Bhawani Din Singh v. Gaon Sabha — 1983 DIGILAW 463 (ALL)

JUDGMENT I.B. Singh, Member. - This is applicant's second appeal against order dated July 27, 1982 passed by learned Additional Commissioner, Jhansi Division, Jhansi dismissing appeal No. 22/133 of 1980-81 confirming order dated November 14, 1980 passed by Tashildar Maudaha Asstt. Collector 1st Class, Hamirpur, dismissing application for exchange of 3 Bhumidhari plots of appellant total area 1.87 acre with two plots of Gaon Sabha area 1.28 acres on the ground that there will be fragmentation of Gaon Sabha's land and that there was no consent of the Chairman of the L.M.C. who did not verify the resolution passed. 2. I have heard the learned counsel for the parties and have perused the record. 3. It has been argued that copy of resolution of the L.M.C. was submitted to the Asst. Collector Ist Class and exchange was necessary as the Gaon Sabha plots were within the Chak of the applicant that consent is not necessary. Reliance has been placed on 1963 R.D. page 101. 4. It has been argued in reply that compliance of rules 110(2), 145 and 146 of the U.P.Z.A. and L.R. Rules were not made, that the concurrent findings of both the courts below on facts should not be interfered with. 5. In Sipahi Lal v. Vrihaspati, 1963 R.D. (D.B.)(B.R.) 101, It has been held as follows:- "There is nothing in this section which could support the contention that the exchange should be necessarily voluntary. It has been left to the court to ensure that the exchange of land was fair. There is, however, nothing in this section that both parties, should be agreeable to the transaction." 6. It has been held in Gangotri Singh v. Goan Sabha 1977 R.D. (D.B.) (B.R.) 80 as follows:- "The exchange contemplated by Section 161 of the U.P. Zamindari Abolition and Land Reforms Act must be voluntarily entered into by both the parties concerned." 7. The latest view of the Division Bench of the Board of Revenue is to be followed. 8. The provision of Section 161 of Act I of 1951 provides that no exchange shall be made except with the permission of an Assistant Collector. The Section 161 runs as follows:- "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. The Section 161 runs as follows:- "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 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." 9. Serial No. 13 of Schedule II of Act I of 1951 runs as follows:- Serial No. Section No. Description of proceedings. Court of Original jurisdiction. Court of first appeal. Court of second appeal. 1 2 3 4 5 6 13 161 Application for permission to make exchange. Asstt. Collector Ist Class. Commissioner. Board. 10. From proviso to Section 161 and Serial No. 13 of the II Schedule of the Act it is clear that it is the Assistant Collector, Ist Class mentioned in the Act has been authorised to grant permission of exchange or to refuse it. Tahsildar/Assistant Collector, Ist Class has not been authorised to do so as Schedule II of the Act mentions Tahsildar at Serial Nos. 17, 18, 28 and 29 only. Whereas Assistant Collector, Ist Class has been specifically mentioned at Serial No. 13 of that schedule although the proviso mentioned only Assistant Collector. Reading the proviso and Serial 13 of the Schedule II together there is no ambiguity that it is only Assistant Collector Ist Class mentioned of the Act had been authorised to grant permission under Section 161 of the Act. 11. Reading the proviso and Serial 13 of the Schedule II together there is no ambiguity that it is only Assistant Collector Ist Class mentioned of the Act had been authorised to grant permission under Section 161 of the Act. 11. The Tahsildars have been authorised by Notification No. 3011/I-A-418-55 dated December 8, 1955 and Notification No. 3135/I-A-3594-95-95 dated June 30, 1962 to deal with only cases under Section 122-B of the Act and Rule 115-C to Rule 115-H and by Notification No. U.O. 733/I-A-3750-59 dated May 11, 1961 to discharge the duty of Collector under Section 187 and 211-A of the Act, as Assistant Collector Ist Class and the word Collector used in these sections has been provided to include Tahsildar/Assistant Collectors Ist Class but they cannot act as Assistant Collector Ist Class regarding other sections of the Act including Section 161 of the Act because Assistant Collector Ist Class mentioned in the Act or Schedule II of the Act against Serial Numbers are directly appointed by Government and are not authorised by Notification to act as such who are authorised to act as such by the Act and the Tahsildar/Assistant Collector Ist Class district Hamirpur was without jurisdiction and the proceeding in that court was without jurisdiction and that order is liable to be quashed along with the order of the learned Additional Commissioner and the proceeding is liable to be dropped therefore, this appeal is liable to be allowed. 12. In view of the above this appeal is allowed. The orders passed by Tahsildar/A.C. Ist Class and by learned Addl. Commissioner are set aside and the proceeding under Section 161 is dropped.