# Om Prakash Singh & Ors v. State of U.P. & Ors

- **Citation:** (2022) 7 ILRA 729
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2022-01-07
- **Case number:** Writ B No. 98 of 2021
- **Bench:** Dinesh Pathak
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/om-prakash-singh-ors-v-state-of-u-p-ors-48833
- **Pages:** 5

## Headnote

A. Civil Law - Constitution of India, 1950Article 226 - U.P. Revenue Code, 2006Section
101
-
exchange
of
land
proceeding-petitioner run a school and for
that purpose the petitioners moved an
application requesting for exchange of
their plot with the plots of Gaon Sabhathe Tehsil authorities submitted reports
730 INDIAN LAW REPORTS ALLAHABAD SERIES
thrice in favour of exchange but the
application was rejected on account of
difference of valuation between the plots
which were sought to be exchanged-the
revisional court has given a perverse
finding that the Gaon Sabha was not
agreed
upon
for
exchange
whereas
resolution was passed in favour of the
petitioners and the same has never been
withdrawn by the Gaon Sabha-Trial court
and Board of revenue committed same
error
in
deciding
the
case
without
considering the reports submitted by
Tehsil authorities with respect to the
valuation of plots under exchange.(Para 1
to 14)

The writ petition is partly allowed. (E-6)

List of Cases cited:

## Text

7 All. Om Prakash Singh & Ors. Vs. State of U.P. & Ors.
729
of India it was held that under the
Constitution removal and dismissal stand
on the same footing except as to future
employment. In this sense removal is but a
species
of
dismissal.
Removal,
like
dismissal, no doubt brings about a
termination
of
service
but
every
termination of service does not amount to
dismissal or removal.

7. In S.R. Tiwari v. District
Board, Agra2 (SCR p. 69) it has been
observed:

"It is settled law that the form of
the order under which the employment of a
servant is determined is not conclusive of
the true nature of the order. The form may
be merely to camouflage an order of
dismissal for misconduct, and it is always
open to the court before which the order is
challenged to go behind the form and
ascertain the true character of the order. If
the Court holds that the order though in the
form
merely
of
determination
of
employment is in reality a cloak for an
order of dismissal as a matter of
punishment, the Court would not be
debarred merely because of the form of the
order in giving effect to the rights conferred
by statutory rules upon the employee."

8. The only difference in the
punishment of dismissal and removal is that
in case of dismissal the employee is
disqualified from future employment while
in case of removal he is not debarred from
getting future employment. In the present
case a perusal of Section 83 clearly shows
that the punishments provided are: fine,
reduction, suspension or dismissal from
service.

54. Net analysis of the above caption
judgment itself mandates that though the
penalty of dismissal and removal stand on
same footing except as to the issue future
employment. Mentioning thereby that by
no stretch of imagination it can be said that
attachment of a disqualification of future
employment can where be said to be ultravirus, arbitrary or discriminatory.

55. Resultantly, in view of the
foregoing discussions, the present writ
petition is wholly misconceived besides
being not maintainable and is liable to be
dismissed.

56. Accordingly, it is dismissed.

57. No order as to costs.
----------
(2022)07ILR A729
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 07.01.2022

BEFORE

THE HON'BLE DINESH PATHAK, J.

Writ B No. 98 of 2021

Om Prakash Singh & Ors. ...Petitioners
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioners:
Sri Sanjay Kumar Singh, Sri Yogesh Singh

Counsel for the Respondents:
C.S.C., Sri Bhupendra Kumar Tripathi, Sri
Sunil Kumar Singh

A. Civil Law - Constitution of India, 1950Article 226 - U.P. Revenue Code, 2006Section
101
-
exchange
of
land
proceeding-petitioner run a school and for
that purpose the petitioners moved an
application requesting for exchange of
their plot with the plots of Gaon Sabhathe Tehsil authorities submitted reports
730 INDIAN LAW REPORTS ALLAHABAD SERIES
thrice in favour of exchange but the
application was rejected on account of
difference of valuation between the plots
which were sought to be exchanged-the
revisional court has given a perverse
finding that the Gaon Sabha was not
agreed
upon
for
exchange
whereas
resolution was passed in favour of the
petitioners and the same has never been
withdrawn by the Gaon Sabha-Trial court
and Board of revenue committed same
error
in
deciding
the
case
without
considering the reports submitted by
Tehsil authorities with respect to the
valuation of plots under exchange.(Para 1
to 14)

