# C/M Ramnidhi Vidyalaya v. State of U.P. & Ors

- **Citation:** (2021) 1 ILRA 1086
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2021-01-11
- **Case number:** Misc. Single No. 581 of 2021
- **Bench:** Mrs. Sangeeta Chandra
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/c-m-ramnidhi-vidyalaya-v-state-of-u-p-ors-46753
- **Pages:** 6

## Headnote

Civil Law-Impugned order finalized
proceedings u/s 67 of U.P. Revenue
Code
against
Petitioner-as
upon
survey-he found to encroached Gaon
sabha land- Tehsildar considered each
and every point-including objectionAppellate
Court
also
considered
Petitioner's
Appeal
-no
factual or
legal infirmity in impugned ordersPetitioner's
grievance
that
several
other persons have encroached upon
Gaon Sabha land and no proceeding
initiated
against
them-not
sustainable-Article
14
is
not
a
negative concept-no parity can be
claimed in illegality.

W.P. dismissed. (E-7)

List of Cases cited: -

## Text

1086 INDIAN LAW REPORTS ALLAHABAD SERIES
(2021)01ILR A1086
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 11.01.2021

BEFORE

THE HON'BLE MRS. SANGEETA CHANDRA, J.

Misc. Single No. 581 of 2021

C/M Ramnidhi Vidyalaya ...Petitioner
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Gopal Pandey

Counsel for the Respondents:
C.S.C., Akash Shukla, Azad Khan, Dilip
Kumar Pandey

Civil Law-Impugned order finalized
proceedings u/s 67 of U.P. Revenue
Code
against
Petitioner-as
upon
survey-he found to encroached Gaon
sabha land- Tehsildar considered each
and every point-including objectionAppellate
Court
also
considered
Petitioner's
Appeal
-no
factual or
legal infirmity in impugned ordersPetitioner's
grievance
that
several
other persons have encroached upon
Gaon Sabha land and no proceeding
initiated
against
them-not
sustainable-Article
14
is
not
a
negative concept-no parity can be
claimed in illegality.

W.P. dismissed. (E-7)

List of Cases cited: -

1. Jagpal Singh & ors. Vs St. of Pun. & ors.;
(2011) (11) SCC 396

2. M.I. Builders (P) Ltd. Vs Radhey Shyam
Sahu; (1999) (6) SCC 464

3. Hinch Lal Tiwari Vs Kamala Devi, AIR
2001 SC 3215,
4. C/M S.N. Public School through its Manager
Smt. Sumitra Vs St. of U.P. & ors., Writ Petition
No.25735 (M/S) of 2020

(Delivered by Hon'ble Mrs. Sangeeta Chandra, J.)

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
1 All. C/M Ramnidhi Vidyalaya Vs. State of U.P. & Ors.
1087
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 eviction from the land in question
being undertaken. The Court observed that
since
the
petitioner's
application
for
exchange of land under Section 101 of the
Code can be considered to be still pending
during the pendency of the Revision, no
action be taken in the matter. The orders
passed by the Tehsildar Milkipur and the
District Collector Ayodhya were kept in
abeyance till the disposal of the Revision
said to be pending before the Additional
Commissioner Ayodhya.

9. The order of the Co-ordinate Bench
on which reliance has been placed by
learned counsel for the petitioner is clearly
inapplicable in the case of the petitioner as
there are no pleadings on record in the
1088 INDIAN LAW REPORTS ALLAHABAD SERIES
entire petition that the petitioner has made
any application for exchange under Section
101 on which prior proceedings are
underway.

10. Learned counsel for the petitioner
has argued that Hon'ble Supreme Court in
the case of Jagpal Singh and others Vs.
State of Punjab and others; 2011 (11) SCC
396, has permitted exchange of land and
regularization of unauthorized occupation
of public utility land. The petitioner has
placed reliance upon paragraphs 14 and 22
of the said judgment.

11. This Court has carefully perused
the entire judgment which refers to several
earlier binding precedents of Hon'ble
Supreme Court clearly prohibiting all
encroachment on public utility land,
changing of its nature, exchange of said
land and creating of bhumidhari rights
thereon. It has referred to the judgment
rendered in M.I. Builders (P) Ltd. Vs.
Radhey Shyam Sahu; 1999 (6) SCC 464,
and also the judgement rendered in Hinch
Lal Tiwari Vs. Kamala Devi, AIR 2001 SC
3215, that public utility land must not be
allotted to anybody for construction of
houses or for any allied purpose. The
Hon'ble
Supreme
Court
has
further
observed in paragraph-23 as follows:-

"23. Before parting with this case we
give directions to all the State Governments
in the country that they should prepare
schemes for eviction of illegal/unauthorised
occupants of the Gram Sabha/Gram
Panchayat/poramboke/shamlat land and
these must be restored to the Gram
Sabha/Gram Panchayat for the common
use of villagers of the village. For this
purpose the Chief Secretaries of all State
Governments/Union Territories in India
are directed to do the needful, taking the
help of other senior officers of the
Governments. The said scheme should
provide for the speedy eviction of such
illegal occupant, after giving him a showcause notice and a brief hearing. Long
duration of such illegal occupation or huge
expenditure
in
making
constructions
thereon or political connections must not
be treated as a justification for condoning
this illegal act or for regularising the
illegal possession. Regularisation should
only be permitted in exceptional cases e.g.
where lease has been granted under some
government
notification
to
landless
labourers or members of the Scheduled
Castes/Scheduled Tribes, or where there is
already a school, dispensary or other
public utility on the land."

