Research › Search › Judgment

Madhya Pradesh High Court · body

2013 DIGILAW 850 (MP)

Vijay Mittal v. State of M. P.

2013-07-23

A.K.SHRIVASTAVA

body2013
ORDER This order passed in this petition shall also govern the disposal of connected Writ Petition No. 13252/2010, Smt. Radha Devi vs. State of M.P. and others. By this petition under Article 226 of the Constitution of India, the petitioner has sought the following reliefs:-- a) To issue an appropriate writ, direction or order quashing the entire proceeding of Case No. 102/B121/2009-10 pending in the Court of Collector, Katni respondent No. 2. b) To, in the alternate, issue an appropriate, writ, direction or order quashing the order dated 30-3-2010 contained in Annexure P-14 passed by respondent No. 2 in Case No. 102/B121/2009-10 and to vacate the stay dated 8-2-2010 Annexure P-15. c) To issue any other appropriate writ, order or direction as may be deemed fit in the facts and circumstances of the case including costs of the petition. 2. In a nutshell the case of the writ petitioner is that Smt. Radha Devi w/o Shri Harish Kumar (petitioner of connected W.P. No. 13252/2010) was recorded as Bhumiswami of Khasra No. 555, 554, 506 and 549 total area 1.540 hectare located at Village Padarwara, Tehsil and District Katni. She submitted an application under Clause 20 Chapter-IV Part-3 of Revenue Book Circular (for brevity "RBC") before the Collector, Katni for exchange of her land which is in her Bhumiswami right having possession over it with Government land bearing Khasra No. 51/5 and 51/12 total area 1.692 hectare situated at Village Tikuri, Tehsil and District Katni. Such application of exchange was registered as Case No. 07/A25/99-2000. On submitting the application by her, the Collector inquired the matter from the Nazul Officer Katni and reports were also called from the office of Municipal Corporation Katni and Town and Country Planning Department. Simultaneously a public notice was also issued in the daily newspaper regarding exchange of land but no objection was received. According to the petitioner, although Nazul Officer recommended for exchange of land as prayed for by Radhadevi but the recommendation was not accepted and the Collector vide order dated 28-1-2000 (Annexure-P/1) declined to grant permission to exchange Radha Devi's Bhumiswami land with that of government land. According to the petitioner, although Nazul Officer recommended for exchange of land as prayed for by Radhadevi but the recommendation was not accepted and the Collector vide order dated 28-1-2000 (Annexure-P/1) declined to grant permission to exchange Radha Devi's Bhumiswami land with that of government land. The reason which is assigned in the order is that the government land which is sought by Radha Devi in exchange is Abadi land and cannot be exchanged for agricultural purpose and further there is no provision in the RBC for deposit excess of balance amount in exchange. 3. It is the further case of the petitioner that against the order of Collector dated 28-1-2000 (Annexure-P/1) said Radha Devi filed an appeal by labelling it under section 44 of M.P. Land Revenue Code, 1959 (in short "Code") before the Commissioner, Jabalpur Division although it ought to have been filed under Part IV Chapter-3 Clause 30 of the RBC. The Additional Commissioner registered the appeal as Case No. 313/A-25/1999-2000. Vide order dated 16-8-2000 (Annexure-P/2 the Additional Commissioner allowed the appeal of Radha Devi and granted approval to exchange of land with respect to 1.490 hectare out of total government land 1.692 hectare holding that adjoining to the government land, the agricultural lands of husband of Radha Devi and other relatives are situated and the exchange shall be beneficial for both the parties and further said exchange is permissible under the law. Eventually, the Additional Commissioner directed Radha Devi to deposit an amount of Rs. 2.78 lakh being the difference in price of the land whereupon only the exchange was given effect to and it was directed to Radha Devi to use exchanged land for agricultural purpose. 4. Further it has been averred by the petitioner that some proceedings were initiated by the Commissioner Jabalpur for taking up the order dated 16-8-2000 (Annexure-P/2) passed by the Additional Commissioner in suo motu revision and registered a Revenue Case No. 8/A-25/2000-01. In those proceedings an order was passed on 22-10-2001 deciding to seek permission from the Board of Revenue to review the order dated 16-8-2000. Eventually, on 31-10-2001 the matter was forwarded to Board of Revenue by the Commissioner. Said Radha Devi being aggrieved by the said order dated 22-10-2001 also preferred an appeal before the Board of Revenue. In those proceedings an order was passed on 22-10-2001 deciding to seek permission from the Board of Revenue to review the order dated 16-8-2000. Eventually, on 31-10-2001 the matter was forwarded to Board of Revenue by the Commissioner. Said Radha Devi being aggrieved by the said order dated 22-10-2001 also preferred an appeal before the Board of Revenue. The Board of Revenue took up both the matters together and vide order dated 31-5-2002 (Annexure-P/3) declined to review the matter under section 51 of the Code and further held that order dated 16-8-2000 (Annexure-P/2) passed by the Additional Commissioner has been rightly passed and the said order was affirmed with a further direction that the said order of Additional Commissioner be complied with within one month by Collector Katni positively. Thereafter Radha Devi deposited the amount of difference of the price of the land and government land was given to her in exchange and her land of which she was Bhumiswami was taken in the custody by the Government. Eventually her name was also mutated as Bhumiswami in Khasra No. 51/5 and 51/21 area 1.490 hectare. Khasra Panchshala of the year 2002-03 has been filed as Annexure-P/4. The land was also demarcated by the Tehsildar Nazul Katni in Case No. 1/A-12/2002-2003 vide its order dated 10-12-2003. The present petitioner Vinay Kumar Mittal thereafter vide registered sale-deed dated 1-8-2003 purchased the agricultural land of Radha Devi area 0.592 hectare of land out of Khasra No. 51/5(Cha) and 51/21 (Gha) from Smt. Radha Devi for a consideration of Rs. 6 lakh and the name of petitioner was recorded in Khasra Panchshala in the year 2003 (Annexure-P/5). 