# H.S.N.Shri Syed Asghar Husain Uchtar Madhyamic Vidyalaya v. State of U.P. & ors

- **Citation:** (2003) 2 ILRA 502
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2003-07-15
- **Case number:** Civil Misc. Writ Petition No. 29212 of 2003
- **Bench:** Ashok Bhushan
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/h-s-n-shri-syed-asghar-husain-uchtar-madhyamic-vidyalaya-v-state-of-u-p-ors-40152
- **Pages:** 4

## Headnote

Act, 1955, Sec. 198 (1)- allotment of
land for housing site- petitioner an
educational institution-not covered by
any of the categories mentioned in
Section 198 (1)- whether entitled for
allotment-'no'
cancellation
of
lease-
held- proper.

Case law discussed:
1996 RD 190
2002 (93) RD 30
Held - Para 6

Section 198 (1) enumerates various
categories of persons who are entitled to
be admitted to land. The categories of
persons who are entitled to be admitted
to land. The categories which have been
mention are with specific objects. The
allotment of land is not open to any
person. The scheme of allotment as
provided under Section 195, 197, 198
read
together
makes
it
clear
that
admission to land is restricted to the
categories mentioned in Section 198 (1).
A person who is not covered in any of the
categories cannot claim allotment. The
submission
of
the
counsel
for
the
petitioner
that
he
is
entitled
for
allotment thus cannot be accepted.

Constitution
of
India,
Article
226discretionary jurisdiction- interference-
with an order the effect of which is to
restore an illegal order-though passed by
an authority lacking jurisdiction-court
will not exercise its discretion in writ
jurisdiction.

Held- Para 7

The Additional Collector has observed
that allotment of land in favour of the
petitioner was contrary to the provisions
of U.P. Zamindari Abolition & Land
Reforms Act. Interfering with the order
of Additional Collector will be restoration
of an illegal order and this Court even if
the order of Additional Collector was not
within his jurisdiction will not exercise
its discretion for restoring an illegal
order.
Case law relied upon:
AIR 1966 SC 828

## Text

INDIAN LAW REPORTS ALLAHABAD SERIES [2003
502
already retired, they will be paid their
arrears with 10% simple interest.

10. The petition stands allowed. No
order as to costs.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 15.7.2003

BEFORE
THE HON'BLE ASHOK BHUSHAN, J.

Civil Misc. Writ Petition No. 29212 of 2003

Hina Siksha Niketan Shri Syed Asghar
Hussain Uchtar Madhyamic Vidyalaya,
Kura Muridan, Sirathu, Kaushambi

 ...Petitioner
Versus
State of U.P. and others ...Respondents

Counsel for the Petitioner:
Sri V.A. Ansari

Counsel for the Respondents:
Sri V.K. Singh
S.C.

U.P. Zamindari Abolition & Land Reform
Act, 1955, Sec. 198 (1)- allotment of
land for housing site- petitioner an
educational institution-not covered by
any of the categories mentioned in
Section 198 (1)- whether entitled for
allotment-'no'
cancellation
of
lease-
held- proper.

Case law discussed:
1996 RD 190
2002 (93) RD 30
Held - Para 6

Section 198 (1) enumerates various
categories of persons who are entitled to
be admitted to land. The categories of
persons who are entitled to be admitted
to land. The categories which have been
mention are with specific objects. The
allotment of land is not open to any
person. The scheme of allotment as
provided under Section 195, 197, 198
read
together
makes
it
clear
that
admission to land is restricted to the
categories mentioned in Section 198 (1).
A person who is not covered in any of the
categories cannot claim allotment. The
submission
of
the
counsel
for
the
petitioner
that
he
is
entitled
for
allotment thus cannot be accepted.

Constitution
of
India,
Article
226discretionary jurisdiction- interference-
with an order the effect of which is to
restore an illegal order-though passed by
an authority lacking jurisdiction-court
will not exercise its discretion in writ
jurisdiction.

Held- Para 7

The Additional Collector has observed
that allotment of land in favour of the
petitioner was contrary to the provisions
of U.P. Zamindari Abolition & Land
Reforms Act. Interfering with the order
of Additional Collector will be restoration
of an illegal order and this Court even if
the order of Additional Collector was not
within his jurisdiction will not exercise
its discretion for restoring an illegal
order.
Case law relied upon:
AIR 1966 SC 828

(Delivered by Hon'ble Ashok Bhushan, J.)

