Uttarakhand High Court
Naresh Kumar And Another vs State Of Uttarakhand And Others on 31 August, 2012
IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL
(1) Writ Petition No. 1062 (M/S) of 2012
Naresh Kumar and another - Petitioners
Versus
State of Uttarakhand and others - Respondents
(2) Writ Petition No. 1100 (M/S) of 2012 Pushkar Singh and another - Petitioners Versus State of Uttarakhand and others - Respondents (3) Writ Petition No. 1101 (M/S) of 2012 Nazar Hasan Ansari - Petitioner Versus State of Uttarakhand and others - Respondents (4) Writ Petition No. 1102 (M/S) of 2012 Govind Prasad - Petitioner Versus State of Uttarakhand and others - Respondents (5) Writ Petition No. 1103(M/S) of 2012 Nazar Hasan Ansari - Petitioner Versus State of Uttarakhand and others - Respondents (6) Writ Petition No. 1104 (M/S) of 2012 Indrajeet Singh - Petitioner Versus State of Uttarakhand and others - Respondents (7) Writ Petition No. 1105 (M/S) of 2012 Guman Singh - Petitioner Versus State of Uttarakhand and others - Respondents (8) Writ Petition No. 1106 (M/S) of 2012 Meharban Singh Rawat - Petitioner Versus State of Uttarakhand and others - Respondents (9) Writ Petition No. 1107 (M/S) of 2012 Girish Chandra - Petitioner Versus State of Uttarakhand and others - Respondents (10) Writ Petition No. 1108 (M/S) of 2012 Jaswant - Petitioner Versus State of Uttarakhand and others - Respondents (11) Writ Petition No. 1109 (M/S) of 2012 Mohd. Ahsan - Petitioner Versus State of Uttarakhand and others - Respondents 2 (12) Writ Petition No. 1110 (M/S) of 2012 Smt. Manoj Sharma - Petitioner Versus State of Uttarakhand and others - Respondents (13) Writ Petition No. 1111 (M/S) of 2012 Jashwant Singh - Petitioner Versus State of Uttarakhand and others - Respondents (14) Writ Petition No. 1112 (M/S) of 2012 Smt. Shanti Devi - Petitioner Versus State of Uttarakhand and others - Respondents (15) Writ Petition No. 1113 (M/S) of 2012 Smt. Shahjahan Answari - Petitioner Versus State of Uttarakhand and others - Respondents (16) Writ Petition No. 1114 (M/S) of 2012 Surendra Singh - Petitioner Versus State of Uttarakhand and others - Respondents (17) Writ Petition No. 1063 (M/S) of 2012 Smt. Shahjahan - Petitioner Versus State of Uttarakhand and others - Respondents (18) Writ Petition No. 1064 (M/S) of 2012 Smt. Damyanti @ Kanta - Petitioner Versus State of Uttarakhand and others - Respondents (19) Writ Petition No. 1065 (M/S) of 2012 Mustaqeem - Petitioner Versus State of Uttarakhand and others - Respondents (20) Writ Petition No. 1066 (M/S) of 2012 Nazar Hasan Ansari - Petitioner Versus State of Uttarakhand and others - Respondents (21) Writ Petition No. 1326 (M/S) of 2012 Dharam Singh - Petitioner Versus State of Uttarakhand and others - Respondents (22) Writ Petition No. 1327 (M/S) of 2012 Jashwant Singh and another - Petitioners Versus State of Uttarakhand and others - Respondents (23) Writ Petition No. 1328 (M/S) of 2012 Bundu - Petitioner Versus State of Uttarakhand and others - Respondents 3 (24) Writ Petition No. 1329 (M/S) of 2012 Smt. Aneeta Devi - Petitioner Versus State of Uttarakhand and others - Respondents (25) Writ Petition No. 1332 (M/S) of 2012 Naushad - Petitioner Versus State of Uttarakhand and others - Respondents (26) Writ Petition No. 1333 (M/S) of 2012 Jashwant Singh - Petitioner Versus State of Uttarakhand and others - Respondents Sri Arvind Vashist, Advocate for the petitioners. Sri A.K. Bansal, Standing Counsel on behalf of State (27) Writ Petition No. 1271 (M/S) of 2012 Ranjandeep Singh Sandhu - Petitioner Versus State of Uttarakhand and others - Respondents (28) Writ Petition No. 1273 (M/S) of 2012 Ranjandeep Singh Sandhu - Petitioner Versus State of Uttarakhand and others - Respondents (29) Writ Petition No. 1274 (M/S) of 2012 Tejinder Singh - Petitioner Versus State of Uttarakhand and others - Respondents (30) Writ Petition No. 1277 (M/S) of 2012 Ranjandeep Singh Sandhu - Petitioner Versus State of Uttarakhand and others - Respondents Sri A.V. Pundir, Advocate for the petitioners. Sri A.K. Bansal, Standing Counsel for State.
