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Judgment
B.S.Verma, J.—Since the controversy involved in both the writ petitions is similar and pertains to the same land, therefore, for the sake of convenience, both these writ petitions are being decided by this common judgment.
The petitioners of the Writ Petition (PIL) No. 1197 of 2005 (M/B) have sought the following reliefs:
(a) to issue a writ, order or direction in the nature of certiorari quashing the Government Order No. 65/P.Gra.A.Se./65(4)/2004 dated 27-2-2004 and the letter No. 834/XII/2004/90(04)/2004 dated 9-12-2004 of Sri M.C. Upreti, Additional Secretary, State of Uttaranchal as well as the Order dated 11-4-2005 issued by Commissioner, Kumaun Division (Annexure 9, 15 and 16 to the writ petition).
(b) to issue a writ, order or direction in the nature of certiorari quashing the grant of 2 acres of land vide lease deed dated 15-4-2005 (Annexure No. 17 to the writ petition) in favour of respondent No. 4 bearing Khasra No. 363 Kha having an area of 0.052 hectare and Khasra No. 364 having an area of 0.757 hectare land situated at village Amritpur, Pargana and Tehsil Jaspur, District Udham Singh Nagar (Annexure No. 17).
(c) to issue a writ, order or direction in the nature of mandamus directing the respondent No. 1 and 2 to revert back the land bearing Khasra No. 363 Kha having an area of 0.052 hectare and Khasra No. 364 having an area of 0.757 hectare situated at village Amritpur, Pargana and Tehsil Jaspur, district Udham Singh Nagar to the Zila Panchayat, i.e. respondent No. 7.
(cc) to issue a writ, order or direction in the nature of certiorari quashing the resolution dated 30th December 2005 (Annexure No. 19) to the writ petition.
(d) to issue a writ or to pass any other order or direction which may be deemed fit and proper in the facts and circumstances of the case.
(e) full cost of the petition be awarded to the petitioners.
By Government letter dated 27-2-2004 (Annexure 9), the Principal Secretary, Panchayati Raj, Uttaranchal Shasan, informed the Principal Secretary, Medical and Health that in view of the decision taken in the meeting held on 17-4-2003 and on the basis of the recommendation made by the Commissioner, Kumaun Division and as per resolution dated 11-1-1972 of the District Board Nainital, the Governor had accorded sanction for transfer of 0.052 hectare of land of Khasra No. 363 and 0.757 hectare land of Khasra No. 364 of village Amritpur, Tehsil Kashipur (total 0.809 hectare of land) which is presently under the control of the Medical Department with certain conditions as contained in the letter to the medical department for use as a Community Health Centre. In Clause (A) of the conditions it is provided that if the transferred land is used for any other purpose, fresh approval should be obtained. In Clause (B) it is provided that if there existed any forest property over the land or any other related religious or private property of historical importance, the same shall not be damaged.
By Government letter dated 9-12-2004 (Annexure 15) the Additional Secretary of the Panchayati Raj, Government of Uttaranchal, has informed the Commissioner, Kumaun Division, Nainital, that in supersession of the Government Order dated 27-2-2004, the Governor had accorded sanction to temporarily lease out the said land for a period of 30 years to Pandit Purnanand Tiwari Shiksha Samiti for its use without any charges By letter dated 11-4-2005 (Annexure 16), the Commissioner, Kumaun Division has informed the District Magistrate, Udham Singh Nagar that as per Government Order dated 27-2-2004 permission was granted to transfer the land in favour of Medical Department but by G.O. dated 9-12-2004, the sanction has been accorded for leasing out the land to Pandit Purnanand Tiwari Shiksha Samiti for 30 years and directed him to get the above-mentioned land entered in the name of Zila Panchayat, Udham Singh Nagar in place of Health Department in the revenue records.
