# Baba Sukkhu Maa Prabhudevi Inter College & Anr v. State of U.P. & Ors

- **Citation:** (2019) 4 ILRA 1198
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2019-11-01
- **Case number:** Writ-C No. 27953 of 2018
- **Bench:** Anjani Kumar Mishra
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/baba-sukkhu-maa-prabhudevi-inter-college-anr-v-state-of-u-p-ors-44902
- **Pages:** 6

## Headnote

A. Civil Law - U.P. Revenue Code, 2006 -
Section 67 - Gao Sabha Property - Eviction -
Resolution of the Gaon Sabha - Gaon Sabha
cannot gift any land to anyone. It can, at
best, grant a lease of agricultural land - Such
lease is to be in accordance with the
provisions contained in Section 198 of the
U.P. Zamindari Abolition and Land Reforms
Act, after following the order of preference
prescribed for grant of such lease -
Moreover, such resolution requires approval
of the Sub Divisional Officer - In absence of
approval the resolution, for all practical
purposes, it is a piece of waste paper. (Para
21)
B. Civil Law - U.P. Revenue Code, 2006 -
Section 101 - Proviso to Section 101(2)
- Exchange of the Gao Sabha land with
bhumidhari
land
-
Requirement
of
reference by the Sub Divisional Officer to
State Govt. - No reference - Application
of exchange has been rejected, against
which
revision
is
pending
-
Held,
pendency of revision against an order
rejecting application for exchange is no
ground for interference because no
rights can accrue in favour of any person
over land which is land of public utility.
(Para 26 & 27)

C. Civil Law - U.P. Revenue Rules, 2016 -
Rule 102 - Exchange of land of public
utility - Effect of absence of necessary
rules - Since the Rules 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 - Direction
issued to State Govt. to desist from
exercising the power conferred by the
proviso to Section 101(2) till such time
the U.P. Revenue Code Rules, 2016 are
suitably modified/amended, prescribing
the
conditions
and
procedure
for
exercise of power conferred by proviso
to Section 101(2). (Para 28, 37 & 39)

Writ Petition dismissed. (E-1)

List of cases cited: -

## Text

1198 INDIAN LAW REPORTS ALLAHABAD SERIES

13. The writ petition is consequently
allowed. The impugned orders dated 30
April 2001, passed by the respondent No.
3 and 31 March 2003, passed by the
respondent No. 2 are hereby quashed. All
moneys deposited or recovered from the
petitioner pursuant to the impugned order
shall consequently be refunded forthwith.
----------
(2019)12 ILR A1198

ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 01.11.2019

BEFORE
THE HON'BLE ANJANI KUMAR MISHRA, J.

Writ-C No. 27953 of 2018
connected with Writ-C cases 27278 of 2019 &
31241 of 2019

Baba Sukkhu Maa Prabhudevi Inter
College & Anr. ...Petitioners
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioners:
Sri Bhola Nath Yadav, Sri Abhishek Kumar
Yadav

Counsel for the Respondents:
C.S.C., Sri Manoj Kumar Yadav, Sri
Ravindra Nath Yadav

A. Civil Law - U.P. Revenue Code, 2006 -
Section 67 - Gao Sabha Property - Eviction -
Resolution of the Gaon Sabha - Gaon Sabha
cannot gift any land to anyone. It can, at
best, grant a lease of agricultural land - Such
lease is to be in accordance with the
provisions contained in Section 198 of the
U.P. Zamindari Abolition and Land Reforms
Act, after following the order of preference
prescribed for grant of such lease -
Moreover, such resolution requires approval
of the Sub Divisional Officer - In absence of
approval the resolution, for all practical
purposes, it is a piece of waste paper. (Para
21)
B. Civil Law - U.P. Revenue Code, 2006 -
Section 101 - Proviso to Section 101(2)
- Exchange of the Gao Sabha land with
bhumidhari
land
-
Requirement
of
reference by the Sub Divisional Officer to
State Govt. - No reference - Application
of exchange has been rejected, against
which
revision
is
pending
-
Held,
pendency of revision against an order
rejecting application for exchange is no
ground for interference because no
rights can accrue in favour of any person
over land which is land of public utility.
(Para 26 & 27)

C. Civil Law - U.P. Revenue Rules, 2016 -
Rule 102 - Exchange of land of public
utility - Effect of absence of necessary
rules - Since the Rules 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 - Direction
issued to State Govt. to desist from
exercising the power conferred by the
proviso to Section 101(2) till such time
the U.P. Revenue Code Rules, 2016 are
suitably modified/amended, prescribing
the
conditions
and
procedure
for
exercise of power conferred by proviso
to Section 101(2). (Para 28, 37 & 39)

Writ Petition dismissed. (E-1)

List of cases cited: -

1. Writ Petition No.26070 of 2019 Amar Nath
Singh Vs St. of U.P. & others decided on
20.08.2019

(Delivered by Hon'ble 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
4 All. Baba Sukkhu Maa Prabhudevi Inter College & Anr. Vs. State of U.P. & Ors.
1199
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.
1200 INDIAN LAW REPORTS ALLAHABAD SERIES
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 exchange is
possible because only a bhumidhar can
exchange his land. The petitioner no.2 is
possessed of only 0.102 hectare of land,
which, in any case, is recorded in the
name of her husband.

