IN THE HIGH COURT OF ALLAHABAD
Civil Misc. Writ Petition No. 27953 of 2018, Writ-C No. 27278 of 2019 and Writ C No. 31241 of 2019
Decided On: 01.11.2019
Baba Sukkhu Maa Prabhudevi Inter College and Ors.
Versus
State of U.P. and Ors.
Hon'ble Judges/Coram: Anjani Kumar Mishra, J.
Counsels:
For Appellant/Petitioner/Plaintiff: Bhola Nath Yadav and Abhishek Kumar Yadav
For Respondents/Defendant: C.S.C., Manoj Kumar Yadav and Ravindra Nath Yadav
JUDGMENT
Anjani Kumar Mishra, J.
1. Heard learned Counsel for the parties.
2. Writ petition No. 27953 of 2018 arises out of proceedings under section 67 of the U.P. Revenue Code, 2006 and seeks a writ of certiorari for quashing the order dated 6.7.2018 passed by the Tehsildar ordering eviction of the petitioner and the order dated 4.7.2018 passed by the Collector, Jaunpur affirming the order of the Tehsildar.
3. The case of the petitioner is that on 16.8.1996, a resolution was passed by the Gaon Sabha/Land Management Committee that plot No. 233 area 3.95 and plot No. 232 area 0.40 of village Golhapur, Pargana Anguli, Tehsil Shahganj, District Jaunpur be allotted to the petitioner for establishing a School.
4. Plot No. 233 in the resolution is stated to be recorded as pasture land while the plot No. 232 is stated to be reserved for plantation of trees but Educational work is being carried out over it.
5. It is stated that on the basis of the aforesaid resolution, on a time Barred objection under section 9, the Consolidation Officer reserved the plots in the name of the petitioner institution. It is stated that thereafter, the School was constructed thereon and as on date about 600 students are being imparted education.
6. An application for recall of the order was passed by the Consolidation Officer filed by the intervener in this writ petition, represented by Shri R.N. Yadav, was allowed and the order passed by the Consolidation Officer was recalled.
7. Against this order, the petitioner filed a recall application, which was rejected.
8. Thereafter, the petitioner filed two revisions; one against the order allowing the restoration application of the intervener and the other against the order rejecting his application for recall of the said order. Both these revisions are stated to be pending.
9. It appears that on 17.1.2018, a notice under section 67 of the U.P. Revenue Code, 2006 in RC Form 20 was issued to the petitioner.
10. In these proceedings, the Tehsildar vide order dated 16.4.2018, ordered eviction of the petitioners. The consequential appeal has been dismissed, vide order dated 4.7.2018, which orders are impugned in this writ petition.
11. The contention of Counsel for the petitioner is that the land had been allotted/gifted to the institution by the resolution of the Gaon Sabha and consequent thereto an order was passed in favour of the petitioner by the Consolidation Officer.
12. In pursuance of the aforementioned, the School has been established and is running. The order recalling the order passed by the Consolidation Officer, is impugned in a revision, which is pending consideration and therefore, the matter of allotment is yet to attain finality.
13. It is next contended that a large amount of money has been spent in establishing the institution. Therefore, the impugned orders, if allowed to stand shall occasion failure of justice.
14. It is lastly contended that the petitioner has filed an application under section 101 of the U.P. Revenue Code, 2006 for exchange of the land over which, the petitioner institution is situated with bhumidhari land of the petitioner No. 2. This application as also pending consideration.
15. In view of the submissions, a prayer for allowing the writ petition has been made.
16. Shri R.N. Yadav, Counsel appearing for the intervener has submitted that the petitioner has encroached upon land of public utility, namely, pasture land as also the land, which was reserved for plantation of trees. The Gaon Sabha has no jurisdiction or power to pass a resolution for allotting land to a private institution or of gifting it to a private institution. Any allotment on the resolution of the Gaon Sabha, requires the approval of the Sub-Divisional Officer, which has never been granted. Therefore, there is no gift or lease of the land in issue in favour of the petitioner.
17. It is next contended that although the case of the petitioner is that an application for exchange is pending consideration, however, no exchange is possible because only a bhumidhar can exchange his land. The petitioner No. 2 is possessed of only 0.102 hectare of land, which, in any case, is recorded in the name of her husband.
