JUDGMENT

K.N. Singh, J. - This is a petition under Article 226 of the Constitution for the issue of a writ of certiorari to quash the orders passed by the Board of Revenue dated 11th October, 1969 and the order of the Additional Commissioner, Faizabad Division dated 14th February, 1966. The petitioners made an application before the Sub-Divisional Officer for the exchange of their land with that of the Gaon Sabha. The Sub-Divisional Officer after making an enquiry and obtaining the report of Tahsildar allowed the exchange. The Gaon Sabha later on repudiated its consent for the exchange, it filed an appeal before the Additional Commissioner which was allowed and the order of exchange was set aside. On an appeal by the petitioners the Board of Revenue upheld the order of the Additional Commissioner and dismissed the petitioner's application for the exchange of land.

2. The main question involved in the present case is whether the Gaon Sabha was entitled under the law to exchange the land which had been earmarked for a public purpose by the Consolidation authorities under the U.P. Consolidation of Holdings Act, 1953. It is admitted by the parties that the plots Nos. 161 and 185 situated in village Pirauli had been earmarked by the Consolidation Authorities for the purposes of pasture land, so that the residents of the locality could graze their cattles on that land. The petitioners made an application before the Sub-Divisional Officer for the exchange of the said plots with their agricultural plot No. 394. According to them their plot No. 394 was allotted to them under the Consolidation proceedings, which was situate at a considerable distance from their house and the plots Nos. 161 and 185 belonging to the Gaon Sabha were situated quite near to their house. The area and the rental value of their plot was not lower to that of the said plot of Gaon Sabha. The Pradhan of the Gaon Sabha gave his consent for the exchange. The Sub-Divisional Officer obtained report from Tahsildar and granted permission for the exchange. On appeal by the Gaon Sabha, the Additional Commissioner as well as the Board of Revenue held that the Gaon Sabha had no authority to exchange the plots which had been set out for pasture land by the Consolidation Authorities.

3. Under Section 161 of the U.P. Zamindari Abolition and Land Reforms Act (hereinafter referred to as the Act) , a Bhumidhar or a sirdar is authorised to exchange land with any other Bhumidhar or sirdar or with Gaon Sabha or local authority, if such land is vested in it under Section 117 of the Act. According to the proviso to Clause (b) of Sub-sec. (1) of Section 161, such exchange cannot be made except with the permission of an Assistant Collector who is empowered to refuse permission, if the difference between the rental value of the land given in exchange and of the land received in exchange calculated hereditary rates, is more than ten percent of the lower rental value. A Gaon Sabha is, therefore, authorised to exchange its land with any bhumidhar or sirdar provided the permission for such exchange is granted by the Assistant Collector and there is no difference of rental value to the extent of more than ten per cent. In the present case, it is admitted that there was no difference of more than ten per cent in the rental value. There is, however, a controversy between the parties as to whether the Assistant Collector had granted permission to the Gaon Sabha for the exchange of the plots. The Additional Commissioner and the Board of Revenue, both have held that there was no such permission. Learned counsel for the petitioner has strenuously urged that the Sub-Divisional Officer who was an Assistant Collector by his order dated 19th June, 1965 had granted the permission. In my opinion, it is not necessary to decide this controversy because even if it be assumed that permission as contemplated by the proviso to clause (b) of Sub-sec. (1) of Section 161 was given by the Assistant Collector, the p