Rashtriya Shikshatmak and Kalatmak Vidyalaya vs Board of Revenue U.P.

Ram Surat Ram (maurya), J.—Heard Sri B.N. Singh and Sri S.K. Singh, for the petitioners and Standing Counsel, for respondents-1 to 4, Sri Manu Khare, for respondents-5 to 7, Sri Anupam Kulsreshtha, for respondents-8 to 10/2.

This writ petition has been filed for quashing the orders of Additional Collector dated 13.08.1987, canceling pattas dated 20.05.1957 and 23.06.1959 [except for plots 150 (area 0-13-0 bigha) and 151 (area 2-7-0 bigha) of village Talaspore Kalan and 243 (area 2-10-0 bigha) of village Kuarsi], Additional Commissioner dated 30.11.1988, dismissing the revision in default and 05.10.1991, rejecting the restoration application and Board of Revenue U.P. dated 24.04.1997, dismissing the revision of the petitioner, in the proceedings arising u/s 198(4) of U.P. Zamindari Abolition and Land Reforms Act, 1950 (hereinafter referred to as the Act).

The National Education and Industrial Association, Kuarsi, Aligarh is a society, registered under Societies Registration Act, 1860 on 18.06.1956 and its registration number is 121 of 1956-1957. It established a Junior High School in the name of Rashtriya Shikshatmak And Kalatmak Madhyamik Vidyalaya, Kuarsi, Aligarh. Education of Junior High School classes was started in July 1957. District Inspector of Schools, Aligarh granted recognition of Junior High School on 10.12.1957, in which apart from other subjects, agriculture was also a subject. One of the condition of recognition was that the school must have minimum 10 acres of land. The school was upgraded to High School, since July 1961 and recognition in this respect was granted on 10.06.1961.

Sri Nahar Singh, Promoter Secretary of the society requested Gaon Sabha of villages Kuarsi, Talaspore Kalan and Sukhraoli for allotment of the land to the school. It may be mentioned that a large tract of waste arable land was available at adjoining limits of the aforesaid villages. Gaon Sabha Kuarsi passed a resolution dated 03.04.1957 for allotment of plots 306/2 (area 1-0-0 bigha), 306/9 (area 3-12-0 bigha) and 324/1 (area 20-0-0 bigha), total 24-12-0 bigha to the petitioners. Gaon Sabha Talaspore Kalan passed a resolution dated 05.04.1957 for allotment of plots 119 (area 9-11-0 bigha), 120 (area 13-1-0 bigha), 125 (area 4-6-0 bigha), 126 (area 8-8-0 bigha) and 128 (area 3-1-0 bigha), total 38-7-0 bigha to the petitioners. Gaon Sabha Sukhraoli passed a resolution dated 05.04.1957 for allotment of plots 1 (area 12-4-0 bigha), 18 (area 8-13-0 bigha) and 19 (area 5-10-0 bigha), total 25-7-0 bigha to the petitioner. Sub-Divisional Officer, Koil, Aligarh, by order dated 20.05.1957, granted approval for plot 306/9 (area 3-12-0 bigha) of village Kuarsi and plots 119 (area 9-11-0 bigha), 120 (area 13-1-0 bigha), 125 (area 4-6-0 bigha), 126 (area 8-8-0 bigha) and 128 (area 3-1-0 bigha) of village Talaspore Kalan only total area 41 bigha 16 biswa. Later on, Sub-Divisional Officer, Koil, Aligarh, again by order dated 23.06.1959, granted approval for allotment of plots 1 (area 12-4-0 bigha), 18 (area 8-13-0 bigha) and 19 (area 5-10-0 bigha) of village Sukhraoli and plots 306/2 (area 1-0-0 bigha), 324/11 (area 20-0-0 bigha), 306/11 (area 0-4-0 bigha), 312/2 (area 0-2-0 bigha), 323/3 (area 1-9-0 bigha), 324/2 (area 10-0-0 bigha), 311/2 (area 0.10.0 bigha) and 307/1 (area 0-6-0 bigha) of village Kuarsi total area 59 bigha 18 biswa. In these orders a condition was imposed that if the land is not utilized for the purpose, for which it has been allotted within five years, it would revert to Gaon Sabha. On the basis of aforesaid order, the land in dispute was recorded in the name of school as bhumidhar except those plots on which constructions have been raised were recorded in column 6 (2) of the khatauni.

