JUDGMENT S.N. Srivastava, J.
1. Challenge in this petition is to the order dated 6.5.2003 passed by Deputy Director, Consolidation whereby revision was dismissed and the order passed by appellate authority dated 14.12.2002 was affirmed by which the appellate authority had rejected the restoration application preferred against an order dated 6.8.2002 passed in Appeal No. 175/636.
2. The facts beyond the pale of dispute are that in the previous consolidation proceeding, the land in dispute i.e. plot No. 61 admeasuring 0.51 acre was recorded in the revenue record as play ground -a Gaon Sabha property. From a perusal of Khatauni 1380 Fasli, it would appear that the said land has been recorded in the name of Zia-UI-Uloom Higher Secondary School ostensibly pursuant to order dated 25.7.1975 stated to have been passed by Sub Divisional officer. However, copy of the order aforesaid is not available on record and it finds mention in Khatauni only. It would further appear from the record that pursuant to notification under Section 4(i) of the U.P. Consolidation of Holdings Act, the consolidation proceeding commenced and the land in dispute, which was being used by the petitioner for growing crops, after being valued was included in consolidation Scheme. It further transpires from the record that the land in dispute was recorded in Khatauni as property of petitioner since 1383 Fasli and in consolidation, the value of plot in question was pegged at 60 paise and petitioner got chak admeasuring 207 hectares in exchange ratio to the land in dispute on plot Nos. 247, 240, 234, and 246/1 while the land in dispute was allotted in chak of opposite party. Dissatisfied with this arrangement, the petitioner filed objection under Section 21 of the U.P.C.H. Act for allotment of land in dispute in its chak which came to be rejected vide order dated 26.12.2001 and the revision preferred by petitioner also came to be dismissed.
3. Learned Counsel for the petitioner canvassed that the authorities below erred in law in declining allotment of land in dispute in plot No. 61 in petitioner's chak or in the alternative, in refusing to set apart the land in dispute as chak-out i.e. beyond the purview of consolidation scheme and further that the order refusing to interfere in the matter of allotment of plot No. 61 in the chak of the petitioner is tainted with the error of law and fact. Per contra, learned Counsel appearing for Opposite parties contended that it was at the instance of the petitioner that the land in dispute was subsumed in the proceeding for allotment of chak; that the petitioner got another chak in exchange ratio of plot No. 61 and in allotment proceeding the land out of plots 247, 240, 234, and 246/1 was allotted in petitioner's chak No. 4. Lastly it was submitted that the impugned orders allotting land in dispute to respondent's chak was rightly passed.
4. In the light of the above submissions and also regard being had to the materials on record, it brooks no dispute that the land in question was recorded as one ear-marked in the previous consolidation scheme i.e. for use as a play-ground.
5. In connection with the above submissions, Rule 24A, Sub-rule 2(v) of the U.P.Z.A. & L.R. Act may be referred to. A perusal thereof would reveal that playground is categorized as public purpose. In fact, the playground is meant for entire village and therefore the land ear-marked for this purpose is meant to be reserved for public purposes. The question that begs consideration here is whether the land earmarked for playground i.e. for public purposes could be given to petitioner. Concededly, there is no order of allotment on record as alleged to have been made by the Sub Divisional officer at the relevant time. Besides, Section 198(i)(a) of the U.P. Z.A. & L.R. Act, as it was then in vogue, envisaged that the Land Management Committee shall subject to rules, on orders made by the court under Section 198, observe following order of preference in admitting persons to land under Section 195 and 197 i.e. (1) such educational institution for purposes connected with instructions being imparted in agricultural, horticulture or animal husbandry (2) landless agricultural labourer (3) a Bhumidhar, sirdar or asami holding who is holding land less than 6, 1/4 hectares in area in the circle (4) Cooperative society or any other person. The recognised institution has been defined in Section 3(22)(a) of the U.P.Z.A. & L.R. Act, which runs as follows.
Recognised educational institution means an educational institution or a class of educational institution declared as such by the State government, by notification in the official gazette.