5. It is further case of the petitioner that he submitted an application before the Sub Divisional Officer for diversion of his land for residential and commercial purpose. This application was registered as Case No. 25/A2/2003-04 and vide order dated 19-2-2004 the Sub Divisional Officer permitted the diversion of 41,798 sq. feet of land for residential purpose and 21,780 sq. feet of land for commercial purpose upon fixation of proper premium and ground rent etc. The diversion was duly given effect by Revenue Inspector, Diversion Branch, Tehsil Mudwara, District Katni on 20-2-2004 (Annexure-P/7). Before construction, the petitioner submitted an application for obtaining NOC from Nazul Officer who granted it on 28-1-2005 (Annexure-P/8). feet of land for commercial purpose upon fixation of proper premium and ground rent etc. The diversion was duly given effect by Revenue Inspector, Diversion Branch, Tehsil Mudwara, District Katni on 20-2-2004 (Annexure-P/7). Before construction, the petitioner submitted an application for obtaining NOC from Nazul Officer who granted it on 28-1-2005 (Annexure-P/8). The building sanction was also granted to the petitioner by the Municipal Corporation Katni on 2-3-2007 (Annexure-P/9) and petitioner thereafter commenced the construction over his land. 6. Thereafter, vide notice dated 25-4-2009 (Annexure-P/10) the Nazul Officer Katni intimated the petitioner that he is raising construction over Nazul land which is in contravention to the provisions of M.P. Nagar Tatha Gram Nivesh Adhiniyam and the Municipality Act, 1961 and directed to stop the construction work. The petitioner submitted his reply before the Nazul Officer and upon satisfying with his reply on 8-5-2011 (Annexure-P/11) the proceedings against the petitioner were closed by holding that the construction which is being made by him is legal. However, after five months only on 24-10-2009 the Nazul Officer intimated the petitioner that construction made by him over the Nazul land and sanction granted by Municipal Corporation is in contravention to Rules and directed him to stop the construction and appear before him and submit the reply. The petitioner again appeared before the said Officer and filed his reply. However, Tehsildar Nazul vide order dated 22-12-2009 (Annexure-P/13) passed an order that because the irregularities which were committed in exchange case is being inquired separately against Radha Devi, therefore, the proceedings against the petitioner are being dropped. 7. Further the case of petitioner is that on 16-10-2009 one Satish Gelani respondent No. 3 made a complaint before the Collector Katni alleging certain irregularities in the matter which took place in exchange of land of Smt. Radha Devi with government land. As a result of which, a Revenue Case No. 102/B121/09-10 was registered and the relevant records were called upon by the Collector. By examining those records, the Joint Collector vide its report dated 13-11-2009 observed that though a number of irregularities have been committed in the matter but the Board of Revenue has already passed an order on 31-5-2002 (Annexure-P/3) who allowed the appeal of Radha Devi and did not review the order of Commissioner dated 16-8-2000 (Annexure-P/2). By examining those records, the Joint Collector vide its report dated 13-11-2009 observed that though a number of irregularities have been committed in the matter but the Board of Revenue has already passed an order on 31-5-2002 (Annexure-P/3) who allowed the appeal of Radha Devi and did not review the order of Commissioner dated 16-8-2000 (Annexure-P/2). Accordingly, as per the case of the petitioner the office of Collector does not have jurisdiction in the matter and he recommended for filing an appeal before this Court against the order passed in previous proceedings and handed over the case to the Collector. The Collector then issued direction for sending a letter to the State Government seeking permission to file appeal before this Court and a letter on 26-12-2009 was also written to law department for seeking the permission. But, without waiting for response from the State Government, on 4-1-2010 the Collector directed to register a revenue case, for calling of the records, for issuance of order of stay on sale of land by the petitioner and for spot inspection. The application for vacating stay filed by the petitioner was also rejected and hence aggrieved by the order dated 30-3-2010 passed by the respondent No. 2 whereby the Collector has rejected the application for vacating the stay and also aggrieved by the initiation and continuance of proceedings for taking up the order dated 16-8-2000 (Annexure-P/2) in suo motu revision by registering a Revenue Case No. 102/B121/2009-10, this petition has been filed. 8. The contention of learned Senior Counsel for the petitioner is that because the case of exchange of land had ended after the order passed by the Board of Revenue on 31-5-2002 (Annexure-P/3) and was implemented long back in all respect by recording the name in the revenue record also and further the said order was never assailed by the State Government by filing any writ petition before this Court or did file any other proceedings before the appropriate forum, the Government is now estopped from reopening the case which had already come to an end on 31-5-2002 and particularly when all the orders have been complied with and implemented. 9. 