On the report of Sub-Divisional Officer dated 16.11.1985, the Collector took suo moto action and initiated proceeding u/s 198(4) of the Act for cancellation of allotments of the petitioners, on the ground that there was no provisions for allotment of Gaon Sabha land to a private institution, only small portion of the allotted land was utilized for raising constructions and large area of the land was still lying vacant and not utilized as such it was vested in Gaon Sabha, in terms of allotment orders and institution is going to sell the land allotted to it, making small plots for residential purposes. On the notice being served, the petitioners contested the case and filed an objection and stated that construction of school building was raised on plots 119 of village Talaspore Kalan and 306/9 of village Kuarsi. The petitioners are still raising constructions of school building. Some area of allotted land was made cultivable while some area was still ''usar'' land and the petitioners are taking steps for making it fertile. The vacant land was being utilized as play ground as well as for practical of agriculture. No proceeding u/s 198(4) of the Act, can be initiated after such a long time. They denied the allegations that they are making residential plots and going to sell it. The petitioners examined Ravindra Singh, Charan Singh and Manager Singh as witnesses. On behalf of State of U.P. and Gaon Sabha, Janki Prasad, Lekhpal of village Kuarsi, Rashid Khan, Lekhpal of village Deosaini, Kare Singh, Revenue Inspector and Mohan Lal, Pradhan of village Talaspore Kalan were examined. Additional Collector, by his order dated 13.08.1987, held that Land Management Committee had no jurisdiction to allot land for the private school. In the approval orders, Sub-Divisional Officer, imposed a condition that if the land was not utilized for the purpose, for which it was allotted, within a period of five years, it would revert to Gaon Sabha. Only a small portion of the land was utilized for construction of school building while remaining land was still lying vacant as such it was vested in Gaon Sabhas concerned under the terms of allotment orders. On these findings, excepts plots 150 (area 0-13-0 bigha) and 151 (area 2-7-0 bigha) of village Talaspore Kalan and 243 (area 2-10-0 bigha) of village Kuarsi, over which school buildings were standing, allotments of remaining land was canceled and the land was resumed in terms of approval orders.

The petitioners filed a revision (registered as Revision No. 120 of 1987) against the aforesaid order. The revision was admitted and notices were issued fixing 30.11.1988. The revision was dismissed in default by order dated 30.11.1988. The petitioners filed a restoration application on 08.01.1989, stating therein that Ravindra Singh, the pairokar of the revisionists, fell ill on 27.11.1988 as such he could not appear before the Court on 30.11.1988 and the revision was dismissed in default. His illness continued for a long time and he was unable to move. After recovery, he filed restoration application on 08.01.1989. Ravindra Singh also filed medical certificate dated 08.01.1989, in respect of his illness on 26.08.1989. Later on, an affidavit of Ravindra Singh was filed on 09.09.1989. Thereafter, an application u/s 5 of Limitation Act, 1963 along with affidavit was filed on 10.09.1991, for condonation of delay in filing restoration application. The restoration application was heard by Additional Commissioner, who by order dated 05.10.1991, held that restoration application was presented with the signatures of Sri S. Bhardwaj, Advocate although, the vakalatnama attached to this application was not accepted by him. In the application, source of knowledge of order dated 30.11.1988 was not mentioned. There was defect in verification clause of the affidavit of Ravindra Singh filed in support of restoration application as such this affidavit could not be treated as valid affidavit. The medical certificate was not filed along with restoration application as such it was treated as procured later on. The application u/s 5 of Limitation Act, 1963 along with affidavit, for condonation of delay in filing restoration application was filed on 10.09.1991 and not along with restoration application. On these findings, restoration application was rejected. The petitioners filed a revision (registered as Revision No. 50 of 1993-94) from the aforesaid orders, which was dismissed by Board of Revenue, U.P. by order dated 24.04.1997. Hence this writ petition was filed.