By resolution dated 30-12-2005, (Annexure 19) it was resolved by resolution No. 6 of Zila Panchayat Udham Singh Nagar that the construction of school building by Pt. Poornanand Tiwari Shiksha Samiti is a work of public interest and Zila Panchayat has no objection to it.
According to the petitioners, they are social workers as well as residents of Nagar Panchayat and Kshetra Panchayat, Jaspur, district Udham Singh Nagar. The land bearing Khasra Nos. 559, 562/1, 563A, 564, 5638, 564A, 565A, 564C, 5658/2 (New Nos. 363 Kha and 364/2) situated at village Amritpur, Tehsil Kashipur, district Nainital (now Tehsil Jaspur, district Udham Singh Nagar) having an area of 2 acres belongs to District Board Udham Singh Nagar, now known as Zila Panchayat, Udham Singh Nagar (for short Zila Panchayat) and its name is duly recorded in the revenue records of 1356 Falsi. There was an allopathic hospital being run by the District Board (now Zila Panchayat) till the year 1972. In the year 1971, Secretary, Medical and Health of the State of Uttar Pradesh had written a letter dated 25-8-1971 to the Director, Medical and Health directing him to send a proposal for provincialisation of the said hospital managed by Zila Panchayat. The District Board being in abeyance, the property of District Board was being managed by the District Magistrate as an Administrator. An Act known as Uttar Pradesh Kshetriya Samiti & Zila Parishad Alpkalik Vyavastha Act 1970 was enacted and the District Magistrate was required to exercise the powers of the Board only after consultation with the body constituted by the State Government in this behalf.
The State Government by Notification dated 19-11-1971 constituted an Advisory Committee for each Zila Panchayat, whose members were District Magistrate, Members of the State Legislature, the Parliament of the concerning district, non-official members nominated by the State Government which would extend upto 7 and Superintendent of Police. The District Magistrate Nainital without consultation with the said committee passed a resolution No. 2 dated 7-10-1971 with certain condition for provincialization of Zila Panchayat Hospital Jaspur. However, the Government did not agree to the terms and conditions of the said resolution and the District Magistrate was asked to pass a resolution without any precondition.
According to the petitioners, the District Magistrate without consulting the Committee passed a resolution on 11-1-1972 consenting to transfer the land, building, property etc. for the purpose of Jaspur Hospital to the Medical Department. This resolution was not acted upon on account of protest by local residents, hence no transfer deed was executed pertaining to the said land and the property continued in the name of the District Board (Zila Panchayat). The State Government did not provincialize the hospital, rather a new hospital building was constructed at a distance of about 1/2 k.m. The State Government suo motu issued a Government Order dated 7-3-1972 in respect of transfer of ownership of aforesaid 2 acres of land of Zila Panchayat vide Annnexure-8. Out of the above 2 acres of land, in about one acre land, there are two schools of Zila Panchayat known as Zila Parishad Kanya Junior High School and Zila Parishad Prathmik Pathshala (boys) which are still running under the management of respondent No. 6. Out of the remaining one acre of land, about 1/4 acre is under the occupation of tenants of Zila Panchayat. The respondent No. 5 Hargobind Prasad Singhal is founder of Pandit Purnanand Tiwari Shiksha Samiti jaspur and has an eye over the said land belonging to Zila Panchayat. His son Sri Shailendra Mohan Singhal (respondent No. 3) is an M.L.A. and both of them are in collusion to grab the land belonging to Zila Panchayat. Since the land was not transferred by the Zila Panchayat to the Government and no deed was executed, hence first of all the Government Order dated 27-2-2004 was issued permitting transfer of the land in question in favour of Community Health Centre of Health Department Jaspur.
