The court emphasized the limitations on land allotment to educational institutions under the U.P. Zamindari Abolition and Land Reforms Act, 1950, and the discretionary power of the State Government in considering land exchange applications.

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. 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