Narendra Kumar And Another vs Thr Board Of Revenue U.P. And 6 Others on 3 April, 2023

[Cites 14, Cited by 1]

Allahabad High Court

Narendra Kumar And Another vs Thr Board Of Revenue U.P. And 6 Others on 3 April, 2023

Bench: Jayant Banerji





HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

AFR
 
RESERVED
 
Court No. - 4
 

 
Case :- WRIT - B No. - 1218 of 2021
 
Petitioner :- Narendra Kumar And Another
 
Respondent :- The Board Of Revenue U.P. And 6 Others
 
Counsel for Petitioner :- Fuzail Ahmad Ansari,Sr. Advocate Shri R.C. Singh
 
Counsel for Respondent :- C.S.C.,Krishna Kant Singh,Yogendra Singh Bohra
 

 
Hon'ble Jayant Banerji,J.

1. This writ petition has been filed seeking quashing of the order dated 23.02.2021 passed by the Board of Revenue, U.P., Allahabad in Revision no.1124 of 2017. Also the order dated 24.04.2017 passed by the Sub-Divisional Officer is sought to be quashed by which application for exchange of land has been rejected.

2. The petitioners claim to the Bhumidhar of plot No.17 ad-measuring 0.357 hectare and Plot No.19 ad-measuring 0.092 hectare. Both the aforesaid plots of land are stated to be recorded as grove land. It is stated that plot No.18 ad-measuring 0.104 hectare is recorded in the name of a school 'Purv Madhyamik Vidyalay, Mauza- Tarsara, Pargana- Hasangarh, Tehsil- Iglas, District- Aligarh'. Other than that plot, plot no.21 having an area of 0.057 hectare is also recorded in the name of the aforesaid school.

3. It is stated that the building of the school was constructed long back on plot no.19, which is the plot belonging to the petitioners, instead of plot No.18. Therefore, under the provisions of section 101 of the U.P. Revenue Code, 20061, the petitioners filed an application on 11.03.2016 before the Sub Divisional Officer for exchange of plot no.19 with plot no. 18 in terms of the prayer made in the application. A report of the Tahsildar/Lekhpal was called for, in which report it was stated that the circle rate and the nature of land of both the plot nos.18 and 19 are the same. However, by the impugned order dated 24.4.2017, the Sub-Divisional Officer rejected the application for exchange. Against the aforesaid order the petitioners filed a revision before the Board of Revenue which was dismissed by the order dated 23.2.2021.

4. The contention of the learned counsel for the petitioners is that the application filed by the petitioners under Section 101 of the Code, 2006, deserves to the allowed particularly when the revenue authorities have reported to the respondent No.2 regarding the same valuation of the plots of the land sought to be exchanged. It is contended that the Sub-Divisional Officer based her order on a defunct Government Order dated 10.11.2014 that was issued under Section 161 of the repealed U.P. Zamindari Abolition and Land Reforms Act, 19502. It is contended that the sub-section (2) of section 101 of the Code, 2006 provides for certain eventualities that may authorize the competent authority to refuse permission for exchange. In this case too, the Sub-Divisional Officer refused the exchange but the ground for refusal of exchange is not relatable to any ground appearing in sub-section (2) of Section 101 of the Code, 2006. It is urged that since the valuation of the plots of land sought to be exchanged has been reported by the revenue inspector/ tehsildar to be identical therefore, the refusal of the Sub-Divisional Officer to permit exchange is arbitrary. Learned counsel for the petitioner in support of his contention has relied upon a judgement of co-ordinate Bench of this Court in the matter of C/M Vishambharnath Janta Inter College and another vs State of U.P. & others3.

5. The learned counsel for the respondents have drawn the attention of the Court to Section 59 of the Code, 2006 pertaining to entrustment of land, to contend that the land which stands entrusted to the Gaon Sabha cannot be claimed by the petitioners for exchange as of right.

6. Shri Y.S. Bohra, learned counsel appearing for the respondent No.5 has drawn attention to sub-section (2) of Section 9-A of the Uttar Pradesh Basic Education Act, 19724 to contend that the property of the Uttar Pradesh Board of Basic Education, comprising of plot nos. 18 and 21, stand vested in the Gram Panchayat and any transfer by sale, gift, exchange, mortgage, lease or otherwise of any building, property or assets is prohibited. He further urged that in view of Clause (d) of sub-section (2) of section 101, the land being reserved for planned use of the Gaon Sabha, bhumidhari rights can not accrue on them in view of the provisions of Section 77 of the Act, 2006, and therefore, no exchange is permissible. Learned counsel has further drawn the attention of the Court to the proviso to sub-Section (2) of Section 101 to contend that exchange may be permissible in respect of land mentioned in clause (d) subject to the decision of the State Government.

