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CHHOTEY LAL & ANOTHER versus UP ZILA ADHIKARI SAKALDIHA & OTHERS

High Court of Judicature at Allahabad

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Chhotey Lal & Another v. Up Zila Adhikari Sakaldiha & Others - WRIT - C No. 11486 of 2001 [2004] RD-AH 1487 (23 November 2004)

 

This is an UNCERTIFIED copy for information/reference. For authentic copy please refer to certified copy only. In case of any mistake, please bring it to the notice of Joint Registrar(Copying).

HIGH COURT OF JUDICATURE OF ALLAHABAD

Court No.51

Civil Misc. Writ Petition No.11486 of 2001

Chhotey Lal and another                                          ..........pertitioners

Versus

Up-Zila Adhikari, Sakaldiha,

district Chandauli and others                         ................Respondents

Hon'ble V.C.Misra,J.

Sri Namwar Singh, learned counsel for the petitioners, learned standing counsel and Sri B.N.Pathak along with Sri B.N.Upadhaya, learned counsel for respondent no.3 are present.

Learned counsel for the respondents opened up his argument, raising a preliminary issue that the writ petition was not maintainable, because the petitioners had no locus-standi, the writ petition should not be entertained on this count.  Since this preliminary objection had not been raised at the time of admission and the writ petition has been formally admitted on 5.11.2003, this preliminary objection is, therefore, rejected.  

This writ petition arises out of the proceedings under Section 161 U.P.Z.A. and L.R. Act, 1952 (hereinafter referred to as the Act) regarding plot no.13 of Gaon Sabha  admeasuring .069 acre, situated in village Chahainya, challenging the impugned orders dated 20.12.1997 passed by respondent no.1 (Annexure No.1 to the writ petition)   13.1.1999 passed by respondent no.1 (Annexure No.7 to the writ petition) and 13.3.2001 passed by respondents no. 2 (Annexure No. 9 to the writ petition)

The facts of the case in brief are that the allegations had been made that respondent no.3, who was entered as Bhumidhari in plot no. 118 admeasuring area .053 acre, situated in the same village,  filed an application before respondent no.2 for permission to exchange with the plot admeasuring .069 acre of the Gaon Sabha, a portion of plot no.13. A report of the Tehsildar was called for vide order dated 25.6.1997 of respondent no.2.  The Lekhpal of the village sent a report dated 15.7.1997 to the Tehsildar that the part of the plot no.118 belonging to respondent no.3 was being proposed by the Land Management Committee on the direction of Tehsildar Sakaldiha dated 27.6.1997 for exchanging of the aforesaid part of plot no.118 with plot no.13 of the Gaon Sabha. In paragraph 7 of the writ petition, it has been stated that in the said report of the Lekhpal a meeting is said to have been held, though, in fact no such meeting took place.  Neither any permission was required under the provisions of the Act from the Up Zila Adhikari nor any resolution was passed by Land Management Committee (LMC).  In paragraph 9 of the writ petition, it has been stated that the S.D.M.-respondent no.1 without issuing any notice and inviting any objection against the alleged exchange as contemplated under Rule 145 of the Uttar Pradesh Zamindari Abolition and Land Reforms Rules, 1952 (hereinafter referred as the Rules) passed a mechanical orders on the same date i.e. 20.12.1996  the Tehsildar had submitted his report.

 During the pendency of the revision which was filed by the petitioner before the concerned authority respondent no.3 sold the portion of the area admeasuring 1- 127-43 decimal for the amount of Rs. 48,000/-, which should be the basis of calculating and making out an estimate of the land, that the exchange of land was made by respondent no.2 in collusion with the other revenue authority and valuable land of the Gaon Sabha  which was situated in the main road of  Chahaniya to Danapur was grabed by respondent no.3 in lieu of revenue plot  which is lying far away of village Abadi and incapable of being used for the public purpose.  

It has been further submitted by the learned counsel for the petitioner that they being the residents of village Chahaniya, on coming to know about the fraudulent exchange of the said plot of land of Gaon Sabha, filed an application on 2.2.1998 before respondent no.1  for setting aside its order dated 20.12.1997, supported by an application of condonation of delay, on the ground that since they were not parties to the proceedings they had no knowledge of the same earlier, and on  knowing about it  they moved an objection. One Smt. Bimla Devi the then member of the Land Management Committee also filed an application for setting aside the fraudulent exchange of the said plot.  The contention of the petitioners is also that the alleged exchange is unwarranted and illegal and is hit by the provisions of Section 168 A of the Act, more so, since the land was left for the public purpose during the Consolidation Proceedings and could not be exchanged under Section 161 of the Act by virtue of Section 26 C of the U.P. Consolidation of Holdings  Act, 1954, as well as other provisions of the Act.

