Shiv Murat vs Board Of Revenue, U.P. At ...
2017 Latest Caselaw 940 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

AFR
 
Court No. - 7
 
Case :- WRIT - B No. - 17900 of 2017
 
Petitioner :- Shiv Murat
 
Respondent :- Board Of Revenue, U.P. At Allahabad And 14 Others
 
Counsel for Petitioner :- Om Prakash Pandey,Kailash Nath
 
Counsel for Respondent :- C.S.C.,Ramesh Chandra Upadhyay
 

 
Hon'ble Suneet Kumar,J.

Heard learned counsel for the parties.

By means of the instant petition, petitioner is assailing the order dated 13 February 2017 passed by the first respondent, Board of Revenue U.P. at Allahabad in Revision No. 1694 of 2015 (Shiv Murat Versus State of U.P. and others) arising from proceedings under Section 161 of the Uttar Pradesh Zamindari Abolition and Land Reforms Act 1950 (Act).

Petitioner is Bhumidhar of plot no. 1112/1260 ad-measuring 0.0460 hectare who applied for exchange of the land under Section 161 of the Act with plot no. 100 ad-measuring 0.087 hectare recorded USAR, vesting in the Gaon Sabha of Village Virbhanpur, Pargana Bela Daulatabad, Tehsil Mehnagar, District Azamgarh. The Assistant Collector on receiving the application, after obtaining report from the Halka Lekhpal, the Revenue Inspector and on the recommendation of the Tehsildar, passed an order on 29 May 2012 approving exchange of the plots. Aggrieved, the District Government Counsel (DGC) preferred a revision on behalf of the State before the Commissioner, Azamgarh Division, Azamgarh which was allowed on 15 May 2016. Aggrieved, petitioner went in revision before the Board of Revenue which has been rejected by the impugned order affirming the order passed by the Commissioner.

In the impugned order, it has been noted that the Assistant Collector before recommending exchange of the plot vesting in the Gaon Sabha, no permission or resolution by the Land Management Committee approving the recommendation was passed, as such, it was held that the recommendation was void and not in terms of Section 161 and the Rules.

Learned counsel for the petitioner would submit that in view of the plain reading of Section 161 and Rules 144 to 146 of the Rules: (i) no resolution of the Land Management Committee is required; (ii) the order of the Sub Divisional Officer granting permission for exchange could not have been assailed in revision, the remedy available was to file recall/restoration application; (iii) under Section 28 of U.P. Panchayat Raj Act, Lekhpal is the Secretary of the Land Management Committee, therefore, on the report the of Lekhpal exchange can be effected and would tantamount to consent of the Land Management Committee.

In rebuttal, learned Standing Counsel would submit: (i) the plot sought for exchange is recorded as manure pit (Khad Ka Gaddha), therefore, being a public utility land under section 132 cannot be exchanged; (ii) admittedly, there is no notice to the Gaon Sabha which is mandatory and without resolution of the Land Management Committee approving the exchange Sub Divisional Officer could not have passed the order merely on the report of the Lekhpal; (iii) under Section 127B the panel lawyer of the State/Land Management Committee can maintain the revision on behalf of the State; (iv) Section 161 does not confer any legal right upon the applicant seeking exchange.

Rival submissions fall for consideration.

The question for determination is as to whether the land vesting in the Gaon Sabha can be exchanged without notice to the Land Management Committee and without there being a resolution of the Gaon Sabha approving the exchange.

Section 161 of the Act provides for exchange. A bhumidhar may exchange with (a) any other bhumidhar land held by him or (b) land vesting in any Gaon Sabha or local authority under Section 117. The proviso to section 161 requires prior permission of the Assistant Collector upon being satisfied that conditions of rental value of the respective land calculated at hereditary rates is not more than 10 percent of the lower rental value. On exchange being made in accordance with sub-section (1) shall confer same rights in the land received in exchange as the bhumidhar had in the land given in exchange.

Rule 144 requires that an application for permission to make an exchange shall contain the detail of khasra number of the plots which the applicant wishes to receive and of the plots which he offers in exchange.

Upon receiving such an application, Rule 145 requires that the Assistant Collector shall cause calculation of the rental value of the land proposed to be given in exchange and the land proposed to be received in exchange at hereditary rates and if he is satisfied that the exchange is not invalid according to the proviso to sub-section (1) of Section 161 the Assistant Collector shall call upon the parties, if any, to show cause why the exchange should not be made. Every such notice shall be accompanied by a copy of the application. If the Assistant Collector decides that the exchange should be allowed, he shall also make an order for delivery of possession, if necessary, and for the correction of papers.

