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Bachchu Bhai Tripathi v. Board Of Revenue & Others - WRIT - B No. 18820 of 2004  RD-AH 3854 (3 October 2005)
COURT NO. 39
Civil Misc. Writ Petition No. 18820 of 2004
Bachchu Bhai Tripathi Vs. Board of Revenue U. P. at Allahabad and others.
Hon. S. K. Singh, J.
Heard Sri R. C. Singh, learned counsel who appeared for the petitioner and Sri Radhey Shyam, learned counsel who represents private respondents.
By means of this writ petition petitioner has challenged the orders passed by the respondent no. 1 to 3 dated 27.4.2004, 13.2.2004 and 15.12.2003.
By giving brief facts, writ petition can be conveniently disposed of. The matter arises out of the orders passed by the courts below in proceedings under Section 161 of the U. P. Z. A. & L. R. Act. Section 161 of the U. P. Z. A. & L. R. Act permits exchange of the land belonging to the Gaon Sabha with the land which belongs to a tenure holder. On the application moved by the private respondents, the trial court allowed the exchange, against which petitioner filed appeal which was dismissed and thereafter Second Appeal filed by him was also dismissed and thus this writ petition.
Submission of the learned counsel for the petitioner is that land of the private respondent which has been subjected to exchange cannot be permitted to be exchanged with the land of the Gaon Sabha as the land of the Gaon Sabha was public utility land. In view of Section 132 of the U. P. Z. A. & L. R. Act the land of the Gaon Sabha being public utility land its exchange with the private respondent was improper. Further submission is that against the order of the trial court petitioner filed appeal, which was not heard on the merits and in fact the arguments advanced were only on the question of maintainability of the appeal but matter has been decided on the merits and a wrong finding has been given. It has been further submitted that as the petitioner is the resident of the village and therefore, he being interested in the protection of the Gaon Sabha property, can very well file appeal and thereafter this writ petition and thus the ground given by the courts below about rejection of the petitioner's claim being erroneous the conclusion arrived is liable to be set aside.
In response to the aforesaid, counsel for the respondents submits that the question of exchange is primarily between the Gaon Sabha and the person claiming the exchange from his land. Submission is that exchange has been validly allowed by keeping in mind the mandate of Section 161 of the U. P. Z. A. & L. R. Act upon which Gaon Sabha has not taken the matter to the higher forum and thus the move on behalf of the petitioner who has no locus standi being malafide and only to harass the private respondents, his claim has been rightly negatived by the courts below and thus no interference is required. It is further submitted that if the original claimant or owner of the property has either lost his claim or otherwise has not taken up the matter to the higher forum, claim by anybody by moving in the matter for the benefit and protection of the right of that party, is to be held to be barred by principles of resjudicata given as held by this Court in the judgment dated 30.8.2005 in writ petition no. 45747 of 2000 (Pan Kumari Vs. Board of Revenue and others) in which reliance has been placed on a judgment of the Apex Court in the case of Singhai Lal Jain Vs. Rashtriya Swayam Sewak Sangh, Panna reported in 1996 A.C.J. 824. Submission is that the finding given by the trial court permitting the exchange having not been otherwise proved to be wrong on the facts, petitioner is not entitled to get any relief.
In view of the aforesaid, this Court has examined the matter.