The writ petition is partly allowed. (E-6)

List of Cases cited:

1. Gram Panchayat Pusawali Block Junawai,
Tehsil Gunnaur, District Badaun Vs St. of U.P. &
ors. (2007) 1 ADJ 263

2. Babu Ram Verma Vs Sub-DiVs Officer & ors.
(1996) 2 AWC 1036
(Delivered by Hon'ble Dinesh Pathak, J.)

1. Heard learned counsel for the
petitioners, learned counsel for Gaon Sabha
and the learned Standing Counsel.

2. Petitioners have invoked the
extraordinary jurisdiction of this Court under
Article 226 of the Constitution of India
challenging the order dated 12.10.2020
passed by the Board of Revenue (Respondent
no.2) in Revision No. 3097 of 2018 and the
order dated 30.10.2018 passed by the Sub
Divisional Officer (Respondent no.3) in Case
No. 09244 of 2018 in a proceeding for
exchange of land under Section 101 of the
U.P. Revenue Code, 2006 (in brevity the
Code, 2006).

3. Facts culled out from the pleadings
of the parties are that plot no.524 area
0.150 hectare and plot no.523 (kha) area
0.053 hectare, belongs to the Gaon Sabha
(Respondent no.4), are situated adjacent to
a school namely Nageshwar Prasad Shyam
Sunder Shikshan Sanstha allegedly run by
the petitioners. Considering the suitability
of the aforesaid plots to be used as a
playground
for
school
children,
the
petitioners, who are the recorded tenure
holders of plot no.318 area 0.466 hectare
situated
in
Village
Suichak,
Tehsil
Rajatalab, District Varanasi, have moved
an
application
dated
15/17.5.2017
(Annexure-4) under Section 101 of the
Code, 2006, requesting for exchange of
their plot no.318 area 0.203 hectare (out of
total area 0.466 hectare) with the plots of
the Gaon Sabha i.e. plot nos. 524 and
523(Kha). The Gaon Sabha, in turn, has
passed
resolution
dated
04.06.2017
(Annexure-3) accepting the proposal of the
petitioners for exchange of the land, as
mentioned above. It appears that on the
application
for
exchange,
the
Tehsil
authorities have submitted their report
thrice in favour of exchange which are
annexed as Annexures-5, 6, 7 & 8
respectively. During pendency of the
application for exchange, an objection
dated 27.06.2018 (Annexure-9) purported
to have been filed on behalf of Gaon Sabha
through the Standing Counsel (Revenue).
The petitioners have filed their replication
dated 25.07.2018 (Annexure-10), inter alia,
raising the question of maintainability of
the aforesaid objection dated 27.06.2018.

4. Exchange application moved by the
petitioners was rejected by respondent no.3,
vide order dated 30.10.2018 (Annexure12), basically on account of difference of
valuation between the plots which were
sought to be exchanged. Having been
aggrieved with the order passed by
respondent
no.3,
a
revision
petition
7 All. Om Prakash Singh & Ors. Vs. State of U.P. & Ors.
731
(Annexure-13) has been preferred by the
petitioners which was dismissed as well,
affirming the order passed by respondent
no.3,
vide
order
dated
12.10.2020
(Annexure-14) passed by respondent no.2.
Both the aforesaid orders are under
challenge in this writ petition.