According to the petitioners, with a view to grab the land of respondent No. 7, respondent No. 5, who is the President of Pandit Poornanand Tiwari Shiksha Samiti Jaspur, issued a letter dated 10-6-2004 to the Superintendent, Community Health Centre Jaspur requesting him to give the land on a lease of 99 years on low rent. In this letter inability has also been shown to pay the cost of the land. Copy of the said letter has been annexed as Annexure No. 10. Thereafter, the Commissioner, Kumaun Division under pressure of respondent No. 3 wrote a letter on 9-11-2004 to the Chief Secretary and Commissioner, Forest and Village Development Department, State of Uttaranchal vide Annexure No. 11. The Additional Secretary of the State by his letter dated 4-9-2004 directed the Commissioner that since the land in question is not required by the Health Department, hence a no objection was asked from the Commissioner and his attention was also drawn to the letter dated 7-8-2004 of Zila Panchayat for reconsideration of Government Order No. 65 dated 27-2-2004 and the letter dated 7-8-2004 written by Upper Mukhya Adhikari of Zila panchayat. By another letter dated 8-11-2004, the Upper Mukhya Adhikari had written to the Additional District Magistrate (Finance & Revenue) Udham Singh Nagar not to transfer the land to respondent No. 4 because in that event the respondent No. 7 would suffer heavy loss. A copy of the said letter was endorsed to Additional Secretary, State of Uttaranchal.
The main contention raised in the writ petition is that neither the land in question could be transferred nor any transfer deed was executed as required u/s 107 of the Uttar Pradesh (Uttaranchal) Kshetriya Panchayat and Zila Panchayat Adhiniyam 1961 (for short the Adhiniyam) and in exercising power, the mandatory procedure as prescribed under Rules 8 to 12 of the U.P. (Uttaranchal) Zila Parishads and Kshettra Samiti (Movable and Immovable Property) Rules, 1965 (for short the Rules) were not complied with. Further no special resolution as required under Rule 24 of the U.P. (Uttaranchal) (Conduct of Proceedings) Rules, 1962 was not done and no notice for such resolution was ever issued in the present case, hence the resolution dated 30-12-2005 is illegal and void. In fact the said land was not transferred to Medical Department and they never came in possession of the same. There is no transfer of said 2 acres of land belonging to the Zila Panchayat in the eye of law.
Counter affidavit has been filed on behalf of respondent No. 1. It is stated that the petitioners have not disclosed any of the social work undertaken by them and for want of positive assertions, the P.I.L. writ petition is not maintainable at the instance of the petitioners. It is stated that the Government by accepting the proposal of the District Magistrate/Chairman had provincialized the hospital by G.O. dated 7-3-1972 and the possession over the hospital building and land remained with the Medical and Health Department of the Government and consequently the employees earlier belonging to the Zila Panchayat were taken over in the government service. It has been admitted that a new Community Health Centre building was constructed about 1/2 km. away from the existing building. The possession of the existing building also remained with the Medical and Health Department. It was further stated that on 17-3-2003 a High Level Meeting under the chairmanship of the then Chief Secretary was held wherein it was decided that the Medical and Health Department should take initiate in regard to the transfer of the land in question to it and thereafter, appropriate Government Order be issued by the Secretary Panchayati Raj, so that the land in question could be lawfully transferred in favour of the Medical and Health Department. As per decision of the said High Level Committee subsequently, the Government Order dated 27-2-2004 (Annexure-9 to the writ petition) was issued. It was further stated that by the Government Order dated 7-3-1972, the Allopathic Hospital at Jaspur was provincialized and the Zila Panchayat was required to execute a transfer deed with the Medical and Health Department regarding the land of the Hospital. The transfer deed however could not be executed but the possession of the hospital land remained with the Medical and Health Department. The revenue entries remained in favour of Zila Panchayat. By issuance of Government Order dated 27-2-2004, the occupation of the Medical and Health Department over the hospital building was formally regularized from the year 1972. It was denied that the Government Order dated 9-12-2004 and subsequent order dated 11-4-2005 of the Commissioner were issued to grab the land of Zila Panchayat in order to accommodate the local M.L.A., rather the orders were issued taking into consideration the problems being faced by girl students.