18. It is also stated that the resolution of the Gaon Sabha in any case were absolutely illegal because, the petitioner No. 2 as also her husband Sher Bahadur Yadav were at various point of time, Pradhan of the village. The resolution is wholly collusive and fraudulent at the instance of the erstwhile and present Pradhans.
19. Counsel for the petitioner has placed reliance upon the decision of the Division Bench of this Court in Committee of Management, Durga Narain College and Adity Kumari School and others v. State of U.P. and others MANU/UP/2990/2018 : 2018 (140) RD 510, in support of his case.
20. I have considered the submission made by Counsel for the parties and perused the record.
21. In so far as the resolution of the Gaon Sabha dated 16.08.1996 is concerned, the same cannot confer any right upon the petitioner institution. This is so because the Gaon Sabha cannot gift any land to anyone. The Goan Sabha, at best can grant a lease of agricultural land. However, such lease is to be in accordance with the provisions contained in section 198 of the U.P. Zamindari Abolition and Land Reforms Act, after following the order of preference prescribed for grant of such lease. A resolution for an allotment of the Land Management Committee necessarily requires approval of the Sub-Divisional Officer. Admittedly, in the case at hand, despite a resolution having been passed in favour of the petitioners, there is no approval of the Sub-Divisional Officer. The resolution therefore, for all practical purposes, is. waste paper.
22. For the same reason, the order of the Consolidation Officer in favour of the petitioner dated 23.10.1996, relying upon the aforesaid resolution, is patently illegal and wholly without jurisdiction. Therefore, this order has rightly been set aside on a restoration application filed by the intervener.
23. Although, the petitioner has challenged the order allowing the recall application by means of a revision, which is stated to be pending, yet this Court, in the facts and circumstances of this case is not inclined to interfere in the orders impugned on this ground, alone. The revision in my considered opinion, necessarily has to fail for the reasons already given herein-above.
24. The very fact that the proceedings under section 67 of the U.P. Revenue Code, 2006 were initiated against the petitioner shows that the land, despite the order passed by the Consolidation Officer on 23.10.1996, continues to be recorded in the name of the Gaon Sabha. The petitioners therefore, are wholly unauthorized occupants.
25. This situation is further compounded by the fact that the land over which, the institution is running is public utility land, governed by the provisions of section 132 of the, U.P. Zamindari Abolition and Land Reforms Act and/or the parallel provisions contained in section 77 of the U.P. Revenue Code, 2006.
26. In so far as the application for exchange under section 101 of the U.P., Revenue Code, 2006 filed by the petitioner is concerned, the same has been dismissed vide order dated 23.5.2018 passed by the Sub-Divisional Officer. Although, it is stated that a revision against this order is pending consideration before the Commissioner, Varanasi Division, Varanasi, this Court does not consider it appropriate to interfere with the impugned orders on the plea aforesaid because no rights can accrue in favour of any person over land which is land of public utility as is the situation in the case at hand. The embargo in this regard under the U.P. Zamindari Abolition and Land Reforms Act was absolutely categorical. However, this embargo has been watered down to an extent by the proviso to section 101(2) of the U.P. Revenue Code, 2006.
27. In view of the proviso, the State Government can permit exchange also of land of public utility, but on the matter being referred to it by the Sub-Divisional Officer. No reference has been made by the Sub-Divisional Officer. The Sub-Divisional Officer has, in fact, rejected the application for exchange. Therefore, the proviso aforementioned does not come into play in the case at hand.
28. Even otherwise, this Court has in earlier decision in Writ Petition No. 26070 of 2019 Amur Nath Singh v. State of U.P. and others decided on 20.8.2019 held that the proviso stipulates that the State Government may permit exchange of land of public utility on conditions and in the manner prescribed. However, the rules framed thereunder are absolutely silent with regard to the manner in which, the power is to be exercised by the State Government. The power provided to the State Government by the proviso aforesaid can be exercised only after relevant provisions have been incorporated in the rules and or the existing rules are suitably amended/modified.
29. In view of the foregoing discussion, the impugned orders call for no interference. The writ petition is without merit and the petitioners claim found to be based on fraud.
30. For the same reason, no benefit can be granted to the petitioners decision of the Apex Court in Jagpal Singh and others v. State of Punjab and others 2011 (113) RD 329 (SC).
