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Allahabad High Court · body

1987 DIGILAW 325 (ALL)

Badi Dulaiya v. Gaon Sabha

1987-03-13

P.SINGH

body1987
JUDGMENT P. Singh, Member - This reference has been made by the learned Additional Commissioner, Jhansi Division, Jhansi vide his order dated 12-2-1986 for setting aside the orders of the learned trial court dated 24-8-1984. 2. It appears that in a suit number 285 of 1984 u/s 161 of UP Act I of 1951 an order was passed by the trial court on 24-8-1984 by which the application for exchange was rejected by the learned SDO. I have heard the learned counsel for the parties. The learned counsel for the revisionist has submitted that the difference between the rental value of the plots being exchanged and the plot being received in exchange was within the permissible limits and that no permission u/r 110-A (2) of the Rules were required. The learned DGC (R) has submitted that this permission was necessary for exchange in respect of the property vested in the Gaon Sabha. The learned Additional Commissioner is of the view that the permission u/r 110-A (2) of the Rules was not necessary. I find that this view of the learned Additional Commissioner is not justified. If any act is to be done under the statutory provisions of law, that act has to be performed in accordance with the provisions contained under the relevant law in force at that time. In the instant case, no such permission was obtained and I find that on account of this, the recommendation made by the learned Additional Commissioner is not acceptable. But the procedure prescribed for exchange has not been followed by the trial court. When an application u/s 161 of the Act is received by the appropriate authority, the procedure prescribed u/r 144 to 146 of the Z.A. Rules are to be observed. These rules are quoted as follows : "144. But the procedure prescribed for exchange has not been followed by the trial court. When an application u/s 161 of the Act is received by the appropriate authority, the procedure prescribed u/r 144 to 146 of the Z.A. Rules are to be observed. These rules are quoted as follows : "144. Section 161, 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 land to be exchanged may be burdened, together with the names and addresses of lessees, mortgagee 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." 3. I find that in the instant case the procedure prescribed by law has not been followed. As such the orders passed by the trial court are hereby set aside. The parties are directed to appear before the trial court on 16-7-1987 and the learned trial court is directed to proceed with the matter in accordance with the provisions enumerated above.