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2017 DIGILAW 1792 (ALL)

Rakesh Kumar v. C. M. O.

2017-08-02

ANJANI KUMAR MISHRA

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JUDGMENT : ANJANI KUMAR MISHRA, J. 1. Heard learned counsel for the petitioners and Standing Counsel for the State-respondents. 2. This writ petition allegedly arises out of proceedings, under Section 161 of the U.P. Zamindari Abolition and Land Reforms Act for exchange. 3. However, perusal of the record reveals that an application was filed by the petitioner stating therein that an exchange had taken place sometime earlier, which was never implemented in the revenue records. The bhumidhari plot of the petitioner had been exchanged with certain land, which has been reserved for a Hospital. The exchange had been effected to strengthen the boundary of the Hospital. No specific date of this prior exchange is alleged. 4. On this application, a report was obtained. On the basis of the report, the Sub Divisional Officer, Muzaffarnagar, vide order dated 04.02.1992 directed that the entry of Primary Health Centre recorded in the Khatauni as Khata No.427 plot no.245 be exchanged with the entry regarding plot no.267/1. 5. Aggrieved by this order, the Health Department preferred an appeal. 6. This appeal was allowed and the order passed by the Sub Divisional Officer was set aside, vide order dated 23.02.1994, on the finding that the valuation of two plots exchanged could not be similar, especially on account of their location. The land of Primary Health Centre was situated adjacent to the main road while the petitioners plot was situated at a substantial distance from the main road and therefore, the valuation of the plot could not be similar. 7. It was also observed that the proceedings under Section 161 of the U.P. Zamindari Abolition and Land Reforms Act were for exchange in praesenti. Section 161 did not confer jurisdiction to merely record an earlier exchange. In any case, land of the State could not be exchanged. The land exchanged belonged to the State and was recorded in the name of the Health Department. 8. Aggrieved by the appellate order, a second appeal was filed before the Board of Revenue. The Board of Revenue, vide order dated 07.02.1995 dismissed the Second Appeal No.67 of 1993- 94. 9. This Second Appeal was filed on the ground that the case was not one for exchange. It was a case filed to give effect in the revenue records, an exchange, which had already taken place, earlier in time. 10. The Board of Revenue, vide order dated 07.02.1995 dismissed the Second Appeal No.67 of 1993- 94. 9. This Second Appeal was filed on the ground that the case was not one for exchange. It was a case filed to give effect in the revenue records, an exchange, which had already taken place, earlier in time. 10. The Board of Revenue found that an entirely new case was set up at the second appellate stage. The appellant had earlier relied upon Section 161 of the Act. The Board of Revenue also observed that the land of the State could not be subject matter of exchange. It accordingly, dismissed the second appeal. 11. Upon hearing learned counsel for the petitioner and upon a perusal of the record, I do not find any illegality in the impugned orders. 12. Before this Court, the ground taken in the writ petition is that if the authority has jurisdiction to pass an order merely because a wrong Section is mentioned therein, the order is not vitiated. 13. It is also sought to be argued that the Sub Divisional Officer could pass such an order under Section 39 of the U.P. Land Revenue Act and merely because Section 161 of the U.P. Zamindari Abolition and Land Reforms Act has been recorded, the order would not be illegal. As already observed herein above, the land recorded in favour of the State cannot be subject matter of exchange. 14. Perusal of Section 161 of the U.P. Zamindari Abolition and Land Reforms Act reveals that this provision can be invoked for exchange between two bhumidharis or between bhumidhars and the Gaon Sabha or a local authority. In my considered opinion, the Health Department is not a local authority within the meaning of Section 161 of the Act. The Health Department is a department of the State Government and therefore, the State is the owner of the land allegedly exchanged. 15. The argument that the order, in favour of the petitioner could have been passed, in proceedings, under Section 39 of the U.P. Land Revenue Act is also, without substance. 16. Any application for correction of an error in the annual register is to be made before the Tehsildar and thereafter the same has to be referred to the Collector, after the Tehsildar has made an enquiry in the matter. 16. Any application for correction of an error in the annual register is to be made before the Tehsildar and thereafter the same has to be referred to the Collector, after the Tehsildar has made an enquiry in the matter. It is the Collector, who has jurisdiction to decide the matter under Section 39 of the U.P. Land Revenue Act. 17. In the case at hand, the order has been passed by the Sub Divisional Officer, who was not competent to pass any order and therefore the submission that merely a wrong provision has been invoked or referred to, is without substance. The order passed in favour of the petitioner could by no stretch of imagination, be one under Section 39 of the U.P. Land Revenue Act, which empowers the Collector to pass the order. 18. In view of the foregoing discussion, this writ petition is found to be devoid of substance. 19. It is, accordingly dismissed.