# Narendra Kumar & Anr v. The Board of Revenue, U.P. at Allahabad & Ors

- **Citation:** (2023) 5 ILRA 322
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2023-04-03
- **Case number:** Writ B No. 1218 of 2021
- **Bench:** Jayant Banerji
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/narendra-kumar-anr-v-the-board-of-revenue-u-p-at-allahabad-ors-50203
- **Pages:** 13

## Headnote

A. Revenue Law - UP Revenue Code, 2006
- Sections 59, 77, 101 & 161 - Exchange
of land of Gram Panchayat - School was
constructed
long
back
over
the
petitioner's
land
-
Application
for
exchange
was
rejected
-
Validity
challenged
-
Finding
required
u/s
101(2)(b) has not been recorded - No
resolution of LMC in favour of exchange
was passed - Effect - Held, to refuse
permission
for
exchange
under
subsection (1) of Section 101 of the Code,
2006, it was required of the Sub-Divisiona
Officer to record a finding in terms of
clause (b) of sub-section (2) of the Code,

## Text

_Characters 0–39,930 of 42,481. This is a partial read: ask again with offset=39930 for what follows._

322 INDIAN LAW REPORTS ALLAHABAD SERIES
records in respect to disputed plot within a
period of six weeks from the date of
production of a certified copy of this order.
----------
(2023) 5 ILRA 322
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 03.04.2023

BEFORE

THE HON'BLE JAYANT BANERJI, J.

Writ B No. 1218 of 2021

Narendra Kumar & Anr. ...Petitioners
Versus
The Board of Revenue, U.P. at Allahabad &
Ors. ...Respondents

Counsel for the Petitioners:
Sri Fuzail Ahmad Ansari, Sri R.C. Singh (Sr.
Advocate)

Counsel for the Respondents:
C.S.C., Sri Krishna Kant Singh, Sri Yogendra
Singh Bohra

A. Revenue Law - UP Revenue Code, 2006
- Sections 59, 77, 101 & 161 - Exchange
of land of Gram Panchayat - School was
constructed
long
back
over
the
petitioner's
land
-
Application
for
exchange
was
rejected
-
Validity
challenged
-
Finding
required
u/s
101(2)(b) has not been recorded - No
resolution of LMC in favour of exchange
was passed - Effect - Held, to refuse
permission
for
exchange
under
subsection (1) of Section 101 of the Code,
2006, it was required of the Sub-Divisiona
Officer to record a finding in terms of
clause (b) of sub-section (2) of the Code,
2006. That is to say, the finding returned
ought to have been that the difference
between the valuation, if determined in
the manner prescribed, of the lands given
and received in exchange exceeds ten per
cent of the lower valuation - However,
High Court further held, for want of any
resolution
of
the
Land
Management
Committee in favour of exchange or any
suo moto resolution of the Sub-Divisional
Officer approved by the Collector, any
application filed for exchange of land of
Gram
Panchayat
cannot
meet
the
prescribed requirements of Rule 101 and
therefore such an application would have
an incurable defect. (Para 16 and 20)

Writ petition allowed. (E-1)

List of Cases cited:

1. C/M Vishambharnath Janta Inter College &
anr. Vs St. of U.P. & ors.; 2019 (142) RD 810

2. Writ C No. 26603 of 2021; Sita Ram Vs St. of
U.P. & ors. decided on April 6, 2022: 2022 SCC
OnLine All 200

3. Shiv Murat Vs Board of Revenue, U.P. at
Allahabad & ors.; 2017 (7) ADJ 252

(Delivered by Hon'ble Jayant Banerji, J.)

1. This writ petition has been filed
seeking quashing of the order dated
23.02.2021 passed by the Board of
Revenue, U.P., Allahabad in Revision
no.1124 of 2017. Also the order dated
24.04.2017 passed by the Sub-Divisional
Officer is sought to be quashed by which
application for exchange of land has been
rejected.

