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2022 DIGILAW 45 (ALL)

Om Prakash Singh v. State of U. P.

2022-01-07

DINESH PATHAK

body2022
JUDGMENT : Dinesh Pathak, J. Heard learned counsel for the petitioners, learned counsel for Gaon Sabha and the learned Standing Counsel. 2. Petitioners have invoked the extraordinary jurisdiction of this Court under Article 226 of the Constitution of India challenging the order dated 12.10.2020 passed by the Board of Revenue (Respondent No. 2) in Revision No. 3097 of 2018 and the order dated 30.10.2018 passed by the Sub Divisional Officer (Respondent No. 3) in Case No. 09244 of 2018 in a proceeding for exchange of land under Section 101 of the U.P. Revenue Code, 2006 (in brevity the Code, 2006). 3. Facts culled out from the pleadings of the parties are that plot No. 524 area 0.150 hectare and plot No. 523 (kha) area 0.053 hectare, belongs to the Gaon Sabha (Respondent No. 4), are situated adjacent to a school namely Nageshwar Prasad Shyam Sunder Shikshan Sanstha allegedly run by the petitioners. Considering the suitability of the aforesaid plots to be used as a playground for school children, the petitioners, who are the recorded tenure holders of plot No. 318 area 0.466 hectare situated in Village Suichak, Tehsil Rajatalab, District Varanasi, have moved an application dated 15/17.5.2017 (Annexure-4) under Section 101 of the Code, 2006, requesting for exchange of their plot No. 318 area 0.203 hectare (out of total area 0.466 hectare) with the plots of the Gaon Sabha i.e. plot Nos. 524 and 523(Kha). The Gaon Sabha, in turn, has passed resolution dated 4.6.2017 (Annexure-3) accepting the proposal of the petitioners for exchange of the land, as mentioned above. It appears that on the application for exchange, the Tehsil authorities have submitted their report thrice in favour of exchange which are annexed as Annexures-5, 6, 7 and 8 respectively. During pendency of the application for exchange, an objection dated 27.6.2018 (Annexure-9) purported to have been filed on behalf of Gaon Sabha through the Standing Counsel (Revenue). The petitioners have filed their replication dated 25.7.2018 (Annexure-10), inter alia, raising the question of maintainability of the aforesaid objection dated 27.6.2018. 4. Exchange application moved by the petitioners was rejected by respondent No. 3, vide order dated 30.10.2018 (Annexure-12), basically on account of difference of valuation between the plots which were sought to be exchanged. The petitioners have filed their replication dated 25.7.2018 (Annexure-10), inter alia, raising the question of maintainability of the aforesaid objection dated 27.6.2018. 4. Exchange application moved by the petitioners was rejected by respondent No. 3, vide order dated 30.10.2018 (Annexure-12), basically on account of difference of valuation between the plots which were sought to be exchanged. Having been aggrieved with the order passed by respondent No. 3, a revision petition (Annexure-13) has been preferred by the petitioners which was dismissed as well, affirming the order passed by respondent No. 3, vide order dated 12.10.2020 (Annexure-14) passed by respondent No. 2. Both the aforesaid orders are under challenge in this writ petition. 5. Learned counsel for the petitioners submits that the petitioners have moved an application for exchange and a resolution dated 4.6.2017 was passed by the Gaon Sabha accepting the proposal for exchange. On the aforesaid application, the Tehsil authorities have submitted their report dated 29.6.2017, 30.7.2017 and 24.8.2017 respectively. He has questioned the authority of Vijay Kumar Pandey, Standing Counsel (Revenue) who has illegally filed objection dated 27.6.2018 whereas Gaon Sabha has not passed any resolution as required under Section 62 of the Code, 2006, authorizing any person to contest the aforesaid matter. Detail provision, as enunciated under Appendix-II of the U.P. Revenue Code Rules, 2016 (in brevity Rules, 2016) has not been followed in filing the said objection. It is further submitted that respondent Nos. 2 and 3 have illegally discarded the exchange, only relying upon the objection filed by the Standing Counsel (Revenue), without considering the reports submitted by the Lekhpal, Naib Tehsildar and Kanoongo. Next submission is that the trial Court has illegally emphasized the difference of valuation of plots which were subject-matter of exchange proceeding, whereas in all the reports submitted by the revenue authorities no such difference of valuation