IN THE HIGH COURT OF ALLAHABAD
Writ - C No. 20831 of 2021
Decided On: 31.08.2021
Jay Sant Gurudev Janta Inter College
Vs.
Additional Collector and Ors.
Hon'ble Judges/Coram: Rohit Ranjan Agarwal, J.
Counsels:
For Appellant/Petitioner/Plaintiff: Pradeep Kumar Rai
For Respondents/Defendant: C.S.C. and Bhupendra Kumar Tripathi
JUDGMENT
Rohit Ranjan Agarwal, J.
1. Heard learned Counsel for the petitioner and Sri I.S. Tomar, learned Additional Chief Standing Counsel for the State respondents. Sri B.K. Tripathi, learned Counsel has appeared for Gaon Sabha.
2. This writ petition has been preferred assailing the order dated 3.3.2021 passed by the respondent No. 1 in appeal filed under section 67 (5) of U.P. Revenue Code, 2006 and order dated 16.10.2018 passed by the respondent No. 2 in proceedings under section 67(1) of U.P. Revenue Code, 2006.
3. It is contended by learned Counsel for the petitioner that petitioner is an institution established in the year 1977 and was recognized by the State Government and brought under grant-in-aid on 28.2.1981. The said institution was upgraded as Jay Sant Gurudev Janta Inter College in the year 1985. Consolidation operation started in the village in the year 1984 and plot Nos. 6/42/45/49/121/152 were recorded in the name of institution since 1406 F to 1411 F. It was on 23.12.2017 that a notice was issued in RC Form 19 under Rule 66 of U.P. Revenue Code Rules, 2016 initiating proceedings for eviction and imposition of damages over plot No. 44 measuring 0.013 hectare. A reply was submitted by the Manager of the petitioner's institution on 27.4.2018 denying the possession over the plot No. 44 and stating that the complainant was earlier an employee of the institution who was terminated and keeping ill-will had moved this application. It was further contended that the total area of plot No.' 44 is 0.312 hectare and the encroachment is alleged to be over 0.013 hectare and damages had been imposed for ` 5,000/- per Are which comes to ` 65,000/-.
4. In para 8 of the reply to the notice it has been stated that plot in question has been recorded as a pond and is inside the boundary wall of the school. Further, in para 10, it is stated that the said pond has been brought within fore-boundaries of the institution keeping in mind the safety of the students. It was further contended that the said plot was not being encroached upon nor it was brought in the personal use of the institution. Lastly, it was contended that the Apex Court in case of Jagpal Singh and others v. State of Punjab and others, AIR 2011 SC 1123 has held that any public utility land of the village can be used for allotting to landless labourers or members belonging to Scheduled Castes and Scheduled Tribes and can also be used by educational institutions for imparting education to the students of the village.
5. Opposing the writ petition, learned Standing Counsel as well as learned Counsel appearing for Gaon Sabha, have submitted that the plot No. 44 is recorded as pond in the consolidation proceedings and same is admitted to the petitioner also. Further, it is stated that one Sudama Yadav, who is the Manager of the institution, has constructed a room and toilet over a part of the pond measuring 0.013 hectare and the contention that the said pond is used by the institution is totally false as pond has been encroached upon by constructing a boundary wall around the same and certain construction over part of the pond has been made by Manager of the institution.
6. I have heard learned Counsel for the parties and perused the material on record.
7. Reply to the notice submitted by the petitioner on 26.4.2018 is in itself explanatory to the fact that petitioner-has encroached over the plot No. 44 as in para 2 of his reply he has stated that the said plot is totally vacant. Thereafter, in para No. 5 he has accepted the fact that the institution has been built over gata Nos. 6/42/45/49/121/152 after the consolidation proceedings taken place in the year 1984. Thus, gata No. 44 was never part of the institution. Further, in para No. 8, it has been stated that the disputed gata No. 44 which is measuring 1 bigha 4 biswa 13 biswansi has been recorded as pond and is within the boundary wall of the school. Further, in para No. 10 a stand has been taken in the reply that the boundary wall has been constructed around the pond keeping in view the safety of the students studying in the institution.
8. Thus, it is an admitted case that the institution is in full control of the public utility land recorded as pond and the authorities had rightly issued notice for removing the encroachment upon the said land. The reply also in para No. 11 takes note of the fact that in some portion a toilet has been constructed keeping in view the fact that it is needed by the girl students and same has been constructed in public interest. The case of the State has been totally accepted by the petitioner in his reply and leaves no room or window from restraining the revenue authorities from proceeding to remove the unauthorized construction made over the public utility land.
9. Reliance placed upon the decision of Apex Court in case of Jagpal Singh (supra) also does not come to rescue of the petitioner as the same was rendered where certain construction was made over the pond by certain persons which was regularized by the district authorities. Apex Court relying upon its earlier decision in case of Hindi Lal Tiwari v. Kamala Devi, 2001 (92) RD 689 (SC) held that land recorded as a pond must not be allowed to be allotted to anybody for construction of a house or any allied purpose.
10. Learned Counsel for the petitioner has heavily relied upon judgment of Jagpal Singh (supra) wherein Apex Court held as under;
"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."
11. From the perusal of the said judgment, it is clear that Apex Court had only permitted regularization in exceptional case wherein lease has been granted by Government notification to landless labourers or members of Scheduled Castes and Scheduled Tribes or where there" is already a school, dispensary or public utility on the land. Here, it is an admitted case of the petitioner that the institution was constructed over six different plots and only a boundary wall has been constructed bringing the pond within the premises of the institution for the safety of the students.
12. This argument cannot be accepted once the institution has come up on other land and merely by constructing a boundary wall around the pond to include it within the campus of the institution does not justify the claim and no benefit can be granted in terms of the judgment of Apex Court. Further, the report submitted by the Lekhpal is to the extent that one room and toilet has been constructed over a part of the pond which is recorded in gata No. 44 and it has been admitted by the petitioner in para No. 11 of his reply. The said judgment does not come to rescue of the petitioner for indulging in illegal activities of encroaching upon the land of Gaon. Sabha in garb of the judgment of the Apex Court. Once it is an admitted case that after the consolidation proceedings in the year 1984 the institution has come up over the plot Nos. 6/42/45/49/121/152.
13. Considering the aforesaid facts and circumstances of the case, I find that no interference is required in the order impugned. Writ petition fails and is hereby dismissed.
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