2.
The
petitioners
claim
to
the
Bhumidhar of plot No.17 ad-measuring 0.357
hectare and Plot No.19 ad-measuring 0.092
hectare. Both the aforesaid plots of land are
stated to be recorded as grove land. It is
stated that plot No.18 ad-measuring 0.104
hectare is recorded in the name of a school
'Purv Madhyamik Vidyalay, Mauza- Tarsara,
Pargana- Hasangarh, Tehsil- Iglas, District-
Aligarh'. Other than that plot, plot no.21
having an area of 0.057 hectare is also
recorded in the name of the aforesaid school.
5 All. Narendra Kumar & Anr. Vs. The Board of Revenue, U.P. at Allahabad & Ors.
323

3. It is stated that the building of the
school was constructed long back on plot
no.19, which is the plot belonging to the
petitioners,
instead
of
plot
No.18.
Therefore, under the provisions of section
101 of the U.P. Revenue Code, 20061, the
petitioners
filed
an
application
on
11.03.2016 before the Sub Divisional
Officer for exchange of plot no.19 with plot
no. 18 in terms of the prayer made in the
application.
A
report
of
the
Tahsildar/Lekhpal was called for, in which
report it was stated that the circle rate and
the nature of land of both the plot nos.18
and 19 are the same. However, by the
impugned order dated 24.4.2017, the SubDivisional Officer rejected the application
for exchange. Against the aforesaid order
the petitioners filed a revision before the
Board of Revenue which was dismissed by
the order dated 23.2.2021.

4. The contention of the learned
counsel for the petitioners is that the
application filed by the petitioners under
Section 101 of the Code, 2006, deserves to
the allowed particularly when the revenue
authorities have reported to the respondent
No.2 regarding the same valuation of the
plots of the land sought to be exchanged. It
is contended that the Sub-Divisional
Officer based her order on a defunct
Government Order dated 10.11.2014 that
was issued under Section 161 of the
repealed U.P. Zamindari Abolition and
Land Reforms Act, 19502. It is contended
that the sub-section (2) of section 101 of
the Code, 2006 provides for certain
eventualities
that
may
authorize
the
competent authority to refuse permission
for exchange. In this case too, the SubDivisional Officer refused the exchange but
the ground for refusal of exchange is not
relatable to any ground appearing in subsection (2) of Section 101 of the Code,
2006. It is urged that since the valuation of
the plots of land sought to be exchanged
has been reported by the revenue inspector/
tehsildar to be identical therefore, the
refusal of the Sub-Divisional Officer to
permit exchange is arbitrary. Learned
counsel for the petitioner in support of his
contention has relied upon a judgement of
co-ordinate Bench of this Court in the
matter of C/M Vishambharnath Janta
Inter College and another vs State of
U.P. & others3.

5. The learned counsel for the
respondents have drawn the attention of the
Court to Section 59 of the Code, 2006
pertaining to entrustment of land, to
contend that the land which stands
entrusted to the Gaon Sabha cannot be
claimed by the petitioners for exchange as
of right.

6. Shri Y.S. Bohra, learned counsel
appearing for the respondent No.5 has
drawn attention to sub-section (2) of
Section 9-A of the Uttar Pradesh Basic
Education Act, 19724 to contend that the
property of the Uttar Pradesh Board of
Basic Education, comprising of plot nos. 18
and 21, stand vested in the Gram Panchayat
and any transfer by sale, gift, exchange,
mortgage, lease or otherwise of any building,
property or assets is prohibited. He further
urged that in view of Clause (d) of sub-section
(2) of section 101, the land being reserved for
planned use of the Gaon Sabha, bhumidhari
rights can not accrue on them in view of the
provisions of Section 77 of the Act, 2006, and
therefore, no exchange is permissible. Learned
counsel has further drawn the attention of the
Court to the proviso to sub-Section (2) of
Section 101 to contend that exchange may be
permissible in respect of land mentioned in
clause (d) subject to the decision of the State
Government.
324 INDIAN LAW REPORTS ALLAHABAD SERIES

7. A perusal of the order dated
24.04.2017 passed by the Sub-Divisional
Officer reveals that on perusing the report
of the tehsildar and the site plan, she has
found the exchange proceedings in question
to be initiated contrary to rules of the Board
of Revenue, since on one plot a building of
the school is constructed while the other
plot is being used as a grove / for
agriculture purposes. She further observes
that if the parties wanted exchange in
accordance with rules, they should not have
sought exchange where one plot is being
used for a grove and another plot for a
school building. In that regard the SubDivisional Officer has relied upon a
Government
Order
dated
10.11.2014.
Accordingly, the application was rejected.