[ Hon'ble B.S. Verma, J. (Oral)] Since the controversy involved in all the aforesaid writ petitions is same, therefore, for the sake of convenience all the writ petitions are being decided by this common judgment.
Writ Petition No. 1062(M/S) of 2012 has been filed against the order dated 10-4-2012, passed in Case No. 09/2011-12, Writ Petition No. 1100(M/S) of 2012 has been filed against the order dated 10-4- 2012, passed in Case No. 05/2010-11, Writ Petition No. 1101(M/S) of 4 2012 has been filed against the order dated 10-4-2012, passed in Case No. 16/2011-12, Writ Petition No. 1102(M/S) of 2012 has been filed against the order dated 10-4-2012, passed in Case No. 12/2011-12, Writ Petition No. 1103(M/S) of 2012 has been filed against the order dated 10-4-2012, passed in Case No. 17/2011-12, Writ Petition No. 1104(M/S) of 2012 has been filed against the order dated 10-4-2012, passed in Case No. 06/2010-11, Writ Petition No. 1105(M/S) of 2012 has been filed against the order dated 10-4-2012, passed in Case No. 10/2011-12, Writ Petition No. 1106(M/S) of 2012 has been filed against the order dated 10-4-2012, passed in Case No. 07/2010-11, Writ Petition No. 1107(M/S) of 2012 has been filed against the order dated 10-4-2012, passed in Case No. 10/2011-12, Writ Petition No. 1108(M/S) of 2012 has been filed against the order dated 10-4-2012, passed in Case No. 13/2011-12, Writ Petition No. 1109(M/S) of 2012 has been filed against the order dated 10-4-2012, passed in Case No. 14/2011-12, Writ Petition No. 1110(M/S) of 2012 has been filed against the order dated 10-4-2012, passed in Case No. 15/2011-12, Writ Petition No. 1111(M/S) of 2012 has been filed against the order dated 10-4-2012, passed in Case No. 16/2010-11, Writ Petition No. 1112(M/S) of 2012 has been filed against the order dated 10-4-2012, passed in Case No. 18/2011-12, Writ Petition No. 1113(M/S) of 2012 has been filed against the order dated 10-4-2012, passed in Case No. 20/2011-12, Writ Petition No. 1114(M/S) of 2012 has been filed against the order dated 10-4-2012, passed in Case No. 09/2010-11, Writ Petition No. 1063(M/S) of 2012 has been filed against the order dated 10-4-2012, passed in Case No. 18/2011-12, Writ Petition No. 1064(M/S) of 2012 has been filed against the order dated 10-4-2012, passed in Case No. 19/2011-12, Writ Petition No. 1065(M/S) of 2012 has been filed against the order dated 10-4-2012, passed in Case No. 24/2011-12, Writ Petition No. 1066(M/S) of 2012 has been filed against the order dated 10-4-2012, passed in Case No. 26/2011-12, Writ Petition No. 1326(M/S) of 2012 has been filed against the order dated 10-4-2012, passed in Case No. 02/2011-12, and order dated 18- 6-2012 passed in Appeal No. 04/2011-12, Writ Petition No. 1327(M/S) of 2012 has been filed against the order dated 10-4-2012, passed in Case No. 15/2010-11, and order dated 18-6-2012, passed in 5 Appeal No. 05/2011-12, Writ Petition No. 1328(M/S) of 2012 has been filed against the order dated 10-4-2012, passed in Case No. 01/2010-11, and order dated 18-6-2012, passed in Appeal No. 01/2011-12, Writ Petition No. 1329(M/S) of 2012 has been filed against the order dated 10-4-2012, passed in Case No. 02/2010-11, and order dated 18-6-2012, passed in Appeal No. 06/2011-12, Writ Petition No. 1332(M/S) of 2012 has been filed against the order dated 10-4-2012, passed in Case No. 23/2011-12, and order dated 18-6- 2012, passed in Appeal No. 02/2011-12, Writ Petition No. 1333(M/S) of 2012 has been filed against the order dated 10-4-2012, passed in Case No. 14/2010-11, and order dated 18-6-2012, passed in Appeal No. 03/2011-12, Writ Petition No. 1271(M/S) of 2012 has been filed against the order dated 10-4-2012, passed in Case No. 12/2010-11, Writ Petition No. 1273(M/S) of 2012 has been filed against the order dated 10-4-2012, passed in Case No. 22/2011-12, Writ Petition No. 1274(M/S) of 2012 has been filed against the order dated 10-4-2012, passed in Case No. 21/2011-12, and Writ Petition No. 1277(M/S) of 2012 has been filed against the order dated 10-4-2012, passed in Case No. 13/2010-11.