9. Learned Senior Counsel further submitted that the recommendation of the Additional Commissioner upon which a revenue case has been registered by the Collector is based upon the fact that in Khasra of 1993-94 to 1997-98 in column No. 12 land Nazul Sarkar for Charnoi has been mentioned but under the Code there is no term "Nazul Sarkar" Further it has been submitted by him that upon whose order the said entry has been directed to be made in the year 1993-94, there is nothing on record. According to learned Senior Counsel by reversing the order of Collector dated 28-1-2000 and the Additional Commissioner vide its order dated 16-8-2000 (Annexure-P/2) directed to exchange the land of Radha Devi's Bhumiswami with that of government land upto the area 1.490 hectare and the Board of Revenue declined to review. On the contrary the appeal/revision filed by Radha Devi against order of Additional Commissioner praying the Board to review the matter was allowed by affirming the order dated 16-8-2000 (Annexure-P/2) of Additional Commissioner. Thus, the Collector is nobody to comment upon the legality and propriety of the order passed by his Superior Officer, Additional Commissioner and superior most officer the Board of Revenue and thus when the chapter was totally closed and the exchange was effected, there was no occasion for the Collector to register a revenue case against the order passed by his superior most officer, the Board of Revenue. By inviting my attention to para 12 of the return it has been submitted by learned Senior Counsel that the government has also accepted that order passed by the Board of Revenue, cannot be reviewed by the Collector. 10. By inviting my attention of Chapter-IV Part-3 Clause 20 of the RBC it has been submitted by learned Senior Court that in RBC also it has not been mentioned that government land should be agricultural land and only this much is mentioned that land should be cultivable for the agricultural purpose. It has also been put forth by him that if sub-clause (2) of Clause 20 of Chapter-IV Part-3 of the RBC is considered in true perspective, the only inference which will be drawn is that the exchange which was made was not bad in law. 11. It has also been put forth by him that if sub-clause (2) of Clause 20 of Chapter-IV Part-3 of the RBC is considered in true perspective, the only inference which will be drawn is that the exchange which was made was not bad in law. 11. It is has been then propounded by learned Senior Counsel that after the land is obtained in exchange by either party, the absolute title would vest in them and they are free to use it according to their ownership right. Since the land was sold by Radha Devi in favour of petitioner on 1-8-2003 the present petitioner became Bhumiswami and there is no bar to a Bhumiswami that his land cannot be diverted for non-agricultural purpose. It has been submitted by learned Senior Counsel that by adopting the due procedure prescribed under the law, the Sub Divisional Officer directed to divert the land from agricultural to non-agricultural purpose in favour of the petitioner after ordering to deposit premium and other incidental charges prescribed under the law which the petitioner deposited and therefore the initiation of proceedings by the Collector by registering a revenue case is ex facie illegal and without jurisdiction for the simple reason that the order of his superior most officer Board of Revenue has become final and he cannot act contrary to it by registering a new revenue case. Hence, it has been prayed that the proceedings of revenue case registered against the petitioner by the Collector vide Annexure-P/14 be quashed and the order dated 8-2-2010 (Annexure-P/15) by which the Collector has directed Sub Registrar not to register any sale-deed since he is holding an inquiry, is also bad in law and this petition be allowed. 12. On the other hand Shri Vivek Agrawal, learned Government Advocate has submitted that the petitioner cannot be said to be an aggrieved person because action is being taken against his transferor Radha Devi, who in contravention to provisions of RBC has sold out the land in question to him for non-agricultural purpose. 12. On the other hand Shri Vivek Agrawal, learned Government Advocate has submitted that the petitioner cannot be said to be an aggrieved person because action is being taken against his transferor Radha Devi, who in contravention to provisions of RBC has sold out the land in question to him for non-agricultural purpose. That apart, the order of Commissioner dated 16-8-2000 (Annexure-P/2) is without jurisdiction because the order of Collector dated 28-1-2000 (Annexure-P/1) rejecting the application of Radha Devi which was submitted by her was appealable under the provision of RBC and not under section 44 of the Code and therefore not only the order of Additional Commissioner (Annexure-P/2) but order of Board of Revenue (Annexure-P/3), both are bad in law and without jurisdiction. 13. Learned Government Advocate has canvassed that on bare perusal of the order registering the revenue case by the Collector, it only reveals that the Collector is asking to file an appeal before this Court against the aforesaid orders of Additional Commissioner and Board of Revenue and therefore for this reason also, the petitioner has no locus standi to ask for a writ to quash the proceeding which has been registered by the Collector in a revenue case against Radha Devi. By placing reliance upon the Single Bench decision of this Court in Banwarilal Gupta and others vs. State of M.P. and others, 2002(2) MPLJ 420 : 2001 RN 188 has argued that the land of Bhumiswami can be exchanged with that of government agricultural land and no other land can be exchanged with the land of Bhumiswami. In the said decision it has also been held that Nazul land of government cannot be exchanged with the agricultural land of Bhumiswami. Learned Government Advocate further submits that exchange of land in favour of Radha Devi was not registered and therefore no right has been accrued upon the petitioner. In support of his contention learned Government Advocate has placed reliance upon decision of Single Bench of this Court in Premsingh and another vs. Chandar Singh and others, 1996 RN 64. 14. Learned Government Advocate further submits that exchange of land in favour of Radha Devi was not registered and therefore no right has been accrued upon the petitioner. In support of his contention learned Government Advocate has placed reliance upon decision of Single Bench of this Court in Premsingh and another vs. Chandar Singh and others, 1996 RN 64. 14. Further it has been propounded by learned Government Advocate that since the Government land which was given to Radha Devi in exchange was not an agricultural and was a Nazul land and exchange was made in contravention to the statute, therefore, the principle of estoppel will not be applicable because there cannot be any estoppel against statute. On these grounds it has been prayed by learned Government Advocate that this petition be dismissed on merits as well as on the basis of locus standi of petitioner. 