Heard learned counsel for the petitioners, learned standing counsel for respondents No.1 to 3 and Sri D.D. Chauhan, learned counsel for respondent No.4, Gram Panchayat.
This writ petition is directed against judgment and decree dated 19.11.2009 passed by the Board of Revenue, Allahabad in Second Appeal No.8 of 2004-05. The second appeal directed against judgment and decree dated 30.09.2004 passed by Additional Commissioner, Allahabad Division, Allahabad in Appeal No.2/53/269 of 2001-02 was dismissed. Judgment and decree passed by Additional Commissioner dated 30.09.2004 has also been challenged.
The appeal before the Additional Commissioner 1 was directed against order dated 10.06.1999 passed by Deputy Collector permitting exchange of petitioners' agricultural plots with certain plots of Gaon Sabha under Section 161 of U.P.Z.A. & L.R. Act.
The land of the Goan Sabha, which the petitioners got in exchange was comprised in Plot No.32 area 0.028 hectares situate in Village Bharari Paragana Khairagarh Tehsil Meja District Allahabad. At the time of exchange, the said land was reserved for Panchayat Bhawan. It is mentioned in the judgment of the Additional Commissioner (Annexure-IX to the writ petition) that first application for exchange was filed by the Gaon Sabha on which notices were issued and thereafter on 10.06.1999, petitioners appeared and filed application for accepting the exchange. On that very date, Deputy Collector, Meja passed the order of exchange without issuing notice or hearing the State of U.P. Thereafter, Deputy Collector on 17.01.2000 directed for mutation in pursuance of order of exchange. 2 Before the appellate court/ Additional Commissioner, it was argued that the land of the petitioners comprised in Plot No.23 was in unauthorised occupation of other persons, i.e. Matamber and others and Plot No.32, which belonged to the Gaon Sabha was situate on road and was having high market value and it was reserved for Panchayat Bhawan.
It appears that in between filing of exchange application and restoration application Pradhan of the village in question had changed. Additional Commissioner set aside the order of exchange and directed for lodging of FIR against the petitioners and members of Panchayat.
Under Section 132, U.P.Z.A. & L.R. Act, it is provided that in respect of lands mentioned thereunder Bhumidhari rights would not accrue. Clause VI of Section 132-C contains following entry:
"Lands set apart for public purpose under the U.P. Consolidation of Hodlings Act, 1953."
In Lalji Vs. Board of Revenue, 1971 RD 466, it 3 has been held that if under Section 29-C of U.P.C.H. Act, land has been earmarked for public purpose then Gaon Sabha cannot divert its use.
Learned counsel for the petitioners has argued that the aforesaid authority of Lalji is in the context of Section 29-C of U.P.C.H. Act and the said section deals only with the land contributed for public purpose under the said Act. Learned counsel has further argued that the land of the Gaon Sabha, which was exchanged with the land of the petitioners was not contributed by the tenure holders during consolidation but it belonged to the Gaon Sabha even before start of the consolidation. Even apart from provision of Consolidation of Holdings Act, a land covered by Section 132 of U.P.Z.A. & L.R. Act cannot be exchanged. The prohibition under the said Section of accrual of the bhomidhari rights in the lands enumerated thereunder clearly indicate that such lands cannot be exchanged with the land of private tenure holder.
4
Moreover as found by the learned Additional Commissioner, the action was mala fide. Absolutely no reason was given for exchange of the land of Gaon Sabha, which was reserved for Panchayat Bhawan. The land of the Gaon Sabha was situate on the road side, hence it was having much higher market value than the market value of the land sought to be exchanged. The land of the petitioners, which was sought to be exchanged with the land of the Gaon Sabha, was in unauthorised occupation of other persons. Absolutely, no reason was given by the Gaon Sabha for the exchange. It was not shown that how it would be beneficial for the Gaon Sabha. The entire action of the previous Pradhan was aimed at unduly benefiting the petitioners. Accordingly, I do not find any error in the judgments passed by the Additional Commissioner and Board of Revenue on merit. However, I do not find any justification for issuing specific direction for launching criminal proceedings.
5
Accordingly, both the judgments/ decrees passed by Additional Commissioner and Board of Revenue are affirmed on merit, however direction for launching criminal proceedings contained in the judgment and decree passed by the Additional Commissioner are set aside.
Learned counsel for the petitioners has cited some authorities on Section 100, C.P.C., however those authorities are to the effect that second appeal cannot be allowed without framing substantial questions of law. In the instant case, Board of Revenue has dismissed the second appeal.
Writ petition is accordingly disposed of as above. Order Date :- 25.1.2010 NLY 6