# C/M Evergreen Higher Secondary School Badhuwa Mau v. State of U.P & others

- **Citation:** (2012) 2 ILRA 977
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2012-08-23
- **Bench:** Anil Kumar
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/c-m-evergreen-higher-secondary-school-badhuwa-mau-v-state-of-u-p-others-42319
- **Pages:** 4

## Headnote

Act 1950, Section-122-B-cancellation of
Patta-petitioner running school over the
plot in question-moved application with
offer
to
hand
over
land
of
equal
valuation-under provisions of Section
161-plots in question are Banjar Landhaving no public utility-direction given to
the
authority
concern
to
take
appropriate decision-till final decision no
coercive method be adopted.
Held: Para 11

Thus, in view of the aforesaid facts and
also taking into consideration that the
land in question is a banzar/barren land
of Gaon Sabha, which is not of public
utility, so in the interest of justice writ
petition is disposed of with a direction
that the petitioner shall offer a land
equal to the area of land which is the
subject matter of the present case on
which the petitioner's school is running
at the same circle rate as per the
provisions provided under Section 161 of
the U.P. Z.A. & L.R.Act, 1950 within a
period of four weeks from today to the
opposite
party
no.3/Sub-Divisional
Officer, Tehsil Sandila, District-Hardoi
and
the
said
authority
shall
pass
appropriate order within a further period
of four weeks and if the Sub-Divisional
Officer,
Tehsil
Sandila,
DistrictHardoi/opposite party no.3 accepts the
proposal in question, land in dispute will
be vested with the petitioner.
Case law discussed:
2010 (28) LCD 1343; (1993) 1 SCC 645

## Text

2 All] C/M Evergreen Higher Secondary School Badhuwa Mau V. State of U.P & others
977
matters. Thus the request of the petitioner is
refused.

15. For the reasons aforesaid, the writ
petition is dismissed on the ground of
availability of alternative remedy before the
Tribunal.

16. Lastly, learned Counsel for the
petitioner also requested for granting
permission to approach the Apex Court,
which is refused as there is no substantial
question of law involved in the matter. The
issue raised in the writ petition is already
settled by number of decisions.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 23.08.2012

BEFORE
THE HON'BLE ANIL KUMAR, J.

Misc. Single No. - 7028 of 2011

C/M Evergreen Higher Secondary School
Badhuwa Mau

 ...Petitioner
Versus
State of U.P. Thru. Secy. Revenue and
others

 ...Respondents

Counsel for the Petitioner:
Mohd. Babar Khan

Counsel for the Respondents:
C.S.C.
Sri R.N. Gupta

U.P. Zamindari Abolition & Land Reform
Act 1950, Section-122-B-cancellation of
Patta-petitioner running school over the
plot in question-moved application with
offer
to
hand
over
land
of
equal
valuation-under provisions of Section
161-plots in question are Banjar Landhaving no public utility-direction given to
the
authority
concern
to
take
appropriate decision-till final decision no
coercive method be adopted.
Held: Para 11

Thus, in view of the aforesaid facts and
also taking into consideration that the
land in question is a banzar/barren land
of Gaon Sabha, which is not of public
utility, so in the interest of justice writ
petition is disposed of with a direction
that the petitioner shall offer a land
equal to the area of land which is the
subject matter of the present case on
which the petitioner's school is running
at the same circle rate as per the
provisions provided under Section 161 of
the U.P. Z.A. & L.R.Act, 1950 within a
period of four weeks from today to the
opposite
party
no.3/Sub-Divisional
Officer, Tehsil Sandila, District-Hardoi
and
the
said
authority
shall
pass
appropriate order within a further period
of four weeks and if the Sub-Divisional
Officer,
Tehsil
Sandila,
DistrictHardoi/opposite party no.3 accepts the
proposal in question, land in dispute will
be vested with the petitioner.
Case law discussed:
2010 (28) LCD 1343; (1993) 1 SCC 645

(Delivered by Hon'ble Anil Kumar, J.)

1. Heard Mohd. Babar Khan,
learned counsel for the petitioner, learned
State Counsel as well as Shri R. N. Gupta,
learned counsel appearing on behalf of
opposite party no.5 and perused the
record.

2. The controversy in the present
case relates to land recorded as plot
no.384 area 0.253 hectares and plot
no.434 area 0.253 hectares situated at
village Badhuwa Mau, post Raison,
Tehsil Sandila, District Hardoi.