15. In reply to the argument of learned Government Advocate, it has been submitted by learned Senior Counsel that so far as doctrine of estoppel is concerned, the old theory not to apply the principle estoppel against the statute has been changed by the Apex Court in the decision of Pawan Alloys and Casting Pvt. Ltd. Meerut vs. U.P. State Electricity Board and others, (1997) 7 SCC 251 and therefore now the latest position is that even there can be estoppel against the statute. In this case the Supreme Court has held that because the status quo ante cannot be restored, therefore, principle of estoppel would be applicable. 16. By replying the argument of learned Government Advocate, it has been submitted by learned Senior Counsel that although from the impugned order (Annexure-P/14) on its bare perusal one could infer that matter is not being proceeded against the present petitioner but only against Radha Devi and therefore the petitioner cannot be said to be an aggrieved person but if the veil is uplifted it would reveal that if any order is passed against Radha Devi, the petitioner would be a sufferer because he is the transferee of Radha Devi and therefore it cannot be said that he is not an aggrieved party. 17. 17. By replying the arguments of learned Government Advocate that the order of Commissioner was without jurisdiction because appeal under section 44 of the Code ought to have been filed, learned Senior Counsel submits that instead of mentioning appeal under Chapter-IV Part-3 of Clause 20 of RBC, if section 44 of the Code has been mentioned, it will not make any difference because under this Clause of RBC appeal before the Commissioner was maintainable and merely by quoting wrong provision would not take away the jurisdiction from the appellate authority which the said authority is otherwise having. In this context learned Senior Counsel has placed reliance upon the decision of Single Bench of this Court in Bablu Mandal vs. Vandana Bhowmik, 2008(1) MPLJ 522 para 11 and also other decision of Supreme Court in P.K. Palanisamy vs. N. Arumugham and another, 2010(1) MPLJ (S.C.) 513 : (2009) 9 SCC 173 . Learned Senior Counsel further submits that Radha Devi never sold part of the land which she got in exchange in favour of petitioner for commercial purpose and nowhere in sale-deed (Annexure-P/5) it has been mentioned that she is not selling the agricultural land and therefore the contention of learned Government Advocate that by violating the condition of RBC the land has been sold by Radha Devi to petitioner for other purpose than that of agricultural stands nowhere. Hence, it has been submitted that this petition be allowed. 18. This matter was taken-up for hearing on 17-7-2013 but since time of Court was over the remaining arguments were heard on 18-7-2013. While addressing the reply of the arguments advanced by learned Government Advocate and when learned Senior Counsel for petitioner reached upto the fag end of his reply, Shri Shashank Shekhar learned counsel filed an application for intervention (I.A. No. 10078/2013) on behalf of one Nandlal Singh and submitted that said Nandlal has filed some PIL before the Division Bench praying to constitute a High Level Committee in the matter and therefore hearing of this petition be not made. However, this application has been highly opposed by learned Senior Counsel on the ground that said Nandlal Singh is neither a party in the case nor he is complainant on the basis of which a revenue case has been registered by the Collector. Hence, according to learned Senior Counsel the intervention application be dismissed. 19. However, this application has been highly opposed by learned Senior Counsel on the ground that said Nandlal Singh is neither a party in the case nor he is complainant on the basis of which a revenue case has been registered by the Collector. Hence, according to learned Senior Counsel the intervention application be dismissed. 19. I shall now first deal with the application (I.A. No. 10078/2013) of intervention filed by one Nandlal. This application has been filed by intervener when learned Senior Counsel was replying the arguments of learned Government Advocate and that too said arguments were also concluded. That apart, the intervener is neither the party in the case registered by the Collector nor upon his complaint the Collector has registered the case and therefore according to me, merely because he has filed some PIL in which as stated by Shri Shashank Shekhar learned counsel for intervener that intervener has prayed to constitute High Level Committee to hold inquiry, cannot be accepted and his intervention application is accordingly dismissed. 20. Coming to the merit of the case and the locus standi of the petitioner to file petition, I shall consider the rival contentions of parties. Admittedly the Additional Commissioner vide its order dated 16-8-2000 (Annexure-P/2) by setting aside the order of Collector dated 28-1-2000 (Annexure-P/1) allowed the application of Radha Devi praying to exchange her Land Survey No. 555, 554, 506 and 549 total area 1.540 hectare situated at Village Padarwara Tehsil and District Katni of which she was admittedly Bhumiswami having possession over it with that of government land khasra No. 51/5 and 51/12 total area 1.692 hectare situated at Village Tikuri, Tehsil and District Katni, directed to exchange the land with government land admeasuring 1.490 hectare. Admittedly, this order of Additional Commissioner has been affirmed by Board of Revenue by order dated 31-5-2002 (Annexure-P/3). Further it is an admitted fact that thereafter the land has been exchanged and revenue record has been corrected. The said order of Board of Revenue had become final because Government did not assail the order of Additional Commissioner and Board of Revenue by filing appropriate proceedings before the appropriate forum. 21. Further it is an admitted fact that thereafter the land has been exchanged and revenue record has been corrected. The said order of Board of Revenue had become final because Government did not assail the order of Additional Commissioner and Board of Revenue by filing appropriate proceedings before the appropriate forum. 