1. Heard counsel for the petitioner
and the learned standing counsel.

By this writ petition, the petitioner
has prayed for quashing of the orders
dated 12.6.2003 and 24.6.2003 passed by
Additional
Commissioner,
Allahabad
Division, Allahabad and order passed by
Additional District Magistrate (Finance &
Revenue). The petitioner claims to be
Educational
Institution
who
claims
allotment of plot no. 1011 Kha. An
application was filed for cancellation of
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2 All] H.S.N.Shri Syed Asghar Husain Uchtar Madhyamic Vidyalaya V. State of U.P. & ors. 503
the lease under section 198 (4) which was
allowed by Additional Collector. It was
held
by
Additional
Collector
that
institution do not come in any of the
categories as mentioned under Section
198 (1) of the U.P. Zamindari Abolition
& Land Reforms Act to whom lease can
be granted.

2. The counsel for the petitioner
contended that Section 198 (1) only
enumerate the preference and there is no
prohibition regarding allotment in favour
of Educational Institutions. The counsel
for the petitioner next contended that
Patta was cancelled by Additional District
Magistrate (Finance & Revenue) and in
view of the Division Bench judgment
reported in 1996 RD 190 Shiv Avtar
Versus Ravi, the Additional Collector
does
not
mean
Collector
and
the
Additional Collector has no jurisdiction to
cancel the lease.

3. I have considered the submissions
and perused the record. Section 198 (I)
contemplates admission of persons to
land. There is no dispute that petitioner
does not fall in any of the categories. The
submission of the counsel for the
petitioner is that even though he does not
fall in any of the categories under Section
198 (1), there is no prohibition in the Act
for allotment in favour of the petitioner.

4.

Admission
to
land
as
contemplated under Section 195 and 197
has to be made in accordance with the
preference as mentioned in section 198.
The admission to land under Section 195,
197, 198 is for a specific purpose. Object
is to allot land to certain category of
persons which are mentioned in the
section 198. This Court had occasion to
consider the provisions pertaining to
allotment of land for housing site under
U.P.
Zamindari
Abolition
&
Land
Reforms Rules. This Court in 2002 (93)
RD 30 Yog Sansthan versus Collector,
Moradabad has held that allotment of land
for housing sites refers to natural person.
The ratio laid down in the aforesaid
judgment also covers the object and
purpose of allotment under sections 195,
197 & 198 also. Petitioner is not covered
by any of the categories, mentioned in
Section 198 (1), he is not entitled for
allotment
and
no
error
has
been
committed
by
the
respondent
in
cancelling the lease of the petitioner.

5. The counsel for the petitioner
referring to Sections 195 and 197 has
submitted that said sections do not lay
down any limitation and the word used in
the said section is "any person". Section
195 and 197 are extracted below:

"195. Admission to land- The (Land
Management
Committee)
(with
the
previous
approval
of
the
Assistant
Collector in-charge of the sub-division)
shall have the right to admit any person
as (bhumidhar with non-transferable
rights) to any land (other than land being
in any of the classes mentioned in Section
132) where-

(a) the land is vacant land,
(b) the land is vested in the (Gaon
Sabha) under Section 117, or
(c) the land has come into the possession
of (Land Management Committee) under
Section 194 or under any other provision
of this Act."

"197. Admission to land mentioned
in
Section
132-
(1)
The
(Land
Management
Committee)
(with
the
previous
approval
of
the
Assistant
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INDIAN LAW REPORTS ALLAHABAD SERIES [2003
504
Collector in charge of the Sub-Division)
shall have the right to admit any person
as asami to any land falling in any of the
classes mentioned in Section 132 where-

(a) the land is vacant land,
(b) the land is vested in the (Land
Management Committee) or
(c) the land has come into the possession
of the (land Management Committee)
under Section 194 or under any other
provision of the Act.

(2)

Nothwithstanding
anything
contained in any other provision of this
Act, the right to admit any person as
asami of any tank, pond or other land,
covered by water shall be regulated by
the rules made under this Act."

6. Section 198 (1) provides that in
the admission of person to land as
(Bhumidhari with non transferable right)
or assami under Section 195 or Section
197, the land Managing Committee shall
observe, the order of preference as given
in said sub section. Section 198 (1) itself
clarify that admission of persons to land
as mentioned in Sections 195 and 197 is
subject to provisions of Section 198 (1).
Section 198 (1) enumerates various
categories of persons who are entitled to
be admitted to land. The categories of
persons who are entitled to be admitted to
land. The categories which have been
mention are with specific objects. The
allotment of land is not open to any
person. The scheme of allotment as
provided under Section 195, 197, 198
read
together
makes
it
clear
that
admission to land is restricted to the
categories mentioned in Section 198 (1).
A person who is not covered in any of the
categories cannot claim allotment. The
submission of the counsel for the
petitioner that he is entitled for allotment
thus cannot be accepted.

