# Shiva Kant v. State of U.P. & Ors

- **Citation:** (2021) 11 ILRA 475
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2019-08-05
- **Case number:** Writ C No. 22746 of 2021
- **Bench:** Ajay Bhanot
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/shiva-kant-v-state-of-u-p-ors-46583
- **Pages:** 7

## Headnote

A. UP Zamindari Abolition & Land Reform Act,
1950 - Section 161 - UPZA & LR Rules, 1952 -
Rules 144 &146 - Exchange of private land
with land of Gaon Sabha - Permissibility - No
notice of any resolution of Gaon Sabha in the
impugned order - Effect - Held, experience
shows that Section 161 of the U.P.Z.A. & L.R.
Act are often prone to abuse, lands are often
exchanged under political considerations much
to the detriment of the Gaon Sabha and public
476 INDIAN LAW REPORTS ALLAHABAD SERIES
interests at large - An exchange without
noticing the resolution of the Gaon Sabha
regarding full consent and the rational of such
exchange cannot be countenanced in law -
High Court issued direction to make St. of UP
through District Magistrate necessary party in
all disputes pertaining to the Gaon Sabha's
lands. (Para 6, 10 and 22)
B. Constitution of India - Article 226 - Writ of
mandamus
-
Scope
-
Mandamus
is
a
discretionary remedy under Article 226 of the
Constitution of India. Before exercising the
discretion in favour of any petitioner the court
may examine whether an illegal order is sought
to
be
implemented
by
mandamus,
or
advantage is being taken of callous attitude of
the land management committees or apathy of
officials
or
collection
of
parties
to
the
detriment of the St. and larger public interests
in a manner contrary to law - A mandamus
cannot be issued to enforce an illegal order or
for an unlawful purpose. (Para 16)
Writ petition dismissed. (E-1)
Cases relied on :-

## Text

11 All. Shiva Kant Vs. State of U.P. & Ors.
475
major in the age to submit application for
allotment of fair price shop under succession
after death of her mother-in-law. She had
applied for the same, but rejected only on the
ground that widowed daughter-in-law is not
covered within the 'family'. Ratio of law given in
Full Bench in the case of appointment is fully
applicable in the present case also and daughterin-law, widowed or not, is having better right
than daughter, who is included in the definition
of 'family' in Paragraph IV(10) of the
Government Order dated 05.08.2019.

11. Therefore, under such facts of the case
and legal proposition, I find no good reason to
sustain the impugned order dated 17.06.2021 as
well as Paragraph IV(10) of Government Order
dated 05.08.2019 so far as it excludes daughterin-law, widowed or not, within the definition of
'family'.

12. Accordingly, the writ petition is
allowed. Let a writ of certiorari be issued
quashing the impugned order dated 17.06.2021
passed by respondent no. 3 and modifying the
Paragraph IV(10) of the Govrnment Order dated
05.08.2019 to the extent to include daughter-inlaw, widowed or not, within the definition of
'family'. A writ of mandamus be issued directing
the respondent no. 1 Secretary, Food and Civil
Supplies, Government of U.P., Lucknow to issue
fresh Government Order or modification in
Government Order dated 05.08.2019 including
daughter-in-law, widowed or not, within the
definition of 'family' .

13. Learned Chief Standing Counsel is
directed to send a copy of this order to
respondent no. 1 Secretary, Food and Civil
Supplies, Government of U.P., Lucknow for
issuance of fresh/modified Government Order at
the earliest, maximum within a period of four
weeks from the date of receiving of copy of this
order. In case Department of Food and Civil
Supplies is having posting of Additional Chief
Secretary or Principal Secretary, they are
responsible to ensure the compliance of this
order for issuance of fresh Government Order or
modification in the Government Order dated
05.08.2019.

14. Petitioner is also given liberty to serve
the certified copy of this order before the
respondent no. 1, Secretary, Food and Civil
Supplies, Government of U.P., Lucknow for
compliance.

15. Thereafrter, the respondent no. 3 is
directed to reconsider the application of the
petitioner afresh and pass appropriate order in
accordance with fresh/modified Government
Order within two weeks thereafter.
----------
(2021)12ILR A475
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 03.12.2021

BEFORE

THE HON'BLE AJAY BHANOT, J.

Writ C No. 22746 of 2021

Shiva Kant ...Petitioner
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Ram Awtar, Mahabir Yadav