18. It is also stated that the
resolution of the Gaon Sabha in any case
were absolutely illegal because, the
petitioner no.2 as also her husband Sher
Bahadur Yadav were at various point of
time, Pradhan of the village. The
resolution
is
wholly
collusive
and
fraudulent at the instance of the erstwhile
and present Pradhans.

19. Counsel for the petitioner has
placed reliance upon the decision of the
Division
Bench
of
this
Court
in
Committee of Management, Durga Narain
College and Adity Kumari School and
others Vs. State of U.P. and others,
2018(140) RD 510 in support of his case.

20. I have considered the submission
made by counsel for the parties and
perused the record.

21. In so far as the resolution of the
Gaon
Sabha
dated
16.08.1996
is
concerned, the same cannot confer any
right upon the petitioner institution. This
is so because the Gaon Sabha cannot gift
any land to anyone. The Goan Sabha, at
best can grant a lease of agricultural land.
However, such lease is to be in
accordance with the provisions contained
in Section 198 of the U.P.Zamindari
Abolition and Land Reforms Act, after
following
the
order
of
preference
prescribed for grant of such lease. A
resolution for an allotment of the Land
Management
Committee
necessarily
requires approval of the Sub Divisional
Officer. Admittedly, in the case at hand,
despite a resolution having been passed in
favour of the petitioners, there is no
approval of the Sub Divisional Officer.
The resolution therefore, for all practical
purposes, is waste paper.

22. For the same reason, the order of
the Consolidation Officer in favour of the
petitioner dated 23.10.1996, relying upon
the aforesaid resolution, is patently illegal
and
wholly
without
jurisdiction.
Therefore, this order has rightly been set
aside on a restoration application filed by
the intervener.

23. Although, the petitioner has
challenged the order allowing the recall
application by means of a revision, which
4 All. Baba Sukkhu Maa Prabhudevi Inter College & Anr. Vs. State of U.P. & Ors.
1201
is stated to be pending, yet this Court, in
the facts and circumstances of this case is
not inclined to interfere in the orders
impugned on this ground, alone. The
revision in
my considered opinion,
necessarily has to fail for the reasons
already given herein-above.

24. The
very fact that the
proceedings under Section 67 of the U.P.
Revenue Code, 2006 were initiated
against the petitioner shows that the land,
despite
the
order
passed
by
the
Consolidation Officer on 23.10.1996,
continues to be recorded in the name of
the Gaon Sabha. The petitioners therefore,
are wholly unauthorized occupants.

25. This situation
is further
compounded by the fact that the land over
which, the institution is running is public
utility land, governed by the provisions of
Section 132 of the U.P. Zamindari
Abolition and Land Reforms Act and/ or
the parallel provisions contained in
Section 77 of the U.P. Revenue Code,
2006.

26. In so far as the application for
exchange under Section 101 of the U.P.
Revenue Code, 2006 filed by the
petitioner is concerned, the same has been
dismissed vide order dated 23.05.2018
passed by the Sub Divisional Officer.
Although, it is stated that a revision
against this order is pending consideration
before
the
Commissioner,
Varanasi
Division, Varanasi, this Court does not
consider it appropriate to interfere with
the impugned orders on the plea aforesaid
because no rights can accrue in favour of
any person over land which is land of
public utility as is the situation in the case
at hand. The embargo in this regard under
the U.P. Zamindari Abolition and Land
Reforms Act was absolutely categorical.
However, this embargo has been watered
down to an extent by the proviso to
Section 101(2) of the U.P. Revenue Code,
2006.

27. In view of the proviso, the State
Government can permit exchange also of
land of public utility, but on the matter
being referred to it by the Sub Divisional
Officer. No reference has been made by
the Sub Divisional Officer. The Sub
Divisional Officer has, in fact, rejected
the application for exchange. Therefore,
the proviso aforementioned does not
come into play in the case at hand.

28. Even otherwise, this Court has in
earlier decision in Writ Petition No.26070
of 2019 Amar Nath Singh Vs. State of
U.P. & others decided on 20.08.2019 held
that the proviso stipulates that the State
Government may permit exchange of land
of public utility on conditions and in the
manner prescribed. However, the rules
framed thereunder are absolutely silent
with regard to the manner in which, the
power is to be exercised by the State
Government. The power provided to the
State
Government
by
the
proviso
aforesaid can be exercised only after
relevant
provisions
have
been
incorporated in the rules and or the
existing rules are suitably amended/
modified.

29. In view of the foregoing
discussion, the impugned orders call for
no interference. The writ petition is
without merit and the petitioners claim
found to be based on fraud.

30. For the same reason, no benefit
can be granted to the petitioners decision
of the Apex Court in Jagpal Singh &
1202 INDIAN LAW REPORTS ALLAHABAD SERIES
others Vs. State of Punjab & others,
2011(11) SC 396.

