# Sharad Kumar Dwivedi v. State of U.P. & Ors

- **Citation:** (2022) 7 ILRA 1080
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2022-07-05
- **Case number:** Public Interest Litigation No. 7472 of 2021
- **Bench:** Dinesh Kumar Singh
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/sharad-kumar-dwivedi-v-state-of-u-p-ors-48726
- **Pages:** 22

## Headnote

C.S.C.,
Mohammad
Aslam
Khan,
Ratnesh
Chandra

A. If a writ petition filed by a person raises
question of public importance involving exercise
of power by men in authority, then it is the duty
of the Court to enquire into the matter. The
legal fraud played by the public authority for
benefit of the private persons at the expense of
public at large cannot be condoned even if a
person files a writ petition for vindication of his
private interest
B. Civil Law - U.P.Z.A. & L.R. Act, 1950-
Sections 132 & 117 (6) - The St. or its
instrumentalities cannot give largesse to any
person according to the sweet will and whims of
the authorities of the St.. Every action/decision
of the St. and its agencies/instrumentalities to
give largesse or confer benefit must be founded
on a sound, transparent, discernible and welldefined policy. the land recorded as 'Jangal
Dhak' is a forest land and is a public utility land
and same cannot be transferred by way of
lease, sale etc and no bhumidhari rights shall
accrue in respect of the said land. These lands
are saved under Section 132 of the U.P.Z.A. &
L.R. Act, 1950.

C. Civil Law - Revenue Code, 2006 -
Section 101 r/w Rule 101 & 102 - The land
which was a public utility land, was resumed
and allotted in favour of a private person, Late
R.S Agrawal, Ex-IAS officer by the then District
Magistrate in purported exercise of the power
under Section 117(6) of the U.P.Z.A. & L.R. Act,
1950 for charitable purpose and now it is being
used for commercial purposes, therefore, such a
land cannot be exchanged in any manner. Even
otherwise, under Section 101 of the U.P.
Revenue Code, 2006 the land in which
bhumidhari rights cannot get accrued, cannot
be exchanged. Since the very order of resuming
the land for a private Trust, was against the law
and, therefore, it was void ab initio and no valid
right, title or interest got accrued in favour of
the private Trust and no exchange, therefore, is
permitted.

Writ Petition allowed. (E-12)

List of Cases relied upon:-

## Text

_Characters 0–39,832 of 76,183. This is a partial read: ask again with offset=39832 for what follows._

1080 INDIAN LAW REPORTS ALLAHABAD SERIES
----------
(2022)07ILR A1080
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 05.07.2022

BEFORE

THE HON'BLE DINESH KUMAR SINGH, J.

Public Interest Litigation No. 7472 of 2021

Sharad Kumar Dwivedi ...Petitioner
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Krishna Kumar Singh, Anshu Singh, Prabhakar
Vardhan Chaudhary

Counsel for the Respondents:
C.S.C.,
Mohammad
Aslam
Khan,
Ratnesh
Chandra

A. If a writ petition filed by a person raises
question of public importance involving exercise
of power by men in authority, then it is the duty
of the Court to enquire into the matter. The
legal fraud played by the public authority for
benefit of the private persons at the expense of
public at large cannot be condoned even if a
person files a writ petition for vindication of his
private interest
B. Civil Law - U.P.Z.A. & L.R. Act, 1950-
Sections 132 & 117 (6) - The St. or its
instrumentalities cannot give largesse to any
person according to the sweet will and whims of
the authorities of the St.. Every action/decision
of the St. and its agencies/instrumentalities to
give largesse or confer benefit must be founded
on a sound, transparent, discernible and welldefined policy. the land recorded as 'Jangal
Dhak' is a forest land and is a public utility land
and same cannot be transferred by way of
lease, sale etc and no bhumidhari rights shall
accrue in respect of the said land. These lands
are saved under Section 132 of the U.P.Z.A. &
L.R. Act, 1950.

C. Civil Law - Revenue Code, 2006 -
Section 101 r/w Rule 101 & 102 - The land
which was a public utility land, was resumed
and allotted in favour of a private person, Late
R.S Agrawal, Ex-IAS officer by the then District
Magistrate in purported exercise of the power
under Section 117(6) of the U.P.Z.A. & L.R. Act,
1950 for charitable purpose and now it is being
used for commercial purposes, therefore, such a
land cannot be exchanged in any manner. Even
otherwise, under Section 101 of the U.P.
Revenue Code, 2006 the land in which
bhumidhari rights cannot get accrued, cannot
be exchanged. Since the very order of resuming
the land for a private Trust, was against the law
and, therefore, it was void ab initio and no valid
right, title or interest got accrued in favour of
the private Trust and no exchange, therefore, is
permitted.

