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2019 DIGILAW 2414 (ALL)

Vindeshwari Inter College v. State of U. P.

2019-10-22

ANJANI KUMAR MISHRA

body2019
JUDGMENT : Anjani Kumar Mishra, J. 1. Heard Shri M.D. Singh Shekhar, Senior Advocate on behalf of the petitioner in these two writ petitions, Shri R.C. Upadhyay for the Gaon Sabha and learned Standing Counsel for the State-respondents. 2. Both these petitions arise out of proceedings under section 38 of the U.P. Revenue Code, 2006 for correction of papers and seek quashing of the order passed by the District Magistrate. 3. By the orders impugned, the name of the petitioner institution has been ordered to be expunged from six plots and they have been directed to be recorded in the name of the Gaon Sabha. These plot numbers are 256M, 260, 261, 262, 358M and 360 having a total area of 9.9320 hectares situated in Village Khandaura, Pargana Mahul, Tehsil Phodlpur, District Azamgarh. 4. The order of the Collector dated 20.1.2018 passed by the District Magistrate, Azamgarh was challenged by means of Writ Petition No. 5463 of 2018. This writ petition was entertained and ali interim order was granted therein vide order dated 5.3.2018. 5. Perusal of the writ petition reveals that one of the main grounds in this writ petition was that the order had been passed ex-parte behind the back of the petitioner. 6. Consequently, while granting the interim order on 5.3.2018, the Court additionally observed as follows:-- "However, this order shall not be an impediment for the respondent to pass fresh orders after hearing the petitioner." 7. It appears that in pursuance of the observation above, the District Magistrate has passed a fresh order on 20.7.2019, which is impugned in Writ Petition No. 28057 of 2019. 8. Since a fresh order has been passed after hearing the petitioner, as is stated therein, the order dated 20.1.2018 impugned in Writ Petition No. 5463 of 2018 stands superseded by the fresh order dated 20.7.2019. 9. As a consequence, Writ Petition No. 5463 of 2018, has, for all practical purposes, been rendered infructuous. It is therefore liable to be dismissed as such. 10. Moreover, the final outcome of both orders namely the one passed on 20.1.2018 impugned in Writ Petition No. 5463 of 2018 and the order dated 20.7.2019 impugned in Writ Petition No. 28057 of 2019 is the same. Both these orders directed expunction of the name of the petitioner institution from the same six plots. It also appears that the contentions in both the writ petitions are identical. Both these orders directed expunction of the name of the petitioner institution from the same six plots. It also appears that the contentions in both the writ petitions are identical. 11. Therefore, also Writ Petition No. 5463 of 2018 is liable to be dismissed as infructuous. 12. The case of the petitioner is that a building of the educational institution, at that stage, a primary school was constructed in the year 1947. A Society was got registered under the provisions of the Societies Registration Act. 13. It is also submitted that recognition was granted to Bindeshwari Junior High School, Tulsi Nagar, Azamgarh on 13.11.1949. The institution was recognized as a Higher Secondary School and later on in 1959, as an Intermediate College. 14. It is submitted that the institution has been constructed over land, which was donated by the Zamindar and other land holders on 8.8.1951, out of their own sweet will, prior to the abolition of zamindari. 15. It is also contended that the consolidation operations intervened and the same came to a close on 31.3.1983 by issuance of notification under section 52 of the U.P. Consolidation of Holdings Act. No objection was raised by any person including the Gaon Sabha during consolidation operations. The long standing entries in the name of the petitioner institution have been ordered to be expunged by the impugned orders, relying only on a report dated 21.5.2018. There is a presumption of genuineness of a long standing revenue entries as provided under section 40 of the U.P. Revenue Code, 2006. Besides, the explanation to section 38 debars the authorities to correct an error in the revenue records, which amounts to deciding a dispute involving question of title. Therefore and since a dispute of title is involved, the order impugned is without jurisdiction. 16. Besides, since the revenue entries in favour of the petitioner were not disputed during consolidation operations, the bar of section 49 of the U.P. Consolidation of Holdings Act is therefore, attracted. 17. It is next contended that the order dated 20.1.20.18 was passed ex-parte. Although, the order dated 20.7.2019 states that it has been passed after hearing Counsel for the petitioner, in fact even this order is ex-parte, inasmuch as, no opportunity to adduce evidence had been afforded to the petitioner. 17. It is next contended that the order dated 20.1.20.18 was passed ex-parte. Although, the order dated 20.7.2019 states that it has been passed after hearing Counsel for the petitioner, in fact even this order is ex-parte, inasmuch as, no opportunity to adduce evidence had been afforded to the petitioner. In any case, the documents filed by the petitioner in Writ Petition No. 5463 of 2018 were necessarily required to be adverted to, while passing the order dated 20.7.2019, This has not been done. The order dated 20.7.2019, has therefore been passed without application of mind. The writ petition is, therefore, liable to be allowed. 