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2020 DIGILAW 1176 (ALL)

Jai Hind Yadav v. State Of U. P.

2020-09-30

ANJANI KUMAR MISHRA

body2020
JUDGMENT : 1. Heard Shri Tarun Agrawal, learned counsel for the petitioners and Shri Ajit Kumar Singh, Additional Advocate General assisted by Shri Sudhanshu Srivastava for the State-respondents. 2. The instant writ petition seeks a writ of certiorari for quashing the order dated 29.01.2020 passed by the third respondent (Annexure Nos.5 and 6 to the writ petition) passed in Case No.03676 of 2019, under Section 101 of the U.P. Revenue Code, 2006. 3. The case appears to have been registered on a report of the Tehsildar dated 23.09.2019. The order also states that the Tehsildar prepared and submitted the report on behalf of the Land Management Committee, as the Land Management Committee of village Karanjahi, Navapaar and Aima was not exercising its functions. 4. The report made was for exchange of the land of tenure holders (bhumidhars) with land of the Gaon Sabha, for the purposes of channelization of the river Rapti. The order also records that the notices were served upon the tenure holders but no objection was received from any of them. Accordingly, the report was accepted observing that the valuation of the land of the tenure holders and the land, which was being given to them in exchange, was identical. 5. Assailing the impugned order, the contention of counsel for the petitioner is that it is wholly without jurisdiction. The proceedings for exchange were not initiated on the application of any tenure holder. Categorical assertion in this regard are to be found in various paragraphs of the writ petition. 6. He has submitted that the proceedings for exchange have been instituted suo moto and the impugned orders, passed by the Sub Divisional Magistrate, Bansgaon. 7. He has also referred to Section 101 of the U.P. Revenue Code, 2006, and on the strength of the said provision, he has submitted that the proceedings for exchange can be instituted only on an application of a bhumidhar. Such proceedings can not be instituted either at the instance of the Gaon Sabha, the State Government or the Land Management Committee. 8. The second contention of counsel for the petitioner is that in case, it is accepted that the channelization of the river Rapti was absolutely mandatory, the only option for the authorities was to acquire the land, over which, the channel was to be constructed. 8. The second contention of counsel for the petitioner is that in case, it is accepted that the channelization of the river Rapti was absolutely mandatory, the only option for the authorities was to acquire the land, over which, the channel was to be constructed. The land of the petitioner has never been acquired and since the proceedings for exchange itself are without jurisdiction, the impugned order cannot be sustained and must necessarily be set aside. 9. On behalf of the State, it has been vehemently urged by Shri Ajit Kumar Singh, Additional Advocate General as also Shri Sudhanshu Srivastava that a notice was given to the tenure holders on 23.10.2019 regarding the proceedings under Section 101 of the U.P. Revenue Code, 2006 and thus the proceedings were drawn in public interest. 10. Additionally, Shri Ajit Kumar Singh, Additional Advocate General has submitted that the order impugned has been passed in public interest, by extending the scope of Section 101 of the U.P. Revenue Code, 2006, after due notice to the tenure holders. 11. He has submitted that most of the tenure holders have accepted the impugned order. The area where channelization of river Rapti is being undertaken is a flood affected area and therefore, channelization is in public interest and in any case, mandatory. 12. It has next been submitted that an earlier writ petition had been filed by petitioner himself, seeking quashing of the proceedings regarding channelization of the river Rapti in the village in question being Writ Petition no.12409 of 2019. There is yet another writ petition no.22049 of 2019 filed by one Ramanand Pandey. Both these petitions are pending but no interim order was granted therein. Therefore, also the instant writ petition is liable to be dismissed. 13. After the submissions of Shri Ajit Kumar Singh, Additional Advocate General had been noted, Shri Sudhanshu Srivastava also appearing for the State-respondents sought permission of the Court to make additional submissions. He has tried to submit that in view of the provisions contained in Section 77 of the U.P. Revenue Code, 2006, the proceedings which have culminated in the impugned order cannot be said to be without jurisdiction. 14. I have considered the submissions made by counsel for the parties and perused the record. 15. He has tried to submit that in view of the provisions contained in Section 77 of the U.P. Revenue Code, 2006, the proceedings which have culminated in the impugned order cannot be said to be without jurisdiction. 14. I have considered the submissions made by counsel for the parties and perused the record. 15. The sole question for consideration in this petition is whether the impugned order could have been passed in proceedings, which manifestly have been instituted at the instance of the Land Management Committee as is stated in the impugned order, itself and for this purpose Section 101 of the U.P. Revenue Code, 2006 is relevant and is extracted below: "101. (1) Notwithstanding anything in Section 77 of this Code, any bhumidhar may with prior permission in writing of the Sub-Divisional Officer exchange his land with the land - (a) held by another bhumidhar; or (b) entrused or deemed to be entrusted to any Gram Panchayat or a local authority under Section 59. (2) The Sub-Divisional Officer shall refuse permission under sub-section (1) in the following cases, namely - (a) if the exchange is not necessary for the consolidation of holdings or securing convenience in cultivation; or (b) if the difference between the valuation, determined in the manner prescribed, of the lands given and received in exchange exceeds ten per cent of the lower valuation; or (c) if the difference between the areas of the land given and received in exchange exceeds twenty-five per cent of the lesser area; or (d) in the case of land referred to in clause (b) of sub-section (1), if it is reserved for planned use, or is land in which bhumidhari rights do not accrue; or (e) if the land is not located in same or adjacent village of the same tahsil: Provided that the State Government may permit the exchange with land mentioned in clause (d) aforesaid, on the conditions and in the manner, prescribed. (3) Nothing in this section shall be deemed to empower any person to exchange his undivided interest in any holding, except where such exchange is in between two or more co-sharers. (4) Nothing in the Registration Act, 1908 (Act No. 16 of 1908), shall apply to an exchange in accordance with this section.]" 