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2023 DIGILAW 397 (ALL)

Ram Kripal v. Sub Divisional Magistrate,

2023-02-08

SAURABH LAVANIA

body2023
JUDGMENT Saurabh Lavania, J. Heard learned Counsel for the petitioner, Sri Pankaj Gupta, learned Counsel for Gaon Sabha- respondent and Sri Hemant Kumar Pandey, learned State Counsel. 2. By means of the present petition, the petitioner seeks expeditious disposal of application preferred by petitioner for exchange of land filed under Section 161 of U.P. Zamindari Abolition and Land Reforms Act 1950 (in short "Act of 1950") presently registered as Case No. T2013025743478 and is pending before opposite party no. 1-Sub Divisional Magistrate (Judicial), Tehsil Patti, District -Pratapgarh as also that opposite party no. 2-Tehsildar, Tehsil Patti, District Pratapgarh, be directed to not to proceed further in proceedings initiated under Section 67 of Land Revenue Code 2006, has also been sought. The main reliefs sought are as under:- "I. To issue order or direction to the opposite party no. 1 to decide the case no. T2013025743478 under Section 161 of the U.P.Z.A. & L.R. Act, Rajpati v. Gaon Sabha and others pending in the Court of Sub Divisional Magistrate (Judicial) Patti Pratapgarh contained as Annexure No. 1 to this petition in the interest of justice. II. To issue order or direction to the opposite party no. 2 not to proceed further proceedings of under Section 67 U.P. Land Revenue Code 2006 as case no. T202202570406598 Gaon Sabha v. Ram Kripal Yadav pending before opposite party no. 2 contained as Annexure No. 13 & 14, till the disposal of pending case no. T2013025743478 under Section 161 of the U.P.Z.A. & L.R. Act, Rajpati v. Gaon Sabha and others pending before opposite party no. 1 contained as Annexure No. 1 to this petition in the interest of justice." 3. At the very outset, learned State Counsel has raised preliminary objection regarding the maintainability of the present petition. Elaborating his submission, he stated that earlier the petitioner approached this Court by means of Writ-C No. 3221 of 2022 (Ram Kripal v. State of U.P. and Others), which was finally disposed of vide order dated 02.06.2022. At the very outset, learned State Counsel has raised preliminary objection regarding the maintainability of the present petition. Elaborating his submission, he stated that earlier the petitioner approached this Court by means of Writ-C No. 3221 of 2022 (Ram Kripal v. State of U.P. and Others), which was finally disposed of vide order dated 02.06.2022. This Court after observing that "it is claimed that the College is owner of Gata No. 172 and 173, however, it has also used some public utility land recorded in the Khatauni for the purposes of playground under the control of Gaon Sabha for construction of some building" opined that the application submitted by the petitioner-Ram Kripal was not in accordance with law and thereafter taking note of the relevant provision of the U.P. Land Revenue Code 2006 i.e. Section 101 Code of 2006, disposed of the petition, providing liberty to the petitioner to prefer a fresh application strictly in accordance with law. However, in the instant case, after the order of Division Bench, the petitioner/concerned i.e. College has not preferred any application under Section 101 of the Code of 2006, for the purposes of exchange of land. Thus, the present petition for the reliefs sought, is not maintainable. The order of Division Bench dated 02.06.2022 on reproduction reads as under:- "Heard. The petitioner claims to be Manage of Matafer Laghu Madhyamik Vidyalaya, Dasrathpur, Tehsil Patti, District Pratapgarh. It is claimed that the College is owner of Gata No. 172 and 173, however, it has also used some public utility land recorded in the Khatauni for the purposes of playground under the control of Gaon Sabha for construction of some building. Now, the Institution seeks exchange of certain land owned by it i.e. Gata No. 172 and 173 with Gata No. 160 as stated by Mr. Rakesh Kumar Singh, counsel for the petitioner. In this regard, it is claimed that an application has been submitted before the Sub Divisional Magistrate dated 15.09.2018, however, when we peruse the said application contained as Annexure No. 5, we do not find any such application having been submitted in the name of the Institution; rather the application has been submitted by Ram Kripal who claims to have been elected as Manager of the Committee of Management of the aforesaid Institution in an alleged meeting held on 19.01.2016. It is not very clear as to what is the tenure of the Manager of such Institution. We are now in 2022. Whether he was authorized to move such an application is also a question. Be that as it may, when we peruse Section 101 of U.P. Land Revenue Code, 2006, it reads as under: " Section 101. Exchange (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) entrusted 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." 