7. A perusal of the order dated 24.04.2017 passed by the Sub-Divisional Officer reveals that on perusing the report of the tehsildar and the site plan, she has found the exchange proceedings in question to be initiated contrary to rules of the Board of Revenue, since on one plot a building of the school is constructed while the other plot is being used as a grove / for agriculture purposes. She further observes that if the parties wanted exchange in accordance with rules, they should not have sought exchange where one plot is being used for a grove and another plot for a school building. In that regard the Sub-Divisional Officer has relied upon a Government Order dated 10.11.2014. Accordingly, the application was rejected.

8. Sections 59, 77 and 101 of the Code of 2006 read as under:

"59. Entrustment of land etc. to Gram Panchayat and other local authorities.- (1) The State Government may, by general or special order to be published in the manner prescribed, entrust all or any of the things specified in sub-section (2), which vest in the State Government, to a Gram Panchayat or other local authority for the purposes of superintendence, preservation, management and control in accordance with the provisions of this Code.

(2) The following things may be entrusted to a Gram Panchayat or other local authority under sub-section (1), namely-

(i) lands, whether cultivable or otherwise, except land for the time being comprised in any holding or grove;

(ii) grove standing on the Gram Panchayat land, pasture land, graveyard, cremation ground, manure pits, Khaliyans, Chakroads, link roads, sector roads, land in river bed, road, Sadak Khanti, Sullage farm;

(iii) forests; and fisheries;

(iv) trees, other than trees in a holding or on the boundary of a holding or in a grove or abadi, or any trees on unoccupied land;

(v) hats, bazars, meals, tanks, ponds, water-channels, private ferries, pathways and abadi sites;

(vi) subject to the provision of the Treasure Trove Act, 1878, any properties specified in Section 55 and belonging to the State Government.

(3) Every land or other thing -

(a) vested in a Gram Panchayat or any other local authority under the provisions of the Uttar Pradesh Consolidation of Holdings Act, 1953 or the Uttar Pradesh Imposition of Ceiling on land Holdings Act, 1960;

(b) placed under the charge of a Gram Panchayat or any other local authority under any of the enactments repealed by this Code;

(c) otherwise coming into possession of a Gram Panchayat or other local authority, either before or after the commencement of this Code;

shall be deemed to be entrusted to such Gram Panchayat or other local authority, as the case may be, with effect from the date of commencement of this Code or from the date of such coming into its possession, for the purpose of superintendence, preservation, management and control, in accordance with the provisions of this Code.

(4) The State Government may, by a subsequent order to be published in the manner prescribed, -

(a) add to, amend, vary or rescind any earlier order issued under sub-section (l);

(b) transfer to any other Gram Panchayat or other local authority, any land or other thing entrusted or deemed to be entrusted under sub-section (1) or sub-section (3) for superintendence, preservation, management and control;

(c) resume any land or other thing so entrusted, or deemed to be entrusted or transferred to any Gram Panchayat or local authority on such terms and conditions as prescribed;

(d) impose conditions and restrictions subject to which the powers of superintendence preservation, management and control under this section shall be exercised.

(5) Where any of the thing specified in sub-section (2) has been entrusted or deemed to have been entrusted to a Gram Panchayat, and the village or any part thereof in which such things are situated lies outside the circle of the Gram Panchayat, such Gram Panchayat or its Bhumi Prabandhak Samiti shall, subject to any general or special order issued by the State Government in this behalf, perform, discharge and exercise the functions, duties and powers assigned, imposed or conferred by or under this Code or the U.P. Panchayat Raj Act, 1947 on a Gram Panchayat or a Bhumi Prabandhak Samiti as if that village or part also lay within that circle.

(6) Where any of the things specified under sub-section (2) has been entrusted or deemed to be entrusted to a local authority other than the Gram Panchayat, the provisions of this Chapter shall mutatis mutandis apply to such local authority.

................

