Allahabad High Court
Kishori vs State Of U.P. And Others on 8 August, 2011
Bench: Amreshwar Pratap Sahi
HIGH COURT OF JUDICATURE AT ALLAHABAD
?AFR
Court No. - 6
Case :- WRIT - C No. - 44620 of 2011
Petitioner :- Kishori
Respondent :- State Of U.P. And Others
Petitioner Counsel :- Shrawan Kumar Mishra,Om Prakash Chaube
Respondent Counsel :- C.S.C.,Anuj Kumar
Hon'ble Amreshwar Pratap Sahi,J.
Heard learned counsel for the petitioner and perused the records.
The petitioner claims allotment over plot no. 207. A copy of the lease alleged to have been executed in favour of the petitioner is Annexure-1 to the writ petition. The same apparently does not indicate any approval by the competent authority.
Learned counsel submits that the said lease has been formally approved and was also acknowledged by the Sub Divisional Magistrate under the order dated 7.8.2010, whereby invoking the powers under Section 161 of the U.P. Z.A. & L.R. Act, 1950, the allotment of the land was exchanged with plot no. 210, which admittedly was recorded as a playground and was a public utility land within the meaning of Section 132 of the U.P. Z.A. & L.R. Act, 1950.
The said allotment has now been upset, and aggrieved against the order passed by the authorities, the petitioner is before this court under Article 226 of the Constitution of India, contending that the allotment was valid and the same stood regularized under the order dated 7.8.2010.
The provisions of Section 161 of the U.P. Z.A. & L.R. Act, 1950 are quoted herein below:-
"Section 161. Exchange. - [(1) A bhumidhar [* * *] may exchange with --
(a) any other bhumidhar [* * *] land held by him; or
(b) any [Gaon Sabha] or local authority, lands for the time being vested in it under Section 117 [* * *]:
Provided that no exchange shall be made except with the permission of an Assistant Collector who shall refuse permission if the difference between the rental value of land given in exchange and of land received in exchange calculated at hereditary rates is more than 10 per cent of the lower rental value.
(1-A) Where the Assistant Collector permits exchange he shall also order the relevant annual registers to be corrected accordingly.
(2) On exchange made in accordance with sub-section (1) they shall have the same rights in the land so received in exchange as they had in the land given exchange."
The said provision nowhere permits any exchange of public utility land. Such an exchange is permissible but to a limited extent only when a village is under consolidation operations under the proviso to Sub Section (2) of Section 19-A of the U.P. Consolidation of Holdings Act, 1953.
In the instant case the petitioner did not make any effort nor any order was passed during consolidation operations permitting such exchange. The order on which reliance has been placed by the petitioner, that is dated 7.8.2010, is an order in the purported exercise of powers under Section 161 of the 1950 Act, which does not appear to be in pari-materia to the proviso of Sub Section (2) of Section 19-A of the 1953 Act. This circuitous method of getting the lease a legal sanction through the provision of exchange was obviously an indirect method to regularise an incompetent allotment. It is trite law that what cannot be permitted to be done directly cannot be done indirectly. The statute cannot be permitted to be violated and the rigour, thereof on the pain of invalidation, cannot be avoided.
Thus, the Sub Divisional Magistrate had no authority to permit any such exchange under the provisions of Section 161, and in the absence of such a power, any regularization as claimed by the petitioner on the strength of the said order, is also impermissible in law. The lease if any was over plot no. 207 and the finding recorded that the allotment could not have been converted in favour of the petitioner over plot no. 210 which is a playground and a public utility land within the meaning of Section 132 of the 1950 Act, cannot be faulted with.
There is no merit in the petition and the same is dismissed.
Order Date :- 8.8.2011
Sahu
