Heard Sri H.R. Mishra, learned counsel for the petitioner, learned standing counsel for respondents No.1 to 3 and Sri Anuj Kumar, learned counsel for respondent No.4, Gaon Sabha.
In this case on 03.03.2011 following order was passed:
"The allegation is that the two parcels of land were resolved to be allotted to the petitioners on 15.3.1995 and the resolution of the Gaon Sabha was approved by Sub Divisional Officer/ Magistrate, Hapur on 11.10.1995. The first parcel of land consisted of an area of 0.974 hectares ( 9740 sq. meter) of plot No.130-M and other parcel of plot consisted of an area of 0.279 hectares of plot No.134 Kha and area 0.733 hectares of Plot No.133 total area 1.012 hectares (10120 square meter); and that the first parcel of land was allotted for constructing hospital and in the other parcel of land Junior High School has been constructed as it was allotted for the said purpose. The land is situate in village Habaspur Bigas, Tehsil Hapur district Ghaziabad. The Court wants to ascertain the present position of construction and working of these two institutions.
Accordingly, Shri N.P. Pandey, Advocate is appointed as commissioner who shall inspect both the institutions either in this week end or in the next week end. He must be paid Rs.25,000/- as fees by the petitioner and three times AC-II class train fare as train fare and other expenses. If for reaching the spot, some taxi is hired then the expenses of the same shall also be paid to the Advocate Commissioner. The payments shall be made by tomorrow.
List for further argument on 17.3.2011, by which date Shri N.P. Pandey advocate will submit the report along with sketch map, giving dimensions.
Learned counsel for the petitioners states that the hospital is under construction. No further construction shall be made after today. All construction activities shall at once be stopped until further orders of this Court. The learned Advocate Commissioner shall report about the extent of the construction i.e. area, height etc. Office is directed to supply a copy of this order free of cost to Shri S.P. Mishra, learned standing counsel for sending the same to the District Magistrate, Ghaziabad for stopping constructions immediately.
A copy of this order shall also be supplied free of cost by the office to Shri N.P. Pandey, learned counsel.
The Advocate Commissioner shall also intimate Shri Anuj Kumar, learned counsel for Gaon Sabha about the date of visit."
Sri N.P. Pandey, learned counsel/ Commissioner submitted the report on 18.03.2011.
This writ petition is directed against order dated 17.06.2004 passed by A.D.M. (Administration) Ghaziabad in Case No.44 of 2002-03 cancelling the allotment of land in favour of petitioner No.1, Junior High School partly and allotment of the land in favour of petitioner No.2, Hospital fully. Both are run by the same society. Against the said order, two revisions being Revisions No.97 & 98, both of 2003-04 were filed, which were dismissed on 01.02.2008. The said order has also been challenged through this writ petition.
Gaon Sabha Plot No.134-kha, area 0.279 hectares and Plot No.133, area 0.733 hectares was allotted by the Gaon Sabha through resolution dated 15.03.1995 for the school petitioner.
Plot No.130, area 0.974 hectares was allotted to hospital, petitioner No.2. Report was filed by S.D.O. Hapur on 16.12.2002 that major portion of the allotted land was being used for agricultural purposes and not for the purposes for which it was allotted i.e. establishing school and hospital. The specific allegation was that the entire land allotted for the hospital was being used for agricultural purposes and area of 0.190 hectares of Plot No.134 Kha and area 0.380 of Plot No.133 was lying vacant i.e. out of total allotted land of 1.012 hectares for the school, an area of 0.570 hectares was not being used for the purposes of school. The land is situate in village Habaspur Bigas, Tehsil Hapur, District Ghazibad. The land which was allotted was entered as banjar in the revenue records. Resolution of allotment was passed by the Gaon Sabha on 15.03.1995 and was approved by Deputy Collector, Hapur on 10.10.1995. The A.D.M. through order dated 17.06.2004 has held that there was deficiency/ discrepancy in munadi agenda before the resolution of Gaon Sabha dated 15.03.1995. It was further found that private organisation did not fall within the preferred categories mentioned under Section 198 of U.P.Z.A. & L.R. Act for allotment and that through U.P. Ordinance No.4 of 2002 provision for allotment to private organisations (societies) was made which had been withdrawn by U.P. Act No.11 of 2002. Thereafter, a strange finding was recorded that in case the society/ organisation intended to open the school and hospital in public interest, then it should have sent the application to the State Government through Collector, Ghaziabad as only the State Government could relax the rules. However, the revisional court confined its judgment only to the ground that private societies/ organisations could not be allotted land.