There are no indicia on record to suggest that the then Land Management committee had ever passed any resolution for allotment of the land in question in favour of petitioner nor it has been pleaded or proved that the petitioner is a recognised educational institution for which any notification has been issued or published in the official Gazette by the State Government as required under Section 3(22)(a) of the Act. It is also not borne out from the record that Institution is an educational institution imparting instructions in agriculture, horticulture or animal husbandry. To cap it all, there appears to be no provision under the U.P.Z.A. & L.R. Act for allotment of any land reserved for public purposes by Asstt. Collector Incharge of a Sub Divisional. The only provision in vogue then was that the Land Management Committee with previous approval of the Asstt. Collector Incharge of Sub Divisional shall have right to admit any person as Sirdar to any land other than land falling in any of the classes engrafted in Section 132 of the Act. Admittedly the land in dispute was the land covered by Section 132 of the U.P. Revenue Act, which runs as follows.
Notwithstanding anything contained in Section 131 without prejudice to the provisions of Section 119 Sirdari rights shall not accrue in-
(4) land set apart for public purposes under the U.P. Consolidation of Holdings Act....
In view of the above, the position is clear that the land in question i.e. plot No. 61 had neither been allotted by Land Management committee nor could it be allotted being land reserved for public purpose recorded under Section 132 of the U.P.Z.A. & L.R. Act or any other provision of the U.P.Z.A. & L.R. Act to the petitioner. In the circumstances, the consequence that would follow is that the petitioner wrongly got chak No. 3 in lieu of plot No. 61 in chak allotment proceeding by reason of the fact that it cannot get any Bhumidhari with non-transferable right or any other right title or interest in relation to plot No. 61 and as such the order passed by consolidation authorities refusing to entertain objection of the petitioner for allotment of land in his plot or for making the land in dispute as chak-out was rightly passed in accordance with law.
6. Yet another aspect to be noticed here is that from the materials on record it is obvious that the land in dispute is not situated near petitioner's school, which indubitably is not imparting instructions or connected with agriculture, horticulture or animal husbandry. The finding of the authorities below makes it clear that this plot is situated 4 kms away from the southern boundary of the Nagar Palika Sambhal. The petitioner's school is situated at Sarai Tareem, which lies towards northern boundary of Sambhal Nagar Palika. It is further clear from the record that the land was never used by the petitioner as play-ground and instead, it was used by the Management for growing agricultural crops which clearly militates against the provisions of Section 132 of the U.P.Z.A. & L.R. Act besides being one running counter to the intention of the legislature while enacting Section 132 of the U.P.Z.A. & L.R. Act.
7. In view of the above, the petitioner cannot claim any right on plot No. 61. The allotment of valuation of land in dispute in petitioner's chak No. 2 in lieu of plot No. 61 on plot Nos. 247, 244, 234, 242/1 admeasuring 207 hectares (C.A. 7) was wrongly made and in this view of the matter, the petitioner is not entitled to get any chak into the land in question. In my considered view, the valuation of plot No. 61 could be given to Gaon Sabha.
8. In view of the findings recorded by consolidation authorities, I do not find any error of law apparent on the face of the record in refusing to allot plot No. 61 in petitioner's chak.
9. In the result, the writ petition has no force and is liable to be dismissed. However, in the facts and circumstances of the case as would appear from Annexure C.A. 7 that the petitioner got valuation of 12.36 paise and got chak No. 2 on plot Nos. 247, 248, 234, 242/1 admeasuring 207 hectares, it is directed that the valuation allotted to the petitioner be taken away and in consequence the chak allotted in lieu of plot No. 61 chak No. 3 i.e. on plot Nos. 247, 244, 234, 242 areas .207 hectares shall vest in the Gaon Sabha as Gaon Sabha land property.
10. The writ petition is dismissed attended with the direction that valuation assigned to petitioner against plot No. 61 admeasuring 206 hectare i.e. plot Nos. 247, 248, 234, 242/1 in Chak No. 2 would stand assigned to Gaon Sabha and the plots aforesaid would be recorded as Gaon Sabha land in consolidation as well as in revenue records. In the facts and circumstances, there would be no orders as to costs.
11. Before parting, it may be directed that as petitioner has claimed possession over the land in dispute since 25.7.1975 upto now and further that the land in question has been utilized for growing crops resulting in unjust enrichment to the petitioner, the Collector, Moradabad shall assess the mesne profits, and recover the same from the petitioner in accordance with law as arrears of land revenue. In case, the amount is recovered the same shall be deposited in Gaon Sabha fund after deducting expenses incurred in recovery. The compliance report be submitted by the Collector, if possible within a period of six months from the date a copy of the order is served to his end.
12. Office is directed to transmit a copy of this order within a week from today to the Collector, Moradabad for compliance as aforesaid.