The counsel for the petitioner submitted that earlier Gaon Sabha was authorized to allot land and remedy of the aggrieved person was to file an appeal u/s 198(2) of the Act, before Sub-Divisional Officer. The Act was amended by U.P. Act No. 20 of 1954, in which Sub-Section (i-a) was added in Section 198, which authorized for allotment of Gaon Sabha land to educational institution, imparting education in agriculture, horticulture and animal husbandry and sub-section-2 of Section 198 was amended and in place of remedy of appeal, Sub-Divisional Officer was conferred jurisdiction to make inquiry suo moto or on an application of the aggrieved person and in case substantial irregularity has been committed or allotment was made in violation of provisions of Act, then he had jurisdiction to set aside the allotment. In this case, Sub-Divisional Officer after conducting inquiry, by orders dated 20.05.1957 and 23.06.1959 granted approval to the allotments made to the petitioners. The Act was further amended by U.P. Act No. 37 of 1958, by which word "Gaon Sabha" was replaced by "Land Management Committee" and sub-section (3) and (4) were added in Section 198 and the aggrieved person was given remedy to file a suit against allotment. By U.P. Act No. 4 of 1969, the Act was amended and jurisdiction of inquiry was conferred upon the Collector under sub-section (2) of Section 198. By U.P. Act No. 35 of 1970, the Act was amended and a ceiling of maximum 12.5 acre land, was imposed for allotment of land to educational institution and remedy of revision against the order of the Collector u/s 333 of the Act was provided. It is only by U.P. Act No. 30 of 1975, educational institution has been deleted from the category of eligible persons. Earlier vide Entry 24 of Appendix III of the Rules, six month limitation was provided for an application u/s 198(2), for the aggrieved persons and three years limitation from the date of knowledge of irregular allotment was provided for suo moto action of the Collector. By U.P. Act No. 30 of 1975, under subsection 4 (i) five years limitation has been provided for suo moto as well as for application by aggrieved persons both. No action u/s 198(4) was taken within five years as such proceeding has become time barred as held by this Court in Suresh Giri and Others Vs. Board of Revenue and Others, Writ-B No. 29005 of 1994 Sripat Ram Vs. Board of Revenue U.P., decided on 12.07.2010, Writ-C No. 44917 of 1999 Krishan Pal Vs. The Commissioner, decided on 17.02.2011, Writ-C No. 44937 of 1999 Ram Prakash Vs. The Commissioner, decided on 25.02.2011, Dev Sharma and Another Vs. Board of Revenue and Others, and Writ-B No. 51591 of 2013 Ram Pal Vs. State of U.P., decided on 12.05.2014. In this case, the action was taken on the report dated 16.11.1985, i.e. long after expiry of the Limitation under the Act. Ignoring the relevant provisions of law at the time of allotment, Additional Collector illegally held that educational institution was not within the category of eligible persons as given u/s 198. The land in dispute was allotted to educational institution. The land is required to an educational institution for construction of school buildings, assembly of the students and staff, play grounds, vehicle stand as well as agricultural farms for practical purposes. The purpose of allotment of the land cannot be confined to construction of school building only. Additional Collector has illegality confined the purpose of allotment of land to construction of school building and held that apart from constructed area, other land was vested in Gaon Sabha under the terms of allotment. There was nothing on record to say that the petitioners were going to sell the land in dispute. In any case, it is irrelevant as under Societies Registration Act, 1860 as well as under U.P. Intermediate Education Act, 1921, the provisions have been made to protect the interest of educational institution against illegal dissipation of the property of the educational institution. The petitioners have already acquired bhumdhari right under the Act and allotment made in the year 1957 and 1959 cannot be canceled and the land allotted to an educational institution cannot be resumed. Additional Commissioner has illegality dismissed the restoration application on technical grounds. Impugned orders are illegal and liable to be set aside and entire proceeding be dropped.

