Allahabad High Court
Sandeep Kumar Chaudhary vs State Of U.P. And 5 Others on 22 October, 2019
Author: Anjani Kumar Mishra
Bench: Anjani Kumar Mishra
HIGH COURT OF JUDICATURE AT ALLAHABAD ?Reserved Court No. - 9 Case :- WRIT - C No. - 26099 of 2019 Petitioner :- Sandeep Kumar Chaudhary Respondent :- State Of U.P. And 5 Others Counsel for Petitioner :- Kartikeya Saran Counsel for Respondent :- C.S.C.,Mahesh Narain Singh Hon'ble Anjani Kumar Mishra,J.
Heard Shri Kartikeya Saran, learned counsel for the petitioner and Shri Mahesh Narain Singh for the Gaon Sabha, respondent no.2.
The instant writ petition arises out of an application under Section 161 of the U.P. Zamindari Abolition and Land Reforms Act, filed by the petitioner before the Sub Divisional Magistrate, wherein a prayer was made for exchange of plot no.194 area 0.0133 hectares with plot no.188, which is stated to be the bhumidhari plot of the petitioner.
The exchange was sought on the ground that the petitioner's educational institution exists on plot no.189. Plot no.194 is recorded as marghat consequent to its reservation for the said purpose during consolidation operations. Plot reserved for marghat is situated near the educational institution of petitioner.
On the application being filed, a report of the Lekhpal was obtained, which was forwarded to the Sub Divisional Magistrate by the Tehsildar concerned.
The Sub Divisional Magistrate, vide order dated 21.04.2018, rejected the petitioner's application on the ground that the land sought to be exchanged was the land governed by the provisions of Section 132 of the U.P. Zamindari Abolition and Land Reforms Act having been reserved for a public purpose, wherein no bhumidhari rights could accrue in favour of any person and therefore, its exchange was not possible.
The order aforesaid has been affirmed upon dismissal of the revision filed by the petitioner vide orde dated 20.07.2019 passed by the Additional Commissioner (Fourth), Meerut Mandal, Meerut.
The contention of counsel for the petitioner is that plot no.194 reserved as marghat is situated right in front of the petitioner's educational institution and its gate.
It has also been alleged that plot is not being used as marghat and that land belonging to the petitioner, namely, plot no.188 is being used as such which use has been permitted by the petitioner.
In support of his contention, learned counsel for the petitioner has placed reliance upon Ram Sewak Singh Vs. Board of Revenue 2014(124) RD 174, wherein the Court has held that in cases of failure of the purpose of which the land is earmarked, its use can be changed to another.
I have considered the submissions made by counsel for the petitioner and perused the record.
At the very outset, it would be relevant to note that the petitioner wants to exchange plot no.194, with his bhumidhari plot no.188, on the plea that the land reserved as marghat is situated in front of the gate of the petitioner's educational institution on plot no.189, as submitted by counsel for the petitioner. An identical averment is to be found in paragraph 7 of the writ petition. However, in paragraph 13 of the writ petition, it has been stated that plot no.194 sought to be exchanged, is situated adjacent to the petitioner's educational institution situated on plot no.189 while the application filed by the petitioner before the Sub Divisional Magistrate seeking exchange states that plot no.194, sought to be exchanged is situated near the petitioner's plot.
It is, thus, clear that the petitioner has not come up with a consistent case and his stand is a shifting stand.
In the context of the above noted facts, this Court has carefully perused the map appended to the report of the Lekhpal, copy whereof is to be found on page 32 of the paper book.
Plot no.188 over which, the petitioner's educational institution is stated to exist has an area in excess of 1 hectare. It lies to the north of plot no.188, area whereof, according to the map, appears to be identical. On the south eastern corner of plot no.188, abutting a road, exists plot no.194 having an area of 0.0133 hectare.
In view of the admitted facts and from the material on record, the first important fact which emerges is that the petitioner's Educational Institution, on plot no.189 is separated by an area of almost 1 hectare from the plot sought to be exchanged. The land reserved as marghat on plot no.194 is far removed from plot no.189, with the entire area of plot no.188 lying in between which totally belies the petitioner case.
Besides, in case, the petitioner's application for exchange is allowed, the marghat shall necessarily have to be shifted away from the road, creating problems of its accessibility.
Even otherwise, plot no.194 have been reserved as marghat during the consolidation operations. Therefore, its reservation for a public purpose and in view of the Section 132(c)(vi) of the U.P. Zamindari Abolition and Land Reforms Act, this land cannot be exchanged which, provision reads as follows-
"........132. Land in which [bhumidhari] rights shall not accrue. - Notwithstanding anything contained in Section 131, but without prejudice to the provisions of Section 19, [bhumidhari] rights shall not accrue in-
a ..............
b..............
c...........
(i)........
.....
(vi) lands set apart for public purposes under the U.P. Consolidation of Holdings Act, 1953 (U.P. Act V of 1954).]"
In my considered opinion, the petitioner cannot be granted any benefit of the judgement cited because there is no material on record to indicate that the public purpose, wherefor, plot no.194 had been reserved during the consolidation operations has failed. The assertion made by the petitioner in the writ petition is that his land on plot no.189 is being used as marghat. This assertion does not appeal to logic. There is very little likelihood of a bhumidhar allowing his land to be used as marghat either for burning the dead or for burying young children, after death.
Even otherwise, from perusal of the map on page 32 of the paper book, it is abundantly clear that plot no.194 sought to be exchanged is adjacent to plot no.189 belonging to the petitioner. There is nothing on record as to what portion of plot no.188 is sought to be given in exchange.
However, any exchange, as already noticed above, will necessarily entail shifting the land reserved as marghat away from the road and this land shall necessarily not be accessible except over the petitioner's bhumidhari land.
Moreover, the report does not state that the public purpose for which land of plot no.194 had been reserved, has failed. Neither can there be a failure of this purpose because death is a normal and evitable event.
Besides, the activities done on land reserved as marghat are admittedly being performed in the village.
The other important feature, which emerges from the record and the report of the Lekhpal is that there is no mention of any consideration on the claim of the Gaon Sabha, which is the owner of the plot sought to be exchanged. There exists, no resolution of the Gaon Sabha in favour of the exchange sought.
In view of the foregoing discussion, it is not established on record that the public purpose wherefor, plot no.194 had been reserved, has failed. In fact, the assertions of the petitioner necessarily indicate to the contrary. Moreover, in view of the provisions contained in Section 132(c) (vi) of the U.P.Zamindari Abolition and Land Reforms Act, this Court is constrained to hold that the impugned orders are perfectly justified and call for no interference.
The writ petition is without merit and is accordingly, dismissed.
Order Date :- 22.10.2019 RKM