3. As per version of the petitioner,
the same has been allotted to the
petitioner by means of the resolution
dated 20.11.2003 (Annexure No.3) passed
by opposite party no.5/Pradhan, Gram
978 INDIAN LAW REPORTS ALLAHABAD SERIES [2012
Sabha Bdhuwa Mau, Tehsil Sandila,
District-Hardoi. Thereafter, the petitioner
constructed an institution in the name and
style of Evergreen Higher Secondary
School and at present more than 500
students are studying.

4. Subsequently, in the matter in
question a proceeding under Section 122B of the U.P.Z.A. & L.R. Act has been
initiated against the petitioner on the
ground that the land in question is a
banzar/barren land, cannot be allotted by
way of patta/lease in favour of the
petitioner and in the said proceeding lastly
an order dated 27.10.2010 has been
passed against him by which the patta of
the land in question has been cancelled
and a penalty of Rs.10,116/- has been
imposed. Aggrieved by the said fact, the
present writ petition has been filed by the
petitioner.

5. Learned counsel for the petitioner
submits that the petitioner is ready to
offer equal area of land to the Gaon Sabha
as per the circle rate in view of the
provisions as provided under Section 161
of the U.P. Z.A. & L.R.Act, 1950
(hereinafter refereed to as the Act). In this
regard a supplementary affidavit has
already been filed sworn by Mohd. Irfan
Khan dated 29.11.2011, accordingly, it
has been submitted that the land in
dispute be given to him and be recorded
in the revenue record.

6. Learned counsel for the petitioner
in support of his offer placed reliance on
the judgment given by this Court in the
case of Ram Bhujharat Singh Inter
College Erstwhile Janta Janardan Vs.
Board of Revenue, U.P. Lucknow and
Ors. 2010 (28) LCD 1343 wherein
paragraph nos. 6 and 7 held as under:-

" Para 6- Thus, he submits that if this
court does not interfere in the matter, the
Institution, which is in the interest of
students may be finished. He further
informs that likewise several other
institutions have been allotted the land
where the Schools are running wihtout
any
action
adverse
against
them.
However,
though
he
claims
his
substantive right of allotment under
Section 195 of the U.P.Z.A. & L.R.Act, but
I am of the view that the same is not open
for the private educational institution.

Para 7- The lease was granted on
1.8.1967 and 5.10.1974 in favour of the
petitioner. Since I am of the view that the
land could not have been allotted to the
petitioner-Institution
i.e.
private
Institution by the Land Management
Committee, the possession or long entry
of the lessee, cannot create a perpetual
right in his favour. However, considering
the submission of the learned counsel for
the petitioner that under the bonafide
belief of his right accrued on the basis of
lease, the petitioner already constructed a
building and further in the legitimate
expectation, he extends his willingness to
offer the other private land of the same
very area to the Gaon Sabha, in the
interest of justice, I hereby restrain the
authorities concerned to take any action
against the petitioner subject to offer
made by the petitioner of the private land,
as aforesaid, within three months and
thereafter the proceeding of exchange
shall be completed within next three
months. If the petitioner fails to offer the
same very land within the period
stipulated here-in-above, the authorities
would be at liberty to proceed against
him."
2 All] C/M Evergreen Higher Secondary School Badhuwa Mau V. State of U.P & others
979

7. And also on the judgment and
order dated 12.5.2011 passed in Writ
Petition
No.2455
of
2011,
on
reproduction reads as under:-

"Application is allowed.

Order dated 22.4.2011 is corrected
as under :

"Heard Sri Rajeev Singh Chauhan
learned counsel for the petitioner and
learned Standing Counsel for opposite
parties no. 1 to 3 and Sri R.N. Gupta for
opposite party no. 4.

The petitioner has very fairly stated
before this court that the land on which
the Inter College has been constructed
does belong to land of Gaon Sabha. He
does not challenge the impugned orders
on merits. He says that he is willing to
give equivalent land to the Gaon Sabha
which is available with him. He argues
that
since
the
college
has
been
constructed and students are studying,
hence in the interest of students as well as
the other villager in general the college
may not be demolished and education
may not be disrupted. There is a provision
of Section 161 U.P.Z.A. & L.R. Act for
such purpose.

The petitioner says that he has
moved application under Section 161
within two weeks.

If such an application is moved
within two weeks from today before the
Collector / Additional Collector, the same
shall be decided on merits after hearing
the parties positively within a period of
three months from the date of filing of the
application.

