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2023 DIGILAW 840 (ALL)

Swami Vivekanand Shishu Mandir v. State of U. P.

2023-03-28

ROHIT RANJAN AGARWAL

body2023
JUDGMENT : ROHIT RANJAN AGARWAL, J. 1. Rejoinder affidavit, filed today, is taken on record. 2. Heard Sri G.P. Mishra, learned counsel for the petitioner, learned Standing Counsel for the respondents no. 1 to 4 and Sri A.P. Tewari, learned counsel appearing for all the private respondents. 3. No one has put in appearance on behalf of Land Management Committee, though, notice has been received by the Gaon Sabha. 4. This writ petition has been filed assailing the order dated 28.02.2007 passed by the respondent no. 2-Commissioner, Gorakhpur in revisional proceedings and the order dated 11.06.2019 passed by the Additional Chief Secretary, Government of U.P. cancelling the allotment made in favour of the petitioner, which is an Educational Institution, and also refusing to grant permission for exchange of land. 5. Case, in brief, is that the petitioner-Swami Vivekanand Shishu Mandir is a Junior High School. On 02.03.1989, a resolution was passed by the Land Management Committee allotting 0.020 hectare of land of Plot No. 933 which comprised an area of 0.405 hectare and recorded as Khalihan during the consolidation proceedings. A proposal was sent for approval on 05.06.1989 to the Sub-Divisional Officer. In between, the petitioner started raising construction over the land so allotted. The approval granted by the Sub-Divisional Officer was recalled by the order dated 25.11.1991. 6. The petitioner preferred a revision before the Commissioner, Gorakhpur and the matter was referred to the Board of Revenue. The Board of Revenue on 19.05.2000 set aside the order passed by the Collector and remitted back the matter for decision afresh. 7. On 22.11.2003, the allotment made in favour of the petitioner was cancelled by the Collector on the ground that the land was recorded as Khalihan and came within the purview of Section 132 of U.P. Zamindari Abolition and Land Reforms Act, 1950 (hereinafter called as “Act of 1950”) and the same cannot be allotted to the petitioner-Institution under Section 122-C for housing site as the petitioner does not fall under the category mentioned under sub-Section (3) of Section 122-C. 8. Dissatisfied with the order of the Collector, a revision was preferred before the Commissioner which was dismissed on 28.02.2007, hence the present writ petition. 9. Dissatisfied with the order of the Collector, a revision was preferred before the Commissioner which was dismissed on 28.02.2007, hence the present writ petition. 9. This Court on 04.10.2007, while admitting the petition, had required the petitioner to file an application before the Sub-Divisional Magistrate along with certified copy of the order offering alternate land being use for Khalihan equal in size of the land which was granted in favour of the Institution. The Sub-Divisional Magistrate was to convene a meeting of the Gaon Sabha, wherein a resolution was to be passed for exchange offer by the petitioner. 10. Pursuant to the direction of this Court, the petitioner offered 0.020 hectare of land of Khata No. 1462M. According to the petitioner's counsel, a resolution was passed by the Gaon Sabha in the year 2007 approving the exchange of land. During the pendency of the writ petition, the parties had exchanged their pleadings and in due course, the U.P. Revenue Code, 2006 came into effect and this Court on 01.11.2018 had directed the Sub-Divisional Officer to consider the application for exchange of land and if the same is permissible, the same may be referred to the State Government. The Sub-Divisional Officer forwarded the matter along with his report to the State Government where, after consideration of the report of the Sub-Divisional Officer, an order was passed on 11.06.2019 refusing the permission to accord the exchange in view of Section 101 (2)(d) of the U.P. Revenue Code, 2006 mainly on two grounds that difference of the value of the land offered and the land allotted was 33%, while the Act provides for maximum difference for 10% and secondly, the Land Management Committee had refused to grant approval in its meeting held on 13.12.2018. 11. Learned counsel for the petitioner submitted that after the approval was granted in the year 1991, the school was constructed and about 500 students are studying in the said school. According to him, in 2007 again a proposal was made by the Gaon Sabha for exchanging the land with the land of the Manager which was offered pursuant to the direction of this Court. According to him, in 2007 again a proposal was made by the Gaon Sabha for exchanging the land with the land of the Manager which was offered pursuant to the direction of this Court. He then contended that the State Government was not correct in rejecting the application for exchange relying upon the resolution of the Gaon Sabha of the year 2018, while there are two earlier resolutions