Court No. - 37
A.F.R.
Case :- WRIT - C No. - 42710 of 2018 Petitioner :- C/M Vishambhar Nath Janta Inter College And Another Respondent :- State Of U P And 4 Others Counsel for Petitioner :- Bhagwan Dutt Pandey Counsel for Respondent :- C.S.C.,Tariq Maqbool Khan
Hon'ble Siddhartha Varma,J.
The petitioner no. 1 is an institution which is running an intermediate college since 1968. It was recognised on 19.09.1970 under the U.P. Intermediate Education Act. It is also getting a grant under the Payment of Salaries Act, 1971. The petitioner upon coming to know about the fact that some portion of his building was constructed over Gaon Sabha land on plot nos. 276 and 277 applied for an exchange with its own land over plot nos. 304 and 309.
In the meantime, proceedings under Section 67 of the U.P. Revenue Code, 2006 were also initiated for the removal of the petitioner's construction from over plot nos. 276 and 277. The petitioner, therefore, approached this Court that till such time as its exchange application was decided, orders may not be passed under Section 67 of the U.P. Revenue Code, 2006. This court in writ petition no. 17899/2018 passed the following order:-
''Heard learned counsel for the petitioners and Shri Rajesh Srivastava, learned Standing Counsel for the State respondents.
The petitioners are before this Court with request to issue direction to the second and third respondents to exchange the land of petitioners bearing Arazi no.304, 309 to the land of Gaon Sabha bearing Arazi/Gata no.276, 277 over which the petitioner's institution is standing/running. Further prayer has been made to command the respondents not to take coercive action against the petitioners' institution during the proceeding of exchange.
Learned counsel for the petitioners has informed to the Court that for redressal of his grievance petitioners have already moved representation dated 28.12.2017 before the Collector/District Magistrate, Maharajganj and the same is still pending consideration.
Learned Standing Counsel and Shri T. M. Khan, Advocate very fairly state that in case the aforesaid case is still pending, the same shall be considered and decided by the Authority concerned expeditiously.
In view of the above, without expressing any opinion on the merits of the case and considering the facts and circumstances of the case, on consent, the writ petition is disposed of finally with a direction to the Collector/District Magistrate, Maharajganj to decide the aforesaid application expeditiously, preferably within a period of three months from the date of production of a certified copy of this order before him except no other impediment is there. It is made clear that till the disposal of the said application no coercive action shall be taken against the petitioners' institution pursuant to proceeding under Section 67 of the U.P. Revenue Code, 2006.''
However, the Collector whom the Court had directed to decide the application under Section 101 of the U.P. Revenue Code, 2006 has refrained from passing any order saying that the application under Section 67 be decided expeditiously on a day to day basis.
The petitioner is aggrieved by the order and has approached this Court.
Learned counsel for the petitioner submits that the petitioner was conducting a very pious duty of imparting education to the children of the District and therefore, even if it had encroached upon a certain land of the Gaon Sabha it should not be punished because it was bonafidely ready to exchange its own land situate over plot no. 304 and 309.
Learned counsel for the petitioner submits that right to education is a fundamental right under Article 21-A of the Constitution of India and further submits that under The Right of Children to Free and Compulsory Education Act, 2009, the petitioner was also imparting education to children of the area free of cost.
Be there as it may, definitely the petitioner has been in possession over the Gaon Sabha land since 1968. Now if it wanted to exchange its own land with the Gaon Sabha the State should not become a hurdle in the exchange and, therefore, the Collector may, in pursuance of order dated 18.05.2018, proceed to pass orders on the application filed by the petitioner without waiting over the decision under Section 67 of the U.P. Revenue Code, 2006.
In the case of Jagpal Singh and others Vs. State of Punjab and others reported in 2011 (11) SCC 396 the Supreme Court had directed that such institutions which had been running for a fairly long time should not be removed and in fact an endeavour should be made to regularize their possession.
Learned Standing Counsel however has submitted that the petitioner if has encroached upon a Gaon Sabha land should be removed from it and no sympathy should be there for the petitioner.
However, since the order dated 18.05.2018 has directed the decision of the application, the Collector shall decide the same and till the decision on the application under Section 101 of the U.P. Revenue Code, 2006 is taken orders if are passed u/s 67 of the Code, should not be implemented.
The writ petition is allowed.
Order Date :- 21.12.2018 Mohit Kushwaha