8. Sections 59, 77 and 101 of the Code
of 2006 read as under:

"59. Entrustment of land etc. to
Gram
Panchayat
and
other
local
authorities.- (1) The State Government
may, by general or special order to be
published in the manner prescribed, entrust
all or any of the things specified in subsection (2), which vest in the State
Government, to a Gram Panchayat or other
local
authority
for
the
purposes
of
superintendence, preservation, management
and control in accordance with the
provisions of this Code.

(2) The following things may be
entrusted to a Gram Panchayat or other
local authority under sub-section (1),
namely-

(i) lands, whether cultivable or
otherwise, except land for the time being
comprised in any

(ii) grove standing on the Gram
Panchayat land, pasture land, graveyard,
cremation ground, manure pits, Khaliyans,
Chakroads, link roads, sector roads, land in
river bed, road, Sadak Khanti, Sullage
farm;

(iii) forests; and fisheries;

(iv) trees, other than trees in a
holding or on the boundary of a holding or
in a grove or abadi, or any trees on
unoccupied land;

(v) hats, bazars, meals, tanks,
ponds, water-channels, private ferries,
pathways and abadi sites;

(vi) subject to the provision of the
Treasure Trove Act, 1878, any properties
specified in Section 55 and belonging to the
State Government.

(3) Every land or other thing -

(a) vested in a Gram Panchayat or
any other local authority under the
provisions
of
the
Uttar
Pradesh
Consolidation of Holdings Act, 1953 or the
Uttar Pradesh Imposition of Ceiling on land
Holdings Act, 1960;

(b) placed under the charge of a
Gram Panchayat or any other local
authority under any of the enactments
repealed by this Code;

(c)
otherwise
coming
into
possession of a Gram Panchayat or other
local authority, either before or after the
commencement of this Code; shall be
deemed to be entrusted to such Gram
Panchayat or other local authority, as the
case may be, with effect from the date of
commencement of this Code or from the
date of such coming into its possession, for
the
purpose
of
superintendence,
preservation, management and control, in
accordance with the provisions of this
Code.

(4) The State Government may,
by a subsequent order to be published in
the manner prescribed, -

(a) add to, amend, vary or rescind
any earlier order issued under sub-section
(l);
5 All. Narendra Kumar & Anr. Vs. The Board of Revenue, U.P. at Allahabad & Ors.
325

(b) transfer to any other Gram
Panchayat or other local authority, any land
or other thing entrusted or deemed to be
entrusted under sub-section (1) or subsection
(3)
for
superintendence,
preservation, management and control;

(c) resume any land or other thing
so entrusted, or deemed to be entrusted or
transferred to any Gram Panchayat or local
authority on such terms and conditions as
prescribed;

(d)
impose
conditions
and
restrictions subject to which the powers of
superintendence preservation, management
and control under this section shall be
exercised.

(5) Where any of the thing
specified in sub-section (2) has been
entrusted or deemed to have been entrusted
to a Gram Panchayat, and the village or any
part thereof in which such things are
situated lies outside the circle of the Gram
Panchayat, such Gram Panchayat or its
Bhumi Prabandhak Samiti shall, subject to
any general or special order issued by the
State Government in this behalf, perform,
discharge and exercise the functions, duties
and powers assigned, imposed or conferred
by or under this Code or the U.P. Panchayat
Raj Act, 1947 on a Gram Panchayat or a
Bhumi Prabandhak Samiti as if that village
or part also lay within that circle.

(6) Where any of the things
specified under sub-section (2) has been
entrusted or deemed to be entrusted to a
local authority other than the Gram
Panchayat, the provisions of this Chapter
shall mutatis mutandis apply to such local
authority.

................

................

