring 13-15-16 was recorded as pashuchar bhumi, the respondent No. 4 passed the order impugned, after referring also to the revenue and consolidation officials joint report dated 11.1.2019, that the petitioner was found to have encroached upon 0.073 hectare of the said land reserved as pashuchar bhumi.
23. The Appellate Court i.e. the Court of the Collector Ayodhya also considered the petitioner's Appeal wherein the petitioner had stated that no survey of the land had been carried out and no opportunity was given to the petitioner at the time of joint inspection. It was found from the record mat the petitioner had indeed encroached 0.073 hectare of land of Gata No. 3065 reserved as pashuchar bhumi and this fact came to the notice of the authorities on survey being carried out.
24. This Court finds no factual or legal infirmity in the orders impugned. The observations made in the case of Jagpal Singh (supra) for regularization of unauthorized encroachments are only applicable in exceptional cases. The petitioner has not shown his case to be exceptional.
25. For the judgments relied upon by the learned counsel for the petitioner and the Government Orders, it would suffice to observe that it is evident from the observations made hereinabove that the same are inapplicable in the case of the petitioner.
26. The petitioner's grievance is also that several other persons have encroached upon the Gaon Sabha land and they have not been proceeded against. It is settled law that Article 14 is not a negative concept and there can be no parity claimed in illegality.
27. The writ petition stands dismissed.
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