16. The provisions aforesaid begins with a non obstante clause namely, "notwithstanding anything in Section 77 of the U.P. Revenue Code, 2006". (4) Nothing in the Registration Act, 1908 (Act No. 16 of 1908), shall apply to an exchange in accordance with this section.]" 16. The provisions aforesaid begins with a non obstante clause namely, "notwithstanding anything in Section 77 of the U.P. Revenue Code, 2006". It is, thus, absolutely clear and brooks no doubt that proceedings for exchange can only be instituted by a bhumidhar and by no other person or body. Therefore, the revenue authorities cannot institute proceedings for exchange, suo moto. Such proceedings cannot be instituted also at the instance of the Gaon Sabha or the Land Management Committee. 17. It is to get over this legal impediment that Shri Ajit Kumar Singh, Additional Advocate General has submitted that the impugned order and the proceedings wherein, it has been passed by extending the scope of Section 101 of the Revenue Code, 2006 in public interest because the area is a flood affected area. 18. It is settled law that where the Law provides that a thing is to be performed in a particular manner, then irrespective of public interest, its performance has to be in the manner specified and in no other manner. It is not open for the revenue authorities or State authorities to read into a provision of law, something which is not provided, therein. 19. The Sub Divisional Magistrate is equally bound by the provisions contained in Section 101 of the U.P. Revenue Code, 2006 and he has no general or special power to extend its scope, even in public interest. 20. 19. The Sub Divisional Magistrate is equally bound by the provisions contained in Section 101 of the U.P. Revenue Code, 2006 and he has no general or special power to extend its scope, even in public interest. 20. In order to deal with the additional argument raised by Shri Sudhanshu Srivastava, Section 77(2) of the Revenue Code, 2006 is being extracted below - "(2) Notwithstanding anything to the contrary contained in other provisions of this Code, where, any land or part thereof specified in subsection (1) of this section is, surrounded by or, in between, the plot or plots of land purchased, acquired or resumed for public purpose, the State Government may, change the class of such public utility land, and if the class of such public utility land is changed, any other land equivalent to or more than that of public utility land aforesaid, shall be reserved for the same purpose in the same Gram Panchayat or other local authority, as the case may be or State Government may permit the exchange thereof under section 101 of this Code, in the manner prescribed. Provided that the class of any public utility land may be changed only in exceptional cases on such terms and conditions, as may be prescribed. The reason for changing the class of public utility land shall be recorded in writing." 21. This provision extracted above creates a complete embargo upon acquisition of bhumidhari rights over land enumerated in the said section, namely, public utility land. 22. Sub-section 2 of Section 77 enables the State Government to change the class of public utility land, in case, such land is surrounded by or lies between the plot or plots of land, purchased, acquired or resumed for public purposes. 23. In my considered opinion, the argument of Shri Sudhanshu Srivastava is without force because it has been categorically admitted in the instructions received by learned Standing counsel, copy whereof has been produced for perusal of this Court, that the land which has been exchanged by the impugned order, has neither been purchased, acquired or resumed for a public purpose. The fact that the land of the petitioner has not been acquired is repeatedly reiterated in various paragraphs of the writ petition. 24. The fact that the land of the petitioner has not been acquired is repeatedly reiterated in various paragraphs of the writ petition. 24. Merely, because a public interest has been mentioned as the basis of the impugned order and the basis of the proceedings under Section 101 of the Revenue Code, 2006, the same shall not confer jurisdiction, where it is inherently lacking. If public interest was genuinely involved, nothing prevented the State Government from acquiring the land, which was required for the purposes of channelization of the river Rapti. This has admittedly not been resorted to by the State respondent. 25. The argument of Shri Sudhanshu Srivastava is also to be repelled because in view of Rule 84 of the U.P. Revenue Code, Rules 2016, an application for change of class of public utility land has to be made to the State Government and it is the State Government, which is required to pass the order. The impugned order has not been passed by the State Government. Neither any request for such change was made by the Collector. In any case, the impugned order is with regard to bhumidhari land and not public utility land. 26. In view of the foregoing discussion and since the impugned order has been passed in proceedings under Section 101 of the Revennue Code, 2006, which proceedings could have been initiated only on the application for bhumidhar. It could not be pointed out that any application for exchange was actually filed by any tenure holder or bhumidhar. The proceedings, which have been admittedly instituted suo moto at the instance of the Land Management Committee are wholly without jurisdiction and for this reason alone, the impugned order must necessarily be set aside. 27. The contention on behalf of the State that the impugned order has been passed after issuing notices to the affected tenure holders does not improve the position in any manner. If Section 101 of the U.P. Revenue Code, 2006 could not have been invoked for exchange at the instance of the Land Management Committee or the Gaon Sabha, the factum that a notice was issued to persons likely to be effected shall not confer jurisdiction where it is inherently lacking. 28. Under the circumstances and since, the order impugned passed by the Sub Divisional Magistrate is wholly without jurisdiction, the same cannot be sustained. 29. 28. Under the circumstances and since, the order impugned passed by the Sub Divisional Magistrate is wholly without jurisdiction, the same cannot be sustained. 29. Accordingly, I allow the writ petition and set aside the impugned order dated 29.01.2020 passed by the respondent. 30. There shall be no order as to costs.