77. Bhumidhar rights not to
accrue
in
certain
lands.-(1)
Notwithstanding anything
 contained in this Code or any other law for
the time being in force; no person shall
acquire the rights of a Bhumidhar in the
following land-

(a) Khaliyan, manure pits, pasture
land or land normally used as burial or
cremation ground;

(b) land covered by water and
used for the purpose of growing singhara or
other produce;

(c) land situate in the bed of a
river and used for casual or occasional
cultivation;

(d) such tracts of shifting or
unstable
cultivation
which
the
State
Government may by notification specify;

(e) land declared by the State
Government to be intended or set apart for
taungya plantation and notified as such;

(f)
grove
land
entrusted
or
deemed to be entrusted to a Gram
Panchayat or any other local authority
under Section 59;

(g) land included in sullage farm
or trenching ground entrusted or deemed to
be entrusted to a Gram Panchayat or any
other local authority under Section 59;

(h) land acquired or held for a
public purpose or a work of public utility;

(i) land covered by a pond, tank
or lake, or forming part of an embankment,
bandh or bhita; and

(j) any other land which the State
Government may, by notification, specify
in this behalf;

Explanation.-
The
expression
'public purpose', in clause (h) shall include :

(i) land set apart for military
camping ground;

(ii) land included within railway
or canal boundaries;

(iii) land acquired and held by a
local authority for its own purposes;
326 INDIAN LAW REPORTS ALLAHABAD SERIES

(iv) land referred to in Section
29-C of the Uttar Pradesh Consolidation of
Holdings Act, 1953; or

(v) land reserved by a [Gram
Panchayat] for the purposes of public
utility:

(2) Notwithstanding anything to
the contrary contained in other provisions
of this Code, where, any land or part
thereof specified in sub-section (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 class of such
public utility land is changed, any other
land equivalent to or more than that of the
aforesaid public utility land, shall be
reserved for the same purpose in the same
Gram Panchayat or 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.

(3) The State Government, while
changing the class of the land or permitting
the exchange of the same under Section
101 of the Code, shall consider the
location, public utility and suitability of the
land proposed to be reserved or exchanged.

(4) If class of land is changed
under sub-section (2) of this section, the
Collector shall order the record of rights
(Khatauni) and the map to be corrected
accordingly.

Explanation.-
The
expression
'public purpose', in sub-section (2) of this
section means, mutatis mutandis, 'the
public purpose' as defined in clause (za) of
Section 3 of Right to Fair Compensation
and Transparency in Land Acquisition,
Rehabilitation and Resettlement Act, 2013
(Act No. 30 of 2013).

...............

...............

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) 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
5 All. Narendra Kumar & Anr. Vs. The Board of Revenue, U.P. at Allahabad & Ors.
327
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."

9. Therefore, under Section 59 of the
Code,
2006,
for
purposes
of
superintendence, preservation, management
and control of things which vest in the
State Government and which are specified
in sub-section (2) thereof, the State
Government is authorized entrust them to a
Gram Panchayat, or other local authority.

Sub-section (3) of Section 59
creates a legal fiction which deems
entrustment of every one of the three
specified categories thereunder of land or
other thing to such Gram Panchayat or
other local authority, as the case may be,
with effect from the date of commencement
of the Code, 2006 or from the date of such
coming into its possession, for the purpose
of
superintendence,
preservation,
management and control. The aforesaid
three specified categories of land or other
thing that are specified in sub-section (3)
are those:-

(a) vested in a Gram panchayat or
any other local authority under the
provisions
of
the
Uttar
Pradesh
Consolidation of Holdings Act, 1953 or the
Uttar Pradesh Imposition of Ceiling on
Land Holdings act, 1960;

(b) placed under the charge of a
gram panchayat or any other local authority
under any of the enactments repealed by
the Code, 2006; or

(c)
otherwise
coming
into
possession of a Gram panchayat or other
local authority, either before or after the
commencement of the Code, 2006.

10. Section 77 (1) of the Code, 2006
which begins with a non-obstante clause,
provides for certain classes of land in
respect of which no person shall acquire the
rights of a Bhumidhar, notwithstanding
anything contained in the Code, 2006 or
any other law for the time being in force.
Clause (f) of sub-section (1) of Section 77
brings within its ambit grove land entrusted
or deemed to be entrusted to a Gram
Panchayat or any other local authority
under Section 59.

