Court No. - 5
Case :- WRIT - C No. - 29698 of 2021 Petitioner :- Ram Garib Respondent :- State Of U P And 5 Others Counsel for Petitioner :- Surendra Kumar Tiwari,Pradeep Kumar Rai Counsel for Respondent :- C.S.C.,Bashisth Narain Pandey,Pankaj Kumar Gupta
Hon'ble Siddhartha Varma,J.
The petitioner had filed an application for the exchange of his plot no. 24M area .0759 hectares with plot no. 146M of the gaon sabha being a Naveen Parti area .063 hectares. A report was called for and was submitted on 18.12.2005. Thereafter the application was allowed on 26.7.2007. However a restoration application was filed by the respondents no. 5 and 6 on 2.1.2008 on various grounds. One of the grounds which was taken by the respondents no. 5 and 6 for the recalling of the order dated 26.7.2007 in the application which they had filed was that they have also some ownership in plot no. 146M and a portion of it even though belonged to the gaon sabha, their portion had not been demarcated. However, the application dated 2.1.2008 was allowed on 27.2.2008 and the order dated 26.7.2007 was recalled and thereafter the matter was heard and finally decided on 22.3.2021. Thereafter, the petitioner filed a Revision which when was dismissed on 23.9.2021, the instant writ petition has been filed.
Learned counsel for the petitioner submits that if the order dated 22.3.2021 is perused it would become evident that the Sub Divisional Officer had not adjudicated as to what right the respondents no. 5 and 6 had to get the order dated 26.7.2007 recalled. Further learned counsel for the petitioner submits that in the order dated 22.3.2021 there was no mention as to how the respondents no. 5 and 6 were aggrieved by the exchange which had taken place between the petitioner and the gaon sabha. Learned counsel for the petitioner still further submitted that the exchange had taken place in the year 2007 and thereafter various developments had taken place on the exchanged plot no. 146m and this aspect was also not considered. Learned counsel submitted that if the valuation had to be looked into then the value of the land had to be seen as it was in the year 2007.
Learned counsel for the petitioner relying upon Rule 100 of the U.P. Revenue Code Rules, 2016, submitted that the following issues had to be looked into by the Sub Divisional Officer:-
(a) Names, parentage and addresses of both the parties to the exchange.
(b) Details of the land sought to be given and received in exchange (with plot numbers, area, location and land revenue).
(c) Whether the proposed exchange is necessary for the consolidation of holdings or for the convenience of cultivation.
(d) Whether the proposed exchange involves transfer of undivided interest in the land.
(e) Whether the land or any part thereof has been let out or encumbered.
(f) Valuation of the lands to be given and received in exchange and the extent of difference in such valuation.
(g) The areas of the land to be given and received in exchange and the extent of difference in such area.
(h) Whether the land to be given and received in exchange are located in the same or adjacent village of the same Tahsil.
Learned counsel for the petitioner submitted that none of these issues were looked into and no finding was arrived at by the Sub Divisional Officer.
Learned counsel appearing for the respondents no. 5 and 6, however, submitted that the grounds as had been taken in the restoration application dated 2.1.2008 itself were sufficient to recall the order dated 26.7.2007.
Learned Standing Counsel and the counsel for the gaon sabha did not advance any argument as the earlier exchange had taken place at their instance.
Having heard the learned counsel for the petitioner and the counsel for the respondents no. 5 and 6, the Court is of the view that a bare perusal of the order dated 22.3.2021 and the order dated 23.9.2021 definitely does not make it clear as to how the Court had dealt with regard to the locus standi which the respondents no. 5 and 6 had to challenge the order dated 26.7.2007. If at all there was any mention about the grievances of the respondents no. 5 and 6 then those grievances ought to have been looked into and thereafter should have been dealt with by the Courts below. Further, the courts below ought to have looked into the values of the plots which were exchanged as per their values which were there in the year 2007.
Under such circumstances, the Court is of the view that the order dated 22.3.2021 passed by the Sub Divisional Officer and the order dated 23.9.2021 cannot be sustained in the eyes of law and, therefore, they are set aside.
The writ petition is partly allowed. The matter is remanded back to the Sub Divisional Officer, Basti Division, Basti, Sant Kabir Nagar, for a re-adjudication. The petitioner and the respondents no. 5 and 6 shall appear before the Court of the Sub Divisional Officer on 11.1.2022 and the Sub Divisional Officer shall make an endeavour to decide the application for exchange after hearing the petitioner, the respondents no. 5 and 6, the State Authorities and the gaon sabha within a period of three months from the date of production of a certified copy of this order.
Till such time as the application for exchange is decided, status quo as of today shall be maintained and no coercive action shall be taken against the petitioner. Further the petitioner shall also not create any third party right.
Order Date :- 17.12.2021 PK