77. Bhumidhar rights not to accrue in certain lands.-(1) Notwithstanding anything contained in this Code or any other law for the time being in force; no person shall acquire the rights of a Bhumidhar in the following land-

(a) Khaliyan, manure pits, pasture land or land normally used as burial or cremation ground;

(b) land covered by water and used for the purpose of growing singhara or other produce;

(d) such tracts of shifting or unstable cultivation which the State Government may by notification specify;

(e) land declared by the State Government to be intended or set apart for taungya plantation and notified as such;

(f) grove land entrusted or deemed to be entrusted to a Gram Panchayat or any other local authority under Section 59;

(g) land included in sullage farm or trenching ground entrusted or deemed to be entrusted to a Gram Panchayat or any other local authority under Section 59;

(h) land acquired or held for a public purpose or a work of public utility;

(i) land covered by a pond, tank or lake, or forming part of an embankment, bandh or bhita; and

(j) any other land which the State Government may, by notification, specify in this behalf;

Explanation.- The expression 'public purpose', in clause (h) shall include :

(i) land set apart for military camping ground;

(ii) land included within railway or canal boundaries;

(iii) land acquired and held by a local authority for its own purposes;

(iv) land referred to in Section 29-C of the Uttar Pradesh Consolidation of Holdings Act, 1953; or

(v) land reserved by a [Gram Panchayat] for the purposes of public utility:

(2) Notwithstanding anything to the contrary contained in other provisions of this Code, where, any land or part thereof specified in sub-section (1) of this section is, surrounded by or, in between, the plot or plots of land purchased, acquired or resumed for public purpose, the State Government may, change the class of such public utility land, and if class of such public utility land is changed, any other land equivalent to or more than that of the aforesaid public utility land, shall be reserved for the same purpose in the same Gram Panchayat or local authority, as the case may be or State Government may permit the exchange thereof under Section 101 of this Code, in the manner prescribed:

Provided that the class of any public utility land may be changed only in exceptional cases on such terms and conditions, as may be prescribed. The reason for changing the class of public utility land shall be recorded in writing.

(3) The State Government, while changing the class of the land or permitting the exchange of the same under Section 101 of the Code, shall consider the location, public utility and suitability of the land proposed to be reserved or exchanged.

(4) If class of land is changed under sub-section (2) of this section, the Collector shall order the record of rights (Khatauni) and the map to be corrected accordingly.

Explanation.- The expression 'public purpose', in sub-section (2) of this section means, mutatis mutandis, 'the public purpose' as defined in clause (za) of Section 3 of Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013 (Act No. 30 of 2013).

...............

101. Exchange.- (1) Notwithstanding anything in Section 77 of this Code, any Bhumidhar may with prior permission in writing of the Sub-Divisional Officer exchange his land with the land -

(a) held by another Bhumidhar; or

(b) entrused or deemed to be entrusted to any Gram Panchayat or a local authority under Section 59.

(2) The Sub-Divisional Officer shall refuse permission under sub-section (1) in the following cases, namely -

(a) if the exchange is not necessary for the consolidation of holdings or securing convenience in cultivation; or

(b) if the difference between the valuation, determined in the manner prescribed, of the lands given and received in exchange exceeds ten per cent of the lower valuation; or

(c) if the difference between the areas of the land given and received in exchange exceeds twenty-five per cent of the lesser area; or

(d) in the case of land referred to in clause (b) of sub-section (1), if it is reserved for planned use, or is land in which bhumidhari rights do not accrue; or

(e) if the land is not located in same or adjacent village of the same tahsil:

Provided that the State Government may permit the exchange with land mentioned in clause (d) aforesaid, on the conditions and in the manner, prescribed.

(3) Nothing in this section shall be deemed to empower any person to exchange his undivided interest in any holding, except where such exchange is in between two or more co-sharers.

(4) Nothing in the Registration Act, 1908 (Act No. 16 of 1908), shall apply to an exchange in accordance with this section."

9. Therefore, under Section 59 of the Code, 2006, for purposes of superintendence, preservation, management and control of things which vest in the State Government and which are specified in sub-section (2) thereof, the State Government is authorized entrust them to a Gram Panchayat, or other local authority.

Sub-section (3) of Section 59 creates a legal fiction which deems entrustment of every one of the three specified categories thereunder of land or other thing to such Gram Panchayat or other local authority, as the case may be, with effect from the date of commencement of the Code, 2006 or from the date of such coming into its possession, for the purpose of superintendence, preservation, management and control. The aforesaid three specified categories of land or other thing that are specified in sub-section (3) are those:-

(a) vested in a Gram panchayat or any other local authority under the provisions of the Uttar Pradesh Consolidation of Holdings Act, 1953 or the Uttar Pradesh Imposition of Ceiling on Land Holdings act, 1960;

(b) placed under the charge of a gram panchayat or any other local authority under any of the enactments repealed by the Code, 2006; or

(c) otherwise coming into possession of a Gram panchayat or other local authority, either before or after the commencement of the Code, 2006.