11. Section 101 (1) of the Code, 2006
begins with a non-obstante clause which
provides that notwithstanding anything in
Section 77, 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. However, sub-section (2) of
Section 101 provides certain specific
conditions whereunder the Sub-Divisional
Officer shall refuse permission. They are:-

(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:
328 INDIAN LAW REPORTS ALLAHABAD SERIES

The proviso after clause (e)
provides that the State Government may
permit the exchange with land mentioned
in clause (d) aforesaid, on the conditions
and in the manner, prescribed.

Though,
prima
facie,
there
appears to be a conflict between the
enabling provision of clause (b) of subsection (1) of Section 101 (which is
qualified by the non-obstante clause), and,
clause (d) of sub-section (2) of Section 101,
however, since nothing has been pleaded
nor urged in this regard, this court refrains
from expressing any opinion on the issue.
In any view of the matter the proviso
appearing after clause (e) aforesaid does
enable the State Government to permit the
exchange on the conditions and in the
manner prescribed.

12. The word exchange has also been
defined in Section 118 of the Transfer of
Property Act, 1882 as under:

"118.
"Exchange"
defined.-
When two persons mutually transfer the
ownership of one thing for the ownership
of another, neither thing or both things
being money only, the transaction is called
an "exchange".

A
transfer
of
property
in
completion of an exchange can be made
only in manner provided for the transfer of
such property by sale."

So exchange of property would
occur where two persons mutually transfer
the ownership of one thing for the
ownership
of
another.
The
essential
requisite of exchange, therefore, is that it
should be voluntary and concious decision
by each party and permissible by law.

13. At this stage, it is pertinent to refer
to Rules 100, 101 and 102 of the Uttar
Pradesh Revenue Code Rules, 20165 which
are as follows:

"100. Application for exchange
between Bhumidhars [Section 101].- (1)
Every application for exchange of land
between two Bhumidhars shall contain the
following particulars:-

(a)
Names,
parentage
and
addresses of both the parties to the
exchange.

(b) Details of the land sought to
be given and received in exchange (with
plot numbers, area, location and land
revenue).

(c)
Whether
the
proposed
exchange is necessary for the consolidation
of holdings or for the convenience of
cultivation.

(d)
Whether
the
proposed
exchange involves transfer of undivided
interest in the land.

(e) Whether the land or any part
thereof has been let out or encumbered.

(f) Valuation of the lands to be
given and received in exchange and the
extent of difference in such valuation.

(g) The areas of the land to be
given and received in exchange and the
extent of difference in such areas.

(h) Whether the land to be given
and received in exchange are located in the
same or adjacent villages of the same
Tahsil.

(2) Every such application shall
be accompanied by the certified copies of
the Khatauni relating to the plots to be
given and received in exchange.

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:-
5 All. Narendra Kumar & Anr. Vs. The Board of Revenue, U.P. at Allahabad & Ors.
329

(a) The particulars specified in
rule 100(1)6.

(b) Whether the land to be
received in exchange from the Gram
Panchayat is reserved for planned use or is
land in which Bhumidhars 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
Khatauni 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 or the suo-motu resolution of the
Sub-Divisional-Officer approved by the
Collector.7

102. Grant of permission by
Sub-Divisional Officer [Sections 101 and
102].- (1) On receipt of an application
under rule 100 or rule 101, the SubDivisional Officer shall issue notice to the
Bhumidhar
or
the
Gram
Panchayat
concerned
to
show-cause
why
the
permission for exchange should not be
granted.

(2) The Sub-Divisional Officer
shall also cause to be calculated the rental
values of the land given or received in
exchange and may also hear the lessees,
mortgagees or other holders of the
encumbrances, if any.

(3) If after making necessary
inquiries, the Sub-Divisional Officer is
satisfied that the parties are agreeable to
such exchange and the required terms and
conditions are fulfilled, he shall grant the
requisite permission and shall direct the
Record-of-
Rights
to
be
corrected
accordingly.

(4) If the application is in respect
of the land referred to in clause (b) of subsection (1) and if it is reserved for planned
use or is land in which bhumidhari rights
do not accrue and the Sub-Divisional
Officer is satisfied that the permission for
exchange is in the interest of the applicant
and is also in the public interest, he may
refer the matter to the State Government for
appropriate order and if the permission is
granted by the State Government, the SubDivisional Officer shall direct the Recordof-Rights (Khatauni) to be corrected
accordingly."