Counter Affidavit is also filed on behalf of respondent Nos. 4 and 5. It is stated that the P.I.L. on the behest of petitioners is an abuse of process of Court because none of the petitioners is a public spirited person and the petitioners are not aggrieved persons. It was further stated that the respondent Nos. 4 and 5 is a society registered as Pandit Poornanand Tiwari Shiksha Samiti for spreading education in the backward area of Uttaranchal State. Sri Poornanand Tiwari was a renowned freedom fighter and is the father of another freedom fighter Sri N.D. Tiwari, the then Chief Minister of Uttaranchal. In 1982, a Boys Junior High School was established at Jaspur. Later on this school was upgraded as High Court and Intermediate. The deponent of the affidavit, Hargobind Prasad Singhal is the Manager of the Society/committee of management and he has been working in the field of education in the backward area like Jaspur and its surrounding area. The school is a government aided institution. The salary of teachers and staff is paid by the Government and the fees collected by the school is sent to the government. It was asserted that in the land with a building the Zila Parishad was running a dispensary, which was close to the place where the school of the society is situated. The dispensary was not doing any work because of lack of doctors, manpower etc. The deponent was Block Pramukh and in the year 1972, he requested the State Government to establish Primary Health Centre in its place. The District Magistrarte was the Administrator of Zila Parishad, on whose resolution, Government Order was issued to establish Primary Health Centre in 1972. The Government provincialized the hospital on 7-3-1972 on the proposal of the Chairman/District Magistratre and possession remained with the Medical and Health Department. The property where the Primary Health Centre was located was being used for residences of doctors, mid wives and class IV employees. The second wife of one Maharaj Singh is an A.N.M.
It is further asserted that later on a new district Udham Singh Nagar was formed by the State Government and Collector was appointed. On 1-2-1996, Upper Mukhya Adhikari was appointed in Zila Panchayat Udham Singh Nagar. One Sri R.P. Joshi, the then Chairman of Zila Parishad Nainital illegally leased out land of this Primary Health Centre to Sri Maharaj Singh. On this land, Maharaja Singh also constructed a house without the permission of Nagar Palika Parishad. Sri R.P. Joshi also granted tenancy of main building to Sri Maharaj Singh for ten years which had expired on 23-1-2006. The grant of lease upto ten years has to be approved by the Collector and lease more than 10 years and upto 30 years has to be approved by the Commissioner and beyond 30 years the same has to be approved by the State Government as per law but it was not done at all. It is also stated that by Government Order dated 9-12-2004, issued by the State of Uttaranchal, a 30-year lease was granted in favour of the respondent No. 4 for a public purpose, i.e. to establish a girls school. The copy of the lease has been annexed as Annexure 17 to the writ petition, which is duly signed by the District Magistratre, Chief Medical Officer and the deponent as Manager of Pandit Poornanand Tiwari Shiksha Samiti Jaspur. It is also stated that ten rooms have already been constructed and foundation of four rooms and three laboratories had been laid out of the funds made available to the respondent Nos. 4 and 5 from the Chief Minister Fund, M.P. Fund and M.L.A. fund.
It is also stated that said Maharaj Singh filed a Civil Misc. Writ Petition No. 29934 of 1998 before the High Court of Allahabad. The Allahabad High Court directed the petitioner to file his representation before the Additional Chief Executive Officer, Zila Panchayat, Udham Singh Nagar. It is further stated that petitioner No. 1 was working as worker in the Chini Mill from which he was removed. He has no concern with the land. He is related to Maharaj Singh. Petitioner No. 2 has neither done any social work and he does not pay income tax. Petitioner No. 3 is a friend of Maharaja Singh and lives in the area in which wife of Maharaja Singh works as A.N.M.