12. It has also been submitted by
learned counsel for the petitioner that this
Court has in a similar case set aside the
huge
cost/
damages
imposed
for
encroachment upon public utility land/
Gaon Sabha land. He has referred to the
judgment of Co-ordinate Bench in Writ
Petition No.826 (Consolidation) of 2005;
decided on 23.05.2017.

13. This Court has carefully perused
the judgment of Co-ordinate Bench which
arises out of the orders passed by the
Deputy Director of Consolidation under
Section 48(3) of the U.P. Consolidation of
Holdings Act, whereby the name of the
writ petitioner Abdul Aziz was directed to
be struck off in revenue record in respect of
a plot of land ad-measuring two bigha
situated in Village Kushmana, Pargana
Haveli Avadh, Tehsil Sadar, District
Faizabad and the name of Gaon Sabha was
directed to be recorded in such land.

14. It is apparent from a perusal of the
order passed by the Co-ordinate Bench that
1 All. C/M Ramnidhi Vidyalaya Vs. State of U.P. & Ors.
1089
the Deputy Director of Consolidation under
Section 48(3) of the Consolidation of
Holdings Act had initially found that the
name of the petitioner over the land in
question had been recorded as Asami by
playing fraud and forgery in the khatauni of
1376-1378 fasli. The said order was
challenged by the writ petitioner in Writ
Petition No.689 (Consolidation) of 1999,
which was allowed on 23.12.1999 by the
Court and the matter was remitted to the
Deputy Director of Consolidation for fresh
consideration.

15.

The
Deputy
Director
of
Consolidation in his order dated 05.03.2001
maintained his earlier order and directed
the land to be recorded as Banjar land in
the name of the Gaon Sabha. The writ
petitioner challenged the order dated
05.03.2001
in
Writ
Petition
No.610
(Consolidation)
of
2001,
which
was
allowed by this Court on 26.04.2005
directing
the
Deputy
Director
of
Consolidation to decide the matter afresh.
In pursuance of such order passed by this
Court, the impugned order in the writ
petition was passed. The Court after
considering the entire facts of the case
came to the conclusion that lease had been
granted to the petitioner under Section 133
of the U.P. Z.A. & L.R. Act but under
Section 132 of the U.P. Z.A. & L.R. Act,
no bhimdhari rights could have been
created over such land reserved for public
utility. The Court observed that there was
no law, including provisions contained in
U.P.Z.A. & L.R. Act, which conferred any
bhumidhar rights to the lease holder who
had been granted Asami lease over land
mentioned in Section 132. The Court also
observed that even if the case of the writ
petitioner therein that he was Sirdar under
Section 134 whose rights have matured was
taken into account, the fact remained that
the writ petitioner could not produce any
admissible evidence to show that he was
ever permitted to pay twenty times of the
land revenue and his possession as Sirdar
regularised. He continued to remain a
Sirdar if the lease, if any, that was granted
to him in 1966 was taken into account.

The Court also observed that the
Deputy Director of Consolidation under
Section 48 could certainly pass the order
impugned in the petition in view of the
mandate of Section 11 (C) of the Act.
However, the Court observed that even
though the petitioner would be treated as
illegal
trespasser,
proceedings
under
Section 122 (B) of the U.P. Z.A. & L.R.
Act and Section 67 of the U.P. Revenue
Code could be initiated against him, and
therefore, just by striking off the name of
the petitioner from the revenue records
under Section 48(3), huge costs could not
be imposed upon him by the Deputy
Director of Consolidation as damages for
being in possession of the land of the Gaon
Sabha since 1966.

16. It is evident from the observations
made hereinabove with regard to the
judgment and order dated 23.05.2017 that
the case of the petitioner cannot in any way
be said to be similar to that of the writ
petitioner Abdul Aziz of the aforecited
judgment.

17. Learned counsel for the petitioner
has placed reliance upon the Government
Order No.745/ Ek- 1- 2016 -20 (5)/2016
issued by the Principal Secretary Revenue,
with regard to changing of nature of land
reserved in Gram Sabha and in local
authorities for "public purpose".

18. From a perusal of the said
Government Order, it is apparent that
1090 INDIAN LAW REPORTS ALLAHABAD SERIES
"public purpose" has been defined to have
the same meaning as given in the Land
Acquisition Act and it gave power to the
State Government to change the nature of
land reserved for public utility, for any
other
"public
purpose"
on
specific
recommendation being made in this regard
by
the
District
Magistrate
and
in
unavoidable
circumstances
and
in
exceptional cases. The conditions for
change in nature of land of public utility
have been mentioned in paragraph-4 of the
said Government Order. In so far as the
change in the nature of public utility land
for the private purpose is concerned, the
proceedings
under
Section
101
for
exchange of land could also be considered
by the State Government, if specific
proposal in this regard is sent with detailed
reasons by the District Magistrate with
25% of the Circle Rate having been
deposited by the applicant for consideration
of the application for change in user.

