PURSHOTTAM NARAIN Vs. GAON SABHA

JUDGEMENT

(1.) THIS second appeal has been filed against an order passed by learned Additional Commissioner, Jhansi Division, Jhansi in first appeal No. 24/61 of 96 -97 arising out of an order passed by S.D.O. Lalitpur on 19 -10 -96 in suit No. 79 of 94 -95 under Section 161 of the U.P. Z.A. and L.R. Act.

(2.) THE trial Court has accepted the exchange whereas in the first appeal the appellate Court had disallowed the exchange and allowed the appeal on the grounds inter alia that firstly the suit was not filed by all the recorded co -tenure -holders; secondly two recorded tenure -holders were made opposite -parties and thirdly no permission of Collector under Section 28 -C of U.P. Panchayat Raj Act was obtained prior to passing the resolution for the said exchange because one of the beneficiary co -tenure holder of the proposed exchange was the Pradhan of Gaon Sabha himself who is respondent No. 2 in the second appeal; and lastly the learned penal lawyer appearing on behalf of the concerned Gaon Sabha has categorically stated in the objections that the Gaon Sabha land proposed to be exchanged in lieu of the applicants land, contains granite and other valuable minerals therefore there is a vast difference between the Gaon Sabha land and that of the applicants land.

(3.) FROM a perusal of the trial Court's file it is clear that in revenue records plot No. 177/1 area 1.30 acre and 191/1 area 1.50 are recorded in verg 1 bhumidhar with transferable rights on khata No. 72 in the name of Bhairo Prasad, Purshotam Narain and Hira Lal all sons of Gopi Lal. The application for exchange of the land was moved by Purshottam Narain alone and other co -tenure holders Bhairo Pd. and Hira Lal were made opposite -parties alongwith the Gaon Sabha concerned. The application was moved on 3 -7 -94 and registered on 26 -8 -94 but the resolution for exchange was passed on 18 -12 -93. At that time opposite -party No. 2 Bhairo Prasad who is co -tenure holder alongwith appellant and a beneficiary in the proposed exchange was Pradhan of the concerned Gaon Sabha. The meeting was held under his chairmanship and no prior permission under Section 28 -C of the U.P. Panchayat Raj Act was obtained. The said Bhairo Prasad moved an application on 8 -7 -94 for seeking permission under Section 28 -C of the U.P. Panchayat Raj Act. Under the Act only Collector is empowered to grant such permission but in the instant case the Additional Collector by order dated 25 -1 -96 rejected the application holding that since the applicant was no longer Pradhan or member of the L.M.C. therefore no permission was needed under Section 28 -C of the U.P. Panchayat Raj Act. The learned trial Court by the impugned order allowed the said exchange ignoring the objections raised by the penal lawyer on behalf of the Gaon Sabha. Aggrieved by this order the then Gram Pradhan filed first appeal before the Commissioner Jhansi Division, which was allowed by the impugned order and the order of the trial Court was set aside in view of the circumstances stated above. Aggrieved by this order the present second appeal has been filed.