# Rambali and others v. State of U.P. and others

- **Citation:** (2012) 2 ILRA 585
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2012-05-09
- **Case number:** Civil Misc. Writ Petition No. 21574 of 2012
- **Bench:** Ran Vijai Singh
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/rambali-and-others-v-state-of-u-p-and-others-42308
- **Pages:** 6

## Text

2 All] Rambali and others V. State of U.P. and others
585
the impugned order is non-stigmatic.
Before castigating the appellant for her
alleged involvement in our view it was
incumbent upon the respondents to afford
an opportunity to appellant by issuing
show cause notice and , therefore, the
impugned order is in utter violation of
principles of natural justice ."

20. Now reverting to the facts of the
present case as stated herein above, the
services of the petitioner were terminated
on the ground of alleged misconduct in
respect of which a show cause notice was
issued to him to which he submitted his
reply and in this regard averments has
been made by the official respondents in
para nos. 11 and 13 of the counter
affidavit , so in view of the said fact , the
position which emerge out is to the effect
that the allegation of irregularities and
misconduct committed by the petitioner
while
discharging
his
duty
is
the
foundation for passing of the impugned
order against the petitioner, hence before
passing the same it is incumbent upon the
respondents to afford an opportunity of
hearing to the petitioner by issuing show
cause notice and cannot pass by invoking
the provisions as provided under Rules
1975.

21. In the result, the impugned order
of termination dated 1.6.1992 ( Annexure
no.5) and the order dated 18.1.1993
(Anexure no.7) passed by opposite party
no.2/Commandant , Kendriya Nagrik
Suraksha
Prishikshan
Sanstahan,
Lucknow are set aside.

22. Further, opposite parties are
directed to reinstate the petitioner in
service but the petitioner will not be
entitled for any salary for the intervening
period in view of the principle ' no work
no pay' but the same shall be counted for
other service benefits.

23. With the above observations,
writ petition is allowed.

24. No order as to costs.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 09.05.2012

BEFORE
THE HON'BLE RAN VIJAI SINGH, J.

Civil Misc. Writ Petition No. 21574 of 2012

Rambali and others
 ...Petitioners
Versus
State of U.P. and others ...Respondents

Counsel for the Petitioners
Sri Harindra Prasad
Sri P.K.S.Paliwal

Counsel for the Respondents
C.S.C.
Sri Mahesh Narain Singh
Sri Rajesh Kumar

Constitution of India, Article 226-Writ of
mandamus-petitioner seeking direction
to the S.D.O. To decide application for
exchange of plot-a complete procedure
provided in U.P.Z.A. & L.R. Act and rulesunless
joint
application
by
both
Bhumidhar with valuation report movedS.D.O. No role to pay-statute provides for
doing any act in certain manner-should
be done-only with such manner-merely
on basis of convenience on unilateral
basis such application not maintainableheld-no mandamus can be issued unless
statutory legal/right of petitioner is
there.

Held: Para 15

Here in this case, a writ of mandamus
has been sought for by the petitioner,
586 INDIAN LAW REPORTS ALLAHABAD SERIES [2012
which cannot be issued against the
statutory
provision
directing
the
authority concerned to perform his duty
which he is not legally obliged to
perform. It is well settled that for issuing
a writ of mandamus, there must be a
statutory
duty
imposed
upon
the
authority concerned and there is failure
on the part of that authority to discharge
that statutory obligation. Further, the
person seeking writ of mandamus must
show that he has a legal right to the
performance of a legal duty by the party,
against whom mandamus is sought.
Reference may be given to the judgment
of the Apex Court in State of M.P. Vs.
G.C.Mandawar, AIR 1954 SC 493 and
Lekhraj
Sathramdas
Lalvani
Vs.
N.M.Shah,
Deputy
Custodian
Cum
Managing Officer, Bombay & Ors. AIR
1966 SC 333.
Case law discussed:
(1876) 1 Ch.D. 426; AIR 1936 PC 253; AIR
1961 SC 1527; (2000) 6 SCC 179; (2001) 4
SCC 9; (2002) 1 SCC 633; AIR 1954 SC 493;
AIR 1966 SC 333

(Delivered by Hon'ble Ran Vijai Singh, J.)