Counsel for the Respondents:
C.S.C., Azad Rai

A. UP Zamindari Abolition & Land Reform Act,
1950 - Section 161 - UPZA & LR Rules, 1952 -
Rules 144 &146 - Exchange of private land
with land of Gaon Sabha - Permissibility - No
notice of any resolution of Gaon Sabha in the
impugned order - Effect - Held, experience
shows that Section 161 of the U.P.Z.A. & L.R.
Act are often prone to abuse, lands are often
exchanged under political considerations much
to the detriment of the Gaon Sabha and public
476 INDIAN LAW REPORTS ALLAHABAD SERIES
interests at large - An exchange without
noticing the resolution of the Gaon Sabha
regarding full consent and the rational of such
exchange cannot be countenanced in law -
High Court issued direction to make St. of UP
through District Magistrate necessary party in
all disputes pertaining to the Gaon Sabha's
lands. (Para 6, 10 and 22)
B. Constitution of India - Article 226 - Writ of
mandamus
-
Scope
-
Mandamus
is
a
discretionary remedy under Article 226 of the
Constitution of India. Before exercising the
discretion in favour of any petitioner the court
may examine whether an illegal order is sought
to
be
implemented
by
mandamus,
or
advantage is being taken of callous attitude of
the land management committees or apathy of
officials
or
collection
of
parties
to
the
detriment of the St. and larger public interests
in a manner contrary to law - A mandamus
cannot be issued to enforce an illegal order or
for an unlawful purpose. (Para 16)
Writ petition dismissed. (E-1)
Cases relied on :-
1. Shiv Murat Vs Board of Revenue, U.P. at Allahabad;
2017 (7)ADJ 252
2. Rambali & ors. Vs St. of U.P. & ors.; (2013) 118 RD
451
3. Smt. Badi Dulaiya Vs Gaon Sabha; 1987 RD 246
4. Narain Singh Vs Gaon Sabha; 1975 ALJ(Revenue)
73
5. Gulshan Rai Vs Mitra Sen; 1994 RD 125
6. Harihar Prasad Vs Jagdish; 2001 RD 163
7. Mansukhlal Vithaldas Chauhan Vs St. of Guj.; 1997
(7) SCC 622
8. Chandrika Prasad & ors. Vs Settlement Officer
Consolidation & ors.; 2009 (8) ADJ 1619
(Delivered by Hon'ble Ajay Bhanot, J.)

1. By means of this writ petition, a
direction has been sought upon the respondent
no.2-District Magistrate, Prayagraj, respondent
No. 3-Sub-Divisional Magistrate, Tehsil Handia,
District Prayagraj and respondent No. 4
Tehsildar, Tehsil Handia District Prayagraj to
implement the order dated 26.06.2008 as well as
order dated 16.06.2021 under Section 161 of the
U.P.Z.A.&LR.Act1.

2. The writ petition out of proceedings for
exchange of private land with land of Gaon
Sabha taken out under Section 161 of the
U.P.Z.A.&L.R. Act. The provision is extracted
hereinunder:

"161. Exchange. - [(1) A bhumidhar [* * *]
may exchange with-

(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.

(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."

3. The provision has to be read with Rules
144 to 146 of the U.P.Z.A.&LR. Rules, 19522 to
understand its working. The Rules are extracted
hereinbelow:

"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-
11 All. Shiva Kant Vs. State of U.P. & Ors.
477

(a) [* * *] which the applicant wishes to
receive and of the plots which he offers in
exchange of,

(b) [* * *]

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

(3) [* * *]

(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."

4. Section 161 of the U.P.Z.A. & L.R. Act,
1950 read with Rules 144, 145 and 146 of the
U.P.Z.A. & L.R. Rules, 1952 together comprise
the legislative scheme for exchange of private
lands with Gaon Sabha.

5. While interpreting the aforesaid
provision, a learned Single Judge of this Court in
Shiv Murat Vs. Board of Revenue, U.P. at
Allahabad3, held as under:

"8. Section 161 of the Act provides for
exchange. A bhumidhar may exchange with (a)
any other bhumidhar land held by him or (b)
land vesting in any Gaon Sabha or local
authority under Section 117. The proviso to
Section 161 requires prior permission of the
Assistant Collector upon being satisfied that
conditions of rental value of the respective land
calculated at hereditary rates is not more than 10
percent of the lower rental value. On exchange
being made in accordance with sub-section (1)
shall confer same rights in the land received in
exchange as the bhumidhar had in the land given
in exchange.

9. Rule 144 requires that an application for
permission to make an exchange shall contain
the detail of khasra number of the plots which
the applicant wishes to receive and of the plots
which he offers in exchange.

Upon receiving such an application, Rule
145 requires that the Assistant Collector shall
cause calculation of the rental value of the land
proposed to be given in exchange and 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 the Assistant
Collector shall call upon the parties, if any, to
show-cause why the exchange should not be
made. Every such notice shall be accompanied
by a copy of the application. If the Assistant
Collector decides that the exchange should be
allowed, he shall also make an order for delivery
of possession, if necessary, and for the
correction of papers.

11. On plain reading of Sub-clause (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 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
478 INDIAN LAW REPORTS ALLAHABAD SERIES
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.

14. Section 28B enumerates the functions
of the Land Management Committee which,
amongest other, is charged with the general
management, preservation and control of all
property referred to in Section 28-A which
includes settling and management of land but
does not include transfer of any property for the
time being, vested in the Gram Panchayat under
Section 117 of the U.P.Z.A. & L.R. Act or under
any other provisions of the Act.

