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.
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, ad-measuring 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 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 long-standing 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 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 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 sub-divided 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 sub-categories 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 Sub-Divisional Officer having changed the 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 Sub-Divisional 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 Sub-Divisional 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 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 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 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 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 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,
(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 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 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.
(5) Where any of the things specified in sub-section (2) has been entrusted or deemed to have entrusted to a [Gram Panchayat], and the village or any part thereof in which such things are situated lies outside the circle of the [Gram Panchayat], such [Gram Panchayat] or its Bhumi Prabandhak Samiti shall, subject to any general or special order issued by the State Government in this behalf, perform, discharge and exercise the functions, duties and powers assigned, imposed or conferred by or under this Code or the U.P. Panchayat Raj Act, 1947 on a [Gram Panchayat] or a Bhumi Prabandhak Samiti as if that village or part also lay within that circle.
(6) Where any of the things specified under sub-section (2) has been entrusted or deemed to be entrusted to a local authority other than the [Gram Panchayat], the provision of this chapter shall mutatis mutandis apply to such local authority."
38. The perusal of the same would show that under Section59 (4)(c), the State Government may 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 and under Rule 54 and 55 of the Rules of 2016, the procedure has been prescribed, which says that an order passed under Section 59(1) and Section 59(4) shall be published in the Gazette and in two daily news-papers circulated in the locality of such area of which one shall be in Hindi language. Rule 55 further says that on resumption of property by the State Government under Section 59, a notification specifying the particulars of such property shall be issued in the Gazette which shall be conclusive evidence that such property stands vested in the State Government. A copy of such notification shall be sent to the Collector as well as the Gram Panchayat or the local authority concerned and in case the property referred to in sub-rule (1) has already been allotted to any person under Section 64 or Section 125 of the Code or under the provisions of the Acts repealed by the 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.
39. Rule 54 and 55 cited by the learned counsel for the petitioner are also being quoted hereinbelow:-
"54. Mode of publication of the order [Section 59(1) and Section 59(4)].-The general or special order referred to in Section 59(1) and Section 59(4) shall be published in the Gazette and in two daily news-papers circulating in the locality of such area of which one shall be in Hindi language.
55. Resumption of property by State Government (Section 59).--(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."
40. It is apparent from a bare perusal of paragraph-18 of the petition, the provisions of Section 59 and Rule 54 & 55 quoted hereinabove, that the petitioner has wrongly quoted the language of Rule 55 of the Rules of 2016.
41. The learned counsel for the petitioner has argued on the basis of paragraph 18 of the writ petition that had there been a public notification/publication in the newspapers before resumption proceedings were undertaken by the state government, the petitioner being an interested person would have filed his objections. The learned Senior Counsel has referred to the procedure prescribed under the Land Acquisition Act to say that proceedings for resumption are similar to such proceedings of acquisition and therefore, in the absence of any publication in the newspapers opportunity of being heard was denied to the petitioner and the order has been passed in violation of principles of natural justice.
42. This Court finds from a perusal of Section 59 of the Revenue Code and Rule 54 and 55 of the Rules of 2016, that they do not apply to private property. A wrong quoting of the Section 59 and Rule 54 and 55 of the Rules of 2016 in paragraph 18 of the writ petition would not entitle the petitioner to allege that because no notification was published in the newspapers before the acquisition of land of plot no. 1522 such resumption notification is bad. A perusal of the Rule 54 and 55 shows that there is only a requirement of publication in the Gazette and the daily newspapers circulated in the locality for the purpose of general notice to the public at large that the resumed land vests in the State Government free from all encumbrances, such publication of notification in the Gazette shall be conclusive evidence that the property stands vested in the State Government; there is no requirement under the Rules for issuing a notification in the Gazette or in the newspapers before the resumption exercise is carried out. It is only after resumption has been done by an order passed under Section 59(4) that such order will be published in the Gazette and two daily newspapers of the area in which the property is situated. Failure to publish the notification 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.
43. The Supreme Court in the case of M.C. Mehta vs. Union of India and others, 1999 (6) SCC 237 has observed that writ jurisdiction is a discretionary jurisdiction and the Court need not issue a writ merely because there has been a violation of the principles of natural justice if greater good is to be achieved by refusing to interfere. In Gadde Venkateswara Rao versus Government of Andhra Pradesh and others; AIR 1966 Supreme Court 828, the Supreme Court had refused to interfere even when it was found that the order issued by the Government was without prior notice to the villagers while changing the location of the health centre from one village to another, and when it was established that the Government had no power to review in respect of orders passed earlier to establish it in particular village, the Supreme Court observed that there were other factors which disentitled the appellant to the quashing of the order passed by the State Government even though it was passed in breach of principles of natural justice. The Court observed that setting aside of the later order would restore the earlier order of the Government which was passed without notice to the affected party namely the Panchayat Samiti. It would also result in the setting aside of a valid resolution passed by the Panchayat Samiti, the Supreme Court refused the relief and agreed with the High Court in not interfering under Article 226 even if there was a violation of principles of natural justice. The above case is a clear authority for the proposition that it is not always necessary for the Court to strike down the order under challenge merely because the order has been passed against the petitioner in breach of natural justice. The Court can under Article 32 or Article 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.
44. The Supreme Court in M.C. Mehta (supra) also referred to another case where there was a breach of principles of natural justice. The Supreme Court found that interference was not necessary if the result of interference would be the restoration of another order which was not legal. In Mohd. Swalleh and others Vs Third Additional District Judge; 1988 (1) SCC 40, the Supreme Court was considering an Appeal arising out of U.P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act 1972. The Prescribed Authority dismissed an application filed by the landlord and this was held clearly to be contrary to the very purpose of Section 43(2) RR of the Act. The District Court entertained the Appeal filed by the landlord and allowed it without noticing that such appeal was not maintainable. The High Court refused to interfere. The Supreme Court on Appeal filed by the tenant accepted that though no Appeal lay to the District Court observed nevertheless that the refusal of the High Court to set aside the order of the District Judge was correct, as that would have restored the order of the Prescribed Authority which was apparently illegal.
45. This Court having considered the arguments of the counsel for the petitioner is convinced that the petitioner is a stranger to the cause pleaded in this petition. Even if it be assumed that the order of the Settlement Officer Consolidation and the Deputy Director Consolidation would be set aside by this Court in writ petition proposed to be filed by the petitioner but the order of the Commissioner would stand in its way preventing it to enjoy the fruits of the litigation, still the Court believes that showing interference in the order of Resumption would be against greater public good as a Medical College and Referral Hospital is proposed to be established on the land in dispute under a time bound centrally sponsored scheme.
46. The writ Petition stands dismissed.
47. The interim order stands discharged.
Order Date:- 27/01/2021 Rahul [Justice Sangeeta Chandra]