31. The writ petition No. 27953 of 2018 is accordingly liable to be dismissed.
32. The connected writ petition No. 27278 of 2019 has been filed for implementation of the orders impugned in Writ Petition No. 27953 of 2018 above has been held liable to be dismissed. The respondents are therefore, liable to be directed to execute the orders, which stand affirmed upon dismissal of the writ petition No. 27953 of 2018, expeditiously.
33. Writ Petition No. 31241 of 2019 arises out of an application for exchange filed by the respondent No. 5 who is petitioner No. 2 in Writ Petition No. 27953 of 2018.
34. This petition has been filed seeking the following relief:-
"(I) Issue a writ order or direction in the nature of mandamus commanding and directing the respondents/authorities specially respondent No. 1 not to undertake any proceedings to exchange the pasture land to the extent of area 0.821 Hectare from the Land Gata No. 326 total area 1.598 Hectare with the private owner of a school i.e. Baba Sukkhu Maa Prabu Devi Inter College Golagaur, Jaunpur in pursuance of recommendations dated 28.8.2018 and 8.3.2019 passed by one R.B. Singh, Joint Secretary U.P. Shashan as eviction order dated 16.4.2018 has been passed and the same has been affirmed by appellate order dated 4.7.2018 and exchange proceedings has been rejected vide order dated 23.5.2018."
35. This is so because an application for exchange filed by the respondent No. 5 Was rejected by the Sub-Divisional Officer and against that a revision is stated to be pending. The respondent No. 5 is the present Pradhan of the village. The order dated 23.5.2018 rejecting the application for exchange has been challenged before the Commissioner, Varanasi Division, Varanasi.
36. The contention of Counsel for the petitioner is that wrongly and illegally, the State Government at the behest of the respondents is trying to interfere in the proceedings. The Joint Secretary, State of U.P. has written a letter dated 3.3.2019 addressed to the Commissioner and Secretary Board of Revenue calling for a report with regard to proceedings under section 101 for exchange. It is sought to be contended that this report has been called for to enable the Government to exercise the powers conferred by sub-rule 4 of Rule 102. Proviso to section 101 empowers the State Government to permit exchange of land, which is land of public utility having been entrusted to the Gram Panchayat or a local authority under section 59 of the U.P. Revenue Code, 2006 or is reserved for planned use or is land wherein bhumidhari rights cannot accrue, on the conditions and in the manner prescribed. Prescription necessarily has to be under the Rules. The relevant rule in this regard is Rule 102 of the U.P. Revenue Code Rules, 2016.
37. The said provision as also the corresponding Rules 102 has been considered in the judgment dated 20.8.2019 passed in Writ C No. 26070 of 2019 (Amar Nath Singh v. State of U.P. and 6 others). It has been held therein that the procedure for dealing with a reference made to the State Government by the Sub-Divisional Officer in proceedings under section 101 of the U.P. Revenue Code/2006 has not been provided under the Rules. It has been observed as follows:-
"Moreover, since the rules namely the U.P. Revenue Code Rules 2016 do not provide the manner in which the State Government is required to deal with an application for exchange referred to it by the Sub Divisional Officer, the power conferred by the proviso to section 101(2) cannot be exercised."
38. Further in the operative portion of the judgement, the following direction has been issued:-
"Learned Standing Counsel is directed to ensure that a copy of this order is forwarded to the competent authorities in the State Government, advising them to desist from exercising the power conferred by the proviso to Section 101 (2) of the U.P. Revenue Code, 2006 till such time the U.P. Revenue Code Rules, 2016 are suitably modified/amended, prescribing the conditions and procedure for exercise of the said power."
39. Under the circumstances, Writ Petition No. 31241 of 2019 is disposed of in the terms of the directions issued in Writ C No. 26070 of 2019, wherein the State Government has been directed to desist from exercising the power conferred by the proviso to section 101(2) of the U.P. Revenue Code, 2006, till such time, the U.P. Revenue Code Rules, 2016 are suitably modified/amended, prescribing the conditions and procedure for exercise of power conferred by proviso to section 101(2).
40. Writ Petition No. 27953 of 2018 is dismissed while Writ Petition No. 27278 of 2019, stands disposed of directing the respondents to execute the orders which stand affirmed due to dismissal of Writ Petition No. 27953 of 2018 within four weeks of a certified copy of this order being filed before them.
No comments:
Post a Comment