Writ Petition allowed. (E-12)

List of Cases relied upon:-

1. Akhil Bhartiya Upbhokta Congress Vs St. of
M.P. & ors., (2011) 5 SCC 29

2. Gyanendra Singh Vs Additional Commissioner,
Agra Division, Agra, 2003 (95) RD 286

3. Gyanendra Singh Vs Additional Commissioner,
Agra Division, Agra, 2003 (95) RD 286

4. Rajendra Tyagi Vs St. of U.P. through Principal
Secretary, Nagar Vikas, Babu Bhawan, Lucknow
& ors., 2016 (131) RD 243

5. Jagpal Singh & ors. Vs St. of Pun. & ors.,
(2011) 11 SCC 396
(Delivered by Hon'ble Dinesh Kumar
Singh, J.)

Writ Petition

1. The present writ petition under
Article 226 of the Constitution of India has
been filed against the alleged illegal,
arbitrary and mala fide resumption of the
Gram Sabha land comprising in Gata
Nos.467, 468, 509, 554 (new nos.842,
1034, 1039, 1040 and 1175), measuring 3
7 All. Sharad Kumar Dwivedi Vs. State of U.P. & Ors.
1081
acres situated in Village Nanakganj Grant,
Pargana Gopmau, Tehsil Sadar, District
Hardoi for a private trust created by one
Radhey Shyam Agarwal, a retired IAS
officer, father of Sanjeev Agarwal, opposite
party no.5, by the then District Magistrate,
Hardoi vide order dated 30.1.1987. It has
been prayed in the writ petition to issue a
Writ of Mandamus to opposite partiesauthorities to hold an independent inquiry
into the matter and a direction has been
sought for removal of unauthorized/illegal
constructions of Maruti Car showroom of
Concept Cars Limited over the said land.

Facts of the Case:

2. A private Trust namely, Gyan Yog
Charitable Trust was created by late
Radhey Shyam Agarwal on 10.9.1986. This
Trust was said to have been created for
charitable purposes. Main objects of the
Trust were to provide help to poor people
in education, medical relief and free
accommodation and assistance to the
travellers, providing food to the deserving
people, advancement of Indian culture and
literature, rural developmental etc. The
Trust was settled with Rs.5,000/- which
was the corpus of fixed property of the
Trust. Radhey Shyam Agarwal became the
first Managing Trustee and the Chairman of
the Board of Trustees.

3. The revenue record before the
consolidation operation was undertaken in the
village, would suggest that in khatauni of
1333 Fasli (Year 1926) the lands of khata
no.178 comprising of old plot nos.508, 509,
567, 544/1 (new plot nos.1034, 1035, 1039,
1040, 1175) were rerecorded as ''Jangal Dhak'
in clause (5)(iii)(b)(2) of the Land Record
Manual. Thus, the lands were public utility
lands vested in Gaon Sabha. In 1356 Fasli
(Year 1949) also the lands in the aforesaid
gata numbers were recorded as ''Jangal Dhak'.
The then District Magistrate, Hardoi resumed
the said land for late Radhey Shyam Agarwal,
a retired IAS officer purportedly in exercise
of powers conferred under sub-section (6) of
Section 117 of the U.P. Zamindari Abolition
and Land Reforms Act, 1950 (hereinafter
referred to as U.P.ZA & LR Act) vide order
dated 30.1.1987. It was said that the said
order dated 30.1.1987 was passed in partial
embellishment of the Government Order
dated 16.6.1981. The total land resumed in
the aforesaid gata numbers was 4-16-8 (three
acres) for the Trust. The said transaction was
reflected in Khata No.363 of Khatauni of
1395 Fasli. It was said that Radhey Shyam
Agarwal deposited premium amount of
Rs.24,000/-. After the land was transferred in
the name of Radhey Shyam Agarwal, the said
land was given on lease by him for annual
rent of Rs.250/- in favour of Indresh Charan
Das for 99 years. A school building was
constructed for imparting education upto
Class-VIII. It was also said that a small
charitable hospital was also constructed and
there was a Homeopathy Dispensary, 10
bedded Allopathy hospital which came up on
the said land.

4. After death of Radhey Shyam
Agarwal, vide order dated 23.10.1999,
Tehsildar, Sadar, Hardoi in Case No.207
under Section 34 of the Uttar Pradesh Land
Revenue Act, 1901 directed substitution of
name of his eldest son, Rajeev Agarwal. In
the khatauni of 1412-1417 Fasli Year, name
of Rajeev Agarwal S/o Radhey Shyam
Agarwal, President of the Gyan Yog
Charitable Trust got recorded against the said
land.

5. It is also relevant to note here that
as per official version there is no record
available regarding mutation of the name of
Sanjeev Agarwal, opposite party no.5, S/o
1082 INDIAN LAW REPORTS ALLAHABAD SERIES
Radhey Shyam Agarwal. Despite no order
on record in respect of mutation of name of
Sanjeev Agarwal in place of Rajeev
Agarwal, Sanjeev Agarwal, opposite party
no.5 sold the land of Khata No.657 in Gata
Nos.842M/0.0370
hectares
and
1175/0.1260 hectares, total 0.1530 hectares
vide sale deed dated 19.6.2010 to his two
worthy sons Yash Vardhan Agarwal and
Surya Vardhan Agarwal for a meagre
amount of Rs.15,00,000/-. Thereafter, again
vide sale deed dated 1.7.2010, a portion of
the aforesaid land (area 1057.72 Sq.M) was
sold to his son, Yash Vardhan Agarwal and
his close and promising relative, Pradeep
Kumar Agarwal for a meagre amount of
Rs.12,00,000/-. Names of sons of Sanjeev
Agarwal i.e. Yash Vardhan Agarwal and
Surya Vardhan Agarwal and his close
relative, Pradeep Kumar Agarwal got
mutated vide order dated 2.1.2013 passed
by the Tehsildar (Judicial), Sadar, Hardoi.
After the aforesaid sale deeds were
executed,
the
hospital
building
was
demolished and a showroom for Maruti
Cars got constructed by Concept Cars
Limited, in which the Sanjeev Agarwal,
opposite party no.5, and his two sons and
his close relative, Mr. Pradeep Agrawal are
Directors.

