AI Structured Summary
Not yet generated for this judgment
Judgment
A.N. Verma, J.—The instant petition arises out of the proceedings initiated under section 161 of U.P.Z.A. & L.R. Act (hereinafter referred to as the ''Act'') The opposite party No. 5 made an application under section 161 of the Act for exchange of Plot Nos. 128M, 139, 142, 144, 174, 184, 183, 187, 188, 195 and 384 measuring 1.884 hectares situate in village Parakhan, Pargana Haveli Awadh, Tehsil Sadar, District Faizabad in lieu of Plot Nos. 150M, 156, 157, 158, 159,160 and 161 measuring 0.939 hectares. To the said application, the concerned Gaon Sabha raised an objection that the exchange cannot be permitted as the land sought to be so exchanged was a public utility land, which under the Act was not permissible. The opposite party No. 2," on the basis of the report submitted by the Tehsildar opined that the land sought to be exchanged is not a public utility land nor was being used as such. In view of the aforesaid vide order dated 30.4.2002, the application preferred by the opposite party No. 5, was allowed.
Being aggrieved against the said judgment and order, the Gaon Sabha as well as the petitioner claiming himself to be the Member of the Gaon Sabha and having some interest over the land in question, filed revisions. The opposite party No. 1, vide its judgment and order dated 19.10.2004 dismissed the revisions and maintained the judgment and order passed by the Trial Court. The petitioner through. the present petition has assailed both the aforesaid judgments and orders.
I have heard Sri Shobhit Mohan, learned Counsel for the petitioner in support of the petition as well as Sri S.K. Mehrotra, learned Counsel appearing on behalf of the opposite party No. 5 and Sri Pankaj Gupta holding brief of Sri R.N. Gupta, learned Counsel for the opposite party No. 4 in opposition.
Sri Mohan vehemently argued that the judgments and orders passed by the Courts below are manifestly illegal and erroneous inasmuch as the application preferred by the opposite party No. 5, has wrongly been allowed inasmuch as a public utility land has been permitted in exchange. As per his submissions, the land belonging to Gaon Sabha and being used exclusively for public purposes could not be allowed to be exchanged. He further argued that Gata No. 384 has been in possession of the petitioner and his ancestors over which a temple and a Samadhi exists and, therefore, the same could not have been given to the opposite party No. 5.
Sri Mehrotra in opposition submitted that the petitioner claimed his right in respect of the land in question, under section 122B (4F) of the Act, which was negatived by the Trial Court. It was also pointed out that a civil suit (Regular Suit No. 403 of 2002) was filed which was dismissed for nonprosecution on 11.5.2004. He further argued that in view of the specific findings recorded by the Courts below that the land in question was neither a public utility land nor was being used as such, therefore, there was absolutely no illegality in the order permitting the exchange of plots in exercise of the power under section 161 of the Act.
Perusal of the judgment and order passed by the opposite party No. 2 impugned in this petition, reveals that the report submitted by the Tehsildar indicated that the plots in question were neither being used as public utility land nor were fit for such purposes. It further indicated that in case the land in question is given in exchange then the land offered by the opposite party No. 5 could be used for public utility. The learned Courts below also observed that there was no ground to disbelieve the report submitted by the Tehsildar. In view of these findings the application was allowed. The opposite party No. 1 in revision also reiterated the conclusion arrived at by the opposite party No. 2.
I do not find any illegality or infirmity in the impugned orders permitting the exchange of plots in exercise of power under section 161 of the Act. No interference thus is called for in the impugned orders. The writ petition, being devoid of merit, is hereby dismissed.
However, in case a temple and a Samadhi as alleged by the petitioner, exists over Plot No. 384, the same shall not be disturbed and shall be maintained as such by the opposite party No. 5.