14. As it appears from a reading of the
aforesaid provisions of the Rules, 2016,
Rule 100 provides the particulars required
in every application for exchange of land
between
two
Bhumidhars;
Rule
101
specifies the particulars required in every
application for exchange of land of Gram
Panchayat by a Bhumidhar; and, Rule 102
provides the procedure for consideration of
an application under Rule 100 or Rule 101
by the Sub-Divisional Officer. Perusal of
sub-rule (4) of Rule 102 provides that
where the application is in respect of land
referred to in clause (b) of sub-section (1)8
and it is reserved for planned use or is land
in which bhumidhari rights do not accrue
and the Sub-Divisional Officer is satisfied
that the permission for exchange is in the
interest of the applicant and is also in the
public interest, he may refer the matter to
the State Government for appropriate order
and if the permission is granted by the State
Government, the Sub-Divisional Officer
shall
direct
the
Record-of-Rights
(Khatauni) to be corrected accordingly.

15. The land which is being sought by
the petitioners in exchange for their land
stands entrusted with the Gram Panchayat.
The school is stated to be constructed long
back on the land of the petitioners and the
application for exchange was filed on
330 INDIAN LAW REPORTS ALLAHABAD SERIES
11.03.2016. Section 9-A of the Basic
Education Act reads as follows:-

Section 9A. Control of teachers
and properties of basic school.

(1)
Notwithstanding
anything
contained to the contrary in any other
provisions of this Act, on and from the date
of commencement of the Uttar Pradesh
Basic Education (Amendment) Act, 2000, -

(a) every teacher of the basic
school
serving
under,
the
Board
immediately before such commencement
shall be under the administrative control of
the Gram Panchayat or the Municipality, as
the case may be, within whose territorial
limits the basic school, is situated;

(b) all buildings, properties and
assets of the Board in respect of a basic
school shall stand transferred to, and vest
in, the Gram Panchayat or the Municipality,
as the case may be, within whose territorial
limits the basic school is situated;

(c) where any building or part
thereof is occupied by a tenant by the
Board for the purpose of a basic school
immediately before such commencement,
the tenancy in respect of such building or
part thereof shall, notwithstanding anything
contained in any contract, lease or other
instrument, stand transferred in favour of
the Gram Panchayat, or the Municipality, as
the case may be;

(d) the Board shall cease to be the
licensee in respect of the building or part
thereof referred to in sub-section (2) of
Section 18-A and the Gram Panchayat or
the Municipality, as the case may be, within
whose territorial limits such building is
situated shall, if it is not already owner
thereof, be deemed to have become
licensee in respect of such building or part
thereof on such terms and conditions as
may
be
determined
by
the
State
Government.

(2) No Gram Panchayat or
Municipality shall have the power to
transfer by sale, gift, exchange, mortgage,
lease or otherwise any building, property or
assets transferred to, and vested in, such
Gram Panchayat or Municipality, as the
case may be, under sub-section (1).

15. Given the provision of clause (c)
of sub-section (3) of Section 59 and clause
(f) of sub-section (1) of Section 77 of the
Code, 2006, the area of plot no.19 which is
admittedly grove land, over which the
school is constructed and over which the
petitioners claim bhumidhari rights, would
be deemed to be entrusted to the Gram
Panchayat. However, it cannot the case of
the respondents that plot no.19 was
transferred to or vested in the Gram
Panchayat under the provisions of Section
9-A of the Basic Education Act, as the
Board of Basic Education would first have
to demonstrate that the land comprising
plot no. 19 and the building of the school
belonged to it. Thus the reference to the
provisions of Section 9-A of the Basic
Education Act, by the learned counsel for
the respondent insofar as it concerns the
Bhumidhari Plot No. 19 of the petitioners,
is of no consequence. However, as regards
Plot No. 18, the respondents may have an
arguable case.