6. It is also relevant to mention here
that Surya Vardhan Agarwal S/o Sanjeev
Agarwal is the Treasurer of trust and Yash
Vardhan Agarwal is also the Trustee of the
Trust. It is said that a resolution for sale of
the land in favour of the two sons and a
close relative of the President of the Trust
was passed in the meeting of the Board of
Trustees held on 20.9.2009. The excuse
was that the trust was running into losses as
financial aid from the Central and the State
Governments got dried up and the audit
balance sheet of 2009-2010 would show
that
there
was
a
liability
of
Rs.23,02,750.85/- of sundry creditors and
the trust was having no other source to pay
the debt apart from liquidating the landed
assets of the trust. Thus, in the meeting of
the Board of Trustees dated 20.9.2009 held
under the Chairmanship of Mr. K.B.
Shukla,
the
Managing
Trustee
was
authorized to dispose of the portion of the
land, where the hospital etc. was being run
by the trust. Later, the land sold, was leased
to M/s Concept Cars Limited, in which
Sanjeev Agarwal, Managing Trustee, his
two sons and his close relative, Pradeep
Kumar Agarwal are the Directors. The
Concept Cars Limited had constructed a
full fledged showroom over the said
property and running commercial venture
for profit.

7. Initially, on 18.3.2021 when this
petition came up for hearing, opposite party
no.5 was on caveat and represented by Sri
Mohd. Arif Khan, learned Senior Advocate
assisted by Sri Mohd. Aslam Khan. This
Court noted very peculiar facts of the case.
The land of Gaon Sabha, public utility land,
which was resumed in favour of the trust,
was transferred by the President of the trust
in favour of his own sons and a close
relative. Sons of the President of the trust
are Treasurer and the trustees of the trust.
Therefore, this Court formulated two
questions, namely; (i) Whether the land
could have been resumed and vested in a
trust by the then District Magistrate in
exercise of powers under sub-section (6) of
Section 117 of the U.P.Z.A. & L.R. Act;
and; (ii) Assuming that it could have been
vested considering the public purpose
sought to be achieved, whether it could
have been sold off by the Trust or any of its
member in favour of the Treasurer of the
Trust for private purposes, if so, under what
law? The Court passed the following order
on 18.3.2021:-
7 All. Sharad Kumar Dwivedi Vs. State of U.P. & Ors.
1083

"This is a P.I.L. filed by the petitioner
seeking a Writ of Mandamus commanding
the opposite party no. 3 to conduct an
inquiry in the matter in pursuance of letter
dated 28.07.2020 issued by opposite party
no. 2 i.e. the Commissioner, Lucknow
Division, Lucknow, whereby he has directed
to conduct inquiry as per law.

Shri M.A. Khan, learned Senior
Counsel assisted by Shri M.A. Khan,
Advocate appearing for opposite party no.
5 having filed a caveat submits that the
petition has been filed with oblique motive
and is a personal interest litigation.
Petitioner is an erst while employee of
Concept Car Ltd. of which the opposite
party no. 5 is the Managing Director and
after his ouster from service, he has filed
this petition with oblique motive and
malafide intentions. Shri Khan proposes to
file an affidavit in this regard.

Keeping the question of bona fide of
the petitioner open for being considered,
meaning thereby, if it is found that the
petitioner is pursuing a personal agenda
and the action is not actuated by bona fide,
this Court would not encourage such a
litigant, however, at this stage the Court
cannot ignore certain facts and documents
which are on record according to which the
land in question was in the control and
management of the Gaon Sabha concerned
when it was resumed by the State
Government in exercise of powers under
Section 117 (6) of the U.P. Z.A. & L.R. Act,
1950 vide notification dated 30.01.1987
and the same was vested in a trust namely
Gyan
Yog
Dharmarth,
through
its
Chairman Shri R.S. Gangwar, retired I.A.S.
It is said that the said trust took a decision
to run a hospital and school on the said
land which was earlier in the custody of the
Gaon Sabha. Subsequently, it is said that
the subsequent Chairman of the trust
namely opposite party no. 5 herein sold of
the said land to the Treasurer of the Trust
namely Mr. Yash Vardhan Aggarwal who in
turn has opened a Maruti showroom on the
said land. Now, if these facts are correct
then this Court would consider the
registration of Suo Motu P.I.L., as,
ultimately, the land belongs to the State and
is held by it as a Trust for the people. The
question would be firstly whether it could
have been resumed and vested in a trust but
assuming that it could have been vested
considering the public purpose sought to be
achieved, whether it could have been sold
of by the Trust or any of its member in
favour of the Treasurer of the Trust for
private purposes, if so, under what law?
The question then would be of larger public
interest as such land is held by the State as
a trustee of the people.

