A bhumidhar with non-transferable rights cannot exchange such holding.

Anjani Kumar Mishra, J.

Heard Sri Tripathi B.G. Bhai for the petitioner and Sri Manu Singh for the Gaon Sabha, respondent no. 3.

2. The petitioner has filed this writ petition challenging an order dated 25.03.2015 of the Commissioner, Aligarh, whereby he has set aside an order passed in favour of the petitioner in proceedings under Section 161 of the U.P. Zamindari Abolition & Land Reforms Act for exchange of certain plots of the petitioner with those of the Gaon Sabha recorded in the revenue records as banjar. This order for exchange was passed by the Sub Divisional Officer.

3. It has been submitted by counsel for the petitioner that on his application proceedings under Section 161 of the U.P.Z.A.&L.R. Act were initiated and the order for exchange was passed, validly and in accordance with law. The order was also in consonance that the resolution of the Gaon Sabha in this regard and it was passed after the Pradhan had given her consent in her oral testimony, recorded by the Sub Divisional Officer. The order therefore was a consent order. Prior to the order being passed, the opinion of the D.G.C. Revenue had also been obtained. The order for exchange have been passed in public interest.

4. The revision filed against this order, was preferred by the D.G.C. (Revenue), without there being any resolution of the Gaon Sabha in this regard. The revision was therefore, incompetent. It was also highly time barred and was not accompanied by any application under Section 5 of the Limitation Act for condonation of delay. The revision therefore has wrongly been entertained and allowed. The impugned order therefore is patently illegal and is liable to be set aside.

5. Sri Manu Singh, who has accepted notice on behalf of respondent no. 3 has supported the impugned order.

6. I have considered the submissions made by the learned counsel for the parties and have perused the record.

7. The Commissioner, the respondent no. 2, has set aside the order of exchange on a short point. He has held that the land of the petitioner had been allotted to him by the Gaon Sabha. The petitioner therefore was a bhumidhar with non transferable rights and therefore not competent to exchange the plots allotted. For the same reason the plots which were bhumidhari with non transferable rights could not be the subject matter of exchange. The Commissioner while passing the order has referred to numerous decisions in support of his order and I find no illegality therein.

8. In the writ petition, the fact that the petitioner was at best a bhumidhar with non transferable rights, is not in dispute. It is well settled that a bhumidhar with non transferable rights cannot exchange such holding.

9. The contention of learned counsel for the petitioner that there was no resolution of the Gaon Sabha for filing the revision, is a purely technical issue. I do not consider it expedient to interfere with the impugned order, even if this submission is correct because by the order impugned substantial justice has been done and in case the revisional order is set aside, it would restore an equally illegal order in favour of the petitioner. I therefore refuse to interfere in the matter on this technical plea.

10. The next submission that the order of exchange had been passed in public interest is also without force. No public interest lies in any action which is taken contrary to law. The order of exchange was clearly not permissible since the petitioner was not a bhumidhar having transferable rights in the land, which was the subject matter of exchange.

11. As regards the next submission that the order had been passed after obtaining the opinion of the D.G.C. Revenue and on the basis of the consent of the Pradhan as contained in her statement recorded before the Sub Divisional Officer, it would suffice to state that a Pradhan cannot give consent or make an admission in favour of another party, detrimental to the interest of the Gaon Sabha, without having obtained prior permissio