# Phool Singh v. State of U.P. & Ors

- **Citation:** (2020) 2 ILRA 1707
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2020-01-21
- **Case number:** Writ A No. 44407 of 2012
- **Bench:** Yashwant Varma
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/phool-singh-v-state-of-u-p-ors-45562
- **Pages:** 5

## Headnote

A. Exchange of land - Section 161 & 132 -
U.P. Zamindari Abolition & Land Revenue
Act, 1950 - conjoint reading of both the
Sections manifests that the exchange
may be sought in respect of land
generally vesting in Gaon Sabha by virtue
of
Section
117,
but
it
cannot
be
applicabile to those categories of land
which are covered and fall within the
ambit of Section 132
Section 161 is not envisaged to be a tool or
measure to camouflage, overcome, legalise or
legitimise an illegality. It is not meant to be a
used as an instrument or device to regularise
or validate an illegality. It cannot possibly be
viewed as a provision enabling a usurper or
encroacher of public utility land to attempt to
legalise wrongful possession. As this Court
reads that provision, it primarily appears to put
in place a mechanism to interchange land inter
parties.
It
is
principally
a
reciprocal
arrangement. It clearly does not and cannot in
law be countenanced in law as being a
provision aimed at curing an illegality or
according ipso facto approval to an illegal act
of usurpation or encroachment. It is not
entitled to be viewed as either endorsing or
legitimizing
an
illegality.
Section
161
is
essentially aimed at enabling a party to switch,
barter or exchange land to the mutual benefit
of both parties. A party cannot first encroach,
trespass or intrude and then claim a right to
exchange. It is clearly not a provision aimed at
legalizing an encroachment. A person who has
encroached or trespassed upon land cannot
subsequently
turn
around
and
seek
condonation of that act or infraction by seeking
an exchange. A person seeking an exchange
must be one who is in lawful possession of land
which is offered in exchange. Viewed in any
other light, the provision may be abused as a
devise to accord legitimacy upon an act which
is illegal and unlawful. The institution which
appears to have encroached upon public utility
land cannot take shelter of an application
purported to have been made under Section
161 of the 1950 Act. (para 9)

Writ petition Rejected.

List of cases cited

## Text

2 All. Phool Singh Vs. State of U.P. & Ors.
1707
(2020)02ILR A1707

ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 21.01.2020

BEFORE
THE HON'BLE YASHWANT VARMA, J.

Writ A No. 44407 of 2012

Phool Singh ...Petitioner
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Sri Vinod Kumar Yadav, Sri Abhishek
Kumar Yadav

Counsel for the Respondents:
C.S.C., Sri J.R. Pandey

A. Exchange of land - Section 161 & 132 -
U.P. Zamindari Abolition & Land Revenue
Act, 1950 - conjoint reading of both the
Sections manifests that the exchange
may be sought in respect of land
generally vesting in Gaon Sabha by virtue
of
Section
117,
but
it
cannot
be
applicabile to those categories of land
which are covered and fall within the
ambit of Section 132
Section 161 is not envisaged to be a tool or
measure to camouflage, overcome, legalise or
legitimise an illegality. It is not meant to be a
used as an instrument or device to regularise
or validate an illegality. It cannot possibly be
viewed as a provision enabling a usurper or
encroacher of public utility land to attempt to
legalise wrongful possession. As this Court
reads that provision, it primarily appears to put
in place a mechanism to interchange land inter
parties.
It
is
principally
a
reciprocal
arrangement. It clearly does not and cannot in
law be countenanced in law as being a
provision aimed at curing an illegality or
according ipso facto approval to an illegal act
of usurpation or encroachment. It is not
entitled to be viewed as either endorsing or
legitimizing
an
illegality.
Section
161
is
essentially aimed at enabling a party to switch,
barter or exchange land to the mutual benefit
of both parties. A party cannot first encroach,
trespass or intrude and then claim a right to
exchange. It is clearly not a provision aimed at
legalizing an encroachment. A person who has
encroached or trespassed upon land cannot
subsequently
turn
around
and
seek
condonation of that act or infraction by seeking
an exchange. A person seeking an exchange
must be one who is in lawful possession of land
which is offered in exchange. Viewed in any
other light, the provision may be abused as a
devise to accord legitimacy upon an act which
is illegal and unlawful. The institution which
appears to have encroached upon public utility
land cannot take shelter of an application
purported to have been made under Section
161 of the 1950 Act. (para 9)

Writ petition Rejected.