As Shri M.A. Khan, learned Senior
Counsel appearing for opposite party no. 5
prays for time for filing counter affidavit.

10 days time as prayed is granted to
him for filing counter affidavit.

The opposite party no. 1 shall file his
own affidavit in the matter after getting the
facts verified in the light of the law on this
subject.

It is open for opposite parties no. 2, 3
and 4 also to file their counter affidavit but
separately.

List/Put up this case on 05.04.2021 as
fresh.

All pleas are open for consideration.

Shri Yogesh Kumar Awasthi, learned
Standing Counsel shall communicate this
order
to
the
Additional
Chief
Secretary/Principle Secretary, Revenue, as
also, to the Chief Secretary, U.P.

It is made clear that the petitioner is
cautioned not to use this order for any
ulterior purpose either in the media or
social media as all pleas are still open for
consideration and if he does so, it will have
serious consequences."
1084 INDIAN LAW REPORTS ALLAHABAD SERIES

8.

Learned
Standing
Counsel
representing the State was directed to
communicate the aforesaid order to the
Additional
Chief
Secretary/Principal
Secretary, Revenue, as also, to the Chief
Secretary of the Uttar Pradesh.

9. After the said order was passed by
this Court, a letter dated 25.3.2021 was
issued
by
the
Additional
Chief
Secretary/Principal Secretary, Revenue to
the
District
Magistrate,
Hardoi
with
direction to send some senior officers along
with record to brief her regarding the issue
in question. On 26.3.2021, Sub-Divisional
Magistrate and the Naib Tehsildar came
along with record in respect of the land in
question to brief the Principal Secretary,
Revenue, Government of Uttar Pradesh.
The Additional Chief Secretary/Principal
Secretary, Revenue, prima facie, found
irregularity in the whole process and,
therefore, vide order dated 26.3.2021
directed the District Magistrate, Hardoi to
inquire into the matter in detail and take
further
action
against
the
officials/employees
concerned
and
to
intimate the same to the State Government.

10. In compliance of the directions
issued
by
the
Additional
Chief
Secretary/Principal Secretary, Revenue vide
order
dated
26.3.2021,
the
District
Magistrate, Hardoi constituted a three
members committee comprising of SubDivisional
Magistrate,
Sadar,
Hardoi,
Settlement Officer, Consolidation and the
City Magistrate, Hardoi to inquire into the
matter vide order dated 30.3.2021. The
three members committee submitted its
detailed report dated 1.6.2021 to the
District Magistrate, Hardoi. The inquiry
report has been placed on record with the
affidavit
of
the
Additional
Chief
Secretary/Principal
Secretary,
Revenue.
The committee in its detailed report, said
that the land in question was recorded in
revenue record of 1333 Fasli (Year 1926) as
''Jangal Dhak' of Class-5(iii)(b)(2) land. In
1356 Fasli (Year 1949) also the said land
was recorded as ''Jangal Dhak'. The said
land is vested in the Gram Sabha as per
Para A-124 of the U.P. Land Records
Manual, and it is a public utility land.

11. The three members committee
also said that the resumption order dated
30.1.1987 passed by the then District
Magistrate was against the law. It was
further said that transfer of the land by Mr.
Sanjeev Agarwal, Managing Trustee of the
Trust in favour of his two sons and a close
relative for setting up commercial venture,
was bad in law. The committee also noted
the forging of the documents by the
revenue authorities and misplacing the
original file of the resumption and
allotment of land by the then District
Magistrate vide order dated 30.1.1987. The
committee recommended for taking action
and lodging of FIR against the erring
officials.

12. The District Magistrate, Hardoi
after considering the said report of the three
members committee, vide a detailed order
dated 4.6.2021 cancelled the resumption
and allotment order dated 30.1.1987 passed
by then District Magistrate, Harodi holding
same to be void ab initio and directed the
said land to be recorded as Gram Sabha
land. FIR No.0305 of 2021 under Section
409 IPC has been registered for going
missing of the original file of the
resumption and allotment order dated
30.1.1987 from the office of the District
Magistrate.

13. The District Magistrate also noted
in his order that after death of Radhey
7 All. Sharad Kumar Dwivedi Vs. State of U.P. & Ors.
1085
Shyam Agarwal, retired IAS officer, vide
order dated 23.10.1999 passed under
Section 34 of the U.P. Land Revenue Act,
1901, name of Rajeev Agarwal S/o Radhey
Shyam Agarwal was substituted in place of
Radhey Shyam Agarwal in the revenue
records. However, there was no order of
substitution of name of Sanjeev Agarwal in
place of Sri Rajeev Agrawal. It has been
further said that the transfer of land to
private persons, is against the provisions of
the Sections 51, 52 and 53 of the Indian
Trust Act, 1882 and in violation of Section
117(6) of the U.P.Z.A. & L.R. Act. Thus, it
has been said that the order dated 30.1.1987
was void ab initio and, therefore, the same
is liable to be cancelled. Tehsildar, Sadar
has been directed to take action under
Section 67 of the U.P. Revenue Code, 2006
for eviction of the persons illegally
occupying the land in question.