of the Gaon Sabha, one of the year 1989 and the other of year 2007. He then contended that the other part of Plot No. 933 which has been recorded as Khalihan, a veterinary hospital is running and thus the reasoning given by the Collector as well as by the Commissioner refusing to grant of exchange is not correct. He further submitted that after the order was passed by the State Government refusing to grant permission for exchange, the petitioner had made an offer in the month of November, 2019 for giving extra land so as to narrow down the difference of 33% as has come in the report of the Sub-Divisional Officer. He has relied upon a decision of Co-ordinate Bench of this Court rendered in the case of Jain Steel and Alloys Ltd. vs. Deputy Director of Consolidation, Ghaziabad and Others, 2008 (104) RD 634. He has also relied upon the decision of Apex Court in case of J.S. Lathura Academy and Another vs. State of Jammu and Kashmir and Others, 2018 (11) JT 271 . 12. Opposing the writ petition, Sri Tewari, learned counsel appearing for private respondents submitted that the initial resolution of the Gaon Sabha was nullity as the Manager of the Institution was the Chairman of the Land Management Committee, and he could not have passed such resolution. Earlier, the Sub-Divisional Officer had not granted the approval and it was on 17.04.1991 that approval was granted on the said resolution. He then contended that when the said fact was apprised to the Sub-Divisional Officer, the resolution was recalled. 13. He has placed reliance upon Section 122-C(3) of the Act of 1950 wherein the preference for allotment for abadi has been provided. According to him, the said preference does not include an educational institution and the resolution, at its very inception, was defective and cannot be passed. 13. He has placed reliance upon Section 122-C(3) of the Act of 1950 wherein the preference for allotment for abadi has been provided. According to him, the said preference does not include an educational institution and the resolution, at its very inception, was defective and cannot be passed. He then contended that the land of Plot No. 933 was earmarked as Khalihan during the consolidation proceedings and nature of the land was never changed and no resolution could have been passed by the Gaon Sabha allotting the same to the petitioner. He invited the attention of the Court to the findings recorded by the Collector as well as Revisional Authority to the effect that the land which vested in Gaon Sabha under Section 117 and has been recorded as public utility land under Section 132 could not be leased out to an Educational Institution. He has relied upon a judgment of the Division Bench of this Court in case of Jagat Narain and Others vs. State of U.P. and Others, 2015 (127) RD 615 . Relevant Paras 13, 23 and 26 of the said judgment are extracted herein as under: “13. The issue, in essence, before the Court is whether the Court, while exercising its power of judicial review against an order under Section 122-B, would be justified in expanding the limit of the exception carved out by the legislature and by directing the settlement of land in favour of an unauthorised occupant who does not fall within the exception carved out in the legislation. 23. Land which has been vested in the Gaon Sabha under Section 117 has to be utilised for the purposes for which the vesting has taken place. The Act of 1950, which is an enactment with a social purpose, has taken due care of the need to allot lands to marginalized sections of society. Provisions have been made, as already noted in the earlier part of this judgment for the allotment of land as abadi sites for members of the Scheduled Castes and Scheduled Tribes as well as for the Other Backward Classes, besides persons belonging to the general category living below the poverty line, agricultural labourers and village artisans. Provisions have been made, as already noted in the earlier part of this judgment for the allotment of land as abadi sites for members of the Scheduled Castes and Scheduled Tribes as well as for the Other Backward Classes, besides persons belonging to the general category living below the poverty line, agricultural labourers and village artisans. Sub-Section (4-F) of Section 122-B specifically contemplates that a person in occupation of land belonging to Gaon Sabha under Section 117 before a cut off date would be admitted as a bhumidhar, sirdar or, as the case may, asami provided such a person is an agricultural labourer belonging to a Scheduled Caste or Scheduled Tribe and the total extent of the holding does not exceed 1.26 hectares. The legislature, being cognizant of the hardship which may be caused to an unauthorised occupant to a specified category, has carved out an exception in sub-section (4-F) of Section 122-B, which operates as an overriding provision over the other preceding sub-sections. Hence, in order to seek protection against an order under Section 122-B, an individual who falls within one of the categories mentioned in sub-section (4-F) has been recognised by the legislature. In our view, it would not be open to the Court, while exercising its power under Article 226 of the Constitution, to expand the ambit of the exemption which has been granted in sub-section (4-F) of Section 122-B. This would clearly be a matter of legislative judgment and policy. Such an exercise cannot be carried out by the Court, because to do so, would be to re-write the law and to substitute new categories by expanding the area of protection which has been conferred by the legislature. 