There is no dispute about the fact that there is a clear finding given by the trial court as affirmed by the second appellate court that plot no. 292 which belonged to the Gaon Sabha was recorded as domath ohar and plot no. 29 from which the exchange has been allowed is recorded as domath majha and roster rates are Rs. 2.36 and Rs. 2.50 respectively. There is a clear finding that difference between the two plots is less than 10% in the rental value as required for allowing the exchange under Section 161 of the U. P. Z. A. & L. R. Act. There is further finding that there was unanimous resolution of the Gaon Sabha for allowing the exchange. There is further finding that report of the Tehsildar is in favour of the exchange. Finding has also come that so far plot no. 292 is concerned, there is no approach to that plot except through the plot of respondent and land of Gaon Sabha could not be used for any purpose i.e. for allotment or for any other public utility purpose. Thus on these facts, on merits it is clear that there is no violation of Section 161 of the U. P. Z. A. & L. R. Act. If the contention of the petitioner about something wrong on the part of the Gaon Sabha and its action as unjust is correct it was open for the petitioner to have moved the Collector/Commissioner who are custodian of Gaon Sabha property to intervene in the matter and to permit the petitioner to take up the cause of the Gaon Sabha in the higher forum on behalf of the Gaon Sabha which has not been taken recourse and thus it is a clear case that petitioner without adopting the correct procedure to intervene in the matter for taking up the matter before the higher forum as provided in law filed this writ petition without any permission of Collector. Be as it may, if submission of the learned counsel for the petitioner that the land of Gaon Sabha is public utility land is correct then it is not to be permitted to be exchanged and this Court inspite of the all the technicalities about the right of the petitioner to challenge the same whether is available or not has to examine the things. Here is the case where the petitioner argued the matter on the pretext that plot no. 292 was reserved in the consolidation proceedings as public utility land. During the course of argument query was made in respect to any proof about plot no. 292 that whether and when it was reserved as public utility land and what is entry accordingly. The court finds no answer to it. In fact finding of the court below is that the land in dispute was recorded as navin parti. Needless to say that in the consolidation proceedings if any land of Gaon Sabha is there then after consolidation proceeding is over if any land is shown as navin parti, automatically it cannot become public utility land. Submission of the learned counsel that the land was used as rasta appears to be without any basis. In view of aforesaid it is clear that plot no. 292 was never reserved as public utility land and no such user has been either proved or is recorded in revenue papers.
In view of the aforesaid, it is clear that exchange which has been allowed by the courts below on the finding that the rental value of both plots are within permissible limit and on the ground of unanimous resolution of Gaon Sabha and report of the Tehsildar, cannot be said to be against provisions of Section 161 of the U. P. Z. A. & L. R. Act.
At this stage reference to the observations made in the judgment given in the case of Pan Kumari (Supra) relied upon by the learned counsel for the respondent will be useful :
"It is not disputed by Sri R. C. Singh that in this case the petitioner is not claiming title in herself but is setting up the title of the Gaon Sabha. The Gaon Sabha having already lost in the Board of Revenue and having withdrawn the writ petition the matter between the Gaon Sabha and the plaintiffs/respondents has become final. The petitioner is litigating under the same title and consequently even otherwise the principles of res-judicata would be applicable. The view finds support from the decision of the Apex Court in 1996 Allahabad Civil Journal 824 (Singhai Lal Chand Jain Vs. Rashtriya Swayam Sewak Sangh, Panna and others)."
In the judgment of the Apex Court in the case of Singhai Lal Chand Jain (Supra) the following observation was made :
"Where persons litigate bona fide in respect of a public right or of a private right claimed in common for themselves and others, all persons interested in such right shall, for the purposes of this section, be deemed to claim under the persons so litigating."
Therefore, the respondents now claim under the same title in the previous suit and thereby they are bound by the decree. The doctrine of res judicata evolved the public policy to prevent trial of an issue twice over. It clearly applies to the facts of the case. Accordingly, they are precluded from raising objections on behalf of the Sangh by filing the objections."
In view of the aforesaid this Court is of the view that on both counts i.e. on merits of exchange and on locus of petitioner writ petition is to fail. Exchange has not been found to be erroneous in any manner as no violation of any of the criteria or guidelines as provided in Section 161 of the U. P. Z. A. & L. R. Act has been either proved or has been pointed out. Similarly petitioner having not complained about inaction on the part of Gaon Sabha, before Collector/Commissioner who are custodian of Gaon Sabha property and there being unanimous resolution of Gaon Sabha in favour of exchange and report of Tehsildar, taking up the matter, only by the petitioner, not by any body else of the village appears to be with some motive in the name of public loss and thus no relief on this count also can be allowed.
For the reasons given above, writ petition fails and is dismissed.
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