List of cases cited

1. Kamal Chand Singh V State of U.P. 2016 SCC
Online All. 770

2. Baba Sukku Maa Prabhudevi Inter College V.
State of U.P. 2019 SCC Online 4522
(Delivered by Hon'ble Yashwant Varma, J.)

1. Heard learned counsel for the
petitioner
and
the
learned
Standing
Counsel for the State respondents.

2. This petition has been preferred
challenging the order dated 27 March 2012
passed by the Basic Education Officer,
Kaushambi rejecting the claim of the
petitioner for grant of salary and other
emoluments.

3. The petitioner contends that he
was duly selected and appointed on the
post of Clerk in the concerned institution
on 10 August 1983. That institution is
stated to have been taken on the grant in
aid list on 2 January 2006. It is the case set
1708 INDIAN LAW REPORTS ALLAHABAD SERIES
forth in the writ petition that the petitioner
was being paid regular salary till it was
stopped in March 2011. Aggrieved by that
action the petitioner instituted Writ
Petition No. 46619 of 2011 which was
disposed of with a direction commanding
the fourth respondent to decide the
representation. It is pursuant to those
orders that the impugned order has come
to be passed.

4. The impugned order records serious
transgressions on the part of the institution in
question. It is firstly noted that the institution
is non-existent on the plots that were
mentioned in the details set forth in the
application relying upon which the grant in
aid order came to be passed. The order
records that the institution has been partly
constructed on Plot No. 347, which is
recorded as land reserved for a public utility.
It has been further noted that the institution
has illegally encroached upon public utility
land on which seven temporary sheds have
been constructed from which the institution
is being run and administered. It has further
been found that in the grant in aid
application it was asserted that the institution
existed on Plot Nos. 329, 349 and 351 which
too are recorded as "banjar". It is in that
backdrop that the Basic Education Officer
notes that the order for taking the institution
on the grant in aid list was obtained by
concealment of facts and by practicing fraud.
He then proceeds to note that in the
Management Returns that were filed it was
stated that more than 225 students were
studying in the institution. However, on the
date of inspection it was found that only 13
students in Class -VI, 9 students in Class VII
and 6 students in Class VIII, were present.
More seriously the Basic Education Officer
proceeds to note that various employees
including the petitioner here were direct
relations of the members of the Committee
of Management. He also records that in light
of the material, which was found in the
enquiry and is referred to above, a proposal
has been sent to the State Government for
the removal of the institution from the grant
in aid list. Presently, the learned counsel is
unable to apprise the status of that proposal
or whether the institution continues to enjoy
the facility of grant in aid.

5. Insofar as the objections taken by
the Basic Education Officer to the
establishment of the institution on public
utility land is concerned, learned counsel
seeks to draw sustenance from an interim
order passed by a learned Judge on Writ
Petition No. 10497 of 2011 preferred by
the Committee of Management in which
an order of status quo operates. That
petition basically deals with the request of
the institution in question for an exchange
being offered by the petitioner in light of
the provisions contained in Section 161 of
the U.P.Z.A. & L.R. Act, 1950. The
petition also refers to the powers conferred
under Section 198(4) of the 1950 Act and
the request for exchange as made by the
petitioner institution on 4 May 2010.

6. The Court however finds itself
unable to countenance the submission
addressed since it is not disputed before
this Court that the power of exchange as
extended by Section 161 of the 1950 Act
can have no application to land which is
reserved for public utility purpose. Regard
must be had to the fact that Section 161 of
the 1950 Act confers a power to sanction
exchange of land as offered by a
bhumidhar with land vesting in the Gaon
Sabha by virtue of Section 117 of that Act.
Section 161 reads thus:-

"161.
Exchange.--
(1)
A
[bhumidhar] may exchange with--
2 All. Phool Singh Vs. State of U.P. & Ors.
1709

(a) any other [bhumidhar] land
held by him, or

(b) any [Gaon Sabha} or local
authority lands for the time being vested in
it under section 117:

Provided that no exchange shall
be made except with the permission of an
Assistant Collector who shall refuse
permission if the difference between the
rental value of land given in exchange and
of land received in exchange calculated at
hereditary rates is more than 10 per cent of
the lower rental value.

