Heard Mohd. Babar Khan, learned counsel for the petitioner, learned State Counsel as well as Shri R. N. Gupta, learned counsel appearing on behalf of opposite party no.5 and perused the record.
The controversy in the present case relates to land recorded as plot no.384 area 0.253 hectares and plot no.434 area 0.253 hectares situated at village Badhuwa Mau, post Raison, Tehsil Sandila, District Hardoi.
As per version of the petitioner, the same has been allotted to the petitioner by means of the resolution dated 20.11.2003 (Annexure No.3) passed by opposite party no.5/Pradhan, Gram Sabha Bdhuwa Mau, Tehsil Sandila, District-Hardoi. Thereafter, the petitioner constructed an institution in the name and style of Evergreen Higher Secondary School and at present more than 500 students are studying.
Subsequently, in the matter in question a proceeding under Section 122-B of the U.P.Z.A. & L.R. Act has been initiated against the petitioner on the ground that the land in question is a banzar/barren land, cannot be allotted by way of patta/lease in favour of the petitioner and in the said proceeding lastly an order dated 27.10.2010 has been passed against him by which the patta of the land in question has been cancelled and a penalty of Rs.10,116/- has been imposed. Aggrieved by the said fact, the present writ petition has been filed by the petitioner.
Learned counsel for the petitioner submits that the petitioner is ready to offer equal area of land to the Gaon Sabha as per the circle rate in view of the provisions as provided under Section 161 of the U.P. Z.A. & L.R.Act, 1950 (hereinafter refereed to as the Act). In this regard a supplementary affidavit has already been filed sworn by Mohd. Irfan Khan dated 29.11.2011, accordingly, it has been submitted that the land in dispute be given to him and be recorded in the revenue record.
Learned counsel for the petitioner in support of his offer placed reliance on the judgment given by this Court in the case of Ram Bhujharat Singh Inter College Erstwhile Janta Janardan Vs. Board of Revenue, U.P. Lucknow and Ors. 2010 (28) LCD 1343 wherein paragraph nos. 6 and 7 held as under:-
" Para 6- Thus, he submits that if this court does not interfere in the matter, the Institution, which is in the interest of students may be finished. He further informs that likewise several other institutions have been allotted the land where the Schools are running wihtout any action adverse against them. However, though he claims his substantive right of allotment under Section 195 of the U.P.Z.A. & L.R.Act, but I am of the view that the same is not open for the private educational institution.
Para 7- The lease was granted on 1.8.1967 and 5.10.1974 in favour of the petitioner. Since I am of the view that the land could not have been allotted to the petitioner-Institution i.e. private Institution by the Land Management Committee, the possession or long entry of the lessee, cannot create a perpetual right in his favour. However, considering the submission of the learned counsel for the petitioner that under the bonafide belief of his right accrued on the basis of lease, the petitioner already constructed a building and further in the legitimate expectation, he extends his willingness to offer the other private land of the same very area to the Gaon Sabha, in the interest of justice, I hereby restrain the authorities concerned to take any action against the petitioner subject to offer made by the petitioner of the private land, as aforesaid, within three months and thereafter the proceeding of exchange shall be completed within next three months. If the petitioner fails to offer the same very land within the period stipulated here-in-above, the authorities would be at liberty to proceed against him."
And also on the judgment and order dated 12.5.2011 passed in Writ Petition No.2455 of 2011, on reproduction reads as under:-
"Application is allowed.
Order dated 22.4.2011 is corrected as under :
"Heard Sri Rajeev Singh Chauhan learned counsel for the petitioner and learned Standing Counsel for opposite parties no. 1 to 3 and Sri R.N. Gupta for opposite party no. 4.
The petitioner has very fairly stated before this court that the land on which the Inter College has been constructed does belong to land of Gaon Sabha. He does not challenge the impugned orders on merits. He says that he is willing to give equivalent land to the Gaon Sabha which is available with him. He argues that since the college has been constructed and students are studying, hence in the interest of students as well as the other villager in general the college may not be demolished and education may not be disrupted. There is a provision of Section 161 U.P.Z.A. & L.R. Act for such purpose.
The petitioner says that he has moved application under Section 161 within two weeks.
If such an application is moved within two weeks from today before the Collector / Additional Collector, the same shall be decided on merits after hearing the parties positively within a period of three months from the date of filing of the application.
In case the application is allowed the orders impugned in this writ petition dated 28.3.2011 and 11.1.2011 ( as contained in Annexure nos. 1 & 2 to the writ petition) shall merge int he order of Collector / Additional Collector, but in case of failure these orders shall revive automatically and the stay granted by this court shall stand vacated automatically. No further orders will be required.
Till that decision by the Collector / Additional Collector the orders impugned shall remain stayed."
In view of the abovesaid facts, learned counsel for the petitioner requests that the present writ petition may also be disposed of in terms of the said judgment.
Shri R. N. Gupta, learned counsel for the respondent as well as learned State Counsel have no objection to the abovesaid prayer.
As per the the abovesaid facts and taking into consideration that at present on the land in dispute, an institution in the name and style of "Evergreen Higher Secondary School" is running and imparting education to 500 students to achieve the Constitutional goal as provided under Article 21 of the Constitution of India. While interpreting the same Hon'ble the Supreme Court in the case of Unni Krishnan vs. State of A. P. (1993) 1 SCC 645, held that it is implicit in Article 21 that every child upto 14 years has a fundamental right to free education. After that it is subject to limits of economic capacity and development of the State as well as Right to Education Act, 2009.
Thus, in view of the aforesaid facts and also taking into consideration that the land in question is a banzar/barren land of Gaon Sabha, which is not of public utility, so in the interest of justice writ petition is disposed of with a direction that the petitioner shall offer a land equal to the area of land which is the subject matter of the present case on which the petitioner's school is running at the same circle rate as per the provisions provided under Section 161 of the U.P. Z.A. & L.R.Act, 1950 within a period of four weeks from today to the opposite party no.3/Sub-Divisional Officer, Tehsil Sandila, District-Hardoi and the said authority shall pass appropriate order within a further period of four weeks and if the Sub-Divisional Officer, Tehsil Sandila, District-Hardoi/opposite party no.3 accepts the proposal in question, land in dispute will be vested with the petitioner.
For a period of two months or till the decision is taken by the Sub-Divisional Officer, Tehsil Sandila, District-Hardoi/opposite party no.3 no coercive measure shall be taken against the petitioner.
If the petitioner fails to offer the proposal in question within the statutory period as stated herein above, the authorities are at liberty to proceed against him in accordance with law.
With the above observations, writ petition is disposed of.
Order Date :- 23.8.2012 Mahesh