1. Heard Sri P.K.S.Paliwal along with
Sri Harindra Prasad learned counsel for the
petitioners and Sri Rajesh Kumar, learned
Standing Counsel appearing for the State
respondents.

2. Through this writ petition, the
petitioners have prayed for issuing a writ of
mandamus directing the Sub-Divisional
Officer Sagri District Azamgarh to decide
the application dated 25.11.2011 (annexure 3
to
the
writ
petition).
The
aforesaid
application appears to have been filed under
Section 161 of U.P. Zamindari Abolition and
Land Reforms Act, 1950 (herein after
referred to as the Act) for exchange of Plot
No. 311 area 0.020 hectare Khata No. 538
situated in village and post Bankatia, tehsil
Sagri District Azamgarh which is recorded as
manure pit with Plot No. 289 Khata No. 79.

3. Sri P.K.S.Paliwal, learned counsel
for the petitioners contends that the SubDivisional Officer is statutorily bound to
decide his application for exchange of the
land with the Gaon Sabh in view of the
provisions contained under Section 161 of
the Act read with Rules 144 and 145 of the
U.P. Zamindari Abolition and Land Reforms
Rules, 1952 (herein after referred to as the
Rules ).

4. For appreciating the controversy
involved in this case, the provisions relating
to exchange of land belonging to a
bhumidhar from another bhumidhar, as
contained under Section 161 of the Act, as
well as the Rules 144, 145, 146 and 147, of
U. P. Zamindari Abolition and Land
Reforms Rules, 1952 would be necessary to
be looked into, which are reproduced
hereinunder :-

Section 161 Exchange: - A bhumidhar
(omitted by U.P. Act No. 8 of 1977 (w.e.f.
28.01.1977) ) may exchange with -

(a) any other bhumidhar (omitted by
U.P. Act No. 8 of 1977 (w.e.f.28.01.1977
land held by him; or

(b) any (Gaon Sabha) or local authority,
lands for the time being vested in it under
Section 117 (The words and figure " or 117A" deleted by U.P. Act No. 12 of 1965.)

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.
2 All] Rambali and others V. State of U.P. and others
587

(1-A) 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 exchange.

Relevant rules of the Rules :-

"144. An application (for permission to
make an) exchange shall contain the
following particulars and be accompanied
by the following documents :-

(1) The khasra number of the plots-

(a) (Deleted by ibid) which the
applicant wishes to receive and of the plots
which he offers in exchange of,

(b) (Ibid)

(2) certified copies of the khataunis
relating to the khatas in which all such plots
are included;

(3) (Ibid)

(4) a statement showing the details of
any valid deeds mortgage or other
encumbrances with which the lands to be
exchanged may be burdened, together with
the names and addresses of lessees,
mortgagees
or
holders
of
other
encumbrances.

145. On receipt of an application for
(permission to make an) exchange of land
the Assistant Collector (shall cause to be
calculated the rental value of the land
proposed to be given in exchange and of the
land proposed to be received in exchange at
hereditary rates and) if he is satisfied that the
exchange is not invalid according to the
proviso to sub-section (1) of Section 161, call
upon the parties, the lessees, mortgagees or
holders of other encumbrances, if any, to
show cause why the exchange should not be
made.
Every
such
notice
shall
be
accompanied by a copy of the application
which shall be supplied by the applicant.

146. The Assistant Collector shall
thereupon decide the objections, if any, and
pass suitable orders. If he decides that the
exchange should be allowed, he shall also
make an order for the delivery of possession,
if necessary, and for the correction of
papers.

147. (If the Assistant Collector permits
exchange) in respect of land constituting a
portion of a holding, he shall apportion the
land revenue payable for the holding
between such portion and the remainder of
the holding."

5. On perusal of aforesaid provisions, it
would transpire that section 161 confers a
right upon a bhumidhar to exchange the land
held by him with another bhumidhar. This
facility has been extended to the gaon sabha
with respect to the land vested in section 117
of the Act as well as other local authorities
also, subject to the condition that no
exchange is permissible except with the
permission of the Assistant Collector. The
Assistant Collector can also refuse the
permission if difference between the rental
value of the land given in exchange and the
land received in exchange, calculated at
hereditary rate, is more than 10% of the
lower rental value.