10. Section 77 (1) of the Code, 2006 which begins with a non-obstante clause, provides for certain classes of land in respect of which no person shall acquire the rights of a Bhumidhar, notwithstanding anything contained in the Code, 2006 or any other law for the time being in force. Clause (f) of sub-section (1) of Section 77 brings within its ambit grove land entrusted or deemed to be entrusted to a Gram Panchayat or any other local authority under Section 59.

11. Section 101 (1) of the Code, 2006 begins with a non-obstante clause which provides that notwithstanding anything in Section 77, any Bhumidhar may with prior permission in writing of the Sub-Divisional Officer exchange his land with the land - (a) held by another Bhumidhar; or (b) entrusted or deemed to be entrusted to any Gram Panchayat or a local authority under Section 59. However, sub-section (2) of Section 101 provides certain specific conditions whereunder the Sub-Divisional Officer shall refuse permission. They are:-

(a) if the exchange is not necessary for the consolidation of holdings or securing convenience in cultivation; or

(b) if the difference between the valuation, determined in the manner prescribed, of the lands given and received in exchange exceeds ten per cent of the lower valuation; or

(c) if the difference between the areas of the land given and received in exchange exceeds twenty-five per cent of the lesser area; or

(d) in the case of land referred to in clause (b) of sub-section (1), if it is reserved for planned use, or is land in which bhumidhari rights do not accrue; or

(e) if the land is not located in same or adjacent village of the same tahsil:

The proviso after clause (e) provides that the State Government may permit the exchange with land mentioned in clause (d) aforesaid, on the conditions and in the manner, prescribed.

Though, prima facie, there appears to be a conflict between the enabling provision of clause (b) of sub-section (1) of Section 101 (which is qualified by the non-obstante clause), and, clause (d) of sub-section (2) of Section 101, however, since nothing has been pleaded nor urged in this regard, this court refrains from expressing any opinion on the issue. In any view of the matter the proviso appearing after clause (e) aforesaid does enable the State Government to permit the exchange on the conditions and in the manner prescribed.

12. The word exchange has also been defined in Section 118 of the Transfer of Property Act, 1882 as under:

"118. "Exchange" defined.- When two persons mutually transfer the ownership of one thing for the ownership of another, neither thing or both things being money only, the transaction is called an "exchange".

A transfer of property in completion of an exchange can be made only in manner provided for the transfer of such property by sale."

So exchange of property would occur where two persons mutually transfer the ownership of one thing for the ownership of another. The essential requisite of exchange, therefore, is that it should be voluntary and concious decision by each party and permissible by law.

13. At this stage, it is pertinent to refer to Rules 100, 101 and 102 of the Uttar Pradesh Revenue Code Rules, 20165 which are as follows:

"100. Application for exchange between Bhumidhars [Section 101].- (1) Every application for exchange of land between two Bhumidhars shall contain the following particulars:-

(a) Names, parentage and addresses of both the parties to the exchange.

(b) Details of the land sought to be given and received in exchange (with plot numbers, area, location and land revenue).

(c) Whether the proposed exchange is necessary for the consolidation of holdings or for the convenience of cultivation.

(d) Whether the proposed exchange involves transfer of undivided interest in the land.

(e) Whether the land or any part thereof has been let out or encumbered.

(f) Valuation of the lands to be given and received in exchange and the extent of difference in such valuation.

(g) The areas of the land to be given and received in exchange and the extent of difference in such areas.

(h) Whether the land to be given and received in exchange are located in the same or adjacent villages of the same Tahsil.

(2) Every such application shall be accompanied by the certified copies of the Khatauni relating to the plots to be given and received in exchange.

101. Application for exchange of land of Gram Panchayat (Section 101).- (1) Every application for exchange of land by a Bhumidhar under clause (b) of section 101(1) shall contain the following particulars:-

(a) The particulars specified in rule 100(1)6.

(b) Whether the land to be received in exchange from the Gram Panchayat is reserved for planned use or is land in which Bhumidhars right does not accrue.

(c) Whether the land to be received in exchange from the Gram Panchayat consists of any tree or other improvements, if so, their details.