16. In any view of the matter, what is
required to be seen in the present writ
petition is whether the order dated
24.04.2017 passed by the Sub-Divisional
Officer and the order dated 23.02.2021
passed by the Board of Revenue can be
sustained. The sum and substance of the
order passed by the Sub-Divisional Officer
has already been noted above. It is evident
that the reason for rejection of the
application for exchange is that on one plot
there is a grove, while on the other plot
5 All. Narendra Kumar & Anr. Vs. The Board of Revenue, U.P. at Allahabad & Ors.
331
there exists a school building. Therefore, to
refuse permission for exchange under subsection (1) of Section 101 of the Code,
2006, it was required of the Sub-Divisional
Officer to record a finding in terms of
clause (b) of sub-section (2) of the Code,
2006. That is to say, the finding returned
ought to have been that the difference
between the valuation, if determined in the
manner prescribed, of the lands given and
received in exchange exceeds ten per cent
of the lower valuation. Of course, it was
also open to the Sub-Divisional Officer to
record finding for refusal of permission on
ground of existence of any condition
mentioned in sub-section (2) of Section
101, if the facts and evidence on record so
reflected. The Sub-Divisional Officer was
required to take into account considerations
that were relevant to the purpose of the
statute in question. This was not done in the
present case and so the impugned order
dated 24.04.2017 cannot be sustained. The
order dated 23.02.2021 of the Board of
Revenue also adopts the same analogy as
the Sub-Divisional Officer for rejection of
the revision filed by the petitioners, and
therefore,
that
order
too
cannot
be
sustained.

17. In the case of Sita Ram v. State of
U.P. and others9, a coordinate bench of
this court observed as follows:

"20.
In
exercise
of
its
discretionary power, if the concerned
authority ignores or does not take into
account considerations which are relevant
to the purpose of the statute in question,
then its action would be invalid. This would
be more so where the statute conferring
discretion on the authority has structured
the discretion by expressly laying down the
consideration which should be taken into
account by the authority for exercise of the
discretion. In such a case, if the exercise of
the
discretionary
power
has
been
influenced by considerations that cannot
lawfully be taken into account or by
disregard of the relevant considerations
required to be taken into account, the
decision arrived at by the authority would
be invalid."

18. There is an important aspect of the
matter that requires attention. Under subrule (2) of Rule 101 of the Rules, 2016, an
application for exchange of land of Gram
Panchayat is required to be accompanied
by certified copies of the khatauni 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. In the
alternative, the application is to be
accompanied by the suo moto resolution of
the Sub-Divisional Officer approved by the
Collector. There is no material on record to
demonstrate that any of such resolution was
made and filed alongwith the application of
the petitioners.

19. In the case of Shiv Murat Vs.
Board of Revenue, U.P. at Allahabad and
others10, while considering exchange
under the provisions of Section 161 of the
repealed U.P.Z.A. and L.R. Act, 1950, the
Court posed the question whether the land
vesting in the State Government can be
exchanged without notice to the Land
Management Committee and without there
being a resolution of the Gaon Sabha
approving
the
exchange.
The
Court
observed as follows:

"11. On plain reading of Subclause (i) of Section 161 and Rule 145, it is
apparent that the Assistant Collector upon
being satisfied with the conditions of
exchange, as a consequence of the Rule he
332 INDIAN LAW REPORTS ALLAHABAD SERIES
is required to call upon the parties to show
cause why the exchange should not be
made and thereafter under Rule 146 the
Assistant Collector is to decide the
objections, if any, and pass suitable orders.
It is, therefore, clear that without notice to
the Gaon Sabha and in absence of a
resolution recording consent of the Land
Management Committee the permission to
make an exchange suo moto by the
Assistant Collector on a report of the Halka
Lekhpal would be void not being mandated
under Section 161 of the Act.

12. In the event of the submission
of learned counsel for the petitioner being
accepted, then land of a bhumidhar can be
exchanged behind his back merely on an
application by another bhumidhar, on mere
approval of the Assistant Collector. Rule
requires that the owner of the land be it a
bhumidhar or in the present case a Gaon
Sabha would have to be put to notice
before the land vesting in the Gaon Sabha
is exchanged.

..........

..........

17. On 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.
Therefore, I am of the considered opinion
that unless both the parties agree for
exchange, the Assistant Collector cannot
accord permission merely at the instance of
an individual seeking exchange of his land
with another individual unless he is willing
to exchange. The willingness of the parties
to exchange their respective land is
condition precedent under Section 161 of
the Act. The exchange of the land is not
unilateral transaction of a willing party to
exchange, there must be consent of the
person with whom exchange has been
sought and unless there is agreement of
exchange between the parties, there is no
such power vested with the Assistant
Collector under the statute to compel the
bhumidhar to exchange land with another
bhumidhar/Gaon Sabha against its will.