5. Learned counsel for the petitioners
submits that the petitioners have moved an
application for exchange and a resolution
dated 04.06.2017 was passed by the Gaon
Sabha accepting the proposal for exchange.
On the aforesaid application, the Tehsil
authorities have submitted their report
dated
29.06.2017,
30.07.2017
and
24.08.2017 respectively. He has questioned
the authority of Vijay Kumar Pandey,
Standing Counsel (Revenue) who has
illegally filed objection dated 27.06.2018
whereas Gaon Sabha has not passed any
resolution as required under Section 62 of
the Code, 2006, authorizing any person to
contest
the
aforesaid
matter.
Detail
provision, as enunciated under Appendix-II
of the U.P. Revenue Code Rules, 2016 (in
brevity Rules, 2016) has not been followed
in filing the said objection. It is further
submitted that respondents no. 2 & 3 have
illegally discarded the exchange, only
relying upon the objection filed by the
Standing
Counsel
(Revenue),
without
considering the reports submitted by the
Lekhpal, Naib Tehsildar and Kanoongo.
Next submission is that the trial court has
illegally emphasized the difference of
valuation of plots which were subject
matter of exchange proceeding, whereas in
all the reports submitted by the revenue
authorities no such difference of valuation
has been shown. Location of the plot,
adjacent to road side, belongs to Gaon
Sabha cannot be a solitary ground for
rejection of the said application unless the
difference
of
valuation
of
plots
in
exchange, as enshrined under Section 101
(2) (b) of the Code, 2006, is made out. It is
also submitted that the revisional court has
given a perverse finding that the Gaon
Sabha was not agreed upon for exchange
whereas the resolution dated 04.06.2017
was passed in favour of the petitioners and
the same has never been withdrawn by the
Gaon Sabha and even till date the said
resolution stands.

6. Per contra, learned counsel for the
Gaon Sabha contended that in pursuance of
the
resolution
dated
04.06.2017,
no
approval was granted by the authority
concerned as was sought to be obtained in
the said resolution. Further contention is
that all the reports submitted by the revenue
authorities are not in favour of the
petitioners for exchange of land. He has
also
emphasized
the
provision
as
enunciated under Section 101(3) of the
Code, 2006 and contended that the property
was undivided, therefore, the petitioner
cannot exchange their land with the Gaon
Sabha. He has supported the conduct of the
Standing Counsel (R) who has filed
objection on behalf of the Gaon Sabha and
contended that no particular resolution had
been passed for exchange of plots.
According to counsel for Gaon Sabha,
provision, as enunciated under Section 62
of the Code, 2006, is applicable only with
respect to the matters of compromise and
withdrawal and so far as the matter of
consent of Gaon Sabha is concerned, the
Standing Counsel (Revenue) is free to
contest the matter on behalf of the Gaon
Sabha. Further contention is that exchange
of Gaon Sabha's land with plot of the
petitioners is not beneficial in the interest
of Gaon Sabha, therefore, such exchange
cannot be permitted. Learned counsel for
the Gaon Sabha has also made emphasis
that there was a difference of valuation of
732 INDIAN LAW REPORTS ALLAHABAD SERIES
more than 10% between the plots sought to
be
exchanged,
in
contravention
of
provision under Section 101 (2) (b) of the
Code, 2006. Lastly, it is contended that the
petitioners have no locus standi to move an
application for exchange of land for benefit
of the school.

7. I have carefully considered the
rival submissions advanced by the learned
counsel for the parties and perused the
record on Board.

8. Having regard to the submissions
advanced by the learned counsel for the
parties, vexed question for consideration
arises qua maintainability of objection
dated 27.06.2018 said to have been filed on
behalf of Gaon Sabha through Standing
Counsel (Revenue) and the legal sanctity of
the impugned orders passed by respondents
no.2 and 3, without considering the Tehsil
reports in respect of the valuation of plots
under exchange.

9. A perusal of impugned order
evinces aversion of plea with respect to the
maintainability
of
objection
dated
27.06.2018 said to have been filed on
behalf of Gaon Sabha. There is nothing on
record to show that any person has been
authorized to do pairvi in the matter on
behalf of Gaon Sabha. In paragraph nos.
18, 21, 25 etc. of the writ petition, the
petitioner has specifically averred with
regard to the non-maintainability of the
objection allegedly filed on behalf of Gaon
Sabha through the Standing Cousnel
(Revenue) and existence of resolution dated
04.06.2017 passed by Gaon Sabha for
exchange of plots in question. It is also
averred in the writ petition that Gaon Sabha
concerned has not consented to contest the
matter on its behalf. In the counter affidavit
evasive denial has been made on behalf of
Gaon Sabha in this regard. No specific plea
has been taken in the counter affidavit to
show that against the resolution dated
04.06.2017 any subsequent resolution was
passed by Gaon Sabha for its denial or to
pursue the lis in opposition initiated by the
petitioners for exchange of plots. There are
succinct provision under the Code, 2006
relating to the litigation on behalf of Gaon
Sabha to sue or to be sued. Section 62 and
72 of the Code, 2006 enunciate the
provision conduct of suit and legal
proceeding and the appointment of lawyers.
Relating procedures are made under Rules
72 to 76 of the Rules, 2016. In this respect
Appendix-II to the Rules, 2016 is also
relevant with respect to the procedure of
litigation.