19. Learned counsel for the petitioner
has placed reliance upon a Government
Order
No.11/2020/689/Ek-1-202020(5)/2016 dated 06.07.2020, wherein the
Government Order dated 03.06.2016 has
been amended to the extent that the power
of permitting of exchange under Section
101 can now be exercised by the Collector
in certain cases where the cost of the land
did not exceed Rs.40 lakhs and in all other
cases has been given to the Additional
Commissioner of the Division.

20. The petitioner has not filed any
application in pursuance of the Government
Order dated 03.06.2016 or 06.07.2020.

21. This Court has gone through the
orders impugned in the petition. It finds
therein
that
the
Tehsildar/
Assistant
Collector, Milkipur, Ayodhya, by means of
a detailed order has referred to the
encroachment carried out by the petitioner
on Gaon Sabha land. On survey, it was
found that the petitioner has encroached a
part of Gata No.3065 ad-measuring 0.073
hectare enclosing it within his boundary
wall and put up a gate and constructed
toilets therein. The petitioner had been
issued notice under Section 67(1) of the
Code to which the petitioner had sought
time to submit the reply in his letter dated
10.05.2019 and actually submitted reply on
14.08.2020.

In the said reply the petitioner said that
he has not encroached upon pashuchar land
and the Area Lekhpal had given a false
report. The Gaon Sabha through its counsel
had
argued
that
the
petitioner
had
encroached upon pashuchar land. The
Lekhpal in his evidence had also supported
the case of the Gaon Sabha. The petitioner
had disputed the value of the land that was
calculated in the notice sent to him and also
the proposed damages of Rs.6,20,00,000/-
and odd. The petitioner had also disputed
the evidence of the Lekhpal saying that he
did not belong to the area in question and
referred to certain orders passed by this
Court, namely, Satendra Vs. Sub Divisional
Magistrate/ Assistant Collector, Gautam
Buddh Nagar, and Jagpati Vs. Chief
Revenue Officer Allahabad and others, to
substantiate his claim.

22.

The
Tehsildar
Milkipur
considered each and every objection made
by the petitioner including the objection
that four-five other persons had also
constructed their houses over plot no.3065
on the basis of patta granted to them by the
Gaon Sabha. After referring to C.H. Form
45 wherein Khata No.1260, land of Gata
No.3065
ad-measuring
13-15-16
was
recorded
as
pashuchar
bhumi,
the
1 All. Indian National Trade Union Congress Vs. State of U.P. & Anr.
1091
respondent
no.4
passed
the
order
impugned, after referring also to the
revenue and consolidation officials joint
report dated 11.01.2019, that the petitioner
was found to have encroached upon 0.073
hectare of the said land reserved as
pashuchar bhumi.

23. The Appellate Court i.e. the court
of the Collector Ayodhya also considered
the
petitioner's
Appeal
wherein
the
petitioner had stated that no survey of the
land had been carried out and no
opportunity was given to the petitioner at
the time of joint inspection. It was found
from the record that the petitioner had
indeed encroached 0.073 hectare of land of
Gata No.3065 reserved as pashuchar bhumi
and this fact came to the notice of the
authorities on survey being carried out.

24. This 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.

25. For the judgments relied upon by
the learned counsel for the petitioner and
the Government Orders, it would suffice to
observe that it is evident from the
observations made hereinabove that the
same are inapplicable in the case of the
petitioner.

26. The 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.

27. The writ petition stands dismissed.
----------
(2021)01ILR A1091
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 13.01.2021

BEFORE

THE HON'BLE RAJAN ROY, J.
THE HON'BLE SAURABH LAVANIA, J.

Misc. Bench No. 810 of 2021

Indian National Trade Union Congress
 ...Petitioner
Versus
State of U.P. & Anr. ...Respondents

Counsel for the Petitioner:
Dipak Seth, Harshita Mohan, Ratnesh
Chandra

Counsel for the Respondents:
C.S.C.

Civil
Law-Petitioner
allotted
an
accommodation
in
1996-
In
2016
allotment cancelled-asked to vacate and
pay the arrears of rent-Trade Union
registered under Act, 1926-not eligible for
allotment unless it satisfies conditions of
section 2 (1), 4 Of Act,2016 r/w Rule 5
(viii) of Rules, 2016.

W.P. dismissed. (E-7)

List of Cases cited: -

1. Lok Prahari Vs. St. of U.P. & ors.; Writ Petition
No. 657 of 2004 dated 01.08.2016

(Delivered by Hon'ble Rajan Roy, J. &
Hon'ble Saurabh Lavania, J.)

1. Shri Ratnesh Chandra, learned
counsel
for
petitioner
and
learned
Additional Chief Standing Counsel for
State.