Allahabad High Court
Phool Singh vs State Of U.P. And Others on 21 January, 2020
Equivalent citations: AIRONLINE 2020 ALL 90, (2020) 2 ADJ 294 (ALL)
Author: Yashwant Varma
Bench: Yashwant Varma
HIGH COURT OF JUDICATURE AT ALLAHABAD A.F.R. Court No. - 81 Case :- WRIT - A No. - 44407 of 2012 Petitioner :- Phool Singh Respondent :- State of U.P. and Others Counsel for Petitioner :- Vinod Kumar Yadav Counsel for Respondent :- C.S.C.,J.R. Pandey Hon'ble Yashwant Varma,J.
Heard learned counsel for the petitioner and the learned Standing Counsel for the State respondents.
This petition has been preferred challenging the order dated 27 March 2012 passed by the Basic Education Officer, Kaushambi rejecting the claim of the petitioner for grant of salary and other emoluments.
The petitioner contends that he was duly selected and appointed on the post of Clerk in the concerned institution on 10 August 1983. That institution is stated to have been taken on the grant in aid list on 2 January 2006. It is the case set forth in the writ petition that the petitioner was being paid regular salary till it was stopped in March 2011. Aggrieved by that action the petitioner instituted Writ Petition No. 46619 of 2011 which was disposed of with a direction commanding the fourth respondent to decide the representation. It is pursuant to those orders that the impugned order has come to be passed.
The impugned order records serious transgressions on the part of the institution in question. It is firstly noted that the institution is non-existent on the plots that were mentioned in the details set forth in the application relying upon which the grant in aid order came to be passed. The order records that the institution has been partly constructed on Plot No. 347, which is recorded as land reserved for a public utility. It has been further noted that the institution has illegally encroached upon public utility land on which seven temporary sheds have been constructed from which the institution is being run and administered. It has further been found that in the grant in aid application it was asserted that the institution existed on Plot Nos. 329, 349 and 351 which too are recorded as "banjar". It is in that backdrop that the Basic Education Officer notes that the order for taking the institution on the grant in aid list was obtained by concealment of facts and by practicing fraud. He then proceeds to note that in the Management Returns that were filed it was stated that more than 225 students were studying in the institution. However, on the date of inspection it was found that only 13 students in Class -VI, 9 students in Class VII and 6 students in Class VIII, were present. More seriously the Basic Education Officer proceeds to note that various employees including the petitioner here were direct relations of the members of the Committee of Management. He also records that in light of the material, which was found in the enquiry and is referred to above, a proposal has been sent to the State Government for the removal of the institution from the grant in aid list. Presently, the learned counsel is unable to apprise the status of that proposal or whether the institution continues to enjoy the facility of grant in aid.
Insofar as the objections taken by the Basic Education Officer to the establishment of the institution on public utility land is concerned, learned counsel seeks to draw sustenance from an interim order passed by a learned Judge on Writ Petition No. 10497 of 2011 preferred by the Committee of Management in which an order of status quo operates. That petition basically deals with the request of the institution in question for an exchange being offered by the petitioner in light of the provisions contained in Section 161 of the U.P.Z.A. & L.R. Act, 1950. The petition also refers to the powers conferred under Section 198(4) of the 1950 Act and the request for exchange as made by the petitioner institution on 4 May 2010.
The Court however finds itself unable to countenance the submission addressed since it is not disputed before this Court that the power of exchange as extended by Section 161 of the 1950 Act can have no application to land which is reserved for public utility purpose. Regard must be had to the fact that Section 161 of the 1950 Act confers a power to sanction exchange of land as offered by a bhumidhar with land vesting in the Gaon Sabha by virtue of Section 117 of that Act. Section 161 reads thus:-
"161. Exchange.-- (1) A [bhumidhar] may exchange with--
(a) any other [bhumidhar] land held by him, or
(b) any [Gaon Sabha} or local authority lands for the time being vested in it under section 117:
Provided that no exchange shall be made except with the permission of an Assistant Collector who shall refuse permission if the difference between the rental value of land given in exchange and of land received in exchange calculated at hereditary rates is more than 10 per cent of the lower rental value.
(1A) Where the Assistant Collector permits exchange he shall also order the relevant annual registers to be corrected accordingly.
(2) On exchange made in accordance with sub-section (1) they shall have the same rights in the land so received in exchange as they had in the land given in exchange."
As is evident from a reading of the said provision, the exchange is subject to permission being accorded in that respect by the Assistant Collector. In terms of Section 161(2), once the exchange is duly permitted by the competent authority, it vests on the individual the same rights in the land exchanged as may have existed upon the land given in exchange. Consequently, once a bhumidhar exchanges his holding or part thereof with any land vesting in the Gaon Sabha he would be entitled to assert and exercise all rights as conferred upon a bhumidhar by the 1950 Act upon such land. However this provision can have no application to land which stands reserved for public purposes as enumerated in Section 132 of the 1950 Act. That provision in unambiguous terms provides that "bhumidhari rights shall not accrue in....". On a conjoint reading and harmonious construction of Sections 132 and 161 of the 1950 Act, it is manifest that while exchange may be sought in respect of land generally vesting in the Gaon Sabha by virtue of Section 117, that can have no application to those categories of land which are covered and fall within the ambit of Section 132. Dealing with an identical question, a learned Judge in Kamal Chand Singh Vs. State of U.P.1 and 3 others held:-
"8. In my considered opinion, the application for exchange of the area of plot no. 753 Ga, in unauthorized occupation of the petitioner with his bhumidhari land cannot be legally permitted. Plot no. 753 Ga, as already noticed herein above is land recorded as a pond. It is, therefore, land governed by the provisions of Section 132 of the U.P. Zamindari Abolition and Land Reforms Act, wherein no rights can accrue in favour of any person. In case, this land is permitted to be exchanged, it would amount to granting bhumidhari rights to the petitioner in land covered by Section 132 of the Act. This is not permissible under law. The application for exchange filed by the petitioner, is therefore, entirely misconceived and necessarily has to be rejected."
