# Devsthan, Saidapur v. State of U.P. & Ors

- **Citation:** (2021) 1 ILRA 637
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2021-01-27
- **Case number:** Misc. Single No. 24919 of 2020
- **Bench:** Mrs. Sangeeta Chandra
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/devsthan-saidapur-v-state-of-u-p-ors-46786
- **Pages:** 15

## Headnote

(A) Land Law - Resumption of land - U.P.
Revenue Code, 2006: Section 59(4) c -
Revenue Code Rules, 2016- Rues 54, 55 -
Failure to publish the notification in the
Gazette and the daily newspaper so as to
give general notice to the public at large
that the resumed and vests in the State
Government free from all encumbrances,
does not result in vitiating the whole
exercise of resumption. It is only an
irregularity and not an illegality that goes
to the root of the matter. (Para 42)
The Court had observed that there are three
categories of persons vis-a-vis locus standi; (1)
person aggrieved; (2) a stranger; (3) a busy
body or a meddlesome interloper. At the time of
the resumption of land, the land in question was
recorded in the name of the Gram Sabha and
not in the name of Devasthan, therefore, he
cannot be said to be an "aggrieved person".
(Para 35)

The High Court can under Article 32 or 226
refuse to exercise its discretion of striking down
the order if such striking down will result in
restoration of another order passed in favour of
the petitioner and against the opposite party in
violation of the principles of natural justice or is
not in accordance with law. (Para 43)

Writ Petition Rejected. (E-8)

List of Cases cited :-

## Text

_Characters 0–39,814 of 50,834. This is a partial read: ask again with offset=39814 for what follows._

1 All. Devsthan, Saidapur Vs. State of U.P. & Ors.
637
of this petition with a direction to Lucknow
Jal Sansthan to provide water connection to
the petitioner, strictly in accordance with
rules, within a period of one week from the
date of receipt of an E-copy of this order
provided the petitioner completes all the
formalities as provided under U.P. Nagar
Mahapalika Water Supply Rules, 1968.

12. With this direction the writ
petition is disposed of.

It is made clear that this order shall not
confer any title or right to any of the
parties, to be used in any other proceedings.
----------
(2021)01ILR A637
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 27.01.2021

BEFORE

THE HON'BLE MRS. SANGEETA CHANDRA, J.

Misc. Single No. 24919 of 2020

Devsthan, Saidapur ...Petitioner
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Mohd. Aslam

Counsel for the Respondents:
C.S.C., Dilip Kumar Pandey

(A) Land Law - Resumption of land - U.P.
Revenue Code, 2006: Section 59(4) c -
Revenue Code Rules, 2016- Rues 54, 55 -
Failure to publish the notification in the
Gazette and the daily newspaper so as to
give general notice to the public at large
that the resumed and vests in the State
Government free from all encumbrances,
does not result in vitiating the whole
exercise of resumption. It is only an
irregularity and not an illegality that goes
to the root of the matter. (Para 42)
The Court had observed that there are three
categories of persons vis-a-vis locus standi; (1)
person aggrieved; (2) a stranger; (3) a busy
body or a meddlesome interloper. At the time of
the resumption of land, the land in question was
recorded in the name of the Gram Sabha and
not in the name of Devasthan, therefore, he
cannot be said to be an "aggrieved person".
(Para 35)

The High Court can under Article 32 or 226
refuse to exercise its discretion of striking down
the order if such striking down will result in
restoration of another order passed in favour of
the petitioner and against the opposite party in
violation of the principles of natural justice or is
not in accordance with law. (Para 43)

Writ Petition Rejected. (E-8)

List of Cases cited :-

1.
Vijai
Kumari
Vs
Consolidation
Officer
Sawaijpur, Hardoi & 2 ors. 2019 (37) LCD 1701
AIR 1977 Allahabad 360

2. Jasbhai Motibhai Desai Vs. Rosha Kumar, Haji
Bashir Ahmad & ors. 1976 (3) SCR 58

3. Nagar Rice & Flour Mills & ors. Vs. N.T.
Gowda (1970) 1 SCC 575

4. M.C. Mehta Vs U.O.I. & ors. (1999) 6 SCC
237

5.
Gadde
Venkateswara
Rao
Vs.
Government of An.P. & ors. AIR 1966
Supreme Court 828

6. Mohd. Swalleh & ors. Vs III A.D.J. (1988) 1
SCC 40

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

1. Heard Sri Mohd. Arif Khan,
learned Senior Advocate, assisted by Sri
Mohd. Aslam Khan, learned counsel for the
petitioner, Sri Upendra Singh, learned
Additional Chief Standing Counsel and Sri
Dilip Kumar Pandey, learned counsel
appearing on behalf of the Gaon Sabha.
638 INDIAN LAW REPORTS ALLAHABAD SERIES

2. This petition has been filed by the
petitioner through its Mahant/Savarkar
Prem Giri Maharaj challenging the order
dated
30.09.2019
passed
by
the
Commissioner Lucknow Division Lucknow
(hereinafter referred to as "respondent
no.2").

