Allahabad High Court
Smt. Nirmala Devi vs State Of U.P. And 3 Others on 28 July, 2021
Author: Ajay Bhanot
Bench: Ajay Bhanot
HIGH COURT OF JUDICATURE AT ALLAHABAD Court No. - 30 Case :- WRIT - C No. - 15231 of 2021 Petitioner :- Smt. Nirmala Devi Respondent :- State Of U.P. And 3 Others Counsel for Petitioner :- Kamal Kumar Singh Counsel for Respondent :- C.S.C. Hon'ble Ajay Bhanot,J.
1. By means of this writ petition, a direction has been sought upon the respondent no.2-Commissioner, Gorakhpur Division, Gorakhpur to decide the Revision No. 1440 of 2015, computerized Case No. C-20150500001440 (Ram Narain Vs. Smt. Nirmala Devi), under Section 333 of the U.P.Z.A.&LR.Act1.
2. The revision arises out of proceedings for exchange of private land with land of Gaon Sabha taken out under Section 161 of the U.P.Z.A.&L.R. Act. The provision is extracted hereinunder:
"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."
3. The provision has to be read with Rules 144 to 146 of the U.P.Z.A.&LR. Rules, 19522 to understand its working. The Rules are extracted hereinbelow:
"144. An application [for permission to make an]exchange shall contain the following particulars and be accompanied by the following documents:-
(1) The khasra number of the plots-
(a) [* * *] which the applicant wishes to receive and of the plots which he offers in exchange of,
(b) [* * *] (2) certified copies of the khataunis relating'to the khatas in which all such plots are included; (3) [* * *] (4) a statement showing the details of any valid deeds mortgage or other encumbrances with which the lands to be exchanged may be burdened, together with the names and addresses of lessees, mortgagees or holders of other encumbrances.
145. On receipt of an application for [permission to make an]exchange of land the Assistant Collector [shall cause to be calculated the rental value of the land proposed to be given in exchange and of 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, call upon the parties, the lessees, mortgagees or holders of other encumbrances, if any, to show cause why the exchange should not be made. Every such notice shall be accompanied by a copy of the application which shall be supplied by the applicant.
146. The Assistant Collector shall thereupon decide the objections, if any, and pass suitable orders. If he decides that the exchange should be allowed, he shall also make an order for the delivery of possession, if necessary, and for the correction of papers."
4. Section 161 of the U.P.Z.A. & L.R. Act, 1950 read with Rules 144, 145 and 146 of the U.P.Z.A. & L.R. Rules, 1952 together comprise the legislative scheme for exchange of private lands with Gaon Sabha.
5. While interpreting the aforesaid provision, a learned Single Judge of this Court in Shiv Murat Vs. Board of Revenue, U.P. at Allahabad3, held as under:
"8. 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.
9. 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.
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.
14. 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.
15. 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.
16. 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.
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."
6. Experience shows that Section 161 of the U.P.Z.A.&L.R. Act are often prone to abuse, lands are often exchanged under political considerations much to the detriment of the Gaon Sabha and public interests at large.
7. In Rambali and others v. State of U.P. and others4, this Court declined to mandamus the Assistant Collector to decide the application under Section 161 without finding due compliance of all relevant provisions comprising the scheme of exchange by holding as under:
"12....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.''
8. Adherence to the procedure under Rules 144 to 146 of the U.P.Z.A.&L.R.Rules,1952, were held to be mandatory in Smt. Badi Dulaiya v. Gaon Sabha5.
9. It is noteworthy that the importance of adherence to Rule 144 to 146 was also emphasized in Shiv Murat (supra) by setting forth as under:
"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 v. Mahavir Singh, 1994 RD 136; State of U.P. v. 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 v. Naib Johra Zaidi, 1995 RD 405)." (Emphasis supplied)
10. An exchange without noticing the resolution of the Gaon Sabha regarding full consent and the rational of such exchange cannot be countenanced in law. Reference may be had in this regard to the law laid down in Narain Singh v. Gaon Sabha6, and Gulshan Rai v. Mitra Sen7.
11. The importance of a proper resolution of the Gaon Sabha and not a personal consent of the Lekhpal or Pradhan for purposes of such exchange was stated in Harihar Prasad v. Jagdish8.
12. The manner of application of mind by the Assistant Collector in proceedings under Section 161 U.P.Z.A.&L.R. Act was discussed by this Court in Shiv Murat (supra) :
"26. 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."