14. Sanjeev Agarwal, opposite party
no.5 filed Writ Petition bearing No.12066
(MB) of 2021 before this Court on
14.6.2021 challenging the order dated
4.6.2021 passed by the District Magistrate,
Hardoi. However, the said writ petition was
dismissed as withdrawn with liberty to file
a
fresh
petition
on
16.6.2021.
On
15.6.2021, opposite party no.5 filed a
revision bearing No.1146 of 2021 before
the
Board
of
Revenue,
Prayagraj
impugning the order dated 4.6.2021 passed
by
the
District
Magistrate,
Hardoi.
Thereafter, second Writ petition bearing
no.12641 (MS) of 2021 was filed before
this Court impugning the order dated
4.6.2021 passed by the District Magistrate,
Hardoi. This Court vide order dated
23.6.2021 directed the said writ petition to
be listed along with the present writ
petition. The said writ petition was,
however, withdrawn by opposite party no.5
on 20.7.2021.

15. During the pendency of this writ
petition, another revision bearing No.1351
of 2021 came to be filed by Ram Chandra
Razwar, the Manager of the Concept Carts
Limited under Section 210 of the U.P.
Revenue Code, 2006 impugning the order
dated 4.6.2021 passed by the District
Magistrate, Hardoi. Interestingly, while the
writ petition was pending on the subject
matter and the High Court was in seisen of
the subject matter, the Board of Revenue
proceeded to decide the said revision and
passed the order dated 2.8.2021. Two very
interesting aspects of the order dated
2.8.2021 are to be taken note of. The Board
of Revenue in paragraph eight of the said
order held that the preliminary objection
raised by the counsel for the complainant
and the Standing Counsel for the revenue
regarding maintainability of the revision on
behalf of the Concept Cars Limited or its
Manager had force. It was said that the
Manager of the Concept Cars Limited and
the Concept Cars Limited itself had no
right file and maintain the revision
challenging the validity of the order dated
4.6.2021 passed by the District Magistrate,
Hardoi and, therefore, the Board of
Revenue
accepted
the
preliminary
objection
raised
regarding
the
maintainability of the revision. It was
observed that if the revisionist was so
advised, he could become the party in the
revision filed on behalf of the Trust
impugning the order dated 4.6.2021, but the
revision on behalf of the Manager of the
Concept
Cars
Limited/Concept
Cars
Limited
would
not
be
maintainable.
Despite the said finding on the preliminary
objection, the Board of Revenue held that
the prayer of the revisionist i.e. Manager of
the
Concept
Cars
Limited
regarding
exchange of the land in question with some
other land being offered on behalf of the
revisionist/Concept
Cars
Limited
in
1086 INDIAN LAW REPORTS ALLAHABAD SERIES
exercise of powers under Section 161 of the
U.P.Z.A. & L.R. Act and under Section 101
of the U.P. Revenue Code, 2006 would be
required to be considered.

16. This Court is of the considered
view that the Board of Revenue has
incorrectly held that the land in Gata
No.1175 was not recorded as ''public utility
land' though the same was recorded as
''Jangal Dhak' and was a public utility land
as per the provisions of Para A-124 of the
U.P. Land Records Manual. The Board of
Revenue held that since the said land was
not a public utility land, therefore, the said
land could be exchanged with some other
land of equal value and there would not be
any legal hurdle in doing so. The Board of
Revenue thus, directed the Sub-Divisional
Magistrate,
Sadar,
Hardoi
to
make
inspection of the lands, which are being
offered by the revisionist/Concept Cars
Limited in exchange of the land in Gata
No.1175, and take possession of the land
offered by the revisionist in exchange of
the land in Gata No.1175 of the area, which
would be 10% more than the area of Gata
No.1175. It has been further held that the
said order of exchange would be subject to
the final outcome of Revision No.1146 of
2021 filed by the Trust. It has been ordered
that that the revisionist would file an
affidavit
before
the
Sub-Divisional
Magistrate and will undertake that in case
the order dated 4.6.2021 is affirmed, the
revisionist should not claim any right in
respect of the land being offered in
exchange of the land in Gata No.1175, and
in future if it was found that the land
offered in exchange of land in Gata
No.1175 had any defect of ownership, then
the
revisionist
would
be
liable
to
compensate for the loss, if any. It has been
ordered that the revisionist would file the
undertaking along with application within a
period of two weeks before the SubDivisional
Magistrate
and
the
SubDivisional Magistrate has been directed to
make inspection of the land in Gata
Nos.1143, 1167 Cha and 846, which are
being offered in exchange and then out of
the three gatas, the most valuable land
should be accepted in exchange. After
taking possession of the said land, the
possession should be handed over to the
Gram Sabha. It has been further directed
that all this should be completed within a
period of six weeks. It has been ordered
that for a period of two months or from the
date of taking possession of the land
offered in exchange of Gata No.1175,
status-quo in respect of the possession of
Gata No.1175 shall be maintained.