26. In the judgment of the Supreme Court in Jagpal Singh vs. State of Punjab, the manner in which Gram Sabha's lands are being encroached upon has been taken due cognizance of. The Supreme Court observed as follows: “13........The appellants herein were trespassers who illegally encroached on to the Gram Panchayat land by using muscle power/money power and in collusion with the officials and even with the Gram Panchayat. We are of the opinion that such kind of blatant illegalities must not be condoned. The Supreme Court observed as follows: “13........The appellants herein were trespassers who illegally encroached on to the Gram Panchayat land by using muscle power/money power and in collusion with the officials and even with the Gram Panchayat. We are of the opinion that such kind of blatant illegalities must not be condoned. Even if the appellants have built houses on the land in question they must be ordered to remove their constructions, and possession of the land in question must be handed back to the Gram Panchayat. Regularizing such illegalities must not be permitted because it is Gram Sabha land which must be kept for the common use of villagers of the village. The letter dated 26.9.2007 of the Government of Punjab permitting regularisation of possession of these unauthorised occupants is not valid. We are of the opinion that such letters are wholly illegal and without jurisdiction. In our opinion such illegalities cannot be regularized. We cannot allow the common interest of the villagers to suffer merely because the unauthorised occupation has subsisted for many years.” The Supreme Court further held as follows: “22........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.” 14. I have heard respective counsel for the parties and perused the material on record. 15. The question which arises for consideration is whether a land which is recorded as public utility land under Section 132 of the Act of 1950 could have been allotted to an Educational Institution and subsequently, proceedings for exchange under Section 161 of the Act of 1950 (now Section 101 of the U.P. Revenue Code, 2006) can be considered and if so, its effect? 16. This is a case where the Chairman of the Land Management Committee who was also the Manager of the petitioner-Institution had passed a resolution allotting the land in favour of the Institution on 02.03.1989. 16. This is a case where the Chairman of the Land Management Committee who was also the Manager of the petitioner-Institution had passed a resolution allotting the land in favour of the Institution on 02.03.1989. The resolution was approved by the Sub-Divisional Officer in the year 1991, and some temporary constructions (Kachcha) were made by the petitioner over a part of the land which he claims to be a Junior High School running on the said land. 17. During the argument, learned counsel for the petitioner had made an assertion that there are 500 students studying in the said Institution. From the perusal of the supplementary affidavit which has been brought on record through an application on 05.04.2022, the colour photographs which have been appended as Annexure-1 clearly shows temporary structure standing in a dilapidated condition, which the petitioner calls a Junior High School. 18. From the perusal of photographs, it transpires that the structure which is standing on the allotted land is even not safe for animal, what to say about students. This land, according to the petitioner, was allotted in the year 1991, and more than 30 years have elapsed, but the petitioner has failed to build a school over the said land. 19. Now, coming to the matter on merit, the land which has been recorded as public utility land during consolidation proceedings under Section 132 of the Act of 1950 as Khalihan cannot be allotted by the Land Management Committee where the purpose for which it was earmarked has not changed. It is an admitted case that the land was allotted for housing site under Section 122-C. The preference list mentioned in Section 122-C(3) does not find place for an Educational Institution. 20. Moreover, as both the Authorities had recorded findings against the petitioner, this Court granted indulgence on 04.10.2007 solely on the ground that the school was running, and petitioner was permitted to make an application for exchange of the land of the school with some other land, which he may offer. 