31. The writ petition No.27953 of
2018 is accordingly liable to be dismissed.

32. The connected writ petition
no.27278 of 2019 has been filed for
implementation of the orders impugned in
Writ Petition No.27953 of 2018 above has
been held liable to be dismissed. The
respondents are therefore, liable to be
directed to execute the orders, which
stand affirmed upon dismissal of the writ
petition No.27953 of 2018, expeditiously.

33. Writ Petition No. 31241 of 2019
arises out of an application for exchange
filed by the respondent no. 5 who is
petitioner no. 2 in Writ Petition No. 27953
of 2018.

34. This petition has been filed
seeking the following relief:-

"(I) Issue a writ order or
direction in the nature of mandamus
commanding
and
directing
the
respondents/authorities
specially
respondent no. 1 not to undertake any
proceedings to exchange the pasture land
to the extent of area 0.821 Hectare from
the Land Gata No. 326 total area 1.598
Hectare with the private owner of a
school i.e. Baba Sukkhu Maa Prabu Devi
Inter College Golagaur, Jaunpur in
pursuance of recommendations dated
28.8.2018 and 8.3.2019 passed by one
R.B. Singh, Joint Secretary U.P. Shashan
as eviction order dated 16.4.2018 has
been passed and the same has been
affirmed
by
appellate
order
dated
4.7.2018 and exchange proceedings has
been
rejected
vide
order
dated
23.05.2018."

35. This is so because an application
for exchange filed by the respondent no. 5
was rejected by the Sub Divisional
Officer and against that a revision is
stated to be pending. The respondent no. 5
is the present Pradhan of the village. The
order dated 23.05.2018 rejecting the
application
for
exchange
has
been
challenged before the Commissioner,
Varanasi Division, Varanasi.

36. The contention of counsel for the
petitioner is that wrongly and illegally, the
State Government at the behest of the
respondents is trying to interfere in the
proceedings. The Joint Secretary, State of
U.P. has written a letter dated 03.03.2019
addressed to the Commissioner and
Secretary Board of Revenue calling for a
report with regard to proceedings under
Section 101 for exchange. 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,
2006 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, 2016.

37. The said provision as also the
corresponding
Rules
102
has
been
considered
in
the
judgement
dated
20.08.2019 passed in Writ C No. 26070 of
2019 (Amar Nath Singh Vs. State of U.P.
and 6 others). It has been held therein that
the procedure for dealing with a reference
made to the State Government by the Sub
4 All. Sompal Vs. Sub-Divisional Magistrate Tehsil Rampur Maniharan, Dist. Saharanpur
1203
Divisional Officer in proceedings under
Section 101 of the U.P. Revenue Code,
2006 has not been provided under the
Rules. It has been observed as follows:-

"Moreover,
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."

38. Further in the operative portion
of the judgement, the following direction
has been issued:-

"Learned Standing Counsel is
directed to ensure that a copy of this order
is forwarded to the competent authorities
in the State Government, advising them to
desist
from
exercising
the
power
conferred by the proviso to Section 101
(2) of the U.P. Revenue Code, 2006 till
such time the U.P. Revenue Code Rules,
2016 are suitably modified/amended,
prescribing the conditions and procedure
for exercise of the said power."

39. Under the circumstances, Writ
Petition No. 31241 of 2019 is disposed of
in the terms of the directions issued in
Writ C No. 26070 of 2019, wherein the
State Government has been directed to
desist
from
exercising
the
power
conferred by the proviso to Section 101(2)
of the U.P. Revenue Code, 2006, till such
time, the U.P. Revenue Code Rules, 2016
are
suitably
modified/amended,
prescribing the conditions and procedure
for exercise of power conferred by
proviso to Section 101(2).

40. Writ Petition No.27953 of 2018
is dismissed while Writ Petition no.27278
of 2019, stands disposed of directing the
respondents to execute the orders which
stand affirmed due to dismissal of Writ
Petition No.27953 of 2018 within four
weeks of a certified copy of this order
being filed before them.
----------
(2019)12 ILR A1203

ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 26.09.2019

BEFORE
THE HON'BLE SIDDHARTHA VARMA, J.

Writ-C No. 28035 of 2019

Sompal ...Petitioner
Versus
Sub-Divisional Magistrate Tehsi Rampur
Maniharan, District Saharanpur
 ...Respondents

Counsel for the Petitioner:
Sri Suresh Chandra Pandey

Counsel for the Respondents:
C.S.C., Sri Rajesh Yadav, Sri Ram Babu
Tiwari

A. Civil Law - Essential Commodities Act,
1955 - Fair price shop - Cancellation of
licence by Sub-Divisional Officer - the
charges which the petitioner had to reply
to should have been very clear and
should have been enumerated seriatim -
when a delinquent fair price shop dealer
is given a statement of charge then the
charges should be very clear - after the
enquiry what punishment would follow
also should be clearly given out in the
show cause notice. (Para 4)

A definite enquiry ought to have been
undergone whereby a place, date and time
ought to have been fixed for the enquiry - If
the petitioner had failed to appear - the
enquiry officer should have questioned the
complainants - looked into the evidence -