17. Thus, on one hand the Board of
Revenue held that the revision on behalf of
the Manager of Concept Cars Limited or by
the Concept Cars Limited itself was not
maintainable, and on the other hand, it
allowed
the
prayer
of
the
revisionist/Manager of the Concept Cars
Limited for exchange of the land. This
Court finds the approach of the Board of
Revenue wholly illegal, unjustified and
against the judicial propriety inasmuch as
when the High Court was in seisen of the
matter, the Board of Revenue had no
business to proceed with the matter.
Further, after holding that the revision was
not maintainable, the Board of Revenue
had
allowed
the
prayer
of
the
revisionist/Manager of the Concept Cars
Limited in a most illegal and uncalled for
manner. The Board of Revenue has
overreached its jurisdiction and this Court
deprecates the way the order has been
passed to favour a private party in a nonmaintainable proceeding. This Court holds
that the order passed by the Board of
Revenue dated 2.8.2021 is wholly illegal,
7 All. Sharad Kumar Dwivedi Vs. State of U.P. & Ors.
1087
non est and without jurisdiction. The
authorities are directed not to take any
action in pursuance of the order dated
2.8.2021 passed by the Board of Revenue.

18. After Revision No.1146 of 2021 was
filed by the Trust against the order darted
4.6.2021, the Trust filed a recall application
before the District Magistrate, Hardoi
praying to recall the order dated 4.6.2021.
However, the District Magistrate vide order
dated
31.1.2022
rejected
the
said
application for recall on the ground that
against the order dated 4.6.2021, a revision
had already been filed by the Trust being
Revision No.1146 of 2021 before the Board
of Revenue and, therefore, the recall
application was not maintainable. Against
the said order dated 31.1.2022, the Trust
has filed another Revision bearing No.511
of 2022 before the Board of Revenue and
the Board of Revenue vide interim order
dated 9.3.2022, admitted the said revision
and strangely enough stayed the orders
dated 4.6.2021 and 31.1.2022 passed by the
District Magistrate, Hardoi. The Board of
Revenue appears to be extra generous and
benevolent towards the revisionist. The
approach of the Board of Revenue is
anything but judicial.

19. Before the order dated 9.3.2022 came
to be passed by the Board of Revenue, the
Tehsildar, Sadar, Hardoi proceeded under
Section 67 of the U.P. Revenue Code, 2006
and ordered for eviction of Devendra Das
S/o Mahant Indresh Charan Das, Principal,
Sri Gururamrai Public School, Lucknow
Road,
Hardoi
and
imposed
the
compensation of Rs.5,65,76,000/- along
with cost of Rs.11,300/- vide order dated
27.1.2022 passed in Case No.6112 of 2021.
Another order of the same day i.e.
27.1.2022 was passed in Case No.6113 of
2021 for eviction of Sri Siya Ram S/o
Chote Lal, who had constructed shops on
Gata
No.749/M
land
in
Gata
No.1175/0.126
hectares
along
with
compensation of Rs.22,20,000/- and cost of
Rs.11,000/-. Third order dated 27.1.2022
was passed in Case No.6114 of 2021 Gram
Sabha Vs. Sanjeev Agarwal under Section
67 of the U.P. Revenue Code, 2006 for
eviction of opposite party no.5, Sanjeev
Agarwal from 8248 Sq.M land along with
compensation of Rs.35,04,60,000/- along
with cost of Rs.12,800/-.

20. It appears that appeal(s) was/were filed
against the order(s) dated 27.1.2022 passed
by the Tehsildar, Sadar, Hardoi before the
District
Magistrate,
Hardoi.
However,
Transfer Application No.47 of 2022, under
Section 212 of the U.P. Revenue Code,
2006 was filed before the Board of
Revenue on behalf of opposite party no.5
and the Board of Revenue vide order dated
22.3.2022, transferred the appeal(s) to the
Court of District Magistrate, Sitapur from
the court of District Magistrate, Hardoi.

Questions: -

21. The following questions are
involved in the present writ petition:-

(i). Whether the present petition raises
the question of public importance involving
misuse of authority and powers vested in
the then District Magistrate and, therefore,
the Court would be justified in looking into
the mater even if it is assumed that the
petitioner has some personal grudge against
the Concept Cars Limited and its Directors
etc.?

(ii).
Whether
the
order
dated
30.1.1987 passed by the then District
Magistrate, Hardoi resuming the Gram
Sabha land recorded as ''Jangal Dhak', a
public utility land for a private trust created
1088 INDIAN LAW REPORTS ALLAHABAD SERIES
by late Radhey Shyam Agarwal, a retired
IAS officer was void ab initio ?

(iii). Whether the order dated 4.6.2021
passed by the District Magistrate, Hardoi
holding the order dated 30.1.1987 to be
void ab initio and cancelling the said order
and restoring the land back to the Gram
Sabha, is just and proper order ?

(iv). Whether the land recorded as
''Jangal Dhak' in revenue record under Para
A-124 of the U.P. Land Records Manual,
which is a public utility land, can be
offered in exchange with some other land ?