6. The Rule 144 provides the procedure
for submitting application for exchange of
the land. Rule 145 talks about the action to
588 INDIAN LAW REPORTS ALLAHABAD SERIES [2012
be taken by the Assistant Collector after
receipt of an application for exchange of
land. Rule 146 empowers the Assistant
Collector to decide the objections received
with respect to the exchange of land and the
Rule 147 talks about the duty of the Assistant
Collector when he permits the exchange of
portion of a holding.

7. From the conjoint reading of Section
161 as well as the Rules relating thereto, it
would transpire that the legislature has
extended a facility to a bhumidhar for
exchange of his bhumidhari land with
another bhumidhar for their convenience
with certain conditions, and the first
condition therein is, that such exchange
cannot be held to be valid unless permission
of the Assistant Collector has been obtained.
There is also a rider that the Assistant
Collector can refuse the permission for
exchange of land if the difference between
the rental value of land given in exchange of
land received in exchange, calculated at
hereditary rate, is more than 10% of the
lower rental value.

8. In section 161 of the Act, the word
'Exchange' has been used, which means:

"Oxford English Dictionary, 11th
Edition, by Catherine Soanes.

Give something and receive something
else in return.

a short conversation or argument.

The changing of money to its equivalent
in another currency.

A
system
or
market
in
which
commercial transactions involving currency,
shares, etc. can be carried out within or
between countries.

Law Lexicon, General Editor Justice
Y.V. Chandrachud, 1997 Edition:

When two persons mutually transfer the
ownership of one thing for the ownership of
another, neither thing nor both things being
money only, the transaction is called an
"exchange".

An exchange involves the transfer of
property by one person to another and
reciprocally the transfer of property by that
other to the first person. There must be a
mutual transfer of ownership of one thing for
the ownership of another.

A negotiation by which one person
transfers to another goods or funds which he
has in a certain place, either for other goods,
or at a price agreed upon, or at a price
which is fixed by commercial usage."

9. From 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.

10. The role of Assistant Collector will
come into play when the details of exchange
is available with him, with the readiness and
willingness of the parties to exchange, and if
the parties are agreed for exchange of
holdings with each other, in that eventuality,
they have to file an application in accordance
with the provisions contained in Rule 144,
with the details of Khasra No. of the plots,
which the applicant wishes to receive and of
the plots which he offers in the exchange and
the copy of the khatauni relating to the khatas
in which all such plots are included. A
statement containing the details of any valid
deeds, mortgaged or other encumbrance with
which the land is to be exchanged may be
2 All] Rambali and others V. State of U.P. and others
589
burdened, together with the names and
addresses of the leasees, mortgagees or
holders of other encumbrances.

11. After receipt of such application for
permission of exchange of land, the Assistant
Collector, as required under Rule 145, shall
cause to be calculated the rental value of the
land proposed to be given in exchange and of
the land proposed to be received in exchange
and hereditary rights. If he is satisfied that the
exchange is not valid according to the
proviso of sub-section (1) of Section 161,
shall call upon the parties the lessee, the
morgagee or holder of other encumbrances,
if any, to show cause why the exchange
should not be made. Every such notice shall
be accompanied by a notice of application
which shall be supplied by the applicant.
Rule 146 empowers the Assistant Collector
to decide the objections, and if he decides
that exchange should be allowed, the Rule
also empowers him to pass an order for
delivery of possession, if necessary, and for
correction of the papers.

12. Here, in this case, from the perusal
of
the
application
dated
25.11.2011
(Annexure '3' to the writ petition), it would
transpire that it is unilateral proposal of the
petitioner for exchange of his holding with
the gaon sabha on the ground that the land
with which exchange is sought is recorded as
a 'gaddha' and it is in front of the petitioner's
house, due to which a lot of inconvenience is
being caused and there is every likelihood of
spreading of disease in the locality and the
application has been filed without resolution
of the Gaon Sabha i.e. without its consent.
Therefore, I am of the considered opinion
that unless both the parties agree for
exchange, the Sub Divisional Magistrate
cannot entertain an application filed on the
instance of an individual for exchange of his
land to another individual unless he is willing
to exchange. The willingness of the parties to
exchange is the condition precedent for
presenting the application before the Sub
Divisional Magistrate under section 161 of
the Act.