3. A preliminary objection has been
raised by the counsel for the State
Respondents regarding the maintainability
of this petition challenging an order
resuming land belonging to the Gaon
Sabha. It has been submitted by the learned
Standing Counsel that the order dated
30.09.2019 has been issued in the exercise
of powers given to the State Government
under Section 59(4) c of the U.P. Revenue
Code 2006 (hereinafter referred to as "the
code"). By this order the State Government
has exercised its power to resume land that
was initially entrusted to the Gaon Sabha
from the date of vesting, for a public
purpose that is for establishment of a
medical college in the district Lakhimpur
Kheri. The petitioner is not the recorded
tenure holder of the land in question and
therefore has no locus to challenge the
order dated 30.09.2019. The Gaon Sabha
has not come to Court to challenge the
order dated 30.09.2019. The learned
counsel for the petitioner however has
emphasised that if this Court is apprised of
the facts leading to the order of resumption
being passed, it will be convinced that the
action of the State Respondents smacks of
arbitrariness and violation of principles of
natural justice and has caused grave
injustice to the petitioner.

4. Sri Mohd. Arif Khan, learned
Senior Advocate, has submitted that the
petitioner is "aggrieved person " and his
writ petition cannot be thrown out on the
ground of locus standi. Learned counsel for
the petitioner has gone on to argue that the
petitioner Devasthan owned several plots of
land in village Saidapur bhau, namely, old
plot no. 1522, 1523 and 1524 wherein a
temple, a well, several Samadhis, Yagya
Shala, Gaushala and Ashram have been in
existence for a long time. Plot no.1523
(new plot no. 755) and plot no.1524 (new
plot no.756 ) are recorded in the name of
Mandir Shri Thakurji Devsthan Kuti
Saidapur bhau, Savarkar Mathura Das alias
Taapsee Babaji, and there is no dispute
regarding the same. However, there is an
adjoining plot, Plot no. 1522 in which a
dispute has arisen as the State Government
through the respondent no. 2 has resumed
the property in question without following
the principles of natural justice and without
following the procedure prescribed under
the law.

5. Village Saidapur Bhau was notified
for consolidation operations on 11.09.1965.
The predecessor in interest of the current
Sarvarakar Prem Giri Maharaj, had filed
objections
before
the
Assistant
Consolidation Officer in Case No.808
alleging that the plot no. 1522, admeasuring 27.27 acres, had been wrongly
recorded in the revenue records as Jungal
Jharee. The Assistant Consolidation Officer
allowed the objection of Mathura Das alias
Taapsee Baba and directed the plot in
question to be recorded in the name of the
petitioner
through
an
order
dated
15.12.1967. It was given effect to in C.H.
Form 11, and thereafter, the entry was also
made in C.H. Form 41 and 45. The
Consolidation operations came to an end
and a notification under Section 52 was
issued on 25.07.1970. The Khatauni
prepared during consolidation operations
showed the said plot of land as a new plot
no.754 Min. ad-measuring 26.91 acres in
the name of Devsthan and the remaining
1 All. Devsthan, Saidapur Vs. State of U.P. & Ors.
639
land of the plot ad-measuring 0.36 decimal,
was recorded as Banjar that is belonging to
the Gram Sabha.

6. All of a sudden the petitioner came
to know from the Pradhan of the village
concerned that the land of plot no.754 Min.
is
being
proposed
to
be
used
for
construction of a medical college. On
enquiry the petitioner found out that an
appeal had been filed by the Gram Sabha
against the order dated 15.12.1967 passed
by the Assistant Consolidation Officer with
the huge delay of 51 years before the
Settlement Officer Consolidation Sitapur.
Such Appeal was filed only on 24.09.2019
along with an application for condonation
of delay supported by an affidavit. Notice
was issued to the petitioner but it was never
served upon the petitioner. It was shown by
the process server to have been affixed on
the wall of the primary school of the village
concerned in the presence of two witnesses.
The
petitioner
could
not
file
his
reply/objections to the maintainability of
the said Appeal. A report was summoned
from the Consolidation Officer and file was
summoned from the Revenue Record
Room on 26.09.2019. The file was never
sent. However, the order was passed by the
Settlement Officer Consolidation allowing
the appeal on 28.09.2019.