(1A)
Where
the
Assistant
Collector permits exchange he shall also
order the relevant annual registers to be
corrected accordingly.

(2)
On
exchange
made
in
accordance with sub-section (1) they shall
have the same rights in the land so
received in exchange as they had in the
land given in exchange."

7. As is evident from a reading of the
said provision, the exchange is subject to
permission being accorded in that respect
by the Assistant Collector. In terms of
Section 161(2), once the exchange is duly
permitted by the competent authority, it
vests on the individual the same rights in
the land exchanged as may have existed
upon
the
land
given
in
exchange.
Consequently,
once
a
bhumidhar
exchanges his holding or part thereof with
any land vesting in the Gaon Sabha he
would be entitled to assert and exercise all
rights as conferred upon a bhumidhar by
the 1950 Act upon such land. However this
provision can have no application to land
which stands reserved for public purposes
as enumerated in Section 132 of the 1950
Act. That provision in unambiguous terms
provides that "bhumidhari rights shall not
accrue in....". On a conjoint reading and
harmonious construction of Sections 132
and 161 of the 1950 Act, it is manifest that
while exchange may be sought in respect
of land generally vesting in the Gaon
Sabha by virtue of Section 117, that can
have no application to those categories of
land which are covered and fall within the
ambit of Section 132. Dealing with an
identical question, a learned Judge in
Kamal Chand Singh Vs. State of U.P.1
and 3 others held:-

"8. In my considered opinion,
the application for exchange of the area of
plot
no.
753
Ga,
in
unauthorized
occupation of the petitioner with his
bhumidhari
land
cannot
be
legally
permitted. Plot no. 753 Ga, as already
noticed herein above is land recorded as a
pond. It is, therefore, land governed by the
provisions of Section 132 of the U.P.
Zamindari Abolition and Land Reforms
Act, wherein no rights can accrue in
favour of any person. In case, this land is
permitted to be exchanged, it would
amount to granting bhumidhari rights to
the petitioner in land covered by Section
132 of the Act. This is not permissible
under law. The application for exchange
filed by the petitioner, is therefore, entirely
misconceived and necessarily has to be
rejected."

8. Dealing with pari material
provisions as introduced by virtue of the
U.P. Revenue Code, 2006, a learned Judge
of the Court in Baba Sukku Maa
Prabhudevi Inter College Vs. State of
U.P.2 noticing the provisions made in the
subsequent legislation has explained the
legal position as follows: -

"25. This situation is further
compounded by the fact that the land over
which, the institution is running is public
utility land, governed by the provisions of
1710 INDIAN LAW REPORTS ALLAHABAD SERIES
Section 132 of the U.P. Zamindari
Abolition and Land Reforms Act and/or
the
parallel
provisions
contained
in
Section 77 of the U.P. Revenue Code,
2006.

26. In so far as the application
for exchange under Section 101 of the U.P.
Revenue Code, 2006 filed by the petitioner
is concerned, the same has been dismissed
vide order dated 23.05.2018 passed by the
Sub Divisional Officer. Although, it is
stated that a revision against this order is
pending
consideration
before
the
Commissioner,
Varanasi
Division,
Varanasi, this Court does not consider it
appropriate to interfere with the impugned
orders on the plea aforesaid because no
rights can accrue in favour of any person
over land which is land of public utility as
is the situation in the case at hand. The
embargo in this regard under the U.P.
Zamindari Abolition and Land Reforms
Act was absolutely categorical. However,
this embargo has been watered down to an
extent by the proviso to Section 101(2) of
the U.P. Revenue Code, 2006.

27. In view of the proviso, the
State Government can permit exchange
also of land of public utility, but on the
matter being referred to it by the Sub
Divisional Officer. No reference has been
made by the Sub Divisional Officer. The
Sub Divisional Officer has, in fact,
rejected the application for exchange.
Therefore, the proviso aforementioned
does not come into play in the case at
hand.