22. Since the issues involved in this
writ petition are complex issues of revenue
laws,
this
Court
requested
Sri
P.V.
Chaudhary, learned Counsel of this Court
to assist the Court as Amicus in disposal of
the writ petition. Sri P.V. Chaudhary
willingly agreed to assist the Court and the
Court records its appreciation for his
valuable assistance and labour put by him
in short notice, in rendering his valuable
assistance for deciding the issues involved
in this petition.

Submissions:-

23. Sri P.V. Chadhary, learned Amicus
has submitted that the land in question was
recorded as ''Jangal Dhak' in Class
5(iii)(b)(2) in revenue records from 1333
Fasli (Year 1926) and 1352 Fasli (Year
1949). Para A-124 of the U.P. Land
Records Manual provides class of tenures
and the categories of land within each
village in the khatauni. Class 5(iii)(b)(2) of
Para A-124 is in respect of the forest and
other trees shrubs, bushes etc. Two kinds of
forests are mentioned i.e. (1) forest under
the management of Forest Department
(including erstwhile private forests made
over to Forest Departments); and (2) forest
vested in the Gram Sabha. Class 5(b)(2)
will consist of Babool, Dhak, Sirhoar,
Bankraunda etc. These lands are recorded
as ''Jangal Dhak' and, therefore, the same
are public utility lands. He has further
submitted that under Section 132 of the
U.P.Z.A. & L.R. Act, the public utility
lands are saved and no bhumidhari rights
shall accrue in respect of the public utility
land in favour of anyone. He has also
submitted that the order dated 30.1.1987
passed by the then District Magistrate,
Hardoi purportedly in exercise of power
under Section 117(6) of the U.P.Z.A. &
L.R. Act, whereby he resumed the said land
for Gyan Yog Charitable Trust through its
chairman, Radhey Shyam Agarwal, a
retired IAS officer, was wholly illegal
inasmuch as no bhimidhari right could have
been created in favour of anyone in respect
of the said land being public utility land.
He has further submitted that the order was
void ab initio and was result of arbitrary
and mala fide exercise of the powers by the
then District Magistrate, Hardoi to benefit
his fellow brother of IAS community.

24. Sri P.V. Chadhary, learned Amicus
has further submitted that the object of the
Trust was to run the trust for public
purpose, and it is said that for the said
object and purposes, it constructed a
charitable hospital and school etc. Instead
of carrying out its objects of public
purpose, the Board of Trustees of the Trust
in its meeting dated 9.10.2009 resolved that
the land along with building should be sold
and Sri Sanjeev Agarwal, the Managing
Trustee was authorized for the said
purpose. In furtherance of the resolution of
the Board of Trustees of the Trust, Sri
Sanjeev
Agarwal,
Managing
Trustee,
executed two sale deeds on 19.6.2010 and
on 1.7.2010 in favour of his own sons, Yash
Vardhan Agarwal and Surya Vardhan
Agarwal and his close relative, Pradeep
7 All. Sharad Kumar Dwivedi Vs. State of U.P. & Ors.
1089
Kumar Agarwal, who are the Treasurer and
Trustees of the Trust for meagre amounts of
Rs.15,00,000/-
and
Rs.12,00,000/-
respectively. Thereafter, this land was given
on lease to their own company i.e. Concept
Cars Limited, in which Sanjeev Agarwal,
his two sons and Pradeep Kumar Agarwal
are the Directors. After demolishing the
hospital building, they have constructed
commercial complex and a Maruti Car
showroom
is
being
run
from
the
commercial complex to earn profit.

25. Sri P.V. Chadhary, learned Amicus has
also submitted that the public utility land
belonging to the Government/Gram Sabha
was initially obtained in the name of
charitable trust and subsequently the same
was sold by the President of the Trust to his
own sons and a close relative. It is nothing
but a sham transaction and fraud played by
the trustees to make commercial use of the
public land held in Trust. It is nothing but a
breach of trust, cheating and legal fraud
committed by the Trustees in connivance
with
the
authorities
concerned.
The
authorities/State Government is the Trustee
of the land in question and instead of
protecting the public utility land, they had
resumed it in favour of the private persons
in a mala fide, arbitrary and unjust manner.
He has, therefore, submitted that the
question involved is of huge public
importance and, therefore, even if it is
assumed that the petitioner has some
personal grudge against opposite party no.5
or the Concept Cars Limited, this Public
Interest Litigation would be maintainable,
and the Court is required to examine the
issue of public importance involved in the
petition.

26. Sri P.V. Chadhary, learned Amicus
has further submitted that this Court vide
order dated 18.3.2021 has itself recorded
the important issues involved in the writ
petition and held that if it is found that the
petitioner was espousing his personal
vendetta/grudge against opposite party
no.5, but if the facts mentioned in the writ
petition were correct, the Court would itself
examine the issues involved and register
the present writ petition as Public Interest
Litigation suo motu.

27. Sri P.V. Chadhary, learned Amicus has
taken this Court to the detailed report
submitted by the three members committee,
which was constituted by the District
Magistrate,
Hardoi
vide
order
dated
30.3.2021 and has submitted that the
District Magistrate, Hardoi has rightly held
that the order of resumption of land in
favour of the Trust, was wholly illegal and
without jurisdiction and void ab initio. He
has further submitted that since the order of
resumption dated 30.1.1987 in favour of
Gyan Yog Charitable Trust through its
Chairman was void ab initio, there is no
question of exchanging the land with some
other land.