Counter affidavit has also been filed on behalf of respondent No. 7-Zila Panchayat. It is stated that the petitioners are not qualified to file P.I.L. writ petition as they have not complied with the mandatory condition of this Court''s order, therefore, the P.I.L. is not maintainable. It is also stated that the Government vide G.O. dated 7-3-1992 has provincialized the hospital after accepting the proposal of the District Magistrate/Chairman. The possession over the hospital building and land remained with the Medical and Health Department of the Government. In paragraph No. 12, which is in reply to averment made in paragraph No. 19 of the writ petition, it was stated as under:
That the contents of para 19 of the writ petition as stated are not admitted. By the Government Order dated 7/3/1972 the Allopathic Hospital at Jaspur which was under the control of the Zila Panchayat was provincialized. As per the said Government Order of provincialization the Zila Panchayat was required to execute a transfer deed with the Medical & Health Department regarding the land belonging to the Hospital. It appears that the parties to the proposed transfer deed did not complete the formalities properly at their level. However, so far as the possession of the hospital land is concerned, it remained with the Medical & Health Department though the Revenue entries remained in favour of the Zila Panchayat. By the issuance of the Annexure-9 Government Order dated 27/2/2004 the occupation of the Medical & Health Department over the hospital building has been formally regularized with effect from the year, 1972.
It would suffice to mention that the respondent No. 7 has almost taken the same pleas in its counter affidavit, which have been taken by the respondent No. 1, which have been detailed hereinabove. The respondent No. 7 has stated that the transfer of the land in question has been directed in public interest as the problem of girl students is a genuine problem and, therefore, the Government Orders cannot be said to be against the public interest.
On behalf of the petitioners, rejoinder affidavit has been filed against the counter affidavit filed by respondent Nos. 4 and 5 wherein it is denied that the petition is an abuse of process of Court. It is also denied that none of the petitioners is public spirited person. It is denied that the petitioners have been set up by one Shri Maharaj Singh. It is stated that the petitioners are taking active part in social activities and they are social workers too. It was also denied that the respondents'' society is spreading education in backward areas and that Jaspur is not a backward area. It is stated that there are six other schools besides the school run by the respondent society. It is also stated that Pandit Poornanand Tiwari Intermediate College is upto Class 12th and the school already has about one acre of land which is sufficient for its need. The respondent No. 4 and 5 have intentionally not disclosed the area available with them. Except the school, no other social activities are being carried out by the society. Pandit Poornanand Tiwari Intermediate College too is a private aided school. It was also stated that the land owned by the Zila Parishad has an area of two acres and the same is recorded in the name of the District Board (now Zila Parishad) in the revenue records. There was an allopathic hospital being run by the District Board and the same continued till 1972. In the above two acres of land, there are two schools known as Zila Parishad Kanya Junior High School and Zila Parishad Prathmik Pathshala (Boys). It is also stated that the land in question cannot vest in the Health Department as the public rights are involved in the land and also without following the provisions and procedure prescribed under law and without execution of deed of transfer in favour of the Government in view of Section 107 of the Uttar Pradesh (Uttaranchal) Kshettra Panchayat and Zila Panchayat Adhiniyam. It was denied that the petitioners have been set up by Sri Maharaj Singh and it was also denied that the writ petition has been filed in collusion with Sri Maharaj Singh and that the same is not a Public Interest Litigation. In the rejoinder affidavit, the averments made in the memo of writ petition have been reiterated.
It is pertinent to mention here that in view of the averments made by the petitioners in paragraph 33 of the writ petition that two public schools are being run in the land bearing Khasra Nos. 363 Kha and 364, having about 1 acre of land, but the respondent No. 4 in paragraph 30 of his counter affidavit has denied this fact and also stated that the land of those two public schools are adjacent and the same has not been given to respondent No. 4, which is clear from the map attached to the lease-deed dated 15-4-2005 (Annexure No. 17 to the writ petition).