21. On the basis of arguments advanced by learned counsel for the parties in regard to exchange of land, according to me, four questions crop up for consideration, they are: (A) Whether the principle of estoppel against the statute, RBC would be applicable? (B) What would be the status of a person after the exchange of land? (C) Whether the only agricultural land can be given in the exchange? (D) Whether, the petitioner in whose favour an area 0.592 hectare of land has been sold by registered sale-deed, can he use it for non-agricultural purpose? Question (A) Whether the principle of estoppel against the statute, RBC would be applicable? 22. Much has been argued on both the sides. The contention of learned Government Advocate is that RBC is a statute while it has been argued by Shri Kishore Shrivastava, learned Senior Counsel for petitioner that even against the statute in view of decision of Supreme Court in Pawan Alloys (supra) the principle of estoppel would be applicable. Thus, first of all the pivotal point in this case is as to whether RBC is a Statute or not. Indeed on going through the RBC I could find that the same has been enacted under the Code or the Rules framed under the Code. Undisputedly, Radha Devi applied to exchange the land of which she was Bhumiswami with that of government land and the application was submitted within the ambit and scope of RBC Chapter-IV Part-3 Clause 20 which pertains to Adla-Badli (exchange) and undisputedly the land was exchanged by government land. At this juncture, I would like to rewrite the Preamble of the Code. “An Act to consolidate and amend the law relating to land revenue, the powers of Revenue Officers, rights and liabilities of holders of land from the State Government, agricultural tenures and other matters relating to land and the liabilities incidental thereto in Madhya Pradesh. Thus, according to me, Code is a consolidated code. “An Act to consolidate and amend the law relating to land revenue, the powers of Revenue Officers, rights and liabilities of holders of land from the State Government, agricultural tenures and other matters relating to land and the liabilities incidental thereto in Madhya Pradesh. Thus, according to me, Code is a consolidated code. The RBC upon which the reliance has been placed by learned counsel for the parties does not appear to have been framed under the authority of any statute. I have already held that I am unable to find that it has been framed under the Code or any of the Rules framed under the Code and thus according to me the RBC cannot be said to be a statute and it is only a compilation (Government Executive Instructions) of different circulars of the Government issued from time to time. Thus, the contention of learned Government Advocate that the RBC is a Statute, cannot be accepted. Further the principle of estoppel would be applicable. Rightly the decision of Supreme Court in paras 30 and 31 of Pawan Alloys (supra) is relied upon by learned Senior Counsel for the petitioner. In what circumstances, the principle of estoppel would be applicable I would deal it in reason which I would mention hereinafter by deciding relevant question. 23. Thus, the question (A) is answered that I do not have any scintilla of doubt in my mind in holding that RBC is not a Statute because it has not been framed either under the Code or Rules made thereunder, or are framed under any other Statute. Question (B) What would be the status of a person after the exchange of land? 24. It is well settled in law that a particular word used in particular statute is to be interpreted as defined in the definition clause of that particular statute. But, if that word is not defined in that statute then only the dictionary meaning should be seen. The exchange of land by Bhumiswami with that of government land has been mentioned in Chapter-IV Part-3 Clause 20 of RBC but in this Clause the term "Adla-Badli" (exchange) has not been defined. Hence what would be the meaning of term "exchange" I shall now see from different books. 25. In Halsbury's Laws of England, Fourth Edition Vol. The exchange of land by Bhumiswami with that of government land has been mentioned in Chapter-IV Part-3 Clause 20 of RBC but in this Clause the term "Adla-Badli" (exchange) has not been defined. Hence what would be the meaning of term "exchange" I shall now see from different books. 25. In Halsbury's Laws of England, Fourth Edition Vol. 39 Para 584 at Page 382 following has been expressed: “An exchange effected by mutual conveyance depends entirely upon the arrangement between the parties. Each party is in the position both of vendor and purchaser, and each must make a title to the property which he is giving up, and investigate the title to the property which he is taking, and each gives to the other covenants for title, either express or implied, appropriate, to the character in which he conveys. It follows from the nature of the transaction that, to the extent to which each is absolute owner, there is no restriction on the amount of or interest in the properties exchanged, and any necessary payment can be agreed upon by way of equality of exchange,” Thus, undisputedly the exchange would mean to give to the other covenant a valid and absolute title as owner without any restriction. 26. In Corpus Juris Secundum Vol. 33 Page 5 the term 'exchange' has been explained: “It has been stated that mere is no substantial difference between a sale and an exchange, and the legal effect of a contract of exchange is generally the same as that of a contract of sale. In both cases the title is absolutely transferred and both transactions are governed by the same rules of law practically. In law an exchange is recognized as two sales or a double sale, and an exchange of real estate is as to each one of the parties a sale and purchase of property.” Thus, under the American law also in exchange absolute ownership is transferred. In law an exchange is recognized as two sales or a double sale, and an exchange of real estate is as to each one of the parties a sale and purchase of property.” Thus, under the American law also in exchange absolute ownership is transferred. I would like to rely upon the book Words and Phrases of Best Publishing Company Permanent Edition 15A Page 149 saying what would be the legal effect of contract of exchange of property, which reads thus: The legal effect of a contract of exchange of property is generally the same as that of a contract of sale and in both cases the title is absolutely transferred and both transactions are governed by the same rules of the law practically. Hunt vs. Fenlon, 21 N.W. 2d 906, 213, 313 Mich. 644. 