In case the application is allowed the
orders impugned in this writ petition
dated 28.3.2011 and 11.1.2011 ( as
contained in Annexure nos. 1 & 2 to the
writ petition) shall merge int he order of
Collector / Additional Collector, but in
case of failure these orders shall revive
automatically and the stay granted by this
court shall stand vacated automatically.
No further orders will be required.

Till that decision by the Collector /
Additional Collector the orders impugned
shall remain stayed."

8. In view of the abovesaid facts,
learned counsel for the petitioner requests
that the present writ petition may also be
disposed of in terms of the said judgment.

9. Shri R. N. Gupta, learned counsel
for the respondent as well as learned State
Counsel have no objection to the
abovesaid prayer.

10. As per the the abovesaid facts
and taking into consideration that at
present on the land in dispute, an
institution in the name and style of
"Evergreen Higher Secondary School" is
running and imparting education to 500
students to achieve the Constitutional goal
as provided under Article 21 of the
Constitution of India. While interpreting
the same Hon'ble the Supreme Court in
the case of Unni Krishnan vs. State of A.
P. (1993) 1 SCC 645, held that it is
implicit in Article 21 that every child upto
14 years has a fundamental right to free
education. After that it is subject to limits
of economic capacity and development of
the State as well as Right to Education
Act, 2009.
980 INDIAN LAW REPORTS ALLAHABAD SERIES [2012

11. Thus, in view of the aforesaid
facts and also taking into consideration
that the land in question is a banzar/barren
land of Gaon Sabha, which is not of
public utility, so in the interest of justice
writ petition is disposed of with a
direction that the petitioner shall offer a
land equal to the area of land which is the
subject matter of the present case on
which the petitioner's school is running at
the same circle rate as per the provisions
provided under Section 161 of the U.P.
Z.A. & L.R.Act, 1950 within a period of
four weeks from today to the opposite
party no.3/Sub-Divisional Officer, Tehsil
Sandila, District-Hardoi and the said
authority shall pass appropriate order
within a further period of four weeks and
if the Sub-Divisional Officer, Tehsil
Sandila, District-Hardoi/opposite party
no.3 accepts the proposal in question, land
in dispute will be vested with the
petitioner.

12. For a period of two months or
till the decision is taken by the SubDivisional
Officer,
Tehsil
Sandila,
District-Hardoi/opposite party no.3 no
coercive measure shall be taken against
the petitioner.

13. If the petitioner fails to offer the
proposal in question within the statutory
period as stated herein above, the
authorities are at liberty to proceed
against him in accordance with law.

14. With the above observations,
writ petition is disposed of.
---------

ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 30.08.2012

BEFORE
THE HON'BLE SHRI NARAYAN SHUKLA, J.

Writ Petition No. 1567 of 1997 (S/S)

Vishnu Kumar

 ...Petitioner
Versus
Presiding Officer, Labour Court Faizabad
and another

 ...Opp. Parties

U.P. Industrial Dispute Act 1947-Section
33-C(2)-claim for arrears of wagesalleging to be Seasonal Chaukidar-status
of petitioner still under considerationunless until status, nature of duty
adjudicated-proceeding under
Section
33-C-(2) not maintainable.

Held: Para 20

In the light of the observations made
above without disputing the definition of
seasonal workman as given under the
Standing Order, I find that the petitioner's
status of Seasonal Chaukidar is yet to be
determined
by
the
Labour
Court.
Therefore, I am of the view that until and
unless same is determined finally, the
petitioner has no right to claim any benefit
arising out of the said status under Section
33 C(2) of the Industrial Disputes Act.
Therefore, I do not find error in the award
dated 26.10.1996, passed by the Presiding
Officer, Labour Court, Faizabad.
Case law discussed:
1999 (82) FLR 137; C.M.W.P. No. 6878 of 1992;
2009 (123) FLR 773; AIR 1964 Supreme Court
743; 1996 (2) Supreme Court 562; 2010 (125)
FLR 523; 1983 Supreme Court Cases (L&S) 527
(1983) 4 SCC 293; AIR 1964 Supreme Court
752; (1995) 1 Supreme Court Cases 235; AIR
1968 SC 218

(Delivered by Hon'ble Shri Narayan Shukla, J.)

1. Heard Mr Radhey Shyam Mishra
, learned counsel for the petitioner and