To ascertain the fact whether two public schools are existing in Khasra No. 363 Kha and Khasra No. 364 of village Amritpur, Tehsil Jaspur, District Udham Singh Nagar or not, this Court vide order dated 25-7-20066 directed the Sub Divisional Magistrate, Jaspur, District Udham Singh Nagar to verify the fact that whether two public schools are existing thereon or not.
The compliance affidavit has been filed in this Court. It has been mentioned in the report by the Sub Divisional Magistrate Jaspur (Udham Singh Nagar) that land of Khasra No. 363 Kha, measuring 0.052 hectare and land of Khasra No. 364 measuring 0.757 hectare of Khata Khatauni No. 250 of village Amritpur is recorded as Varg 6(2) non agricultural land in the name of hospital in the revenue records. As per Government Order dated 9-12-2004 followed by letter dated 24-5-2005 of the District Magistrate Udham Singh Nagar, the total land of said two Khasras measuring 0.809 hectare was given on lease for a period of 30 years to Pandit Poornanand Tiwari Shiksha Samiti Jaspur for use of the institution by lease deed which was registered on 19-4-2005. It has been mentioned in the report dated 18-8-2006 submitted by the Sub Divisional Magistrate Jaspur that on the land measuring 0.032 hectare of Khasra No. 363 Kha and land measuring 0.370 hectare of Khasra No. 364, total 0.402 Hectare land, there exists Prathamik School and Kanya Junior High School, while on the land measuring 0.016 hectare of Khasra No. 363 Kha and on the land measuring 0.387 Hectare of Khasra No. 364, there exists building under construction of Pandit Poornanand Tiwari Shiksha Samiti.
The petitioners of Writ Petition (M/S) No. 1125 of 2007, who claim themselves to be members of Zila Panchayat, Udham Singh Nagar, have sought a writ of certiorari quashing the resolution dated 30th December 2005 (Annexure No. 5 to the writ petition). They have also prayed for a writ of mandamus directing the respondent No. 2 to hold the meeting as per resolution No. 6 moved by 13 members of respondent No. 2 and to take a decision according to law. By resolution dated 30-12-2005, it was resolved that the construction of school building by Pt. Purnanand Tiwari Shiksha Samiti is a work of public interest and Zila Panchayat has no objection to it.
The petitioners of Writ Petition (PIL) No. 1197 of 2005 (M/B) have also sought the relief for quashing of resolution dated 30-12-2005, which is under challenge in the present writ petition.
We have heard learned Counsel for the parties and perused the averments made in the writ petition, counter affidavit, rejoinder affidavit filed by the petitioners and have also perused the material on record.
This Court on 25-10-2005 passed an interim order in the Writ Petition (PIL) No. 1197 of 2005 (M/B) to the following effect:
The operation of and all further proceedings pursuant to Annexure 15 letter dated 09.12.2004 and Annexure 16 letter dated 11.04.2005 are stayed until further orders. The operation of the lease deed, if any, executed on the basis of Annexures 15 and 16 letters also is stayed until further orders. Respondents Nos. 4 and 5 are restrained from making any construction on the land bearing Khasra No. 363 Kha having an area of 0.052 hectare and Khasra No. 364 having an area of 0.757 hectare in Village Amritpur, Pargana and Tehsil Jaspur, District Udham Singh Nagar until further orders.
Subsequently, this Court passed order dated 19-12-2005 on the applications filed to vacate interim order to the following effect:
In the above circumstances, we do not find sufficient justification for vacating the interim order passed on 25.10.2005, so long as the Zila Panchayat has not transferred the land to the Government or has not agreed to lease out the land in favour of the fourth respondent. However, it is made clear that if and when the seventh respondent Zila Panchayat transfers the land in favour of the Government or in favour of the fourth respondent, the interim order passed on 25.10.2005 will stand vacated.
For a just decision of the writ petitions, a reference to Section 107 of the Adhiniyam as well as Rules 8, 9 and 11 of the Rules is necessary.