13. In summation an order under Section 161 of the U.P.Z.A. & L.R. Act, 1950 has to be self contained and should duly reflect compliance with all relevant provisions of law as stated in judicial authorities in point discussed above.
14. In the case at hand the order dated 18.05.2011 has been passed by Sub Divisional Officer, Bhatpar Rani, Deoria approving the exchange of land in purported exercise of powers under Section 161 of the U.P.Z.A.&L.R. Act, 1950. The said order dated 18.05.2011 does not record compliance of Rules 144 to 146 of the U.P.Z.A.&L.R. Rules, 1952. Further rental value of the lands which are sought to be exchanged and the basis of calculation of such rental value has not been disclosed in the order approving the exchange. This is an imperative requirement of law. Resolution of Gaon Sabha and contents thereof have also not been noticed. The order dated 18.05.2011 is also silent on the nature and utility of lands to be exchanged. These infirmities vitiate the order dated 18.05.2011.
15. The order dated 18.05.2011 fails to carry out the mandate of Section 161 of the U.P.Z.A. & L.R. Act read with Rules 141 to 146 of the U.P.Z.A. & L.R. Rules, 1952 and contrary to the law laid down by this Court in the body of judicial precedents discussed earlier.
16. Mandamus is a discretionary remedy under Article 226 of the Constitution of India (Ref:Mansukhlal Vithaldas Chauhan Vs State of Gujrat, 1997 (7) SCC 622). Before exercising the discretion in favour of any petitioner the court would be well advised to examine if an illegal order is sought to be implemented, or advantage is being taken of callous attitude of the land management committees or apathy of officials or collection of parties to the detriment of the State and larger public interests in a manner contrary to law. A mandamus cannot be issued to enforce an illegal order (Ref: Chandrika Prasad and others Vs Settlement Officer Consolidation and others, 2009 (8) ADJ 1619). The court in such matters can mould the relief and pass appropriate orders to ensure faithful implementation of the law and to serve the interests of justice.
17. In fact this Court does not have any hesitation to hold that the aforesaid order dated 08.05.2011 is contrary to law and cannot be executed. Though the order dated 18.05.2011 is not under challenge, the rights conferred by such order are subject matter of this writ petition. In this wake no rights flow to the petitioner from the order dated 18.05.2011. A mandamus cannot be issued to compel the implementation of the order dated 18.05.2011.
18. The preceding findings have been made on the footing of the recitals contained in the order dated 18.05.2011. No affidavit can improve the content of the order dated 18.05.2011. The order has to stand the test of legality on the basis of the recitals contained therein. The above findings could not be disputed by the learned counsel for the petitioner nor by the learned Standing Counsel.
19. It is, however, open to the petitioner to seek fresh proceedings for exchange of land as per law.
20. While sitting in this jurisdiction I have noticed the callous attitude of the land management committees towards litigation in regard to the Gaon Sabha lands. In a sense Gaon Sabha lands are ultimately State lands. The State Government entrusts such lands to the Gaon Sabha. The State Government by adopting the procedure prescribed by law can also resume such lands. Higher public interest demands that the State Government should exercise vigilance over exchange of such lands by the Gaon Sabha with private lands.
21. These observations do not dilute the rights of the Gaon Sabha accruing from entrustment made by the State Government to the Gaon Sabha.
22. Considering the fact that in a large number of cases under Section 161 of the U.P.Z.A.&L.R. Act, the interests of the Gaon Sabha and the State lands are compromised, it is directed that the State of U.P. through the District Magistrate shall be made necessary parties in all disputes pertaining to the Gaon Sabha's lands and in particular in proceedings under Section 161. It shall be mandatory for the State through the District Magistrate to file their affidavits in all such disputes.
23. In light of this discussion and subject to the directions to the District Magistrate and the State Government in the immediately preceding paragraph, the writ petition is liable to be dismissed and is dismissed.
Copy of this order shall be communicated by the Chief Standing Counsel to:
(1) Principal Secretary Panchayat Raj, Government of U.P., Lucknow.
(2) Commissioner Gorakhpur Division, Gorakhpur.
(3) District Magistrate, Deoria.
(4) Sub Divisional Magistrate, Bhatpar Rani, Deoria.
Order Date :- 28.7.2021 Dhananjai Sharma