It is not being disputed by learned counsel for the petitioner that no notice or show cause notice was ever issued to the Land Management Committee of the Gaon Sabha as mandated in Rule 145, further, it is not in dispute that the land vests in the Gaon Sabha and is recorded manure pit.

On plain reading of Sub-clause (i) of Section 161 and Rule 145, it is apparent that the Assistant Collector upon being satisfied with the conditions of exchange, as a consequence of the Rule he is required to call upon the parties to show cause why the exchange should not be made and thereafter under Rule 146 the Assistant Collector is to decide the objections, if any, and pass suitable orders. It is, therefore, clear that without notice to the Gaon Sabha and in absence of a resolution recording consent of the Land Management Committee the permission to make an exchange suo moto by the Assistant Collector on a report of the Halka Lekhpal would be void not being mandated under Section 161 of the Act.

In the event of the submission of learned counsel for the petitioner being accepted, then land of a bhumidhar can be exchanged behind his back merely on an application by another bhumidhar, on mere approval of the Assistant Collector. Rule requires that the owner of the land be it a bhumidhar or in the present case a Gaon Sabha would have to be put to notice before the land vesting in the Gaon Sabha is exchanged.

It is further sought to be urged by learned counsel for the petitioner that Gram Panchayat is also the Land Management Committee (Bhumi Prabhandhak Samiti) as contemplated under Section 28A of the U.P. Panchayat Raj Act, 1947. Pradhan and Up Pradhan shall respectively be the Chairman and Vice Chairman of the Land Management Committee and the Lekhpal of the area is the Secretary, therefore, it is contended that approval of the Secretary (Lekhpal) would tantamount to being the consent of the Land Management Committee/Gram Panchayat.

Section 28B enumerates the functions of the Land Management Committee which, amongest other, is charged with the general management, preservation and control of all property referred to in Section 28-A which includes settling and management of land but does not include transfer of any property for the time being, vested in the Gram Panchayat under Section 117 of the U.P.Z.A. & L.R. Act or under any other provisions of the Act.

On a plain reading of the provisions of the U.P. Panchayat Raj Act, it is clear that the report or consent of the Secretary of Land Management Committee (Lekhpal) is certainly not the consent of the Gram Panchayat which is conferred the right and duty to the protection and supervision of management and up-keep of the property belonging to or vesting or held by the Gram Panchayat. Lekhpal in the capacity of a revenue officer submitting a report sought by the Assistant Collector would not reflect the consent of the Land Management Committee for the reason that the Lekhpal performs his duty in two different capacity: (i) Secretary of Land Management Committee and (ii) Officer of the revenue, therefore, the plea of the learned counsel for the petitioner that the consent of the Lekhpal would be the consent of the Gram Panchayat cannot be accepted.

From the conjoint reading of Section 161, as well as, the Rules relating thereto, it transpires that the legislature has extended facility upon a bhumidhar to exchange his bhumidhari land from land of another bhumidhar for their convenience upon satisfying the conditions for exchange. Such exchange cannot be valid unless permission of the Assistant Collector has been obtained. An exchange involves the transfer of property by one person to another and reciprocally the transfer of property by that other to the first person. There must be a mutual transfer of ownership of one thing for the ownership of another.

On the bare reading of the meaning of the word "exchange" it would transpire that it is not unilateral transaction and is mutual one and it depends on the readiness and willingness of both the parties, i.e., the party which wants to exchange and the party which accepts the exchange proposed by the other party. Therefore, I am of the considered opinion that unless both the parties agree for exchange, the Assistant Collector cannot accord permission merely at the instance of an individual seeking exchange of his land with another individual unless he is willing to exchange. The willingness of the parties to exchange their respective land is condition precedent under Section 161 of the Act. The exchange of the land is not unilateral transaction of a willing party to exchange, there must be consent of the person with whom exchange has been sought and unless there is agreement of exchange between the parties, there is no such power vested with the Assistant Collector under the statute to compel the bhumidhar to exchange land with another bhumidhar/Gaon Sabha against its will.

This Court in Rambali and others Versus State of U.P. and others, decided on 9 May 2012, declined to issue writ of mandamus seeking direction to the Assistant Collector to decide the application under Section 161. The Court held as follows:

"..........