21. 20. Moreover, as both the Authorities had recorded findings against the petitioner, this Court granted indulgence on 04.10.2007 solely on the ground that the school was running, and petitioner was permitted to make an application for exchange of the land of the school with some other land, which he may offer. 21. The matter had travelled to the State Government and the State Government relying on the report of the Sub-Divisional Officer had recorded a categorical finding to the effect that the difference of the value of the land offered with the land allotted is more than 33% and the Act envisages a situation in which an exchange can be permitted when the difference is within 10%. 22. Moreover, the Legislature has left it to the wisdom of the State Government to consider the application for exchange. The word used in proviso to Section 101 is “may” and not “shall.” The State Government on 11.06.2019 had recorded a categorical finding, and rejected the application for exchange on two grounds viz. the difference of valuation is more than 33% and secondly, the resolution of the Gaon Sabha dated 13.12.2018 is against the proposal set up by the petitioner. 23. The argument of learned counsel for the petitioner that there were two earlier resolutions of Gaon Sabha in favour of the petitioner-Institution does not hold ground as the resolution of the year 1989 was passed by the Manager of the Institution, who was the Chairman of the Land Management Committee, and the same cannot be taken into consideration. 24. The subsequent resolution is of the year 2007, while the matter was referred to the State Government pursuant to the direction of this Court in the year 2018, whereby fresh resolution of the Gaon Sabha was sought, and after the material was made available with the State Government, the application for exchange was considered. 25. I find that the reasons recorded by the State Government does not need interference by this Court as finding of fact has been recorded. 25. I find that the reasons recorded by the State Government does not need interference by this Court as finding of fact has been recorded. The subsequent offer by the petitioner made in the month of November, 2019 after the application was rejected by the State Government cannot be considered by this Court, nor any consideration can be given by the State Government, because the matter was considered and decided by the State Government pursuant to the direction of this Court and petitioner had made the offer to the State Government. 26. Reliance placed by the petitioner's counsel on the decision of this Court in the case of Jain Steel and Alloys Ltd. (supra) is distinguishable in the present set of case as in that matter, the Sub-Divisional Officer had found that there was no material which adversely affected the exchange, and the Court allowed the same. However, in the present case, the matter was referred to the State Government who acting upon the report of the Sub-Divisional Officer had passed a detailed order. 27. Now, coming to the decision of Hon'ble Apex Court in case of J.S. Luthra Academy and Another (supra), this Court finds that the same is not applicable in the present facts of the case, as the petitioner-Institution was allotted the land by the Gaon Sabha which was marked as public utility land and cannot be allotted for housing site. Moreover, it is a private school which is being run by the petitioner. 28. In Jagat Narain and Others (supra), the Division Bench of this Court while dealing with a matter under Section 122-B (4F) had taken a view relying upon the earlier judgment of the Apex Court rendered in case of Jagpal Singh vs. State of Punjab, AIR 2011 SC 1123 , that 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 the illegal act or for regularizing the illegal possession. 29. 29. In the instant case, the very process of passing the resolution of allotting the land in favour of the petitioner could not have been made by the Manager of the Institution who was also the Chairman of the Land Management Committee and that too passing a resolution for allotting the land recorded as public utility land recorded under Section 132 of the Act for housing site and subsequently, the proceeding to construct a temporary school. 30. In view of above, the question framed stands answered and the writ petition fails. No interference is required in the order passed by the Commissioner or the State Government. 31. Writ petition stands dismissed. 32. The Collector, Mahrajganj is hereby directed to get the encroachment removed over the land of the Gaon Sabha which is existing, within a period of one month from the date of production of certified copy of this order. 33. Further, the Registrar (Compliance) is hereby directed to send a copy of this order to the Collector, Mahrajganj within 72 hours for necessary compliance. Further, a copy of this order shall also be sent to District Basic Education Officer, Mahrajganj for necessary compliance.