4. It is only the State Government which may permit exchange with the land mentioned in Clause (b) of sub-Section (1) of Section 101 of the Code i.e. the land entrusted or deemed to be entrusted to any Gram Panchayat or a local authority under section 59. It is only the State Government which may permit exchange with the land mentioned in Clause (b) of sub-Section (1) of Section 101 of the Code i.e. the land entrusted or deemed to be entrusted to any Gram Panchayat or a local authority under section 59. Moreover, sub-Section (3) of Section 101 of the Code says that 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. Furthermore, corresponding Rule is Rule 101 of the U.P. Revenue Code Rules, 2016 which reads as under: "101. Application for exchange of land of Gram Panchayat (Section 101)- (1) Every application for exchange of land by a bhumidhar under Clause (b) of section 101 (1) shall contain the following particulars: (a) The particulars specified in rule 100 (1). (b) Whether the land to be received in exchange from the Gram Panchayat is reserved for planned use or is land in which bhumidhari right does not accrue. (c) Whether the land to be received in exchange from the Gram Panchayat consists of any tree or other improvements, if so, their details. (2) Every such application shall be accompanied by certified copies of the Khatuani relating to the plots given as well as received in exchange, together with a copy of the resolution of the Bhumi Prabandhak Samiti in favour of such exchange." Sub-Rule (2) of Rule 101 of the Rules is very clear. It provides that every such application shall be accompanied by certified copies of the Khatuani relating to the plots given as well as received in exchange, together with a copy of the resolution of the Bhumi Prabandhak Samiti in favour of such exchange. When the Court peruses the application of the petitioner, Ram Kripal, apart from the fact that it is not in the name of the College, it finds; firstly that there is no plot mentioned therein which may have been offered for exchange, secondly it is not accompanied by any such resolution of the Land Management Committee which is in control of Gata No. 160. In view of this, the application itself does not appear to be in accordance with the provisions of law, therefore, the orders being relied upon by the counsel for the petitioner copies of which are annexed as Annexure No. 7, 8 and 9 are of not avail or help to the petitioner as in none of those cases these aspects have been seen. It is open for the petitioner to move appropriate application in accordance with law before the concerned authority and thereafter pursue the same in accordance with law but as of now no adjudication on merits can be done. The petition is disposed of. " 5. At this stage, on being asked as to why the writ petition was filed, learned Counsel for the petitioner stated that Writ-C No. 3221 of 2022 was filed as the opposite parties, were adamant to evict the petitioner from some portion of the land, which belongs to Gaon Sabha over which construction belong to College is situated. 6. Learned State Counsel, further stated that after the order of Division Bench dated 02.06.2022, the present petitioner-Ram Kripal again approached this Court by means of writ under Article 227 No. 2757 of 2022 (Ram Kripal v. State), which was dismissed with liberty to file a fresh. The said order dated 03.08.2022 on reproduction reads as under:- "Heard. Learned counsel for the petitioner after arguing at some length submits that he does not want to press the instant petition and prays that the same may be dismissed as withdrawn at this stage with liberty to file a fresh petition. Accordingly, the petition is dismissed as withdrawn with the aforesaid liberty." 7. A perusal of the paper book of the present petition shows that no application as observed by the Division Bench of this Court in its order dated 02.06.2022 was preferred by the petitioner or college, for exchange of land before the competent authority under the Code of 2006. As such this Court is not inclined to entertain the present petition and and same is accordingly dismissed. However, it is open for the petitioner to prefer an application strictly as per observations made by the Division Bench of this Court in the order dated 02.06.2022.