27. I will be failing in my duty if I do not rely upon The Major Law Lexicon by P. Ramanatha Aiyar 4th Edition 2010 Vol. 3 Page 2463 wherein the term 'exchange' has been explained as under:-- “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.” Hence, here also the word exchange would mean the transfer of ownership. Thus, if an exchange is made exchanging the government land with that of land of Radha Devi, the land of Radha Devi which has been obtained by the Government, it will become the land of government having the absolute title of ownership and similarly the government land which has been given to Radha Devi in exchange, it would mean the transfer of absolute ownership to Radha Devi has been made and thus, after the exchange, Radha Devi will become Bhumiswami of the government land admeasuring 1.490 hectare after the order of Commissioner dated 16-4-2000 (Annexure-P/2). There cannot be any other interpretation. What will be the situation of condition of RBC, I will see in the forthcoming paragraph. Thus, question (B) is answered that after the exchange, the government will be the absolute owner of land which it had obtained from Radha Devi and similarly Radha Devi will also become the absolute owner (Bhumiswami) of the government land which she had obtained in exchange. Thus, question (B) is answered that after the exchange, the government will be the absolute owner of land which it had obtained from Radha Devi and similarly Radha Devi will also become the absolute owner (Bhumiswami) of the government land which she had obtained in exchange. Question (C) Whether the only agricultural land can be given in the exchange? 28. Much has been argued by learned Government Advocate that only agricultural government land can be given in exchange and no other land of government can be given for agriculture in exchange. In order to deal with the rival contentions of learned counsel for parties it would be apt to quote Clause 20 of Chapter-IV Part-3 of RBC, which reads thus: XXX XXX XXX The purpose of quoting the aforesaid clause while answering the question (C) is that nowhere in the aforesaid clause it has been mentioned that only agricultural government land can be given in exchange. The words Krishi Yogya are used in sub-clause (1) of Clause 20. Had it been the intention of the circular that only government agricultural land could be given in exchange to land of Bhumiswami certainly word "Krishi" (Agriculture) would have been mentioned in the said circular but the words "Krishi Yogya" are used which would mean the land which can be used for agriculture purpose and not the agriculture. The cultivable land can be given in exchange is sine qua non to the government as well as to the Bhumiswami. Further in sub-clause (1)(Ka) it has been mentioned that exchange of land should not be non-beneficial to either of the parties. Thus, after the exchange of the land which has been vested in government as owner if government can use it for any other purpose why it cannot be used for any other purpose by the person to whom government land has been given in exchange. According to me, first of all as I have already held hereinabove that after exchange Radha Devi would become absolute owner of land, and secondly it should not be non-beneficial to the Bhumiswami also and therefore after exchange since Bhumiswami would become absolute owner under the Code why he cannot use it for any other purpose if it is not restricted under the Code. The Bhumiswami land of Radha Devi given to Government in exchange was adjacent to Railway Platform Madhav Nagar, Railway Station of District Kami and therefore one can understand that it may have its commercial value. This fact also finds place in the order of Additional Commissioner dated 16-8-2000 (Annexure-P/2) in para 4. 29. Apart from what I have held hereinabove, now if sub-clause (2) of Clause 20 is considered in true perspective, it would reveal that in case non-agricultural land is given in exchange, the exchange will not be bad in law but the option will be given to the exchange to return back the land which has been obtained in exchange so that the cultivable land could be given to him in exchange either in the same village or in case there is no land cultivable in the said village, then in the nearby village. But, if the said option is not adopted, the exchange itself would not become bad under the RBC and this is true interpretation of the said circular (Government Executive Instructions). According to me, no other interpretation of the said circular is permissible nor it has been pointed out by learned Government Advocate. Thus, I do not find any merit in the contention of learned Government Advocate that only agricultural government land can be exchanged. 30. The present case is of exchange of land which is cultivable for agricultural purpose. Had it been the case of lease or grant either under the RBC or the Code the matter would have been different and in that situation the lessor or grantor (Government) as the case may be could have imposed the restriction that the land which is given in lease or grant shall be used for the specific purpose because in that situation the ownership title is not transferred in favour of lessee or grantee. The present case is of exchange and therefore as I have already held hereinabove that in the exchange absolute ownership is transferred, there cannot be any restriction that it will be used only for agricultural purpose. Indeed no such restriction is imposed in Clause 20 of Chapter-IV Part-3 of RBC as I have already held hereinabove. Therefore, in these facts and circumstances the decision of Banwarilal (supra) is distinguishable on facts. 