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ALLAHABAD HIGH COURT
Anjani Kumar Mishra, J.
Sri Durga Ji Degree College Chandeshar - Appellant
Versus
Collector/Dist. D.D.C. Azamgarh and 5 Others - Respondent
Writ B No. 15740 of 2015
Decided On : 16-12-2015
Fraud - Land Allotment - UP Consolidation of Holdings Act - Section 48, U.P.Z.A. & L.R. Act - [Section 48 of the UP Consolidation of Holdings Act, U.P.Z.A. & L.R. Act] - The court discussed the fraudulent land allotment, the absence of lease deed, and the lack of provision for allotment to a private degree college under the U.P.Z.A. & L.R. Act. The court emphasized the importance of affording a post decisional hearing in cases with serious civil consequences and upheld the finding of fraud, stating that no equity lies in favor of a fraudster or anyone claiming through him. The court also highlighted the Division Bench's judgment regarding the regularization of occupation of Gaon Sabha land and overruled the judgment in the case of Ajanta Udyog Mandal Vidyalay as not laying down the correct law.
Fact of the Case:
The writ petitions challenged an order passed by the District Deputy Director of Consolidation, which nullified land allotments and directed the plots to be recorded in the name of the Gaon Sabha. The petitioners contended that the order was passed ex parte and relied on a Supreme Court judgment, while the respondents argued that the land allotments were fraudulent.
Finding of the Court:
The court upheld the finding of fraud and emphasized the importance of affording a post decisional hearing in cases with serious civil consequences. It also noted the absence of a lease deed and the lack of provision for allotment to a private degree college under the U.P.Z.A. & L.R. Act.
Issues: The issues included the ex parte nature of the order, the validity of the land allotments, and the absence of a lease deed.
Ratio Decidendi: The court's decision was based on the finding of fraud, the absence of a lease deed, and the lack of provision for allotment to a private degree college under the U.P.Z.A. & L.R. Act.
Final Decision: The writ petition was disposed of, subject to directions for a post decisional hearing and the filing of the alleged lease deed. Another writ petition was dismissed as the petitioners claimed through the petitioners in the first writ petition.
Anjani Kumar Mishra,J.
These two writ petitions have been filed challenging the same order passed by the District Deputy Director of Consolidation (for short the DDDC). They have, therefore, being heard together and are being decided by a common order.
2. I have heard Shri Dr. H.N. Tripathi for the petitioners in writ petition no. 15740 of 2015, Shri S.N. Mishra for the petitioners in writ petition No. 36795 of 2015, Shri R.C. Upadhyay for the Gaon Sabha and learned Standing Counsel in both the writ petitions.
3. Writ Petition No. 15740 of 2015 has been filed by Shri Durga Ji Degree College, Chandesar, Azamgarh through its founder/ Manager. Writ Petition No. 36795 of 2015 has been filed by the Committee of Management of Shri Durga Ji Mandir Trust, Chandesar, Azamgarh through its Manager, Dr. Phool Chandra Singh. In both these writ petitions, the order dated 16.01.2015 passed by the DDDC is under challenge.
4. By this order, the amaldaramad over plot nos. 679 area 4.619 acre, 706 area 0.710 acre, 528 area 3.002 acre and 363 area 0.320 acre made in pursuance of an alleged order of the Consolidation Officer (the CO) Circle No. 7, dated 11.10.1965 and 01.10.1965 made in CH Form 45 has been held to be a nullity and these plots have been directed to be recorded in the name of the Gaon Sabha, as they were, prior to the amaldaramad. Further directions have been issued that necessary correction be made in the revenue records and the A.D.M., Sadar has been directed to obtain possession of the said plots and to put the Gaon Sabha in possession thereof.
5. The contention of the petitioners in both the writ petitions is that this order has been passed ex parte without any notice or information to the petitioners and the same is therefore, liable to be set aside on this ground alone. Dr. H.N. Tripathi has further submitted that the order has been passed relying upon a decision of the Apex Court which had no application in the facts and circumstances of the case. The order of the Apex Court relied upon by the DDDC had been passed in an entirely different set up circumstances and, therefore, the same was wrongly invoked in the instant case. The judgement relied upon by the DDDC and referred by the learned counsel for the petitioners was in the case of S.P. Chengalvaraya Naidu vs. Jagannath and others reported in AIR 1994 Supreme Court 853.
6. The Apex Court in the aforementioned judgement has held that a person whose case is based on fraud has no right to approach the Court that he can be thrown out at any stage of the litigation. Dr. Tripathi submits that the finding of fraud has been returned by the DDDC without hearing the petitioners and without affording them any opportunity of hearing. He further submits that the DDDC while exercising powers under Section 48 of the UP Consolidation of Holdings Act (for short the Act) is required to pass orders, after hearing the parties. This statutory mandate has not been complied with and, therefore, the impugned order cannot be sustained.
7. He further submits that the Gaon Sabha granted a lease of the disputed land in the name of Shri Durga Ji Degree College, Chandesar, Azamgarh, in the year 1965.
8. The CO, thereafter, by an order dated 11.10.1965 in case no. 1, under Section 12 of the Act, directed that the name of Shri Durga Ji Degree College, Chandesar, Azamgarh be recorded over the land which was recorded as usar and naveen parti. In pursuance of the order necessary incorporation was made in CH Form-45 in 1977. Shri Durga Ji Degree College, Chandesar, Azamgarh became bhumidhari of the land in dispute in 1978. It is further stated that one Chandrabali Brahmachari was founder/manager of Shri Durga Ji Mandir Trust, Chandesar, Azamgarh, Shri Durga Ji Degree College, Chandeshar, Azamgarh, Shri Durga Ji Intermediate College, Chandesar, Azamgarh as also Shri Durga Ji Junior High School, Chandesar, Azamgrah and he became absolute owner of the land in question. Shri Durga Ji Mandir Trust Chandesar
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