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2012 DIGILAW 1103 (ALL)

RAMBALI v. STATE OF U. P.

2012-05-09

RAN VIJAI SINGH

body2012
JUDGMENT Hon’ble Ran Vijai Singh, J.—Heard Sri P.K.S. Paliwal alongwith Sri Harindra Prasad learned counsel for the petitioners and Sri Rajesh Kumar, learned Standing Counsel appearing for the State respondents. 2. Through this writ petition, the petitioners have prayed for issuing a writ of mandamus directing the Sub-Divisional Officer Sagri District Azamgarh to decide the application dated 25.11.2011 (Annexure 3 to the writ petition). The aforesaid application appears to have been filed under Section 161 of U.P. Zamindari Abolition and Land Reforms Act, 1950 (herein after referred to as the Act) for exchange of Plot No. 311 area 0.020 hectare Khata No. 538 situated in village and post Bankatia, tehsil Sagri District Azamgarh which is recorded as manure pit with Plot No. 289 Khata No. 79. 3. Sri P.K.S. Paliwal, learned counsel for the petitioners contends that the Sub-Divisional Officer is statutorily bound to decide his application for exchange of the land with the Gaon Sabh in view of the provisions contained under Section 161 of the Act read with Rules 144 and 145 of the U.P. Zamindari Abolition and Land Reforms Rules, 1952 (herein after referred to as the Rules). 4. For appreciating the controversy involved in this case, the provisions relating to exchange of land belonging to a bhumidhar from another bhumidhar, as contained under Section 161 of the Act, as well as the Rules 144, 145, 146 and 147, of U. P. Zamindari Abolition and Land Reforms Rules, 1952 would be necessary to be looked into, which are reproduced hereinunder : Section 161 Exchange.—A bhumidhar (omitted by U.P. Act No. 8 of 1977 (w.e.f. 28.1.1977)) may exchange with - (a) any other bhumidhar (omitted by U.P. Act No. 8 of 1977 (w.e.f. 28.1.1977) land held by him; or (b) any (Gaon Sabha) or local authority, lands for the time being vested in it under Section 117 (The words and figure “ or 117-A” deleted by U.P. Act No. 12 of 1965.) 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. (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. Relevant rules of the Rules : “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) (Deleted by ibid) which the applicant wishes to receive and of the plots which he offers in exchange of, (b) (Ibid) (2) certified copies of the khataunis relating to the khatas in which all such plots are included; (3) (Ibid) (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. 147. (If the Assistant Collector permits exchange) in respect of land constituting a portion of a holding, he shall apportion the land revenue payable for the holding between such portion and the remainder of the holding.” 5. On perusal of aforesaid provisions, it would transpire that Section 161 confers a right upon a bhumidhar to exchange the land held by him with another bhumidhar. On perusal of aforesaid provisions, it would transpire that Section 161 confers a right upon a bhumidhar to exchange the land held by him with another bhumidhar. This facility has been extended to the gaon sabha with respect to the land vested in Section 117 of the Act as well as other local authorities also, subject to the condition that no exchange is permissible except with the permission of the Assistant Collector. The Assistant Collector can also refuse the permission if difference between the rental value of the land given in exchange and the land received in exchange, calculated at hereditary rate, is more than 10% of the lower rental value. 6. The Rule 144 provides the procedure for submitting application for exchange of the land. Rule 145 talks about the action to be taken by the Assistant Collector after receipt of an application for exchange of land. Rule 146 empowers the Assistant Collector to decide the objections received with respect to the exchange of land and the Rule 147 talks about the duty of the Assistant Collector when he permits the exchange of portion of a holding. 7. From the conjoint reading of Section 161 as well as the Rules relating thereto, it would transpire that the legislature has extended a facility to a bhumidhar for exchange of his bhumidhari land with another bhumidhar for their convenience with certain conditions, and the first condition therein is, that such exchange cannot be held to be valid unless permission of the Assistant Collector has been obtained. There is also a rider that the Assistant Collector can refuse the permission for exchange of land if the difference between the rental value of land given in exchange of land received in exchange, calculated at hereditary rate, is more than 10% of the lower rental value. 8. In Section 161 of the Act, the word ‘Exchange’ has been used, which means: “Oxford English Dictionary, 11th Edition, by Catherine Soanes. Give something and receive something else in return a short conversation or argument. The changing of money to its equivalent in another currency. A system or market in which commercial transactions involving currency, shares, etc. can be carried out within or between countries. Give something and receive something else in return a short conversation or argument. The changing of money to its equivalent in another currency. A system or market in which commercial transactions involving currency, shares, etc. can be carried out within or between countries. Law Lexicon, General Editor Justice Y.V. Chandrachud, 1997 Edition: When two persons mutually transfer the ownership of one thing for the ownership of another, neither thing nor both things being money only, the transaction is called an “exchange”. 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. A negotiation by which one person transfers to another goods or funds which he has in a certain place, either for other goods, or at a price agreed upon, or at a price which is fixed by commercial usage.” 