28. Even otherwise, this Court
has in earlier decision in Writ Petition No.
26070 of 2019 Amar Nath Singh v. State of
U.P. decided on 20.08.2019 held that the
proviso
stipulates
that
the
State
Government may permit exchange of land
of public utility on conditions and in the
manner prescribed. However, the rules
framed thereunder are absolutely silent
with regard to the manner in which, the
power is to be exercised by the State
Government. The power provided to the
State Government by the proviso aforesaid
can be exercised only after relevant
provisions have been incorporated in the
rules and or the existing rules are suitably
amended/modified."

9. On a more fundamental plane, the
provisions made in Section 161 of the
1950 Act are principally aimed at
respective parties arriving at a mutually
acceptable position that is beneficial to
both. It essentially enables the Gaon Sabha
to effectively manage its land bank and
use it to the optimal in public interest. At
the same time it also facilitates the
landowner or the bhumidhar to enter into a
settlement which is beneficial to both
parties.
Notwithstanding
the
above,
Section 161 is not envisaged to be a tool or
measure to camouflage, overcome, legalise
or legitimise an illegality. It is not meant to
be a used as an instrument or device to
regularise or validate an illegality. It
cannot possibly be viewed as a provision
enabling a usurper or encroacher of public
utility land to attempt to legalise wrongful
possession. As this Court reads that
provision, it primarily appears to put in
place a mechanism to interchange land
inter partes. It is principally a reciprocal
arrangement. It clearly does not and
cannot in law be countenanced in law as
being a provision aimed at curing an
illegality or according ipso facto approval
to an illegal act of usurpation or
encroachment. It is not entitled to be
viewed as either endorsing or legitimizing
an illegality. Section 161 is essentially
aimed at enabling a party to switch, barter
or exchange land to the mutual benefit of
both parties. A party cannot first encroach,
2 All. Mahesh Narayan & Ors. Vs. State of U.P. & Ors.
1711
trespass or intrude and then claim a right
to exchange. It is clearly not a provision
aimed at legalizing an encroachment. A
person who has encroached or trespassed
upon land cannot subsequently turn around
and seek condonation of that act or
infraction by seeking an exchange. A
person seeking an exchange must be one
who is in lawful possession of land which
is offered in exchange. Viewed in any
other light, the provision may be abused as
a devise to accord legitimacy upon an act
which is illegal and unlawful. The
institution
which
appears
to
have
encroached upon public utility land cannot
take shelter of an application purported to
have been made under Section 161 of the
1950 Act. In any case the pendency of a
purported application for exchange cannot
confer any benefit to the petitioner here.

10. Insofar as the relation of the
petitioner with the members of the
Committee of Management is concerned,
the attention of the Court is drawn to a
document appearing at page -41 which
according to the learned counsel is a list of
members of the Committee as existing in
1983-84. No authenticity stands appended
to this document since it is not shown to
have been issued either by the concerned
educational authorities or the authorities
constituted
under
the
Societies
Registration Act, 1860. The attention of
the Court is also not drawn to any other
material which may establish that the
Committee
of
Management
as
duly
recognized by the respondents in 1983-84
did not comprise of persons who may have
been related to the petitioner. Viewed in
that light it is manifest that the adverse
findings as recorded in the impugned order
relating to the validity of the appointment
of the petitioner remain unaffected. On an
overall consideration of the aforesaid
aspects, the Court is of the considered
view that the grant of the prayers as
framed would not only be unjustified, it
would clearly amount to perpetuation of an
illegality and the placement of an illegal
burden on public resources.

11. The petition shall consequently
stand dismissed.
----------
(2020)02ILR A1711

ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 19.12.2019

BEFORE

THE HON'BLE NEERAJ TIWARI, J.

Writ A No. 55606 of 2008

Mahesh Narayan & Ors. ...Petitioners
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioners:
Sri Ashok Khare, Sri Siddharth Khare

Counsel for the Respondents:
C.S.C.

A. Service Law - appointment - any delay
in issuance of appointment letter by the
management
during
which
the
UP
Retirement Benefits Rules, 1961 stand
amended cannot put the petitioner into
disadvantage of any type
The petitioner applied for the post of Junior
Engineer (Civil) which was advertised as
pensionable. Certain litigation suspended the
selection process. Even after the direction of
this Hon'ble Court to the Commission to declare
results which shall be contingent upon the
Court's order, the Commission did not declared
the results. There was no legal impediment in
completion of recruitment process, but due to
inaction on part of the respondents, it was
completed only after dismissal of writ petition