10. Provision with respect to the
litigation of Gaon Sabha as mentioned in
the Code, 2006 and the Rules, 2016 are
mandatory in nature, as expounded by the
Division Bench of this Court in the case of
Gram
Panchayat
Pusawali
Block
Junawai,
Tehsil
Gunnaur,
District
Badaun vs. State of U.P. & Others
reported in 2007 (1) ADJ, 263 discussing
the similar provision as it was mentioned in
the U.P.Z.A.&L.R. Act and U.P. Gaon
Sabha & Bhumi Prabandh Samiti Manual.
In the matter of Gram Panchayat Puswali
(Supra)
the
earlier
Division
Bench's
decision in the matter of Babu Ram
Verma vs. Sub Divisional Officer &
Others reported in AWC 1996 (2), 1036
was considered.

11. A perusal of the objection dated
27.06.2018 (Annexure-9) reveals that it
was only signed by the Standing Counsel
(Revenue) but the pleadings, as made in the
objection, has not been verified by the
person authorized on behalf of Gaon Sabha.
Counsel appointed on behalf of the parties
is not supposed to verify the facts relating
7 All. Ram Pratap @ Tillu Vs. State of U.P.
733
to the case. He may take a legal ground or
plea in the pleadings but cannot make
denial with respect to the factual aspect of
the case. Both the courts below are
miserably
failed
to
consider
the
maintainability of the objection in the eyes
of law, as raised on behalf of the
petitioners. In the litigation, verification of
pleading is held mandatory under the
provisions as enunciated under Order VI
Rule 15 C.P.C.

12. So far as difference of valuation
of plots is concerned, which were subject
matter of exchange, it is evident from the
record that the Tehsil authorities have
submitted reports thrice in favour of
exchange mentioning the valuation of the
plots. All the Tehsil reports were submitted
in favour of exchange showing the equal
valuation of plots. There is nothing on
record to show that there is difference of
valuation more than 10% of the lower
valuation between the plots, which were
sought to be exchanged as required under
Section 101(2) of the Code, 2006. Though
the trial court has given a vague ground qua
difference of valuation of plots, without
pointing out their valuation, but has failed
to discuss the case precisely in light of the
reports submitted by Tehsil authorities.

13. The Board of Revenue also
committed the same error in deciding the
revision without considering the reports
submitted by Tehsil authorities with
respect to the valuation of plots under
exchange.
Moreover,
the
Board
of
Revenue has considered the new aspect
of the matter showing unwillingness of
Gaon Sabha in exchange of plots in
question. There is nothing on record to
show the reluctant attituted of Gaon
Sabha
in
exchanging
the
plots
in
question. Counsel for Gaon Sabha has
failed to place any document to prove
that the resolution dated 04.06.2017 was
ever
reversed
by
the
subsequent
resolution. Under the law, resolution
dated 04.06.2017 still considered to be in
existence.

14. In this conspectus as above, this
Court finds force in the present writ
petition. Learned counsel for Gaon Sabha
has failed to substantiate his submissions
in supporting the impugned orders.
Resultantly, the impugned order dated
12.10.2010 (Annexure-14) passed by
respondent no. 2 and the order dated
30.10.2018 passed by respondent no. 3
(Annexure-12) are hereby quashed and
the parties are relegated before the
respondent no.3 who is hereby directed to
revisit
the
matter,
considering
the
maintainability
of
objection
dated
27.06.2018 and the reports submitted by
Tehsil authorities from time to time
strictly in accordance with law, after
giving proper opportunity of hearing to
the parties.

15. Accordingly, the present writ
petition is partly allowed.
----------
(2022)07ILR A733
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 08.07.2022

BEFORE

THE HON'BLE MANOJ MISRA, J.
THE HON'BLE SAMEER JAIN, J.

Capital Case No. 7 of 2020
With
Reference No. 05 of 2020

Ram Pratap @ Tillu ...Appellant
Versus
State of U.P. ...Opposite Party