Section 107 deals with the power to transfer property, which reads as under:
Power to transfer property.- (1) Subject to any restriction imposed by or under this Act, a Zila Panchayat or a Kshettra Panchayat may transfer by sale, mortgage, lease, gift, exchange or otherwise any property vested in it, not being property held by it in trust, the terms of which are inconsistent with the right so to transfer.
(2) Notwithstanding anything contained in Sub-section (1), a Zila Panchayat or a Kshettra Panchayat may, with the sanction of the State Government, transfer to Government any property vested in it, but not so as to affect any trust or public rights to which the property is subject:
Provided that every transfer under Sub-section (1), other than a lease for a term not exceeding one year, shall be made by instrument in writing sealed with the common seal of the Zila Panchayat or the Kshettra Panchayat, as the case may be, and otherwise complying with all conditions in respect of contracts imposed by or under this Act.
Rules 8, 9 and 11 of the Rules read as under:
(1) A Zila Parishad/Kshettra Samiti shall not transfer otherwise than by way of lease with premium, any immovable property which have vested in it and the capital values whereof exceeds Rs. 500, except:
(i) in case the capital value of the property does not exceed Rs. 2,500, with the previous approval of the Collector;
(ii) in case the capital value of the property exceeds Rs. 2,500 but does not exceed Rs. 10,000, with the previous approval of the Commissioner of the Division; and
(iii) in case the capital value exceeds Rs. 10,000, with the previous approval of the State Government.
(2) All such transfers shall further be subject to such terms and conditions as the appropriate authority approving the transfer may prescribe.
Note.- Capital value will be taken at twenty times the annual value of the property.
The proposal seeking prior approval of the appropriate authority under Rule, shall be made in Form ''B'' and shall be accompanied by a map of the property and its surroundings.
A Zila Parishad/Kshettra Samiti shall not ordinarily transfer or lease out any property vested in it except by auction or after inviting tenders. In cases where public tenders have not been invited or auction has not been held, the Zila Parishad/Kshettra Samiti shall record its reasons for entertaining a private offer and the method adopted by it in fixing a fair value or rent as the case may be.
Learned Counsel for the petitioners has firstly argued that the land, which was transferred to the respondent-society and which was endorsed by a resolution dated 30-12-2005 passed by Zila Panchayat is against the provision of Sub-section (1) of Section 107 of the Adhiniyam and also against the Rules framed thereunder. The contention of the learned Counsel for the petitioners is that the property cannot be transferred otherwise as has been provided under Rules 8, 9 and 11 of the Rules and Rule 24 of the U.P. Zila Parishads (Conduct of Proceedings) Rules, 1962. Learned Counsel has urged that it was imperative upon Zila Panchayat to bring special resolution for transfer of property u/s 107 of the Adhiniyam, but the same had not been done, therefore, the alleged transfer of land in favour of the respondent Nos. 4 and 5 by Zila Parishad is not tenable in the eye of law.
Learned Additional Chief Standing Counsel, Sri K.P. Upadhyay, appearing for the State, has contended that Sub-section (1) of Section 107 of the Adhiniyam is not applicable to the present case, rather the provision of Sub-section (2) of Section 107 would apply. He further submitted that this Court had given a direction to the Sub Divisional Magistrate Jaspur District Udham Singh Nagar vide order dated 25-7-2006 to verify the fact whether two public schools are existing in Khasra No. 363 Kha and Khasra No. 364 of village Amritpur, Tehsil Jaspur.
Along with compliance affidavit, map and report of the Sub Divisional Magistrate, Jaspur has been annexed. The report shows that approximately half area is in possession of the two schools of Zila Panchayat and half of the portion of the leased land is in possession the respondent Nos. 4 and 5-society, therefore, the lease can be restricted to the area which is in possession of the respondent No. 4- Pandit Poornanand Tiwari Shiksha Samiti Jaspur.
