K. M. Dayal, J. - (1.) THIS is plaintiff's Second Appeal.
(2.) PLAINTIFF no. 1, Smt. Vidyawati and the plaintiff no. 2 Pratap Singh are the daughter and son of earstwhile Pradhan Lochan Singh. The case of the plaintiff is that on 13-2-1964 Gram Sabha of Mauza Khizarpur allotted a plot measuring 3 Biswas 4 Biswansis out of 11 Biswas of land in plot no. 603 for a consideration of Rs. 250/-. The lease was cancelled, in proceedings under Rule 115-N, framed under the UP ZA and LR Act, by the Sub-Divisional Officer. The present suit was filed challenging that order. The suit has been dismissed by both the courts below. The Sub-Divisional Officer has held that the area allotted to the allottees was about 1600 square yards whereas no allotment could be made for Abadi purposes in excess of 250 square yards. The second finding of the Sub-Divisional Officer was that there was no auction held nor any bid and the third finding was that the allotment made was hit by section 28-C of U. P. Panchayat Raj Act. The learned counsel for the appellant firstly argued that the allotment was not hit by the provisions of section 28-C of the U. P. Panchayat Raj Act. The relevant provisions of section 28-C of U. P. Panchayat Raj Act is as under:- "Members and officers not to acquire interest in contracts etc., with Gaon Panchayat or Bhumi Prabandhak Samiti shall, otherwise than with the permission in writing of the Collector, knowingly acquire or attempt to acquire or stipulate for or agree to receive or continue to have himself or through a partner or otherwise any share or interest in any licence, lease, sale exchange, contract or employement with, by, or on behalf of the Samiti concerned."
(3.) THE learned counsel argued that merely because the allottees were the son and the daughter of the Pradhan, it could not be said that the Pradhan acquired or attempted to acquire the lease for himself or through a partner or otherwise. I feel that he is right. If the allotment was in favour of the Pradhan even indirectly that would be covered by the Section. In this case the allotment was in favour of a widowed daughter who had ceased to be a member of the family of Pradhan and a major son who could not be said to be his appendage. Had he been a minor son or his wife or transaction would have been benami in some-body's name for the benefit of the Pradhan, only in that case the permission required under the Section aforesaid should have been taken. In the instant case the courts below should have examined the provisions of section itself before presuming that the allotment in favour of the son or daughter of the Pradhan would be an allotment for the benefit of the Pradhan himself. I accordingly agree with the learned counsel for the appellant that in the present case the allotment was not hit by the provisions of section 28-C of the U. P. Panchayat Raj Act. So far as the other question of the land being more than 250 square yards was concerned, it is apparent that an area of 3 Biswas 4 Biswansis was allotted. According to the area calculated by the learned counsel for the parties it comes to about 462 square yards. Rule 115-C, framed under UP ZA and LR Act prohibits allotment of more than 250 square yards for the construction of house. The learned counsel for Gaon Sabha argued that in the present case the allotment being for more than that area it was hit by the provisions aforesaid ; the allotment was illegal. The argument of the learned counsel for the appellant is that 250 square yards was the limit for each allottee. In the instant case there were two allottees and, therefore, upto 500 square yards could be allotted. As the matter is being sent down, the court below may also decide the same.;