18. It is lastly submitted that by one stroke of pari, an educational institution, which has been existed for more than 70 years will stand abolished. 19. In rebuttal, Shri R.C. Upadhyay, Counsel for the Gaon Sabha has referring to page 96 of the paper book, the certified copy of the impugned order, submitted that the plots in question was recorded as Usar, Banjar and Jungle. No evidence has been produced or document filed to show as to who donated this land to the petitioner institution prior to the abolition of zamindari. He also submits that property recorded in the name of the Gaon Sabha could not have been given to a private educational institution. 20. It has also been submitted that 1359 F, some of the land was recorded under class 6(2). Such land could not be recorded in the name of an individual. He has lastly submitted that there is no averment in the writ petition, nor any evidence has been filed to demonstrate the manner in which the land in question came to be recorded in the name of the petitioner. The revenue entries in favour of the petitioner are therefore, fraudulent, having been made without any order for the same having been passed by a competent authority. Such fraudulent or manipulated entries are necessarily to be expunged in proceedings under section 38 of the U.P. Revenue Code, 2006. This is precisely what has been done by the impugned order. The writ petition is therefore, liable to be dismissed. 21. In rejoinder, Shri M.D. Singh Shekhar has reiterated his arguments. He has also referred to the document filed as Annexure 3 to the writ petition as evidence of the donation of land made in favour of the petitioner institution. This is precisely what has been done by the impugned order. The writ petition is therefore, liable to be dismissed. 21. In rejoinder, Shri M.D. Singh Shekhar has reiterated his arguments. He has also referred to the document filed as Annexure 3 to the writ petition as evidence of the donation of land made in favour of the petitioner institution. He has also submitted that CH Form 45 filed on record of the writ petition shows that the name of the petitioner existed in the revenue record on the close of consolidation operations. 22. Learned Standing Counsel has seconded the submissions made by Shri R.C., Upadhyay, Counsel for the Gaon Sabha. 23. I have considered the submissions. made by Counsel for the parties and perused the record. 24. The basic case of the petitioner is that an educational institution had been constructed over land in issue, prior to the abolition of zamindari. For this purpose reliance has been placed upon a memorandum (Annexure 3 to the writ petition), which appears to have been written by one Vishwanath Tiwari on 1.1.1950. 25. Below this memorandum is a list of the plots with their area, the names of the persons in whose favour they were recorded and in the last column, the signatures of the land holders. However, to the naked eye, the signatures all appear to be in the same handwriting. 26. Even, if this document is assumed to be genuine, it gifts land to the petitioner institution in praesenti. The document therefore, to be admissible in evidence, necessarily required registration. There is no whisper anywhere on record that the gift in favour of the petitioner institution was by means of a registered document. This document therefore in my considered opinion, cannot be looked into. 27. In paragraph 8 of the writ petition, a categorical averment has been made that despite the gift of land in favour of the petitioner institution, no mutation was either applied for or obtained. The petitioner has also not alleged filing any objection for getting its name recorded during consolidation operations. Neither any order of any consolidation Court has been produced. Reliance has merely been placed upon CH Form 45 filed along with the writ petition to plead the bar of section 49 of the U.P. Consolidation of Holdings Act. 28. The petitioner has also not alleged filing any objection for getting its name recorded during consolidation operations. Neither any order of any consolidation Court has been produced. Reliance has merely been placed upon CH Form 45 filed along with the writ petition to plead the bar of section 49 of the U.P. Consolidation of Holdings Act. 28. In the absence of any order of a competent authority directing incorporation of the petitioner's name over the plots in question, it cannot be said that the revenue entries ordered to be expunged were not fraudulent or manipulated. 29. As regards a fraudulent or manipulated revenue entry, the bar of section 49 of the U.P.C.H. Act is not attracted. Even the presumption under section 40 of the U.P. Revenue Code, 2006 is only to entries, made in accordance with law. 30. The plea that no opportunity to adduce evidence had been provided by the Collector prior to passing the order dated 20.7.2019, is of no consequence, since the evidence filed by the petitioner along with the writ petition has been considered by this Court. This evidence has after due consideration by this Court, not found worthy of reliance for the reasons already given herein above. Besides, recognition to the education institution shall not grant title to the land ever which it exists/if it does not possess it nor will recognition regularise a fraudulent or manipulated revenue entry. 31. In view of the foregoing, the Writ Petition No. 28057 of 2019, is found to be without merit and is dismissed. Writ Petition No. 5463 of 2018 is dismissed having been rendered infructuous upon passing of the order impugned in Writ Petition No. 28057 of 2019.