Boys High School And College Petitioner v. State Of U.P And Others S

Hon'ble Sunil Ambwani, J.

Hon'ble Dinesh Gupta, J.

1. We have heard Shri Ravi Kant, Sr. Advocate assisted by Shri Deepak Kumar Jaiswal and Shri Prabhakar Awasthi, learned counsel for the petitioner. Shri Vivek Verma appears for Allahabad Development Authority.

2. This writ petition was filed by Boys High School and College through its Principal Mr. C.V Innes. An interim order was passed on the writ petition on 10.10.2006 staying the operation of the impugned order dated 7.9.2006 by which the Officer Incharge, Government Establishments, Allahabad, had found after giving notice to the petitioner society that it has failed to establish their title over plot nos. 85 and 84, Village Beli Uparhar. They could not produce any lease deed or other document giving them any right over the property and since the land is recorded as Category 6 (a), land in revenue records on which the plot holders are entitled to rights as ‘wozibul arj’, and on which the activities by the school for providing the land for marriages and commercial activities are prohibited, the name of the occupants is liable to be cancelled and the possession be resumed over the land. She directed that their possession over the plots be removed. The respondents were restrained from interfering with the possession and user of the petitioner over the premises in question. The parties were in the meantime restrained from creating any third party interest or to alienate or transfer the said premises or part thereof or to change the user of the land during pendency of the writ petition.

3. The writ petition was dismissed on 27.2.2012 in the absence of counsel for the petitioner, with observation that since none has responded to the Court, when the writ petition was called out repeatedly, it seems that either the petitioner's purpose has been sub-served or it has lost his interest and this writ petition seems to be infructuous by passage of time. The interim order was vacated.

4. A restoration/recall application has been filed by the petitioner through its Secretary Mr. H.R Mall by Shri Shailendra and Shri Prabhakar Awasthi on 8.5.2012 explaining the circumstances in which the counsel could not appear, when the matter was called out. They have prayed for recalling the order dated 27.2.2012

5. After hearing Shri Ravi Kant for some time, we are of the view that the Boys High School and College established in 1861 is one of the oldest educational institution in the city and that the impugned order directing the possession of the institution to be removed from Plot Nos. 85 and 86, which still survives would not by passage of time make the prayers made in the writ petition infructuous nor the purpose of filing the writ petition has been subserved.

6. The explanation for absence of the counsel on 27.2.2012, when the matter was called out is good and sufficient. The order dated 27.2.2012 is recalled. The restoration application is allowed. The writ petition shall be restored to its original number. The interim order dated 10.10.2006 will continue to operate till the writ petition is decided.

7. There are two impleadment applications pending on record. The first was filed on 16.5.2012 and the other on 7.11.2013 The first impleadment application has been filed by the Secretary of the society Mr. H.R Mall and the other by Mr. Gabriel Daud also claiming to be the Secretary of the Society.

8. We are informed that during the pendency of the writ petition there was some litigation with regard to management and control of the society and the appointment and continuance of the Principal of the college and that at present Mr. David A. Luke is the Principal of the college. He has also filed amendment application on 7.11.2013

9. All the pending applications will come up for hearing on the next date.

10. Prima facie after hearing Shri Ravi Kant, we do not find that the petitioner has placed on record sufficient proof of its right or title over the plot nos. 84 and 85 and the constructions made thereon. The petitioners have relied upon revenue entries and a sale deed dated 12.2.1943 by which the then Governor of U.P had sold Boarding House, Sergeant's quarters, kitchen and servant's quarter within the compound of the Boys High School. The map and site plan attached to the sale deed has not been filed. In para 7 of the writ petition it is stated that two staff bungalows situated across the field were purchased from the Police Department for Rs. 14,600/- in the year 1916. The records in respect of these purchases have not been filed. Shri Ravi Kant prays for an adjournment to trace out these documents to file them to establish the right and tittle of the society to occupy the land and constructions.

11. Learned Standing Counsel appearing for the State respondents submits that the petitioner has not been able to establish its title over the land in dispute in both the plots and constructions thereof. Learned counsel appearing for the Allahabad Development Authority states that the society has not taken permission for construction of Principal's bungalow, gymnasium and swimming pool for which notices were given by the Allahabad Development Authority under Section 27/28 of the U.P Urban Planning & Development Act against which the society has filed another writ petition.

12. The impugned order has been passed on the ground that the land is recorded in Category 6 (A) in the revenue record for which there is no lease deed in existence. The land in plot no. 85 area 4.565 hect. and plot no. 84 area 1.826 hect. Village Beli Uperhar belongs to the State Governmetn and the petitioner has been putting the land to use for commercial purpose and is also allowing the land of the society to be used for marriages, melas and other functions. The petitioner is as such entitled to be evicted from the land in dispute.

13. It is submitted by Shri Ravi Kant that society does not let out the land nor give it for marriage or commercial purposes. On the request made by the district administration, the school is compelled to allow marriages and other functions to be held on the property. The land and building of the school is reserved and is only used for activities connected with teaching and sports for the students and for residence of the Principal and the staff.

14. We are unable to appreciate as to how the district administration, which has made allegations of user of the property for marriages and commercial purpose, on account of which the land is sought to be resumed and possession of society and school removed, has been requesting the school to use the land for the purposes other than for the activities of school. The land appurtenant to the school and which is subject matter of the writ petition should not be permitted to be used for any activity other than activities of the school.

15. Shri Ravi Kant prays for and is allowed four weeks' time to collect and collate the documents relating to right and title over the land in dispute and the permissions, for making construction of building including gymnasium, bungalow and swimming pool and to place it on record.

16. As an interim measure, we direct that the petitioner shall not be asked or compelled and shall not let out or allow the school building or land to be used for any private purpose. The society will not allow any marriage functions or commercial fairs to be organised on the land and building of the school. This order, however, will not come in the way of using the land exclusively for the purpose of academic and sports activities of the school and college.

17. List on 18th February, 2014.