7. Within two days of passing of the
said order, the same was sent to the revenue
officials of the village to get the land
demarcated and taken possession of, and at
the same time getting its Amaldaramad
/endorsement of the order in the revenue
records i.e the Khatauni. The land was
recorded in the name of the Gaon Sabha
within no time. On 30.09.2019 itself the
State Government through the respondent
no.2 exercised its power of resumption
under section 59(4)c of the Code and
resumed an area of 3 ha, i.e. 7.50 acres out
of 26.19 acres of plot no.754 Min. for
establishing a medical College, vesting the
land in the State Government through
Secretary, Medical Education.

8. It has been submitted by the
learned counsel for the petitioner that longstanding entry in the revenue records was
set aside and the land first recorded in the
name of the Gram Sabha and thereafter
resumed by the Government arbitrarily.
Not only was the petitioner not given any
notice, the procedure prescribed under
section 59(4)c and Rules 54 and 55 of the
Revenue Code Rules 2016 (hereinafter
referred to as "the rules of 2016")was not
followed.

9. It has been submitted on the basis
of paragraph-18 of the writ petition that
notice is required to be published in the
Gazette and two daily newspapers, one of
which should be in Hindi, circulating in the
area in which the land is situated as
information to the general public that land
is being sought to be resumed by the State
Government. No such publication was
done.

10. It has been further submitted that
in similar circumstances, land was resumed
of a graveyard by the Collector Raebareli.
This Court passed an interim order staying
the operation the order of resumption in
Writ Petition No. 12320 (M/S) of 2020:
Mohammed Siddiq vs. State of U.P. and
others, by its order dated 06.08.2020.

11. The learned Standing Counsel
appearing
on
behalf
of
the
State
Respondents has submitted that initially
plot nos. 1523, 1524 along with plot no.
1522 was recorded as Jangal Jharee and
Banjar in the basic Khatauni. In the basic
640 INDIAN LAW REPORTS ALLAHABAD SERIES
year Khatauni, the entry was in favour of
Gaon Sabha as plot no. 1524 along with
other plot nos. was recorded in Banjar
Khata of the Gram Sabha. The Assistant
Consolidation Officer's order appeared to
be a fraudulent entry in Form C.H. 11 as
the Assistant Consolidation Officer can
exercise power of correction of entry only
on the basis of compromise between the
parties recorded under section 9A1. Section
9A1
proceedings
are
held
before
consolidation Scheme is published under
Section 10. The publication under Section
10 alone is done Form C.H. 11. The
Assistant Consolidation Officer in his order
dated 15.12.1967 did not mention under
which provision of the Act the objections
had been filed and decided by the Assistant
Consolidation Officer. The order dated
15.12.1967 was also not found in the
Record of the consolidation operations that
was submitted in the Revenue Record
Room. In the report submitted by the
officials on 26.09.2019, it has come out
that the alleged order dated 15.12.1967
converting to 27.27 acres of land of old plot
no. 1522 giving it new no. 754 Min. from
Jungal Jharee to Devasthan is only found
on one copy of Form C.H. 11. The records
relating to consolidation operations in a
village are always prepared in duplicate.
One of the copies is kept in the Revenue
Record Room and the second copy is kept
in the concerned Tehsil office. The other
copy of Form C.H.11 preserved in the
Revenue Record Room does not have any
such entry. Moreover, a close examination
of Form C.H. 41 showed that old plot
no.1522 was initially ad-measuring 27.27
Acres however in the comments adjacent to
such entry, 26.91 acre has been recorded in
the name of Devasthan and 0.36 decimal
has been shown to be recorded as "Anya
Banjar". The circumstances for such
comments being added in Form C.H. 41 by
scoring out earlier entry of Banjar/Jungle
Jharee remained a mystery as, had the
Assistant Consolidation Officer passed an
order in exercise of power under section
9A1, and entry would have been made in
C.H. Form 4 and not in C.H. Form 11 only,
thereafter, the order would have been
incorporated in C.H. Form 41. The order
dated 15.12.1967, having been passed
earlier, there would be no requirement of
scoring out the Original entry in Form C.H.
41, as Form C.H. 41 is always prepared
after Form C.H. 11. On the basis of
instructions
received,
signed
by
the
Consolidation
Officer,
the
Additional
District Magistrate (Finance & Revenue)
and
the
District
Magistrate,
(which
instructions have been kept on record by
this Court), it has also been submitted by
the learned Standing Counsel that no
entries were found in Form C.H. 2A or in
Form C.H. 4 in the basic year Khatauni, in
the name of Devasthan on old plot no.
1522.

12. It has been submitted by Sri
Upendra
Singh
that
the
Assistant
Consolidation Officer neither under Rule
24 A2, nor under Rule 25K, had any
jurisdiction to pass any order recording
land vested in the Gramsabha as Banjar or
Jungle Jharee, in the name of any private
person as Savarkar of a Devasthan.