31. Indeed no such restriction is imposed in Clause 20 of Chapter-IV Part-3 of RBC as I have already held hereinabove. Therefore, in these facts and circumstances the decision of Banwarilal (supra) is distinguishable on facts. 31. Thus question (C) is answered that because it has been mentioned in Chapter-IV Part-3 Clause 20(1) of the RBC that land upon which cultivation can be made or which is cultivable can be given in exchange, it cannot be said that only agricultural government land can be given in exchange. Question (D) Whether, the petitioner in whose favour an area 0.592 hectare of land has been sold by registered sale-deed, can he use it for non-agricultural purpose? 32. On bare perusal of the sale-deed dated 1-8-2005 (Annexure-P/5 executed by Radha Devi in favour of petitioner this Court finds that she has sold an area 0.592 hectare of Survey No. 51/21 (Kha) the description of the land has been shown to be unirrigated and fetching single crop. Nowhere in this document of sale this Court finds that it is sold for non-agricultural purpose. The entire description indicates that agricultural land has been sold by Radha Devi to petitioner. Admittedly, the present petitioner after purchasing the land applied for mutation of his name and firstly his name was recorded in the column of the Bhumiswami and thereafter under the provisions of section 172 of the Code he filed necessary application for its diversion. Admittedly, the Sub Divisional Officer allowed his application and after adopting due procedure prescribed under the law and the procedure prescribed under the Code passed an order, allowing the application and diverted his land for non-agricultural purpose by directing him to deposit the amount as mentioned in Annexure-P/7 under different heads which the petitioner deposited. The petitioner thereafter adopting due procedure prescribed under the law obtained NOC, sanction etc. to raise construction from the Municipal Corporation Kami after depositing the requisite fee and after obtaining sanction, applied for map to raise construction. There is no provision under the Code that a Bhumiswami cannot divert his agricultural land for non-agricultural purpose and thus rightly the diversion order etc. has been passed in favour of the petitioner. to raise construction from the Municipal Corporation Kami after depositing the requisite fee and after obtaining sanction, applied for map to raise construction. There is no provision under the Code that a Bhumiswami cannot divert his agricultural land for non-agricultural purpose and thus rightly the diversion order etc. has been passed in favour of the petitioner. Today the petitioner has raised several constructions and therefore now if it is held that exchange was bad in law, the status quo ante cannot be restored by the Government particular when order of diversion has not been recalled. Needless to say in compliance to the order of diversion the necessary charges have been deposited and it is with the Government. 33. In Pawan Alloys (supra) the Supreme Court in para 10 has held as under:-- 10. It is now well settled by a series of decisions of this Court that the State authorities as well as its limbs like the Board covered by the sweep of Article 12 of the Constitution of India being treated as "State" within the meaning of the said Article, can be made subject to the equitable doctrine of promissory estoppel in cases where because of their representation the party claming estoppel has changed its position and if such an estoppel does not fly in the face of any statutory prohibition, absence of power and authority of the promisor and is otherwise set opposed to public interest, and also when equity in favour of the promise does not outweigh equity in favour of the promisor entitling the latter to legally get out of the promise. Thereafter in para 11 the reliance was placed upon its earlier decision in State of H.P. vs. Ganesh Wood Products, (1995) 6 SCC 363 by quoting para 54 and 55 of the said decision. Thereafter in para 11 the reliance was placed upon its earlier decision in State of H.P. vs. Ganesh Wood Products, (1995) 6 SCC 363 by quoting para 54 and 55 of the said decision. Thereafter, the Apex Court in para 55 has held that they shall refer the decision which they have referred in the foregoing paragraph in latter part of their judgment but at present suffice it to say at this stage if a statutory authority or executive authority of the State functioning on behalf of State in an exercise of its legally permissible powers has held out any promise to a party, who relying on the same has changed its position not necessarily to its detriment, and if this promise does not offend any provision of law or does not fetter any legislative or quasi-legislative power inhering in the promisor, then on the principle of promissory estoppel the promisor can be pinned down to the promise offered by it by way of representation containing such promise for the benefit of the promisee. Ultimately in para 30 and 31 the Apex Court has held that if the promisee cannot resume his position the promise would become final and irrevocable. Apart from what has been said in para 30, I would like to quote para 31, which reads thus: 31. In the light of this settled legal position we, therefore, held that even though the appellants have succeeded in convincing us that the earlier three notifications dated 29-10-1982, 13-7-1984 and 28-1-1986 did contain a clear promise and representation by the Board to the prospective new industrialists that once they established their industries in the region within the territorial limits of the operation of the Board, they would be assured 10% rebate on the total bills regarding consumption of electricity by their industries for a period of three years from the initial supply of electric power to their concerns, the appellants will not be able to enforce the equity by way of promissory estoppel against the Board if it is shown by the Board that public interest required it to withdraw this incentive rebate even prior to the expiry of three years as available to the appellants concerned. It has also to be held that even if such withdrawal of development rebate prior to three years is not based on any overriding public interest, if it is