As I have noticed that the exchange of land belonging to a bhumidhar to another bhumidhar is not unilateral transaction by a willing party to exchange, there must be consent of the person with whom exchange has been sought and unless there is an agreement of exchange between the parties, there is no such power, vested with the Assistant Collector, under the statute, to compel a bhumidhar for exchange of his land with another bhumidhar against his will. I am of the view that conferment of right of exchange of the land under Section 161 of the Act read with relevant rules as detailed is subject to convenience of both the parties to the exchange and in the eventuality the willingness of both the sides to exchange, the Section 161 imposes duty upon the Assistant Collector either to grant permission or to refuse the same if the same is not inconformity with the section 161 of the Act and the rules 144 to 147 of the Rules."

The exchange of Land is not a novelty of the Zamindari Abolition Act. Provisions for exchange existed even under U.P. Tenancy Act, 1939 and other legislation viz. M.P. Land Revenue Court, 1959. The term exchange is not defined in the Act, hence the definition given in Section 118 of the Transfer of Property Act shall be applicable. According to the said provision, exchange is a transfer. When two persons mutually transfer the ownership of one thing for the ownership of another, a transaction is called exchange. For a valid exchange, it must be voluntarily and both parties must agree thereto. No exchange is permissible unless both parties agree to the exchange.

In Saheb Singh Versus Gaon Sabha, 1981 RD 85, where Land Management Committee passed a resolution that a particular pathway should be widened and the affected tenure holders must be given land in exchange near their chaks. It was held that the order of the Sub Divisional Officer approving the exchange was bad because the consent of all the affected tenure holders was not obtained.

In Smt. Badi Dulaiya Versus Gaon Sabha, 1987 RD 246, wherein, it was held that if the procedure prescribed by Rules 144 to 146 was not followed, and the permission required under Rule 110-A(2) was not obtained, the order for exchange was not valid (Refer: State of U.P. Versus M/s Techno Tower Limited, 1986 RD 397).

In Narain Singh Versus Gaon Sabha, 1975 ALJ (Revenue) 73, it was held that a land belonging to the Gaon Sabha cannot be allowed to be exchanged without the consent of the Gaon Sabha. In Gulshan Rai Versus Mitra Sen, 1994 RD 125, where on the report submitted by Naib Tehsildar recommending that the permission for exchange may be granted to the parties and on such report, the Sub Divisional Officer passed an order approving the exchange, it was held to be no order in the eye of law.

Before disposing of the application for exchange, a duty is cast upon the Assistant Collector to ensure that the provisions of Rule 144 to 146 are literally followed. (Refer-Ashok Kumar Versus Mahavir Singh, 1994 RD 136; State of U.P. Versus M/s Techno Tower Ltd., 1986 RD 397). The proceedings for exchange are judicial proceeding and therefore, the Assistant Collector should pass complete and self contained order. Where the Assistant Collector finds that parties involved in the exchange have not consented, therefor, or if any of them has withdrawn such consent, he has no option but to reject the application. (Fakir Chand Versus Naib Johra Zaidi, 1995 RD 405)

The trial court should ensure and see that show cause notice mentioned in Rule 145 is issued and the condition mentioned in the proviso to Section 161 is fulfilled (Gaon Sabha Versus Kundan Lal, 1986 RD 366).

The exchange of land belonging to the Gaon Sabha does not depend of the personal consent of the Pradhan or the Lekhpal. For exchange proper resolution as required under law should be passed by the Gaon Sabha. (Harihar Prasad Versus Jagdish, 2001 RD 163).

The disputed land of the Gaon Sabha is recorded as manure pit being a public utility land and covered under Section 132 of the Act, no right or interest of a bhumidhar can be acquired in respect thereof, in view of sub-section C (vi) of Section 132. On fulfilling the conditions of exchange the Assistant Collector is not required to mechanically recommend exchange on mere asking of the parties, in particular, Gram Panchayat Land. The Assistant Collector is duty bound to consider whether the land sought for in exchange is a public utility land; or whether the land is being exchanged for a Gram Panchayat land which is situated on the proposed four lane road, thus, having commercial value, etc.

Having due regard to the facts and circumstances, I do not find any merit in the contentions raised by learned counsel for the petitioner.

The writ petition being devoid of merit is accordingly dismissed.

No cost.

Order Date :- 22.5.2017

K.K. Maurya