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IN THE HIGH COURT OF ALLAHABAD
SANGEETA CHANDRA, J.
C/M Ramnidhi Vidyalaya Thru Manager Ram Niranjan - Appellant
Versus
State Of U.P.Thru Prin.Secy. Revenue & Ors. - Respondents
Misc. Single No.581 of 2021
Decided on : 11-01-2021
Consolidation of Holdings Act - Section 48(3) - U.P. Consolidation of Holdings Act - Section 48(3) - U.P. Revenue Code - Section 67 – Land Issue - Encroachment of land - Public purpose - Unauthorized occupation and utilization of Gaon Sabha public utility land - Challenging order passed by District Magistrate/Collector and order passed by Tehsildar, by which proceedings under Section 67 of U.P. Revenue Code were finalized against petitioner and he was found to have encroached upon Gaon Sabha land for public utility and has been asked to deposit amount for unauthorized occupation and also to pay amount as execution expenses - It is apparent from a perusal of order passed by Co-ordinate Bench that Deputy Director of Consolidation under Section 48(3) of Consolidation of Holdings Act had initially found that name of petitioner over the land in question had been recorded as Asami by playing fraud and forgery in the khatauni of 1376-1378 fasli.
Facts of the case:
Petitioner had bought adjoining land from its recorded tenure holder through a sale deed in 2007 and constructed Sri Ramnidhi Smriti Shiksha Niketan Madhyamik Vidyalaya over it. On other side of road is banjar land recorded in name of Gaon Sabha. Allegation is that petitioner has encroached. Case of the petitioner that no survey of area concerned was done by Lekhpal and a false notice was issued to him under Section 67(1) of Code, 2006 to which petitioner submitted his objections - Because of his enmity with Village, however his objections were not considered even though he produced two witnesses in his favour and Tehsildar Milkipur passed order arbitrarily. The petitioner preferred an Appeal which Appeal has also been rejected by District Collector
Findings of the court:
Court finds no factual or legal infirmity in the orders impugned. The observations made in the case of Jagpal Singh (supra) for regularization of unauthorized encroachments are only applicable in exceptional cases. The petitioner has not shown his case to be exceptional - petitioner’s grievance is also that several other persons have encroached upon the Gaon Sabha land and they have not been proceeded against. It is settled law that Article 14 is not a negative concept and there can be no parity claimed in illegality -
It is evident from the observations made hereinabove that the same are inapplicable in the case of the petitioner.
Result: Writ petition dismissed.
JUDGMENT :
1. Heard learned counsel for the petitioner and Sri Dileep Kumar Pandey, learned counsel for the Gaon Sabha.
2. This petition has been filed challenging the order dated 08.12.2020 passed by the District Magistrate/Collector, District Ayodhya and the order dated 26.08.2020 passed by the Tehsildar, Milkipur, District Ayodhya, by which proceedings under Section 67 of the U.P. Revenue Code were finalized against the petitioner and he was found to have encroached upon the Gaon Sabha land for public utility, namely, Gata No.3065 min. ad-measuring 0.073 hectare situated in Village Kotia Tehsil Milkipur, District Ayodhya and has been asked to deposit Rs.6,20,50,000/-for unauthorized occupation and utilization of Gaon Sabha public utility land and also to pay Rs.5,000/-as execution expenses.
3. It is the case of the petitioner that the petitioner had bought adjoining land of Gata No.3068 ad-measuring 0.0126 hectare situated in the same village from its recorded tenure holder through a sale deed in 2007 and constructed Sri Ramnidhi Smriti Shiksha Niketan Madhyamik Vidyalaya over it. On the other side of the road between Gata No.3068 and Gata No.3065, is banjar land recorded in the name of Gaon Sabha. The allegation is that the petitioner has encroached upon 0.073 hectares.
4. It is the case of the petitioner that no survey of the area concerned was done by the Lekhpal and a false notice was issued to him under Section 67(1) of the U.P. Revenue Code, 2006 (hereinafter referred to as “the Code of 2006”), to which the petitioner submitted his objections. Because of his enmity with the Village Pradhan, however his objections were not considered even though he produced two witnesses in his favour and the Tehsildar Milkipur passed the order dated 26.08.2020 arbitrarily. The petitioner preferred an Appeal which Appeal has also been rejected by the District Collector on 08.12.2020.
5. It is the case of the petitioner that Gata No.3065 banjar land recorded in the name of Gaon Sabha is a huge Gata wherein patta has been given to several persons, and some of them have constructed their houses and others are doing farming over the said land. The petitioner alone has been singled out for taking action against on the alleged encroachment of such land.
6. It is also the case of the petitioner that the Village Pradhan was instrumental in getting the recognition of his institution cancelled for the Academic Session 2020 on the grounds of such encroachment on village land and the petitioner filed a Writ Petition No.32111 (M/S) of 2019, wherein this Court by way of an order dated 22.11.2019 has finally disposed of with a direction that till proceedings under Section 67 in Case No.201904230401652: Gram Sabha Vs. Ram Nidhi Vidyalaya, are concluded, the cancellation orders of the petitioner’s recognition shall remain in abeyance.
7. Learned counsel for the petitioner has argued that in pursuance of the order passed by the Tehsildar Milkipur, an execution notice has also been issued to him on 05.09.2020. It has also been argued by learned counsel for the petitioner that the petitioner is imparting education to the children of local area and he is performing a public duty giving public utility services, and if the school building is demolished, great loss will occur to the petitioner as also to the public services for which he is serving.
8. Learned counsel for the petitioner has placed reliance upon an order passed in Writ Petition No.25735 (M/S) of 2020:Committee of Management S.N. Public School through its Manager Smt. Sumitra Vs. State of U.P. and others, wherein this Court disposed of the petition on 04.01.2021 by observing that the petitioner’s application for exchange under Section 101 of the Code having been rejected on 15.01.2020, the petitioner’s Revision was pending before the Additional Commissioner, Ayodhya, and during the pendency of the said Revision, the proceedings under Section 67 of the Code were finalized leading to proceedings for his e
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