13. It is well settled that if a statute
provides to do a thing in a particular manner,
then that thing has to be done in that very
manner. The aforesaid legal proposition is
based on a legal maxim " Expressio unius est
exclusio alterius", and other manner and
procedure is ordinarily not permissible'.
(Vide Taylor Vs. Taylor, (1876) 1 Ch.D.
426; Nazir Ahmed Vs. King Emperor, AIR
1936 PC 253; Deep Chand Vs. State of
Rajasthan, AIR 1961 SC 1527; Haresh
Dayaram Thakur Vs. State of Maharashtra
& Ors., (2000) 6 SCC 179; Dhanajaya
Reddy Vs. State of Karnataka etc. etc.,
(2001) 4 SCC 9; Commissioner of Income
Tax, Mumbai Vs. Anjum M.H. Ghaswala
& Ors., (2002) 1 SCC 633).

14. It is also well settled that if any
thing has not been done in the manner
provided for under the Statute and the Statute
has provided a consequence for nonperformance of such act as provided for, then
those provisions are mandatory and not
directory. While determining whether a
provision is mandatory or directory, in
addition to the language used therein, the
Court has to examine the context in which
the provision is used and the purpose behind
it to achieve. It may also be necessary to find
out the intention of the legislature for
enacting it and the serious and general
inconveniences or injustice to persons
relating thereto from its application. 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
590 INDIAN LAW REPORTS ALLAHABAD SERIES [2012
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.

15. Here in this case, a writ of
mandamus has been sought for by the
petitioner, which cannot be issued against the
statutory provision directing the authority
concerned to perform his duty which he is
not legally obliged to perform. It is well
settled that for issuing a writ of mandamus,
there must be a statutory duty imposed upon
the authority concerned and there is failure
on the part of that authority to discharge that
statutory obligation. Further, the person
seeking writ of mandamus must show that he
has a legal right to the performance of a legal
duty by the party, against whom mandamus
is sought. Reference may be given to the
judgment of the Apex Court in State of M.P.
Vs. G.C.Mandawar, AIR 1954 SC 493 and
Lekhraj
Sathramdas
Lalvani
Vs.
N.M.Shah,
Deputy
Custodian
Cum
Managing Officer, Bombay & Ors. AIR
1966 SC 333.

16. In view of the foregoing
discussions, no relief, as prayed, can be
granted to the petitioners. The writ petition is
dismissed. However, dismissal of the writ
petition will not preclude the petitioners to
file appropriate application in accordance
with law.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 01.05.2012

BEFORE
THE HON'BLE RAKESH TIWARI, J.
THE HON'BLE HET SINGH YADAV, J.

Civil Misc. Writ Petition No. 5757 Of 2007

Union of India, through Director General,
Department of Posts,India, New Delhi
and others

 ...Petitioners
Versus
Smt. Chandra Prabha Jain and others

 ...Respondents

Counsel for the Petitioner:
Sri Harish Chandra Dubey

Counsel for the Respondents:
...............................................

Constitution
of
India,
Article
226Retirement
benefitapplicant/respondent
working
as
contingent
Chowkidar
as
Casualemployer w.e.f. 29.00.89 while juniors
were
given
status
of
temporary
employee-G.O.
regarding
status
of
regular Status after completing 3 years
service-applicant/respondent retired on
14.07.99-denial
pensionary
benefitdirection
of
Tribunal
held
justifiedwarrant
no
interference-petition
dismissed.

Held Para: 12

Considering the facts and circumstances
of the case, we are of the considered
view that conclusions drawn by the
Tribunal in the impugned judgment and
order, do not suffer from any illegality
and infirmity, warranting interference in
extra ordinary powers under Art. 226 of
the Constitution.