Respondent no.1 rejected the restoration application vide order dated 13.1.1999 which was filed by the petitioner and the two revisions filed by the petitioner against orders dated 20.12.1997 and 13.1.1999 was heard and rejected together by respondent no.2.  The petitioners had also raised the objection that respondents no.2 did not issue any show cause notice, as contemplated under Rule 145 of the Rules, in view of the fact the objection from the affected villagers had been moved and passed the order without applying his mind.  In paragraph 25 of the writ petition, it has been stated that, admittedly the plot of Gaon Sabha which was being exchanged had been marked and left for the use of public purpose during the Consolidation operation and the same could not be exchanged for the land of other purpose under the provisions of Section 29 C of the Act , therefore, respondent no.1 had no jurisdiction in the matter of Gaon Sabha to permit for exchange of the land of the Gaon Sabha of respondent no.3 which was comparatively of a very less value.  It has been further stated in paragraph 27 to the writ petition that the plots in dispute were being exchanged in fragment, which was hit by the provisions of Section 168 A of the Act as both the land to be exchanged were not contiguous, therefore, the entire exchange and impugned orders for exchanging of the lands were void and entire transaction and proceedings have been initiated in collusion and for extraneous consideration. The land of Gaon Sabha was exchanged behind the back of the petitioners and other members of the village community (Gaon Sabha).

Learned counsel for the respondents has submitted that the petitioners are not entitled to any relief claimed in the writ petition as there is no provisions of law which entitles any member of the Gaon Sabha to raise objections (village community), if Gaon Sabha disposes off/transfers its land with the sanction of the authority and exchanges the land under the Rule 145 of the Rules.

Being aggrieved, the petitioners filed this writ petition on the ground that rejection of the objections of the petitioner on the ground of being barred by time was illegal and arbitrary.

I have looked into the record of the case and heard learned counsel for the parties at length and from the perusal of the impugned order dated 13.1.1999 by which the objection of the petitioner have been rejected mainly on the ground that the objection were barred by time. I find that the respondents no.1 and 2 had not considered the other relevant material on record and did not pass a speaking order on merits, but wrongly rejected the same on the ground of limitation and that the petitioners had no locus-standi.  The revisional court has also vide its impugned order in a mechanical manner upheld the order passed by respondent no.1.

The objection on locus standi raised by the respondents are without any substance in the present case. The petitioner is admittedly a member of the Gaon Sabha. The land of Gaon Sabha being a public property, if is being transferred by it in favour of a private body for extraneous reasons and for no benefit of the Gaon Sabha, then it means that the Gaon Sabha  has failed to safeguard its interest and perform its statutory duty in accordance with law.  Then  under the said circumstances, this wrongful action can be challenged by any member of the Gaon Sabha in the public interest.  More so, as per the record, it is found in paragraph 7 of the Annexure C.A. 3, that the petitioner had been dispossessed vide order dated 30.9.1989 before the exchange made in favour of respondent no.3 from the land in question earlier under proceedings 122 B of the U.P.Z.A & L.R.Act, 1952.  The law on locus standi has been enlarged by Hon'ble the Supreme Court in the case of S.P.Gupta Vs. Union of India, reported in AIR 1982 Supreme Court 149 and in the case of  Bangalore Medical Trust Vs. B.S. Muddapaa and others, reported in AIR 1991 Supreme Court 1902.  Thus, the petitioners have all the right to challenge the proceedings of transfer of the land in question as members of Gaon Sahba before the courts below.  

In view of the facts, circumstances of the case and observations made herein before the impugned orders dated 13.1.1999 and 13.3.1999 (Annexure No.7 and 9 to the writ petition), passed by respondents no. 1 and 2, are hereby quashed.  The matter is remand back to the Court of Up Zila Adhikari-respondent no.1 to look into the matter and decide afresh the objection filed by the petitioners after affording full opportunity of hearing to all the parties concerned by a reasoned and a speaking order in accordance with law, preferably within a period of three months from the date of production of a certified copy of this order.  Respondent no.3 is restrained from transferring and eliminating the land in question, which had been received in exchange from the Gaon Sabha, in any manner whatsoever.

With these observations, the writ petition is allowed.  No orders as to costs.

Dated. 23.11.2004

pkc  


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Reproduced in accordance with s52(q) of the Copyright Act 1957 (India) from judis.nic.in, indiacode.nic.in and other Indian High Court Websites

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