Brief facts of the cases giving rise to these writ petitions are that in W.P. Nos. 1271, 1273, 1274, 1277, 1332, 1333 the petitioners were applicants in exchange applications and in rest petitions the petitioners are the purchasers of the land, who purchased that after the order of exchange of the Assistant collector from the tenure holders, who are not members of Scheduled Tribes. It is pleaded that the applications U/s 161 of U.P. Z.A. and L.R. Act were filed before the Up Ziladhikari/Assistant Collector 1st Class, Haridwar for permission of exchange of the land. The Assistant Collector Haridwar called for report from Tehsildar Haridwar. The Tehsildar Haridwar gave his reports on different dates and recommended for the exchange, mentioning therein that there is no objection to any party by the exchange of land and no harm is going to be caused to any one and the land-revenue of the lands is almost equal or difference is less than 10%. The Up Ziladhikari/Assistant Collector allowed the exchange applications and directed to record the names of the parties 6 in revenue records vice-versa vide orders passed in change cases on different dates.
Thereafter on 4-4-2012, Sri Bipin Chandra Dwivedi, Advocate practicing in the District Court Roshanabad Haridwar, made a complaint to the Collector Haridwar that Section 157-B of Z.A. and L.R. Act, imposes restrictions on transfer of land by members of Scheduled Tribe to the member of general category and prayer was made to enquire in the matters of exchange of land by the petitioners to the persons belonging to general category.
The learned Up Ziladhikari/Assistant Collector taking cognizance on the application of Sri Bipin Chandra Dwivedi, Advocate, quashed his earlier orders by which the exchange applications were allowed, vide orders dated 10-4-2012.
Some of the petitioners filed appeals against the orders dated 10-4-2012, passed by Assistant Collector, before the Commissioner Garhwal Mandal Pauri, who vide judgment and orders dated 18-6- 2012, dismissed the appeals and affirmed the order passed by the Assistant Collector.
Now being aggrieved by the orders dated 10-4-2012 passed by Assistant Collector and order dated 18-6-2012, passed by Commissioner Garhwal Manda Pauri, these writ petitions have been filed.
The writ petitions have been filed mainly on the ground that Section 161 of U.P. Z.A. and L.R. Act contemplates that the Assistant Collector will refuse permission if the difference between the rental value of the land given in exchange and of the land received in exchange calculated at hereditary rates is more than 10% of the lower rental value and in the cases at hand the Tehsildar Haridwar had specifically reported that the rental value of the land given in exchange and the land received in exchange is equal and is less than 10%, and had recommended the exchange, therefore, the orders of the Assistant Collector, granting permission of exchange of land are perfectly justified. It is further alleged by the petitioners that the learned Assistant Collector has recalled his earlier orders making reference of complaint of Sri Bipin Chandra Dwivedi Advocate, who 7 had no concern with the lands which were being exchanged and was not party to the proceeding of exchange.
Counter affidavits have been filed on behalf of State/respondent. The stand taken by the State is that the exchange of lands is against the provisions contained in Section 157-B of U.P. Z.A. and L.R. Act. The orders of exchange have been obtained by concealing the material facts regarding the caste of the tenure holders and the nature of holdings held by them and hence the earlier orders have rightly been recalled by the Assistant Collector vide orders dated 10-4-2012.
I have heard Sri Arvind Vashist, Advocate and Sri A.V. Pundir, Advocate appearing on behalf of the petitioners and Sri A.K. Bansal, Standing Counsel on behalf of State.
In some cases Sri B.M. Pingal, also appeared on behalf of respondent Jagbir Singh.