7. The second submission of the
counsel
for
the
petitioner
is
that
Additional Collector has no jurisdiction to
cancel
the
lease.
Division
Bench
judgment relied by the counsel for the
petitioner do support the contention of the
counsel for the petitioner. However, it is
well settled that this Court in exercise of
writ jurisdiction will not interfere with an
order the effect of which is to restore an
illegal order. The Additional Collector has
observed that allotment of land in favour
of the petitioner was contrary to the
provisions of U.P. Zamindari Abolition &
Land Reforms Act. Interfering with the
order of Additional Collector will be
restoration of an illegal order and this
Court even if the order of Additional
Collector was not within his jurisdiction
will not exercise its discretion for
restoring an illegal order.

8. The Apex Court in AIR 1966 SC
828 Gadde Venkateswara Rao versus
Government of Andhra Pradesh and
others has observed that while exercising
jurisdiction under Article 226, High Court
will not exercise its jurisdiction, the affect
of which is to restore an illegal order. The
relevant paragraph of the aforesaid
judgment is extracted below:

"(17) The result of the discussion
may be stated thus; The Primary Health
Centre was not permanently located at
Dharmajigudem. The representatives of
the said Village did not comply with the
necessary conditions for such location.
The Panchayat Samiti finally cacelled its
earlier resolutions which they were
entitled to do and passed a resolution for
locating the Primary Health Centre
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2 All] Naresh Chandra and others V. Meerut Development Authority and another
505
permanently at Lingapalem. Both the
order of the Government, namely, the
order dated March 7, 1962, and that
dated April 18, 1963, were not legally
passed; the former, because it was made
without giving notice to the Panchayat
Samithi, and the latter, because the
Government had no power under Section
72 of the Act to review an order made
under Section 62 of the Act and also
because it did not give notice to the
representatives
of
Dharmajigudem
Village. In those circumstances, was it a
case for the High Court to interfere in its
discretion and quash the order of the
Government dated April 18, 1963? If the
High Court had quashed the said order, it
would have restored an illegal order it
would have given the health center to a
village contrary to the valid resolutions
passed by the Panchayat Samithi. The
High Court, therefore, in our view, rightly
refused to exercise its extraordinary
discretionary power in the circumstances
of the case."

9. The counsel for the petitioner
lastly contended that by U.P. Ordinance
No. 4 of 2002, the U.P. Zamindari
Abolition & Land Reforms Act has been
amended by substituting Clause (h) to the
following effect-

"(h) any educational institution
situated within the terminal area of the
Kshettra Panchayat as established by a
persons belonging to a Scheduled Castes
or Scheduled Tribes on such terms and
condition as may be prescribed."

10. The aforesaid Ordinance No. 4
of 2002 was promulgated on June 21,
2002. The said ordinance has already
been repealed by U.P. Act no. 11 of 2002
and
Clause
(h)
which
was
added/substituted in Section 198 (1) has
not been retained in the amendment Act.
Further more the said Ordinance does not
help the petitioner in any manner since
firstly, the petitioner do not belong to
Scheduled Caste and secondly, the
allotment in favour of the petitioner was
made much earlier to above Ordinance.
The submission of the counsel for the
petitioner based on Clause (h) of Section
198 (1) as substituted by U.P. Ordinance
No. 4 of 2002 is misconceived.

11. None of the submission as raised
by the counsel for the petitioner has any
substance. No good grounds have been
made out for exercise of jurisdiction by
this Court under Article 226 in the facts of
present case.

The
writ
petition
is
rejected
summarily.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD: 10.7.2003

BEFORE
THE HON'BLE M. KATJU, J.
THE HON'BLE R.S. TRIPATHI, J.

Civil Misc. Writ Petition No. 28765 of 2003

Naresh Chandra and others ...Petitioners
Versus
Meerut Development Authority Meerut
and another

 ...Respondents

Counsel for the Petitioners:
Sri P.K. Jain

Counsel for the Respondents:
Sri B. Dayal, S.C.

Land Acquisition Act, 1894 sec. 3 (a)-
land covered by constructions- whether
respondents bound to exempt such land-
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