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IN THE HIGH COURT OF ALLAHABAD
ANJANI KUMAR MISHRA, J.
Baba Sukkhu Maa Prabhudevi Inter College and Another - Petitioners
Versus
State of U.P. and 4 Others - Respondents
Writ - C No. 27953 of 2018 connect with Writ - C No. 27278 of 2019 and Writ - C No. 31241 of 2019
Decided On : 01-11-2019
U.P. Revenue Code, 2006 – Sections 67, 101 – U.P. Zamindari Abolition and Land Reforms Act – Section 198 – Eviction – 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
Facts of the case: Writ petition arises out of proceedings and seeks a writ of certiorari for quashing the order passed by the Tehsildar ordering eviction of the petitioner and the order passed by the Collector, Jaunpur affirming the order of the Tehsildar.
Finding of the court: – 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 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.
Result: – Order Accordingly.
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 06.07.2018 passed by the Tehsildar ordering eviction of the petitioner and the order dated 04.07.2018 passed by the Collector, Jaunpur affirming the order of the Tehsildar.
3. The case of the petitioner is that on 16.08.1996, 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 17.01.2018, 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 16.04.2018, ordered eviction of the petitioners. The consequential appeal has been dismissed, vide order dated 04.07.2018, 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 e
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