13. It has also been submitted by the
learned
Standing
Counsel
that
the
petitioners reliance on the order dated
15.12.1967
passed
allegedly
by
the
Assistant Consolidation Officer is also
misplaced
because
the
Assistant
Consolidation Officer had no power to
change the nature/Navvaiyyat of any land
recorded in the basic year as Jungle Jharee
or Banjar belonging to the Gram Sabha.
The
learned
counsel
for
the
State
1 All. Devsthan, Saidapur Vs. State of U.P. & Ors.
641
Respondents has placed reliance upon the
Coordinate Bench decision in Writ Petition
No. 6946 (Consolidation) of 2019, Vijai
Kumari
vs
Consolidation
Officer
Sawaijpur, Hardoi and two others reported
in 2019(37) LCD 1701, to substantiate his
argument.

14. This Court had decided a bunch of
writ Petitions where orders passed by the
Consolidation Officer were questioned in
which the land in dispute was ordered to be
recorded as per revenue records in the same
Khata as pertaining to 1379 Fasli in the
basic year Khatauni, after expunging the
name of the writ petitioners. This Court
noticed that before 31.10.1980 the land
which was the subject matter of the writ
petition was recorded in Category VI, in
terms of paragraph A-124 of the U.P. Land
Records Manual. Category VI relates to
barren land that is an uncultivated land or
Akrishak Bhumi which is further subdivided as land covered under water,
camping sites, roads, railways, buildings
and other lands put to non-agricultural uses
and land with which is otherwise barren.
Category V as per Land Record Manual
denotes cultivable land with different subcategories such as Naveen Parti, Parti
Jadeed or Krishi Yogya Banjar, or
cultivable waste. On a resolution being
passed
by
the
Land
Management
Committee of the Gram Sabha for changing
the nature of land from Category VI to
Category V, a report was submitted by the
Lekhpal and the Sub-Divisional Officer
changed the category of land in question
and land earlier recorded in Category VI
like Naala, Charagah, Khalihan and
Devasthan etc, were recorded in Category
V as Krishi Yogya Bhumi. Pattas were
granted thereafter to the writ petitioners
and their names were recorded in the
relevant
Khata.
On
consolidation
operations being undertaken in the village
in 2004, the petitioners were given
valuation of these plots in their possession,
and the Chaks were allotted thereafter. The
orders of the consolidation authorities were
given effect to in the Khatauni in 2013.

15. Later an application under section
198 (4) for cancellation of pattas was filed
by the Gram Sabha before the Collector
which was referred to the Assistant
Consolidation Officer. The Consolidater
submitted a report that the land in question
was earlier recorded in 1379 Fasli as public
utility land referable to land described
under Section 132 of the U.P.Z.A. & L.R.
Act. No pattas of permanent nature in
respect of such land were permissible. Only
temporary Asaami pattas could have been
given. To obviate this difficulty the
category of land was changed from
Category
VI
to
Category
V.
The
Consolidation Officer being convinced that
category had been wrongly changed by the
Sub-Divisional Officer passed an order in
2019, directed the land to be recorded in
the name of Gaon Sabha as public utility
land.

16.

The
writ
petitioners
had
challenged the order on the ground that
such action was barred by the provisions of
Section 11 A of the U.P. Consolidation of
Holdings Act. The learned counsel for the
writ petitioners has relied upon a Full
Bench decision of this Court reported in
AIR 1977 Allahabad 360, that the
Consolidation Officer is not vested with
any power to adjudicate upon the validity
of
the
Patta,
except
in
exceptional
circumstances
and
therefore
the
Consolidation Officer's finding on the
validity of the pattas which were executed
in 1992 was bad in law. The SubDivisional Officer having changed the
642 INDIAN LAW REPORTS ALLAHABAD SERIES
category of land from Category VI to
Category V, and thereafter allotting the said
land to the writ petitioners was in terms of
the provisions of paragraph, Ka-155 Ka of
the U.P. Land Records Manual.

17. This Court considered the
arguments raised by the counsel for the writ
petitioners but found that since the SubDivisional Officer could not have changed
the category of land from Category VI to
Category V, thus giving away public utility
land to the writ petitioners, such action was
void ab initio and not voidable, requiring
appropriate proceedings to be drawn for its
cancellation. The Court also determined the
question as to whether the District
Collector could have entertained the
delayed application under Section 198(4) of
the U.P.Z.A. & L.R. Act. It also considered
the issue of the power of the SubDivisional Officer under paragraph Ka- 155
Ka of the Land Records Manual. The Court
referred to Section 195 of the U.P.Z.A.&
L.R. Act and also Section 132. Only that
land could be given in pattas/leases as was
not covered under Section 132 which
related to public utility land. No permanent
leases or Pattas could be granted, no
Bhumidhari the rights could accrue on land
covered under section 132.

18.