In spite of time being granted State of U.P. and Gaon Sabhas concerned did not file Counter Affidavit in the writ petition as well as Supplementary Affidavits. Private respondents-8 to 10 filed their Counter Affidavit and Counter Affidavits in Supplementary Affidavits, in which they had raised objection that in the year 1957, when the land was allotted to the petitioner school, the School has no recognition in agriculture subject. It is only in the year 1961, the school was granted recognition for agriculture subject. Under the Act as amended by U.P. Act No. 20 of 1954, educational institution, imparting education in agriculture, horticulture and animal husbandry were alone entitled for allotment of the land subject to maximum limit of 6.25 acre. By two orders total 101 bigha 14 biswa land was allotted to the petitioners which was illegal. The land was allotted for construction of school building. School building was constructed over a small portion while large portion was lying vacant as such it was resumed in terms of the allotment order. There is no illegality in it. After cancellation of the lease, the land in dispute was allotted to various landless persons. Father of respondents-8 to 10 also get the disputed land in exchange of his land.

I have considered the arguments of counsel for the parties and examined the record. Firstly legality of the orders of Additional Commissioner and Board of Revenue, U.P. rejecting restoration application and dismissing the revision is examined. Additional Commissioner held that restoration application was presented with the signatures of Sri S. Bhardwaj, Advocate although, vakalatnama attached to this application was not accepted by him. In the application, source of knowledge of order dated 30.11.1988 was not mentioned. There was defect in verification clause of the affidavit of Ravindra Singh filed in support of restoration application as such this affidavit could not be treated as valid affidavit. The medical certificate was not filed along with restoration application as such it was treated as procured later on. The application u/s 5 of Limitation Act, 1963 along with affidavit, for condonation of delay in filing restoration application was filed on 10.09.1991. In this respect it may be mentioned that the petitioners were themselves revisionists and had knowledge of the date fixed in the revision, i.e. 30.11.1988, when the revision was dismissed in default. Remark that source of knowledge was not disclosed was illegal and perverse. Remark that various paragraphs of the affidavit, filed in support of restoration application, were not properly verified. The petitioners filed another affidavit on 09.09.1989, removing these defects. Supreme Court in Bhikaji Keshao Joshi and Another Vs. Brijlal Nandlal Biyani and Others, held that for defective verification, pleading cannot be rejected. Similarly, Supreme Court in Sastri Yagnapurushadji and Others Vs. Muldas Bhudardas Vaishya and Another, held that if the counsel had committed mistake in not making his signature then it is an inadvertent mistake and the court should permit the counsel to sign. The vakalatnama of Sri S. Bhardwaj, Advocate was attached to the restoration application. However, the counsel by way of inadvertent mistake could not sign it in the token of "accepted". Additional Collector would have obtained signatures on the vakalatnama. The counsel was doing pairavee on behalf of the petitioners thus he had accepted the brief with full responsibility, what else was required. Article 122 of the Limitation Act, 1963 prescribes 30 days limitation for restoration application. The restoration application was within time up to 30.12.1988. It was filed on 08.01.1989. Thus there was total 9 days delay in filing the restoration application, which was occurred due to illness of pairokar. Order refusing to condone 9 days delay in filing of restoration application, ignoring medical certificate and un-controverted affidavit, is mockery of justice. When the fact relating to illness of pairokar was not controverted by Pradhan, Additional Commissioner initiated disciplinary proceedings against Pradhan without there being any contrary evidence, which is a limit of arbitrariness. Supreme Court in Collector, Land Acquisition, Anantnag and Another Vs. Mst. Katiji and Others, B. Madhuri Goud Vs. B. Damodar Reddy, held that liberal view ought to be taken in deciding delay condonation application. Orders of Additional Commissioner and Board of Revenue, U.P. are illegal and most arbitrary.

Allotments are cancelled on the ground that Land Management Committee had no jurisdiction to allot land for the private school. The Act was amended by U.P. Act No. 20 of 1954, in which Sub-Section (i-a) was added in Section 198, which authorized for allotment of Gaon Sabha land to educational institution, imparting education in agriculture, horticulture and animal husbandry. It is only by U.P. Act No. 30 of 1975, educational institution has been deleted from the category of eligible persons. Thus at the relevant time, when the land in dispute was allotted to the petitioners, "educational institution" imparting education in agriculture, horticulture and animal husbandry were falling within eligible persons u/s 198(1)(i-a) of the Act. The reason given in this respect is illegal. The counsel for the respondents argued that in the year 1957, when the land was allotted to the petitioner school, the school had no recognition in agriculture subject. It is only in the year 1961, the school was granted recognition for agriculture subject. The order of District Inspector of Schools, Aligarh dated 10.12.1957 granting recognition to Junior High School has been filed as Annexure-2 to Supplementary Affidavit sworn on 04.02.2014. The petitioners filed another affidavit sworn on 27.05.2014 attaching a certificate of District Inspector of Schools, Aligarh dated 22.05.2014 showing that by the order dated 10.12.1957, recognition in agriculture subject was also granted. Thus since July 1957, the school was granted recognition for agriculture subject as such allotment of land by order dated 20.05.1957 and 23.06.1959 to the petitioners was not illegal.