(2) Every such application shall be accompanied by certified copies of the Khatauni relating to the plots, given as well as received in exchange, together with a copy of the resolution of the Bhumi Prabandhak Samiti in favour of such exchange or the suo-motu resolution of the Sub-Divisional-Officer approved by the Collector.7

102. Grant of permission by Sub-Divisional Officer [Sections 101 and 102].- (1) On receipt of an application under rule 100 or rule 101, the Sub-Divisional Officer shall issue notice to the Bhumidhar or the Gram Panchayat concerned to show-cause why the permission for exchange should not be granted.

(2) The Sub-Divisional Officer shall also cause to be calculated the rental values of the land given or received in exchange and may also hear the lessees, mortgagees or other holders of the encumbrances, if any.

(3) If after making necessary inquiries, the Sub-Divisional Officer is satisfied that the parties are agreeable to such exchange and the required terms and conditions are fulfilled, he shall grant the requisite permission and shall direct the Record-of- Rights to be corrected accordingly.

(4) If the application is in respect of the land referred to in clause (b) of sub-section (1) and if it is reserved for planned use or is land in which bhumidhari rights do not accrue and the Sub-Divisional Officer is satisfied that the permission for exchange is in the interest of the applicant and is also in the public interest, he may refer the matter to the State Government for appropriate order and if the permission is granted by the State Government, the Sub-Divisional Officer shall direct the Record-of-Rights (Khatauni) to be corrected accordingly."

14. As it appears from a reading of the aforesaid provisions of the Rules, 2016, Rule 100 provides the particulars required in every application for exchange of land between two Bhumidhars; Rule 101 specifies the particulars required in every application for exchange of land of Gram Panchayat by a Bhumidhar; and, Rule 102 provides the procedure for consideration of an application under Rule 100 or Rule 101 by the Sub-Divisional Officer. Perusal of sub-rule (4) of Rule 102 provides that where the application is in respect of land referred to in clause (b) of sub-section (1)8 and it is reserved for planned use or is land in which bhumidhari rights do not accrue and the Sub-Divisional Officer is satisfied that the permission for exchange is in the interest of the applicant and is also in the public interest, he may refer the matter to the State Government for appropriate order and if the permission is granted by the State Government, the Sub-Divisional Officer shall direct the Record-of-Rights (Khatauni) to be corrected accordingly.

15. The land which is being sought by the petitioners in exchange for their land stands entrusted with the Gram Panchayat. The school is stated to be constructed long back on the land of the petitioners and the application for exchange was filed on 11.03.2016. Section 9-A of the Basic Education Act reads as follows:-

Section 9A. Control of teachers and properties of basic school.

(1) Notwithstanding anything contained to the contrary in any other provisions of this Act, on and from the date of commencement of the Uttar Pradesh Basic Education (Amendment) Act, 2000, -

(a) every teacher of the basic school serving under, the Board immediately before such commencement shall be under the administrative control of the Gram Panchayat or the Municipality, as the case may be, within whose territorial limits the basic school, is situated;

(b) all buildings, properties and assets of the Board in respect of a basic school shall stand transferred to, and vest in, the Gram Panchayat or the Municipality, as the case may be, within whose territorial limits the basic school is situated;

(c) where any building or part thereof is occupied by a tenant by the Board for the purpose of a basic school immediately before such commencement, the tenancy in respect of such building or part thereof shall, notwithstanding anything contained in any contract, lease or other instrument, stand transferred in favour of the Gram Panchayat, or the Municipality, as the case may be;

(d) the Board shall cease to be the licensee in respect of the building or part thereof referred to in sub-section (2) of Section 18-A and the Gram Panchayat or the Municipality, as the case may be, within whose territorial limits such building is situated shall, if it is not already owner thereof, be deemed to have become licensee in respect of such building or part thereof on such terms and conditions as may be determined by the State Government.

(2) No Gram Panchayat or Municipality shall have the power to transfer by sale, gift, exchange, mortgage, lease or otherwise any building, property or assets transferred to, and vested in, such Gram Panchayat or Municipality, as the case may be, under sub-section (1).