28. Sri P.V. Chadhary, learned Amicus
has further submitted that the land was
public utility land and the same was
illegally obtained by Sri Radhey Shyam
Agarwal, father of opposite party no.5, by
using his influence and reach being an exIAS officer. Though the land was obtained
for charitable purpose, but the same is
being used for commercial purpose and the
same cannot be exchanged in any manner.
Illegal encroachment of the Gram Sabha
land cannot be regularized inasmuch as the
same would amount to perpetuating the
illegalities. Even if the opposite parties are
carrying out the commercial activities for
several years, the same would not vest
them with any legal right to continue their
illegal possession and the villagers cannot
1090 INDIAN LAW REPORTS ALLAHABAD SERIES
be allowed to suffer merely because the
opposite party no 5 and others have
continued to occupy the land for several
years. The unauthorized occupants are
liable to be evicted. He has, therefore,
submitted that this Court should order for
eviction of the opposite parties forthwith
from the land in question, which is a public
utility land which was wrongfully resumed
by the then District Magistrate in favour of
the Trust inasmuch as the opposite parties
have no right to continue possession of the
land in question.

29. Sri K.K. Singh, learned counsel
for the petitioner has supported the
submissions made by Sri P.V. Chaudhary,
learned Amicus and has prayed that writ
petition be allowed, and the opposite
parties be evicted forthwith from the land
in question.

30. Sri Shailendra Kumar Singh,
learned Chief Standing Counsel assisted by
Sri
Yogesh
Kumar Awasthi,
learned
Standing Counsel has submitted that
admittedly the trust namely, Gyan Yog
Charitable Trust, is a private trust. The
powers under Section 117(6) of the
U.P.Z.A. & L.R. Act can be exercised by
the State Government for resuming the land
vested in the Gram Sabha or any other local
authority. However, the public utility land
covered under Section 132 of the U.P.Z.A.
& L.R. Act cannot be allotted in favour of
any person. It has been further submitted
that the said land was recorded as ''Jangal
Dhak' in revenue record and was a public
utility land, therefore, resuming the said
land for a private Trust, was in violation of
Section 132 of the U.P.Z.A. & L.R. Act
and, therefore, it was void ab initio.

31. On facts, the order passed by the
District Magistrate, Hardoi has been
supported. It has been submitted that the
order dated 30.1.1987 was void ab initio in
terms of law. It has also been submitted that
the Trustees have played fraud and
breached the trust inasmuch as they have
usurped the public land held by the
government
under
trust
for
their
commercial venture. The land, which was
allotted ostensibly for charitable purposes,
is being used for commercial establishment
and the transfer of the land by the
Managing Trustee in favour of his sons,
who are the Treasurer and the Trustees of
the Trust and a close relative, is a legal
fraud and thus, transfer would not vest
them with any right over the land, which is
a public utility land illegally allotted to the
Trust for charitable purposes. It has also
been submitted that the Tehsildar has
already passed orders for eviction and
compensation and the action accordingly
would
be
taken
against
the
illegal
occupants and the encroachers of the Gram
Sabha land.

32. Sri Mohd. Arif Khan, learned Senior
Advocate assisted by Sri Mohd. Aslam
Khan and Sri Ratnesh Chandra has
submitted that though the land was
recorded as land in Class-5(iii)(b)(2) in the
revenue record but the same was not a
public utility land. He has further submitted
that the land of Class-5(iii)(b)(2) would
refer to the nature of land to be a cultivated
land, which remained uncultivated since
long time, due to which stray trees etc,
came up over it naturally. He has also
submitted that merely use of the term
''Jangal Dhak' in revenue record, would not
render the nature of the land as public
utility land and merely by use of
nomenclature ''Jangal Dhak', the land
would not ipso facto become a land of
public utility. He has further submitted that
public utility lands are those lands, which
7 All. Sharad Kumar Dwivedi Vs. State of U.P. & Ors.
1091
are mentioned in Class-6 and only those
lands are saved under Section 132 of the
U.P.Z.A. & L.R. Act or the lands, which are
reserved under the consolidation operation.
The land, which has been earmarked as a
public utility land, basically refers to a land
which has been kept reserved for being
utilized as a common land by residents of a
Gaon Sabha to whom it has been entrusted
under Section 117(6) of the U.P.Z.A. &
L.R. Act. However, Gram Sabha will not
have any absolute right over the said land
and the State will continue to be ultimate
owner of the property.

33. Sri Mohd. Arif Khan, learned Senior
Advocate has further submitted that Section
117(6) of the U.P.Z.A. & L.R. Act deals
with the power of the State Government to
resume any land entrusted to Gram Sabha,
and take over control of any piece of land.
The reservation over such land resumed by
the State Government will not continue.
There is no fetter upon the power of the
State Government to resume any public
utility land inasmuch as on resumption, the
land would not be treated to be a land in
control any more by the provisions of the
U.P.Z.A. &L.R. Act.