has been shown. Location of the plot, adjacent to road side, belongs to Gaon Sabha cannot be a solitary ground for rejection of the said application unless the difference of valuation of plots in exchange, as enshrined under Section 101 (2) (b) of the Code, 2006, is made out. Location of the plot, adjacent to road side, belongs to Gaon Sabha cannot be a solitary ground for rejection of the said application unless the difference of valuation of plots in exchange, as enshrined under Section 101 (2) (b) of the Code, 2006, is made out. It is also submitted that the revisional Court has given a perverse finding that the Gaon Sabha was not agreed upon for exchange whereas the resolution dated 4.6.2017 was passed in favour of the petitioners and the same has never been withdrawn by the Gaon Sabha and even till date the said resolution stands. 6. Per contra, learned counsel for the Gaon Sabha contended that in pursuance of the resolution dated 4.6.2017, no approval was granted by the authority concerned as was sought to be obtained in the said resolution. Further contention is that all the reports submitted by the revenue authorities are not in favour of the petitioners for exchange of land. He has also emphasized the provision as enunciated under Section 101(3) of the Code, 2006 and contended that the property was undivided, therefore, the petitioner cannot exchange their land with the Gaon Sabha. He has supported the conduct of the Standing Counsel (R) who has filed objection on behalf of the Gaon Sabha and contended that no particular resolution had been passed for exchange of plots. According to counsel for Gaon Sabha, provision, as enunciated under Section 62 of the Code, 2006, is applicable only with respect to the matters of compromise and withdrawal and so far as the matter of consent of Gaon Sabha is concerned, the Standing Counsel (Revenue) is free to contest the matter on behalf of the Gaon Sabha. Further contention is that exchange of Gaon Sabha's land with plot of the petitioners is not beneficial in the interest of Gaon Sabha, therefore, such exchange cannot be permitted. Learned counsel for the Gaon Sabha has also made emphasis that there was a difference of valuation of more than 10% between the plots sought to be exchanged, in contravention of provision under Section 101 (2) (b) of the Code, 2006. Lastly, it is contended that the petitioners have no locus standi to move an application for exchange of land for benefit of the school. 7. I have carefully considered the rival submissions advanced by the learned counsel for the parties and perused the record on Board. 8. Lastly, it is contended that the petitioners have no locus standi to move an application for exchange of land for benefit of the school. 7. I have carefully considered the rival submissions advanced by the learned counsel for the parties and perused the record on Board. 8. Having regard to the submissions advanced by the learned counsel for the parties, vexed question for consideration arises qua maintainability of objection dated 27.6.2018 said to have been filed on behalf of Gaon Sabha through Standing Counsel (Revenue) and the legal sanctity of the impugned orders passed by respondent Nos. 2 and 3, without considering the Tehsil reports in respect of the valuation of plots under exchange. 9. A perusal of impugned order evinces aversion of plea with respect to the maintainability of objection dated 27.6.2018 said to have been filed on behalf of Gaon Sabha. There is nothing on record to show that any person has been authorized to do pairvi in the matter on behalf of Gaon Sabha. In paragraph Nos. 18, 21, 25 etc. of the writ petition, the petitioner has specifically averred with regard to the non-maintainability of the objection allegedly filed on behalf of Gaon Sabha through the Standing Cousnel (Revenue) and existence of resolution dated 4.6.2017 passed by Gaon Sabha for exchange of plots in question. It is also averred in the writ petition that Gaon Sabha concerned has not consented to contest the matter on its behalf. In the counter-affidavit evasive denial has been made on behalf of Gaon Sabha in this regard. No specific plea has been taken in the counter-affidavit to show that against the resolution dated 4.6.2017 any subsequent resolution was passed by Gaon Sabha for its denial or to pursue the lis in opposition initiated by the petitioners for exchange of plots. There are succinct provision under the Code, 2006 relating to the litigation on behalf of Gaon Sabha to sue or to be sued. Section 62 and 72 of the Code, 2006 enunciate the provision conduct of suit and legal proceeding and the appointment of lawyers. Relating procedures are made under Rules 72 to 76 of the Rules, 2016. In this respect Appendix-II to the Rules, 2016 is also relevant with respect to the procedure of litigation. 