shown that by such premature withdrawal the appellant-promisees would be restored to status quo ante and would be placed in the same position in which they were prior to the grant of such rebate by earlier notifications the appellant would not be entitled to succeed. We, therefore, now proceed to examine these twin aspects of the controversy. Hence for the reasons stated hereinabove question (D) is answered in affirmative that the petitioner can use the land which has been sold to him for non-agricultural purpose also. 34. On going through the proceedings (Annexure-P/14) this Court finds that in the year Khasra 1993-94 to 1997-98 the land has been described as Nazul Sarkar and in the column No. 12 of Kafiyat (remark) it has been mentioned that for Charai the land is reserved. Learned Government Advocate could not point out under whose order such endorsement in the revenue record has been made. According to me, if any change is to be made in the revenue record it can be changed after adopting due procedure prescribed under section 115 of the Code. Learned Government Advocate is not in a position to submit that any such procedure was ever adopted. That apart such correction was directed to be carried out in the revenue record by which revenue officer and on which date there is no material on record. Even otherwise under the Code the words Nazul Sarkar have nowhere been described and from where it has been derived by respondents, learned Government Advocate could not satisfy this Court. 35. I shall now consider the objection of learned Government Advocate that petitioner has no locus standi to file this petition. Even otherwise under the Code the words Nazul Sarkar have nowhere been described and from where it has been derived by respondents, learned Government Advocate could not satisfy this Court. 35. I shall now consider the objection of learned Government Advocate that petitioner has no locus standi to file this petition. True, on bare perusal of the proceedings of the Collector (Annexure-P/14) this Court finds that no action has been taken against the petitioner but action has been triggered and set in motion against his transferor Radha Devi, but, since petitioner is stepping in the shoes of his transferor Radha Devi certainly whatever order would be passed against her would prejudice him because under Article 300-A of the Constitution of India no person shall be deprived of his property saved by authority of law and this Article has been added by 44th Amendment Act, 1978 w.e.f. 20-6-1979 and therefore the constitutional right vests in the petitioner asking not to deprive him from his property and the proceedings of the Collector is also in contravention of his fundamental right enshrined under Article 21. Therefore, it cannot be said that petitioner has no locus standi to challenge the proceedings pending before the Collector and that too when the chapter of exchange of land was closed long back on 31-5-2002 when order of Board of Revenue (Annexure-P/3) was passed permitting to exchange the land. 36. It has been argued by learned Government Advocate that in the proceedings before the Collector (Annexure-P/14) only reasons are given that whey an appeal should be filed against the order of Commissioner and Board of Revenue before this Court and no party can be debarred from assailing the order before the Court of law. 36. It has been argued by learned Government Advocate that in the proceedings before the Collector (Annexure-P/14) only reasons are given that whey an appeal should be filed against the order of Commissioner and Board of Revenue before this Court and no party can be debarred from assailing the order before the Court of law. The argument at the first blush appears to be quite attractive but on deeper scrutiny I do not find any merit in it for the simple reason that had it been a simple administrative letter written by the Collector to Principal Secretary (Revenue) or to the law department the matter would have been different but after registering a Revenue Case No. 102/B121/2009-10 and acting like an Appellate Court superior Court of his senior appellate forum i.e. Additional Commissioner and senior most Court Board of Revenue and commenting how the orders passed by these authorities are bad in law, in a revenue case registered against the transferor of petitioner, it cannot be said that the Collector was in its competence to pass an order contrary to is superior authorities. Hence, I do not find any merit in the said argument of learned Government Advocate. That apart on being asked to learned Government Advocate he is unable to state that any sanction to file appeal from the law department has been received to file appeal before this Court and further he is not in a position to state that in accordance to the letter of the Collector, the Principal Secretary (Revenue) has written a letter to law department to accord its permission to file appeal before this Court. 37. Lastly it has been submitted by learned Government Advocate that order of Collector dated 8-2-2010 (Annexure-P/15) is simply an order directing Sub Registrar not to execute any sale-deed in regard to property in dispute and according to learned Government Advocate the same is appealable. However, despite asking him under which statute the same is appealable and to whom the appeal would lie, he is unable to answer and therefore I find that order dated 8-2-2010 (Annexure-P/15) is nothing but an outcome of the proceedings of the Collector passed in revenue case which according to me is without jurisdiction and hence said order Annexure-P/15 cannot be passed by the Collector. 38. For the reasons stated hereinabove, this petition succeeds and is hereby allowed. 38. For the reasons stated hereinabove, this petition succeeds and is hereby allowed. The revenue case which has been registered and the proceedings are going on in the said case No. 102/B121/2009-10 stands quashed and eventually the order dated 8-2-2010 (Annexure-P/15) also stands quashed. No costs. 39. For the reasons stated hereinabove the connected Writ Petition No, 13252/2010 is also allowed and disposed of in terms of order passed in this petition. Let a copy of this order be placed in the record of W.P. No. 13252/2010. No costs.