9. From 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. The role of Assistant Collector will come into play when the details of exchange is available with him, with the readiness and willingness of the parties to exchange, and if the parties are agreed for exchange of holdings with each other, in that eventuality, they have to file an application in accordance with the provisions contained in Rule 144, with the details of Khasra No. of the plots, which the applicant wishes to receive and of the plots which he offers in the exchange and the copy of the khatauni relating to the khatas in which all such plots are included. A statement containing the details of any valid deeds, mortgaged or other encumbrance with which the land is to be exchanged may be burdened, together with the names and addresses of the leasees, mortgagees or holders of other encumbrances. 10. A statement containing the details of any valid deeds, mortgaged or other encumbrance with which the land is to be exchanged may be burdened, together with the names and addresses of the leasees, mortgagees or holders of other encumbrances. 10. After receipt of such application for permission of exchange of land, the Assistant Collector, as required under Rule 145, 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 and hereditary rights. If he is satisfied that the exchange is not valid according to the proviso of sub-section (1) of Section 161, shall call upon the parties the lessee, the morgagee or holder of other encumbrances, if any, to show-cause why the exchange should not be made. Every such notice shall be accompanied by a notice of application which shall be supplied by the applicant. Rule 146 empowers the Assistant Collector to decide the objections, and if he decides that exchange should be allowed, the Rule also empowers him to pass an order for delivery of possession, if necessary, and for correction of the papers. 11. Here, in this case, from the perusal of the application dated 25.11.2011 (Annexure ‘3’ to the writ petition), it would transpire that it is unilateral proposal of the petitioner for exchange of his holding with the gaon sabha on the ground that the land with which exchange is sought is recorded as a ‘gaddha’ and it is in front of the petitioner’s house, due to which a lot of inconvenience is being caused and there is every likelihood of spreading of disease in the locality and the application has been filed without resolution of the Gaon Sabha i.e. without its consent. Therefore, I am of the considered opinion that unless both the parties agree for exchange, the Sub Divisional Magistrate cannot entertain an application filed on the instance of an individual for exchange of his land to another individual unless he is willing to exchange. The willingness of the parties to exchange is the condition precedent for presenting the application before the Sub Divisional Magistrate under Section 161 of the Act. 12. It is well-settled that if a statute provides to do a thing in a particular manner, then that thing has to be done in that very manner. The willingness of the parties to exchange is the condition precedent for presenting the application before the Sub Divisional Magistrate under Section 161 of the Act. 12. It is well-settled that if a statute provides to do a thing in a particular manner, then that thing has to be done in that very manner. The aforesaid legal proposition is based on a legal maxim “Expressio unius est exclusio alterius”, and other manner and procedure is ordinarily not permissible’. (Vide Taylor v. Taylor, (1876) 1 Ch.D. 426; Nazir Ahmed v. King Emperor, AIR 1936 PC 253; Deep Chand v. State of Rajasthan, AIR 1961 SC 1527 ; Haresh Dayaram Thakur v. State of Maharashtra and others, (2000) 6 SCC 179 ; Dhanajaya Reddy v. State of Karnataka etc. etc., (2001) 4 SCC 9 ; Commissioner of Income Tax, Mumbai v. Anjum M.H. Ghaswala and others, (2002) 1 SCC 633 ). 13. It is also well-settled that if any thing has not been done in the manner provided for under the Statute and the Statute has provided a consequence for non-performance of such act as provided for, then those provisions are mandatory and not directory. While determining whether a provision is mandatory or directory, in addition to the language used therein, the Court has to examine the context in which the provision is used and the purpose behind it to achieve. It may also be necessary to find out the intention of the legislature for enacting it and the serious and general inconveniences or injustice to persons relating thereto from its application. 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. 14. Here in this case, a writ of mandamus has been sought for by the petitioner, which cannot be issued against the statutory provision directing the authority concerned to perform his duty which he is not legally obliged to perform. It is well-settled that for issuing a writ of mandamus, there must be a statutory duty imposed upon the authority concerned and there is failure on the part of that authority to discharge that statutory obligation. Further, the person seeking writ of mandamus must show that he has a legal right to the performance of a legal duty by the party, against whom mandamus is sought. Reference may be given to the judgment of the Apex Court in State of M.P. v. G.C. Mandawar, AIR 1954 SC 493 and Lekhraj Sathramdas Lalvani v. N.M. Shah, Deputy Custodian Cum Managing Officer, Bombay and others, AIR 1966 SC 333. 15. In view of the foregoing discussions, no relief, as prayed, can be granted to the petitioners. The writ petition is dismissed. However, dismissal of the writ petition will not preclude the petitioners to file appropriate application in accordance with law. ——————