Dealing with pari material provisions as introduced by virtue of the U.P. Revenue Code, 2006, a learned Judge of the Court in Baba Sukku Maa Prabhudevi Inter College Vs. State of U.P.2 noticing the provisions made in the subsequent legislation has explained the legal position as follows: -
"25. This situation is further compounded by the fact that the land over which, the institution is running is public utility land, governed by the provisions of Section 132 of the U.P. Zamindari Abolition and Land Reforms Act and/or the parallel provisions contained in Section 77 of the U.P. Revenue Code, 2006.
26. In so far as the application for exchange under Section 101 of the U.P. Revenue Code, 2006 filed by the petitioner is concerned, the same has been dismissed vide order dated 23.05.2018 passed by the Sub Divisional Officer. Although, it is stated that a revision against this order is pending consideration before the Commissioner, Varanasi Division, Varanasi, this Court does not consider it appropriate to interfere with the impugned orders on the plea aforesaid because no rights can accrue in favour of any person over land which is land of public utility as is the situation in the case at hand. The embargo in this regard under the U.P. Zamindari Abolition and Land Reforms Act was absolutely categorical. However, this embargo has been watered down to an extent by the proviso to Section 101(2) of the U.P. Revenue Code, 2006.
27. In view of the proviso, the State Government can permit exchange also of land of public utility, but on the matter being referred to it by the Sub Divisional Officer. No reference has been made by the Sub Divisional Officer. The Sub Divisional Officer has, in fact, rejected the application for exchange. Therefore, the proviso aforementioned does not come into play in the case at hand.
28. Even otherwise, this Court has in earlier decision in Writ Petition No. 26070 of 2019 Amar Nath Singh v. State of U.P. decided on 20.08.2019 held that the proviso stipulates that the State Government may permit exchange of land of public utility on conditions and in the manner prescribed. However, the rules framed thereunder are absolutely silent with regard to the manner in which, the power is to be exercised by the State Government. The power provided to the State Government by the proviso aforesaid can be exercised only after relevant provisions have been incorporated in the rules and or the existing rules are suitably amended/modified."
On a more fundamental plane, the provisions made in Section 161 of the 1950 Act are principally aimed at respective parties arriving at a mutually acceptable position that is beneficial to both. It essentially enables the Gaon Sabha to effectively manage its land bank and use it to the optimal in public interest. At the same time it also facilitates the landowner or the bhumidhar to enter into a settlement which is beneficial to both parties. Notwithstanding the above, Section 161 is not envisaged to be a tool or measure to camouflage, overcome, legalise or legitimise an illegality. It is not meant to be a used as an instrument or device to regularise or validate an illegality. It cannot possibly be viewed as a provision enabling a usurper or encroacher of public utility land to attempt to legalise wrongful possession. As this Court reads that provision, it primarily appears to put in place a mechanism to interchange land inter partes. It is principally a reciprocal arrangement. It clearly does not and cannot in law be countenanced in law as being a provision aimed at curing an illegality or according ipso facto approval to an illegal act of usurpation or encroachment. It is not entitled to be viewed as either endorsing or legitimizing an illegality. Section 161 is essentially aimed at enabling a party to switch, barter or exchange land to the mutual benefit of both parties. A party cannot first encroach, trespass or intrude and then claim a right to exchange. It is clearly not a provision aimed at legalizing an encroachment. A person who has encroached or trespassed upon land cannot subsequently turn around and seek condonation of that act or infraction by seeking an exchange. A person seeking an exchange must be one who is in lawful possession of land which is offered in exchange. Viewed in any other light, the provision may be abused as a devise to accord legitimacy upon an act which is illegal and unlawful. The institution which appears to have encroached upon public utility land cannot take shelter of an application purported to have been made under Section 161 of the 1950 Act. In any case the pendency of a purported application for exchange cannot confer any benefit to the petitioner here.
Insofar as the relation of the petitioner with the members of the Committee of Management is concerned, the attention of the Court is drawn to a document appearing at page -41 which according to the learned counsel is a list of members of the Committee as existing in 1983-84. No authenticity stands appended to this document since it is not shown to have been issued either by the concerned educational authorities or the authorities constituted under the Societies Registration Act, 1860. The attention of the Court is also not drawn to any other material which may establish that the Committee of Management as duly recognized by the respondents in 1983-84 did not comprise of persons who may have been related to the petitioner. Viewed in that light it is manifest that the adverse findings as recorded in the impugned order relating to the validity of the appointment of the petitioner remain unaffected. On an overall consideration of the aforesaid aspects, the Court is of the considered view that the grant of the prayers as framed would not only be unjustified, it would clearly amount to perpetuation of an illegality and the placement of an illegal burden on public resources.
The petition shall consequently stand dismissed.
Order Date :- 21.1.2020 Arun K. Singh (Yashwant Varma, J.)