The arguments of the counsel for the respondents that at the time of allotment of the land, there was maximum limit of 6.25 acre is also not accepted. Maximum limits of 12.5 acre land has been imposed for allotment of land to educational institution by U.P. Act No. 35 of 1970. Thus at the time of allotment there was no maximum limit.

So far as limitation for proceedings u/s 198(4) for cancellation of allotment is concerned, by U.P. Act No. 4 of 1969, jurisdiction of inquiry u/s 198(2) of the Act was conferred upon the Collector. Vide Entry 24 of Appendix III, six months limitation has been provided for the application of aggrieved person and three years limitation has been provided for suo motu action. By U.P. Act No. 30 of 1975, under sub-section 4 (i) five years limitation has been provided from 18.8.1975 for suo motu as well as for application by aggrieved persons both. After amendment of Section 198(4) of the Act, providing limitation for cancellation of allotment, limitation as provided in Appendix III of the Rules, has become redundant as the Act will override over the Rules. It may be mentioned that by U.P. Act No. 20 of 1982 Section 198 was further amended by Section 9 of the Amending Act, which came into force w.e.f. 18.8.1980 u/s 1(2) of the Amending Act. u/s 198(6)(a) (as amended) two years limitation from 10.11.1980 was granted for the allotments made before 10.11.1980. By U.P. Act No. 24 of 1986, 1 Section 198(6)(a) was further amended with retrospective effect and for words "two years" the words "seven years) have been substituted. This limitation for cancellation of lease u/s 198(4) of the Act was upto 09.11.1987 for the allotments made prior to 10.11.1980. In this case the proceeding was initiated on the report dated 16.11.1985 as such it was within limit. The case law in State of Punjab and Others Vs. Bhatinda District Coop. Milk P. Union Ltd., has no application in this case.

The Collector has been authorized to cancel the allotment, in case there was any illegality/irregularity in the allotment. In this case, Additional Collector held that educational institution was not within the category of eligible persons. As held above, this finding was illegal. Thus, there was neither any illegality nor irregularity as such proceeding u/s 198(4) of the Act was not maintainable.

Now it has to be examined as whether land was liable to be resumed in terms of allotments. The land in dispute was allotted to educational institution. Under the order of recognition, the school was required to own minimum 10 acre land. The purpose for which an educational institution requires land are for construction of school buildings, assembly of the students and staff, play grounds, vehicle stand as well as agricultural farms for practical purposes etc.. The purpose of allotment of the land cannot be confined to construction of school building alone. Additional Collector has illegality confined the purpose of allotment of land to construction of school building. As such order of Additional Collector in this respect is illegal and liable to be set aside.

So far as the arguments of the counsel for the respondents that after resuming the land in dispute, it was allotted to various landless persons and also exchanged with their other land, is concerned, suffice to say that the petitioners were regularly pursuing their remedy under the law. Their interest is fully protected u/s 52 of Transfer of Property Act, 1882. Pendente-lite transactions/transferees can not deprive the petitioners from their legal remedy and have no effect on the merit of this case.

In view of the aforesaid discussions, the writ petition succeeds and is allowed. The orders of Additional Collector dated 13.08.1987, Additional Commissioner dated 30.11.1988, and 05.10.1991 and Board of Revenue U.P. dated 24.04.1997 are set aside. The matter is remanded to Additional Collector, who after giving an opportunity of hearing to the petitioners decide the matter afresh as to what was the minimum requirement of the petitioners, in the light of observations made above and may pass a fresh order.