15. Given the provision of clause (c) of sub-section (3) of Section 59 and clause (f) of sub-section (1) of Section 77 of the Code, 2006, the area of plot no.19 which is admittedly grove land, over which the school is constructed and over which the petitioners claim bhumidhari rights, would be deemed to be entrusted to the Gram Panchayat. However, it cannot the case of the respondents that plot no.19 was transferred to or vested in the Gram Panchayat under the provisions of Section 9-A of the Basic Education Act, as the Board of Basic Education would first have to demonstrate that the land comprising plot no. 19 and the building of the school belonged to it. Thus the reference to the provisions of Section 9-A of the Basic Education Act, by the learned counsel for the respondent insofar as it concerns the Bhumidhari Plot No. 19 of the petitioners, is of no consequence. However, as regards Plot No. 18, the respondents may have an arguable case.

16. In any view of the matter, what is required to be seen in the present writ petition is whether the order dated 24.04.2017 passed by the Sub-Divisional Officer and the order dated 23.02.2021 passed by the Board of Revenue can be sustained. The sum and substance of the order passed by the Sub-Divisional Officer has already been noted above. It is evident that the reason for rejection of the application for exchange is that on one plot there is a grove, while on the other plot there exists a school building. Therefore, to refuse permission for exchange under sub-section (1) of Section 101 of the Code, 2006, it was required of the Sub-Divisional Officer to record a finding in terms of clause (b) of sub-section (2) of the Code, 2006. That is to say, the finding returned ought to have been that the difference between the valuation, if determined in the manner prescribed, of the lands given and received in exchange exceeds ten per cent of the lower valuation. Of course, it was also open to the Sub-Divisional Officer to record finding for refusal of permission on ground of existence of any condition mentioned in sub-section (2) of Section 101, if the facts and evidence on record so reflected. The Sub-Divisional Officer was required to take into account considerations that were relevant to the purpose of the statute in question. This was not done in the present case and so the impugned order dated 24.04.2017 cannot be sustained. The order dated 23.02.2021 of the Board of Revenue also adopts the same analogy as the Sub-Divisional Officer for rejection of the revision filed by the petitioners, and therefore, that order too cannot be sustained.

17. In the case of Sita Ram v. State of U.P. and others9, a coordinate bench of this court observed as follows:

"20. In exercise of its discretionary power, if the concerned authority ignores or does not take into account considerations which are relevant to the purpose of the statute in question, then its action would be invalid. This would be more so where the statute conferring discretion on the authority has structured the discretion by expressly laying down the consideration which should be taken into account by the authority for exercise of the discretion. In such a case, if the exercise of the discretionary power has been influenced by considerations that cannot lawfully be taken into account or by disregard of the relevant considerations required to be taken into account, the decision arrived at by the authority would be invalid."

18. There is an important aspect of the matter that requires attention. Under sub-rule (2) of Rule 101 of the Rules, 2016, an application for exchange of land of Gram Panchayat is required to be accompanied by certified copies of the khatauni relating to the plots given as well as received in exchange, together with a copy of the resolution of the Bhumi Prabandhak Samiti in favour of such exchange. In the alternative, the application is to be accompanied by the suo moto resolution of the Sub-Divisional Officer approved by the Collector. There is no material on record to demonstrate that any of such resolution was made and filed alongwith the application of the petitioners.

19. In the case of Shiv Murat Vs. Board of Revenue, U.P. at Allahabad and others10, while considering exchange under the provisions of Section 161 of the repealed U.P.Z.A. and L.R. Act, 1950, the Court posed the question whether the land vesting in the State Government can be exchanged without notice to the Land Management Committee and without there being a resolution of the Gaon Sabha approving the exchange. The Court observed as follows:

"11. 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.

12. 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.

..........

17. 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.

18. 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."

19. 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.

20. 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.

21. 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).

22. 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.

23. 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)

24. 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).

25. 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)."

20. For want of any resolution of the Land Management Committee in favour of exchange or any suo moto resolution of the Sub-Divisional Officer approved by the Collector, any application filed for exchange of land of Gram Panchayat cannot meet the prescribed requirements of Rule 101 and therefore such an application would have an incurable defect.

21. In view of the facts and circumstances mentioned above, the impugned orders dated 24.04.2017 passed by the Sub-Divisional Officer and dated 23.02.2021 passed by the Board of Revenue are invalid and are hereby set aside. However, since the application filed by the petitioners under section 101 of the Code, 2006 appears to be incomplete and therefore, cannot be termed as a valid application, it shall be open to them to file a fresh application stating/enclosing all requisite details and documents. If such an application is filed, the same would be duly considered by the competent authority. This writ petition is, accordingly, allowed in terms of the observation herein.

Order Date :- 3.4.2023 k.k.tiwari/A.V. Singh (Jayant Banerji, J.)

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