Having
considered
the
provisions of the U.P. Land Records
Manual and also of the U.P.Z.A.& L.R.
Act and the Land Revenue Act, (later
replaced by the U.P. Revenue Code), and
the provisions of U.P. Consolidation of
Holdings Act, this Court came to the
conclusion that there was no substantive
provision in the principal legislation
which vested any authority or jurisdiction
in an officer to change the category of
land, the U.P. Land Records Manual
being subordinate legislation, could not
be used for doing an act which was not
contemplated
under
the
principal
legislation. The Pattas or the leases
executed in 1992 in favour of the
petitioners were void ab initio, and
therefore, even if the names of the writ
petitioners were recorded in the Khatauni
on the basis of pattas executed in their
favour, and in the basic year Khatauni,
and during consolidation operations their
rights had matured, the basic year entries
being void ab initio, the writ petitioners
could not be permitted to take benefit of a
mistake committed by the officials. The
Court held that the full bench decision in
AIR 1977 Allahabad 360 holding that
the
Consolidation
Officer
had
no
jurisdiction to cancel the Pattas was
distinguishable and could not save the
writ petitioners as their pattas were held
to be void ab initio.

19. The Court also referred to
Section 11 C of the Act and observed that
the consolidation authorities up to the
level of Deputy Director of Consolidation
have a duty to protect land which is
vested in the State, even though no
objection or Appeal or Revision has been
preferred by the State or the Gaon Sabha
or the local authority concerned.

20. The learned Standing Counsel on
the basis of instructions, has also submitted
that even if the petitioners contention is
accepted that the file of case no.808: Baba
Mathuradas versus Gram Sabha; decided
on 15.12.1967 had been weeded out on
02.02.1981, and that such a case was
genuinely filed as a its entry has been
found on the Register maintained in the
record room at serial no.1737, the fact still
remains that the Assistant Consolidation
Officer had no power or jurisdiction to pass
an order changing the nature of land from
1 All. Devsthan, Saidapur Vs. State of U.P. & Ors.
643
Banjar and Jungle Jharee to Devsthan.
Such order being without jurisdiction
would be void ab initio.

21. It has further been submitted by
Sri Upendra Singh that after resuming the
land by the order dated 30.09.2019, a copy
of the same was sent to the office of the
District Magistrate who sent it to the office
of Tehsildar Lakhimpur Kheri with a
direction that the land in question be
measured, demarcated and handed over and
its
endorsement/Amaldaramad
on
the
revenue records be done expeditiously. A
further direction was issued that a copy of
the order of the Commissioner dated
30.09.2019 be pasted on the noticeboard at
a conspicuous location in the village
concerned, and copy of the report of such
affixation be also sent to the office of the
District Magistrate. Moreover, a letter was
sent to the office of the Nazir Sadar to get
the order pasted on the noticeboard of the
Collector's
Office
for
notice
to
all
concerned. After such order was pasted on
the noticeboard in the District Collector's
office, and affixed on public place in the
village concerned, and Amaldaramad of the
same was made in the Khatauni, land stood
vested in the State Government. Sufficient
compliance has been made of the Rules to
bring to the notice of all concerned that the
land in question has vested in the State. It
was
only
due
to
inadvertence
that
publication of such order dated 30.09.2019
resuming land in village Saidapur Bhau,
was not published in the Gazette and two
new newspapers and proceedings are now
being initiated to get the order so
published.

22. It has also been submitted on the
basis of instructions that notice with regard
to the filing of the Appeal by the
Gramsabha was sent to the village
concerned but since the entry of Devsthan
in C.H. Form 11 and C.H. Form 41, did not
show the name of the Savarkar, the notice
was affixed on the Primary School, a public
building in the village for notice to all
concerned.

23. It has been pointed out again that
the order dated 30.09.2019 resuming land
of plot no. 152 min. had been passed at a
time when the land in question was
recorded in the name of the Gaon Sabha
and not in the name of Devasthan, therefore
the petitioner had no locus to challenge the
same and pray for a writ in the nature of
Certiorari. The petitioner being mainly
aggrieved by the order passed by the
Settlement
Officer
Consolidation
had
statutory remedy of filing a Revision
against the order of the Appellate Authority
under the Consolidation of Holdings Act.

24. In rejoinder to the argument made
by the learned counsel for the State
Respondents, the learned counsel for the
petitioner submitted that the petitioner on
having come to know of the order dated
28.09.2019 belatedly, has filed a Revision
before
the
Deputy
Director
of
Consolidation in August, 2020 which has
also been dismissed on 15.01.2021. It has
been submitted that the Deputy Director of
Consolidation being a District Level
Officer could not go against the orders
passed by the State Government or the
Commissioner of the Division resuming the
land and thus unravelling the plan of the
State Government. It was argued that this
Court alone in writ jurisdiction can
interfere in such arbitrary action of the
State Respondents. The learned counsel for
the petitioner has argued that he would file
a writ petition challenging the order passed
by the Settlement Officer challenging and
the Deputy Director Consolidation before
644 INDIAN LAW REPORTS ALLAHABAD SERIES
this
Court
very
soon
however,
the
notification dated 30.09.2019 resuming the
land in question would not be set aside in
such a writ petition.