Sri Jitendra Chaudhary, learned Counsel appearing on behalf of the respondent Nos. 4 and 5, has submitted before this Court that the respondent would have no objection if the lease granted in favour of the respondent No. 4 is restricted only to the extent of the area which is in possession of the respondent No. 4-Shiksha Samiti.
As per Section 107(2) of the Adhiniyam, the land which is being used in public interest cannot be transferred, although the whole land was transferred earlier to the Government and lateron by the Medical Department, the land was leased out to the respondent No. 4-Shiksha Samiti for construction of school. The land which is being used for the purposes of Zila Panchayat schools as per report of the S.D.M., mentioned earlier, cannot be transferred to the respondent No. 4-Shiksha Samiti. The said land was never in possession of the Government on spot, although on paper it was transferred in favour of the Government.
Zila Panchayat has also passed a resolution that they have no objection in construction of school on the land, which is in possession of respondent No. 4-Shikha Samiti. The argument of the learned Counsel for the petitioners that the land can only be transferred by Zila Panchayat by special resolution, as has been provided under Rule 24 of U.P. Zila Parishads (Conduct of Proceedings) Rules, 1962 read with Section 107 of the Adhiniyam, is not tenable because the provisions of Section 107(1) of the Adhiniyam are not applicable. In the case of the land, which was transferred with the sanction of the State Government, the provisions of Sub-section (2) of Section 107 would be attracted and by the permission of the State Government, the land can be transferred. Accordingly, we are of the view that the Rules and procedure as laid down in Section 107(1) of the Adhiniyam, as relied upon by the learned Counsel for the petitioners, are not applicable to the case at hand because Sub-section (2) Section 107 of the Adhiniyam provides that "notwithstanding anything contained in Sub-section (1), a Zila Panchayat or a Kshettra Panchayat may, with the sanction of the State Government, transfer to Government any property vested in it, but not so as to affect any trust or public rights to which the property is subject".
Since Zila Panchayat Udham Singh Nagar, on 30-12-2005 resolved in its meeting vide resolution No. 6 that the land which was leased out by the Government in favour of fourth respondent-Shiksha Samiti to construct a Girls School for higher education is a work of public interest, hence the Government Order dated 27-2-2004 (Annexure 9), whereby the Government has given permission to lease out the land in favour of Pandit Poornanand Tiwari Shiksha Samiti Jaspur- respondent No. 4 had been ratified the lease deed and it was further resolved that the Zila Panchayat has no objection to the construction of the school. After passing the said resolution, the interim order dated 25-10-2005 stands vacated.
For the reasons and discussion aforesaid, both the writ petitions are disposed of with the observation that the lease, which was granted by the State Government in favour of the respondent No. 4-Shiksha Samiti shall be restricted only to the extent of the area, which is in possession of respondent No. 4-Shiksha Samiti, i.e. the land measuring 0.016 hectare of Plot No. 363 Kha and land measuring 0.387 hectare of Plot No. 364, total 0.403 hectare of Village Amritpur, Tehsil Jaspur. So far as the rest of the land, i.e. land measuring 0.032 hectare of Plot No. 363 Kha and land measuring 0.370 hectare of Plot No. 364 (total 0.402 hectare) of Village Amritpur, Tehsil Jaspur is concerned, there exist two schools run by Zila Panchayat as mentioned in the report submitted by the S.D.M. Jaspur, hence lease cannot be given effect to regarding that area and the lease shall be treated invalid in view of the provisions of Section 107 (2) of the Adhiniyam, because when the lease was made, two schools of Zila Panchayat were also still continuing as on today. In the public interest, that part of the land cannot be transferred to the respondent No. 4-Shiksha Samiti for which the learned Counsel for respondent Nos. 4 and 5 Sri Jitendra Chaudhary has also made a statement at Bar before us during the course of arguments that they have no concern to that area and the lease may be restricted only to the area, which is in possession of the respondent No. 4-Shiksha Samiti. Costs easy.
Interim order dated 25-10-2005 is vacated.