Both the authorities below have relied upon an authority of Board of Revenue reported in M.R. Janta Junior High School Vs. Babu Lal, 1995 (3) AWC 2056 to hold that land cannot be allotted to a school. However, in the said authority, the Pradhan was manager of the allottee Junior High School. The allotment itself was found to be utterly illegal and it was found that new register had been prepared for the resolution. Similar view has been taken in an authority of this Court reported in Yog Sansthan Vs. Collector, 2002 (93) R.D. 13. However, in that case also rasta had been allotted for a school.
According to the report of Sri N.P. Pandey, learned counsel, who inspected the spot under directions of this Court, school was being run and was appreciated by the general public which was gathered at the time of his visit as well as by the Pradhan.
However, the construction of the hospital has not yet been made. Only boundary wall and some pillars etc. were found by the learned Commissioner.
Both the authorities below have even though held that allotment could not be made for a school however the entire allotment in favour of the school has not been cancelled. Allotment in respect of 0.442 hectares of land has been maintained, however allotment in respect of 0.570 hectares of land has been cancelled on the ground that the said portion of the land was lying vacant. Accordingly, the main thing to be decided in this writ petition is as to whether allotment in respect of part of the allotted land can be cancelled on the ground that that part has not been used for the purpose for which it was allotted. Such restriction is there only in respect of abadi sites by virtue of Rule115-Q of U.P. Z.A. and L.R. Rules.
I have held in Janta U.M. Vidyalay Vs. State of U.P. 2005 (1) RD 527 that if school building has been constructed unauthorizedly over such Gaon Sabha land which is not reserved for some important public purpose then instead of eviction, award of reasonable damages may be the appropriate relief. Proceedings were initiated even though suo motu, but on the complaint of a person who was not resident of the village in question. All those residents of the village who had gathered at the time of inspection by the Commissioner appointed by this Court as well as Pradhan appreciated the efforts of the petitioner in establishing the school for the girls in the village in question which does not have any other school for girls. The Commissioner found that school was being run quite properly and number of girl students was quite appropriate. Proceedings were initiated after 7 years. In view of all these facts, I am of the opinion that interest of justice will best be served by passing the following order:-
Allotment in favour of the hospital is cancelled.
Allotment in favour of the school is maintained on the following conditions:
(1)Damages of Rs.50,000/- should be deposited by the petitioner before the Collector within six months for being kept in consolidated Gaon Fund constituted under Section 125-A of U.P.Z.A. & L.R. Act.
(2)The allotted land shall neither be transferred nor be used for any other purpose except charitable/ community purpose.
(3)Petitioner is directed to open some vocational training centre for the ladies of the village in the vacant portion of the land allotted for the school i.e. Plot Nos.134-kha and 133 and/ or hospital for general public.
(4)The play ground of the school shall also be permitted to be used by other girls who are not students of the school but are residents of the same village.
These facilities shall be started within a year after constructing necessary building etc. for the said purpose.
An affidavit must be filed on behalf of the petitioner on expiry of one year showing compliance of this judgment. The case shall be listed in Second week of July, 2012 in Chamber at 3.45 p.m. before me for perusal of the compliance affidavit.
Collector, Ghaziabad is directed to monitor the establishment of vocational centre and or hospital and send two reports to this Court one by December this year and other by June of the next year.
Writ petition is accordingly disposed of.
Office is directed to supply a copy of this order free of cost to Sri S.P. Mishra, learned standing counsel.
Order Date :- 30.03.2011 NLY