Sri Bipin Chandra Dwivedi, who had made complaint to the Collector against the exchange of land, is also made respondents to these writ petitions, but despite of service of notice he has not appeared before this Court.
Learned counsel appearing on behalf of the petitioners have contended that the predecessor in interest of the petitioners had moved applications for exchange of land U/s 161 of U.P. Z.A. and L.R. Act and proviso appended to this Section imposes restrictions on exchange 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% of the lower rental value. But in the instant cases the Tehsildar Haridwar had recommended the exchange of land mentioning therein that there is no objection to any party by the exchange of land and no harm is going to be caused to any one and the land-revenue of the lands is equal and is less than 10% and on being satisfied the Assistant Collector had granted permission to the parties to the exchange of land. He further contended that Sri Bipin Chandra Dwivedi had no interest in the land in question and the learned Assistant Collector without giving opportunity of hearing to the parties interested, making reference of the complaint of Sri Bipin Chandra Dwivedi, had recalled his earlier orders and by doing so the 8 learned Assistant Collector had committed a manifest error and the orders impugned have been passed in violation of natural justice.
On the other hand learned Standing Counsel appearing on behalf of State has contended that the exchange of lands is against the provisions contained in Section 157-B of U.P. Z.A. and L.R. Act. The orders of exchange have been obtained by concealing the material facts regarding the caste of the tenure holders and the nature of holdings held by them and hence the earlier orders have rightly been recalled by the Assistant Collector vide orders dated 10-4-2012.
I do not agree with the submission of learned Standing Counsel. Section 157-B and 157-BB of the Z.A. and L.R. Act imposes restrictions on transfer of land and not on exchange of land. Provision of exchange of land has been made U/s 161 of the U.P. Z.A. and L.R. Act, which is quoted as below:-
"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 different 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 in exchange.
By a perusal of Section 161 of the Act it is amply clear that in Section 161 of the Act, there is no restrictive clause that a member of Scheduled Caste/Scheduled Tribe cannot exchange his land to non- S.C. and non- S.T. Bhumidhar. The Legislative intention is clear that exchage of land can be refused if the difference between the land given in exchange and received in exchange calculated at the 9 hereditary rate is more than 10% of the lower rental value. The land can also be exchanged even with the Gaon Sabha local authority for the time being vested under Section 117 of U.P. Z.A. and L.R. Act. The permissions of exchange of lands were given by the Assistant Collector, therefore, provisions of Section 157-B or 157-BB of the Act would not be attracted in the case of exchange. The provisions of Section 157-B or 157-BB would be attracted to the land which was so received in exchange by the members of S.C./S.T. tenure holders, since sub section (2) of Section 161 provides that an exchange made in sub-section (1) they will have the same rights in land so received in exchange as they had given in exchange.
In the instant cases the applications were made to exchange of land and the Tehsildar Haridwar had recommended the exchange of land mentioning therein that there is no objection to any party by the exchange of land and no harm is going to be caused to any one and the land-revenue of the lands is almost equal and the difference is less than 10% and on being satisfied the Assistant Collector had granted permissions to the parties to the exchange the lands.
The orders under challenge in these writ petitions are dated 10- 4-2012, whereby the Assistant Collector had recalled his earlier orders grating permission to exchange the land passed on different dates, and the learned Commissioner Garhwal Mandal, had affirmed the orders dated 10-4-2012 recalling the earlier orders by the Assistant Collector.
By perusal of impugned orders dated 10-4-2012 it reveals that on the complaint of Sri Bipin Chandra Dwevedi, Advocate the learned Assistant Collector had recalled his earlier orders and no opportunity of hearing was afforded to the parties who exchanged their lands. Sri Bipin Chandra Dwevedi is not an interested person in the land under exchange. He was not a party to the proceedings and was not an aggrieved person. Therefore, the orders passed by the Assistant Collector and the learned Commissioner are against the principle of natural justice and without jurisdiction and the same are liable to be quashed.
All the writ petitions are allowed. The impugned order dated 10-4-2012, passed by Assistant Collector and the orders dated 13-6- 10 2012 passed by learned Commissioner, in the cases mentioned in the body of this judgement, are hereby set aside and the orders passed by Assistant Collector whereby the exchange of land was permitted, are maintained.
Let a copy of this order be placed in each file of the writ petitions.
ISB (B.S. Verma, J.)
31-08-2012