10. Section 62 and 72 of the Code, 2006 enunciate the provision conduct of suit and legal proceeding and the appointment of lawyers. Relating procedures are made under Rules 72 to 76 of the Rules, 2016. In this respect Appendix-II to the Rules, 2016 is also relevant with respect to the procedure of litigation. 10. Provision with respect to the litigation of Gaon Sabha as mentioned in the Code, 2006 and the Rules, 2016 are mandatory in nature, as expounded by the Division Bench of this Court in the case of Gram Panchayat Pusawali Block Junawai, Tehsil Gunnaur, District Badaun v. State of U.P. and others, 2007(1) ADJ 263 , discussing the similar provision as it was mentioned in the U.P.Z.A.&L.R. Act and U.P. Gaon Sabha and Bhumi Prabandh Samiti Manual. In the matter of Gram Panchayat Puswali (Supra) the earlier Division Bench's decision in the matter of Babu Ram Verma v. Sub Divisional Officer and others, 1996 (2) AWC 1036, was considered. 11. A perusal of the objection dated 27.6.2018 (Annexure-9) reveals that it was only signed by the Standing Counsel (Revenue) but the pleadings, as made in the objection, has not been verified by the person authorized on behalf of Gaon Sabha. Counsel appointed on behalf of the parties is not supposed to verify the facts relating to the case. He may take a legal ground or plea in the pleadings but cannot make denial with respect to the factual aspect of the case. Both the Courts below are miserably failed to consider the maintainability of the objection in the eyes of law, as raised on behalf of the petitioners. In the litigation, verification of pleading is held mandatory under the provisions as enunciated under Order VI Rule 15 C.P.C. 12. So far as difference of valuation of plots is concerned, which were subject-matter of exchange, it is evident from the record that the Tehsil authorities have submitted reports thrice in favour of exchange mentioning the valuation of the plots. All the Tehsil reports were submitted in favour of exchange showing the equal valuation of plots. There is nothing on record to show that there is difference of valuation more than 10% of the lower valuation between the plots, which were sought to be exchanged as required under Section 101(2) of the Code, 2006. All the Tehsil reports were submitted in favour of exchange showing the equal valuation of plots. There is nothing on record to show that there is difference of valuation more than 10% of the lower valuation between the plots, which were sought to be exchanged as required under Section 101(2) of the Code, 2006. Though the trial Court has given a vague ground qua difference of valuation of plots, without pointing out their valuation, but has failed to discuss the case precisely in light of the reports submitted by Tehsil authorities. 13. The Board of Revenue also committed the same error in deciding the revision without considering the reports submitted by Tehsil authorities with respect to the valuation of plots under exchange. Moreover, the Board of Revenue has considered the new aspect of the matter showing unwillingness of Gaon Sabha in exchange of plots in question. There is nothing on record to show the reluctant attitude of Gaon Sabha in exchanging the plots in question. Counsel for Gaon Sabha has failed to place any document to prove that the resolution dated 4.6.2017 was ever reversed by the subsequent resolution. Under the law, resolution dated 4.6.2017 still considered to be in existence. 14. In this conspectus as above, this Court finds force in the present writ petition. Learned counsel for Gaon Sabha has failed to substantiate his submissions in supporting the impugned orders. Resultantly, the impugned order dated 12.10.2010 (Annexure-14) passed by respondent No. 2 and the order dated 30.10.2018 passed by respondent No. 3 (Annexure-12) are hereby quashed and the parties are relegated before the respondent No. 3 who is hereby directed to revisit the matter, considering the maintainability of objection dated 27.6.2018 and the reports submitted by Tehsil authorities from time to time strictly in accordance with law, after giving proper opportunity of hearing to the parties 15. Accordingly, the present writ petition is partly allowed.