25. On the question of the locus of the
petitioner to challenge the notification
dated 30.09.2019 which had resumed the
land of the Gaon Sabha in favour of the
State Government, the counsel for the
petitioner has failed to answer the specific
query of the Court as to how the petitioner
can be said to be a "person aggrieved" and
how a writ in the nature of Certiorari can be
issued on the asking of a person who is not
"a person aggrieved." The learned counsel
for
the
petitioner
has
repeatedly
emphasized that this Court should interfere
on grounds of equity, taking into account
the fact that the order passed by the
Settlement
Officer
Consolidation,
condoning the delay of 51 years is arbitrary
and has been passed with unholy haste. It
has been submitted that the Settlement
Officer Consolidation took only four days
to decide the Appeal and such decision was
taken in the absence of the original record
of Case No. 808: Baba Mathuradas versus
Gaon Sabha, being before him.

26. It has also been submitted by the
learned counsel for the petitioner that
after
the
impugned
order
dated
30.09.2019 was issued, a proposal was
made by the Sikh community of village
Tahirpur in the same District, of donating
land for the purpose of the medical
College. The proposal was approved by
the Secretary Medical Education and
recommendation
made
to
the
State
Government to accept the same on
23.10.2020. The State Government in its
intransigence refused to accept the said
proposal and has passed an order on
23.11.2020
reiterating
its
plan
to
construct Medical College on the land of
the petitioner.

27. It has been submitted that while
issuing the notification dated 30.09.2019
and
by
reiterating
its
decision
on
23.11.2020, the State Government has
omitted to consider the guidelines framed
by the Government in its order dated
03.06.2016 wherein it has been proposed
in paragraph 5(7) that in case of
graveyards, cremation grounds and other
religious sites, care should be taken that
the same are not resumed if they are
likely to inflame religious sentiments. In
the case of the petitioner, a temple
already existed on the property in
question and a suitable land in the
alternative in a different village has also
been offered by the Sikh community, yet
the impugned notification has been
issued.

28. Lastly, it has been submitted
that since on similar facts Writ Petition
No.12320 (M/S) of 2020 has been
entertained by this Court and an interim
order passed on 06.08.2020, this instant
writ petition be connected with Writ
Petition No.12320 (MS) of 2020 and
similar interim order be passed and both
the writ petition be heard together.

29. The counsel for the Gaon Sabha
Sri Dilip Kumar Pandey has also argued
that he has instructions to submit that the
Gaon Sabha has no intention of challenging
the order dated 30.09.2019 as it has been
issued for an avowed public purpose of
establishing a Medical College and a
referral Hospital in the District which is an
object of greater public good than having a
Devasthan. He also submits that a temple
already exists in the village. A fraudulent
entry of an alleged order passed on
1 All. Devsthan, Saidapur Vs. State of U.P. & Ors.
645
15.12.1967 in C.H. Form 11 had been made
recording 26.91 acres of plot no.1522 as
land belonging to Devasthan. The basic
year entry of Banjar, Jungle Jhari and
Naveen Parti has been restored which
amounted to restoration of the right of the
Gram Sabha when the Settlement Officer
Consolidation allowed the appeal of the
Gram Sabha.

30. Having heard the learned
counsel for the petitioner and for the
State Respondents and the Gaon Sabha,
this Court has carefully perused the
order impugned which is an order of
resumption of land entrusted to the
management of the Gram Sabha by the
State Government in exercise of its
plenary powers. The Supreme Court in
several decisions has laid down the law
as to when a writ in the nature of
Certiorari can be issued by the High
Court.