18. This Court in Rambali and
others Versus State of U.P. and others,
decided on 9 May 2012, declined to issue
writ of mandamus seeking direction to the
Assistant
Collector
to
decide
the
application under Section 161. The Court
held as follows:

"..........

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."

19. The exchange of Land is not a
novelty of the Zamindari Abolition Act.
Provisions for exchange existed even under
U.P.
Tenancy Act,
1939
and
other
legislation viz. M.P. Land Revenue Court,
5 All. Narendra Kumar & Anr. Vs. The Board of Revenue, U.P. at Allahabad & Ors.
333
1959. The term exchange is not defined in
the Act, hence the definition given in
Section 118 of the Transfer of Property Act
shall be applicable. According to the said
provision, exchange is a transfer. When two
persons mutually transfer the ownership of
one thing for the ownership of another, a
transaction is called exchange. For a valid
exchange, it must be voluntarily and both
parties must agree thereto. No exchange is
permissible unless both parties agree to the
exchange.

20. In Saheb Singh Versus Gaon
Sabha,
1981
RD
85,
where
Land
Management
Committee
passed
a
resolution that a particular pathway should
be widened and the affected tenure holders
must be given land in exchange near their
chaks. It was held that the order of the Sub
Divisional Officer approving the exchange
was bad because the consent of all the
affected tenure holders was not obtained.

21. In Smt. Badi Dulaiya Versus Gaon
Sabha, 1987 RD 246, wherein, it was held
that if the procedure prescribed by Rules
144 to 146 was not followed, and the
permission required under Rule 110-A(2)
was not obtained, the order for exchange
was not valid (Refer: State of U.P. Versus
M/s Techno Tower Limited, 1986 RD 397).

22. In Narain Singh Versus Gaon
Sabha, 1975 ALJ (Revenue) 73, it was held
that a land belonging to the Gaon Sabha
cannot be allowed to be exchanged without
the consent of the Gaon Sabha. In Gulshan
Rai Versus Mitra Sen, 1994 RD 125, where
on the report submitted by Naib Tehsildar
recommending that the permission for
exchange may be granted to the parties and
on such report, the Sub Divisional Officer
passed an order approving the exchange, it
was held to be no order in the eye of law.

23. Before disposing of the application
for exchange, a duty is cast upon the
Assistant Collector to ensure that the
provisions of Rule 144 to 146 are literally
followed. (Refer-Ashok Kumar Versus
Mahavir Singh, 1994 RD 136; State of U.P.
Versus M/s Techno Tower Ltd., 1986 RD
397). The proceedings for exchange are
judicial proceeding and therefore, the
Assistant Collector should pass complete
and self contained order. Where the
Assistant Collector finds that parties
involved in the exchange have not
consented, therefor, or if any of them has
withdrawn such consent, he has no option
but to reject the application. (Fakir Chand
Versus Naib Johra Zaidi, 1995 RD 405)

24. The trial court should ensure and
see that show cause notice mentioned in
Rule 145 is issued and the condition
mentioned in the proviso to Section 161 is
fulfilled (Gaon Sabha Versus Kundan Lal,
1986 RD 366).

25. The exchange of land belonging to
the Gaon Sabha does not depend of the
personal consent of the Pradhan or the
Lekhpal. For exchange proper resolution as
required under law should be passed by the
Gaon Sabha. (Harihar Prasad Versus
Jagdish, 2001 RD 163)."

20. For want of any resolution of
the Land Management Committee in favour
of exchange or any suo moto resolution of
the Sub-Divisional Officer approved by the
Collector,
any
application
filed
for
exchange of land of Gram Panchayat
cannot meet the prescribed requirements of
Rule 101 and therefore such an application
would have an incurable defect.
21. In view of the facts and circumstances
mentioned above, the impugned orders
dated 24.04.2017 passed by the Sub-
334 INDIAN LAW REPORTS ALLAHABAD SERIES
Divisional Officer and dated 23.02.2021
passed by the Board of Revenue are invalid
and are hereby set aside.