31. In Jasbhai Motibhai Desai vs.
Roshan Kumar, Haji Bashir Ahmad
and others, 1976 (3) SCR 58, a four
Judges Bench of the Supreme Court
while relying upon Nagar Rice and
Flour Mills and others vs. N. T. Gowda
1970 (1) SCC 575, had laid down the
law with regard to "standing" and the
requirement of a "person aggrieved"
while issuing a writ in the nature of
Certiorari under Article 226 of the
Constitution of India. It was observed
that Article 226 has been couched in a
comprehensive phraseology to enable
the High Court to reach injustice
wherever it is found. In a sense, the
scope and nature of the power conferred
by the Article is wider than that
exercised by the Court in England.
However,
the
adoption
of
the
nomenclature of English writs, with the
prefix, "nature of " being super added,
indicates that the general principles
grown over the years in the English
Courts, can, shorn of technical and
procedural restrictions, and adapted to
special conditions of this vast country in
so far as they do not conflict with the
provisions of the Constitution, or the law
declared by the Supreme Court, be
usefully considered in directing the
exercise of this discretionary jurisdiction
in accordance with well recognised rules
of practice. The jurisdiction under
Article 226 in general, and Certiorari in
particular, is discretionary. In a country
like India wherein petitions are instituted
in the High Courts by the thousands,
many of them frivolous, ascertainment at
the outset, of the "standing" of the
petitioner to invoke this extraordinary
jurisdiction must be insisted upon.
According to most English decisions, in
order to have the locus standi to invoke
Certiorari jurisdiction
the petitioner
should be an "aggrieved person" and,
only in case of defect of jurisdiction,
such a petitioner would be entitled to a
writ of certiorari as a matter of course,
but if he does not fulfil that character,
and is a stranger, the Court will, in its
discretion deny him this extraordinary
remedy,
save
in
very
special
circumstances. The Court had pointed
pointed out three categories of persons
vis-a-vis
locus
standi;
(1)
person
aggrieved; (2) a stranger; (3) a busy
body or a meddlesome interloper. The
Honble judges in decision of Jasbhai
Motibhai Desai (supra) pointed out that
anyone belonging to the third category is
easily distinguishable as such person
interferes in things which do not concern
him as he masquerades to be a crusader
of justice. The judgement had cautioned
that the High Court should do well to
646 INDIAN LAW REPORTS ALLAHABAD SERIES
reject the petitions of such busybodies at
the threshold itself.

32. Their lordships observed the
following:-

"the distinction between the first and
the second categories of applicants though
real is not always well demarcated. The
first category has as it were, two concentric
zones; a solid central zone of certainty, and
a grey outer circle of lessening certainty in
a sliding centrifugal scale, with an outer
most nebulous fringe of uncertainty.
Applicants falling within the central zone
are those whose legal rights have been
infringed. Such applicants undoubtedly
stand in the category of person aggrieved.
In the grey outer circle the bounds which
separate the first category from the second,
intermix,
inter-fuse
and
overlap
increasingly in a centrifugal direction. All
persons in this outer zone may not be
person aggrieved."

33. The Supreme Court went on to
observe that in India, in order to have the
locus standi to invoke the extraordinary
writ jurisdiction under Article 226, an
applicant should ordinarily be one who has
a personal or individual right in the subject
matter of the application, though in case of
some of the writs, like habeaus corpus or
quo warranto, this rule is relaxed or
modified.
So
as
a
general
rule,
infringement of some legal right or
prejudice to some legal interest inherent in
the petitioner is necessary to give a locus
standi in the matter. The Supreme Court
observed that the appellant in the said case
being a rival businessman had not been
deprived of a legal right. He had not
sustained injury to any legally protected
interest. In fact, the impugned order did not
operate as a decision against him, much
less did it wrongfully affect his title to
something. He had not been subjected to a
legal wrong. He had suffered no legal
injury. He had no legal peg for a justiciable
claim to hang on. Therefore, he was not a
person aggrieved and has no locus standi to
challenge the grant of no objection
certificate to a rival to establish a cinema
hall in the same locality.

34. The Supreme Court further
observed that Certiorari is a discretionary writ
which is granted with a lot of circumspection.
Even assuming that the appellant is a stranger
and not a busybody, then also there are no
exceptional circumstances in the case which
would justify the issue of such a right at his
instance. On the contrary, the result of
exercise of these discretionary powers, in his
favour, would, on balance, be against public
policy.

35. It is evident from the documents on
record that the Gaon Sabha was the recorded
tenure holder of the property in question in
the basic year khatauni. On the basis of some
alleged order passed on alleged objection
being filed by the predecessor in interest of
the
petitioner,
Baba
Mathuradas
alias
Taapsee Baba, the Assistant Consolidation
Officer had without jurisdiction passed an
order changing the nature of land and
recording the same in the name of Devasthan.
After the order dated 28.09.2019 passed by
the Settlement Officer Consolidation the
Gaon Sabha became the recorded tenure
holder of the property again. At the time of
resumption, the land in question was recorded
in the name of the Gram Sabha and not in the
name of Devasthan. Therefore, it cannot be
said that the petitioner is an "aggrieved
person".

36. The learned counsel for the
petitioner has emphasized paragraph-18 of
1 All. Devsthan, Saidapur Vs. State of U.P. & Ors.
647
the writ petition. The paragraph-18 of the
writ petition is being quoted hereinbelow:-

"18. That section 59 (4) of the U.P.
Revenue Code as well as relevant rules 54
and 55 are reproduced hereunder:

Section 59 (4)

(4) The State Government may, by a
subsequent order to be published in the
manner prescribed-

(a) add to, amend, vary or rescind any
earlier order issued under sub section (1);

(b) transfer to any other Gram Sabha
or other local authority, any land or other
thing entrusted or deemed to be entrusted
under sub-section (1) or sub-section (3) for
superintendence,
preservation,
management and control;

(c) resume any land or other thing so
entrusted, or deemed to be entrusted or
transferred to any Gram Sabha or local
authority on such terms and conditions as
prescribed;

(d) impose conditions and restrictions
subject
to
which
the
powers
of
superintendence,
preservation,
management and control under this section
shall be exercised.

Rule 54 - mode of publication or order
[under section 59 (1) and section 59 (4)]-
The General or specific order referred in
section 59 (1) and section 59 (4) shall be
published in the gazette and in two daily
newspapers, circulating in the locality of
such area of which one shall be in Hindi
Language.

Rule 55 - Resumption of private
property by the State Government (section
59)

(emphasis supplied)

(1) - Where any land or other thing is
entrusted or deemed to be entrusted to any
Gram Panchayat or any local authority,
and such land or other thing is sought to be
resumed by the State Government under
section 59 (4)(c) then it shall issue a
notification specifying the particulars of
such property, and the publication of the
notification
in
the
gazette
shall
be
conclusive evidence that such property
stands vested in the State Government.

(2) A copy of every such notification
shall be sent to the Collector as well as the
Gram Panchayat or the local authority
concerned.

(3) Where the property referred to in
sub rule (1) has already been allotted to
any person under section 64 or section 125
of this Code or under the provisions of the
Acts, repealed by this Code, and such
allottee has made any improvement on such
land before the date of notification, then
the allottee shall be entitled to such
compensation for improvement as the
Collector may determine."

37. This Court has also perused
Section 59 of the Code of 2006 as also Rule
54 and 55, which have been cited by
learned counsel for the petitioner. Section
59 of the Code of 2006 as published in the
Bare Act summoned from the Library, is
being quoted hereinbelow in its entirety:-

"59. Entrustment of land etc. to [Gram
Panchayats] and other local authorities.--
(1) The State Government may, by general
or special order to be published in the
manner prescribed, entrust all or any of the
things specified in sub-section (2), which
vest in the State Government, to a [Gram
Panchayat] or other local authority for the
purposes of superintendence, preservation,
management and control in accordance
with the provisions of this Code.

(2) The following things may be
entrusted to a Gram Panchayat]. or other
local authority under sub-section (1),
namely,
648 INDIAN LAW REPORTS ALLAHABAD SERIES

(i)
lands,
whether
cultivable
or
otherwise, except land for the time being
comprised in any holding or grove;

(ii) grove standing on the [Gram
Panchayat] land, pasture land, graveyard,
cremation ground, manure pits, Khaliyans,
Chakroads, link roads, sector roads, land
in river bed, road, Sadak Khanti, Sullage
farm;

(iii) forests; and fisheries;

(iv) trees, other than trees in a holding
or on the boundary of a holding or in a
grove or abadi, or any trees on unoccupied
land;

(v) hats, bazaars, melas, tanks, ponds,
water-channels, private ferries, pathways
and abadi sites;

(vi) subject to the provisions of the
Treasure Trove Act, 1878, any properties
specified in Section 55 and belonging to the
State Government.

(3) Every land or other thing-

(a) vested in a [Gram Panchayat] or
any other local authority under the
provisions
of
the
Uttar
Pradesh
Consolidation of Holdings Act, 1953 or the
Uttar Pradesh Imposition of Ceiling on
Land Holdings Act, 1960;

(b) placed under the charge of a
(Gram Panchayat) or any other local
authority under any of the enactments
repealed by this Code;

(c) otherwise coming into possession
of a [Gram Panchayat] or other local
authority, either before or after the
commencement of this Code;

shall be deemed to be entrusted to
such [Gram Panchayat] or other local
authority, as the case may be, with effect
from the date of commencement of this
Code or from the date of such coming into
its
possession,
for
the
purpose
of
superintendence,
preservation,
management and control, in accordance
with the provisions of this Code.

(4) The State Government may, by a
subsequent order to be published in the
manner prescribed, -

(a) add to, amend, vary or rescind any
earlier order issued under sub-section (1);

(b) transfer to any other [Gram
Panchayat] or other local authority, any
land or other thing entrusted or deemed to
be entrusted under sub-section (1) or subsection
(3)
for
superintendence,
preservation, management and control;

(c) resume any land or other thing so
entrusted, or deemed to be entrusted or
transferred to any [Gram Panchayat) or
local
authority
on
such
terms
and
conditions as prescribed;

(d) impose conditions and restrictions
subject
to
which
the
powers
of
superintendence,
preservation,
management and control under this section
shall be exercised.