15. On a plain reading of the provisions of
the U.P. Panchayat Raj Act, it is clear that the
report or consent of the Secretary of Land
Management Committee (Lekhpal) is certainly
not the consent of the Gram Panchayat which is
conferred the right and duty to the protection
and supervision of management and up-keep of
the property belonging to or vesting or held by
the Gram Panchayat. Lekhpal in the capacity of
a revenue officer submitting a report sought by
the Assistant Collector would not reflect the
consent of the Land Management Committee for
the reason that the Lekhpal performs his duty in
two different capacity: (i) Secretary of Land
Management Committee and (ii) Officer of the
revenue, therefore, the plea of the learned
counsel for the petitioner that the consent of the
Lekhpal would be the consent of the Gram
Panchayat cannot be accepted.

16. From the conjoint reading of Section
161, as well as, the Rules relating thereto, it
transpires that the legislature has extended
facility upon a bhumidhar to exchange his
bhumidhari
land
from
land
of
another
bhumidhar for their convenience upon satisfying
the conditions for exchange. Such exchange
cannot be valid unless permission of the
Assistant Collector has been obtained. 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.

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."

6. Experience shows that Section 161 of
the U.P.Z.A.&L.R. Act are often prone to abuse,
lands are often exchanged under political
considerations much to the detriment of the
Gaon Sabha and public interests at large.

7. In Rambali and others v. State of U.P.
and others4, this Court declined to mandamus
the Assistant Collector to decide the application
under
Section
161
without
finding
due
compliance of all relevant provisions comprising
the scheme of exchange by holding as under:

"12....As I have noticed that the exchange
of land belonging to a bhumidhar to another
11 All. Shiva Kant Vs. State of U.P. & Ors.
479
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.''

8. Adherence to the procedure under Rules
144 to 146 of the U.P.Z.A.&L.R.Rules,1952,
were held to be mandatory in Smt. Badi
Dulaiya v. Gaon Sabha5.

9. It is noteworthy that the importance of
adherence to Rule 144 to 146 was also
emphasized in Shiv Murat (supra) by setting
forth as under:

"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 v. Mahavir Singh, 1994 RD 136; State of
U.P. v. 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 v. Naib Johra Zaidi,
1995 RD 405)." (Emphasis supplied)

10. An exchange without noticing the
resolution of the Gaon Sabha regarding full
consent and the rational of such exchange cannot
be countenanced in law. Reference may be had
in this regard to the law laid down in Narain
Singh v. Gaon Sabha6, and Gulshan Rai v.
Mitra Sen7.

11. The importance of a proper resolution
of the Gaon Sabha and not a personal consent of
the Lekhpal or Pradhan for purposes of such
exchange was stated in Harihar Prasad v.
Jagdish8.

12. The manner of application of mind by
the Assistant Collector in proceedings under
Section 161 U.P.Z.A.&L.R. Act was discussed
by this Court in Shiv Murat (supra) :

"26. The disputed land of the Gaon Sabha is
recorded as manure pit being a public utility
land and covered under Section 132 of the Act,
no right or interest of a bhumidhar can be
acquired in respect thereof, in view of subsection C (vi) of Section 132. On fulfilling the
conditions of exchange the Assistant Collector is
not required to mechanically recommend
exchange on mere asking of the parties, in
particular, Gram Panchayat Land. The Assistant
Collector is duty bound to consider whether the
land sought for in exchange is a public utility
land; or whether the land is being exchanged for
a Gram Panchayat land which is situated on the
proposed
four
lane
road,
thus,
having
commercial value, etc."

13. In summation an order under Section
161 of the U.P.Z.A. & L.R. Act, 1950 has to be
self
contained
and
should
duly
reflect
compliance with all relevant provisions of law as
stated in judicial authorities in point discussed
above.

14. In the case at hand the order dated
26.06.2008 has been passed by Sub Divisional
480 INDIAN LAW REPORTS ALLAHABAD SERIES
Officer, Handia, Allahabad approving the
exchange of land in purported exercise of
powers under Section 161 of the U.P.Z.A.&L.R.
Act, 1950. The said order dated 26.06.2008 does
not record compliance of Rules 144 to 146 of the
U.P.Z.A.&L.R. Rules, 1952. Further rental value
of the lands which are sought to be exchanged
and the basis of calculation of such rental value
has not been disclosed in the order approving the
exchange. This is an imperative requirement of
law. Resolution of Gaon Sabha and contents
thereof have also not been noticed. The order
dated 26.06.2008 is also silent on the nature and
utility of lands to be exchanged. These
infirmities vitiate the order dated 26.06.2008.

15. The order dated 26.06.2008 fails to
carry out the mandate of Section 161 of the
U.P.Z.A. & L.R. Act read with Rules 141 to 146
of the U.P.Z.A. & L.R. Rules, 1952 and contrary
to the law laid down by this Court in the body of
judicial precedents discussed earlier.

16. Mandamus is a discretionary remedy
under Article 226 of the Constitution of India
(Ref:Mansukhlal Vithaldas Chauhan Vs State
of Gujrat, 1997 (7) SCC 622). Before exercising
the discretion in favour of any petitioner the court
may examine whether an illegal order is sought to
be implemented by mandamus, or advantage is
being taken of callous attitude of the land
management committees or apathy of officials or
collection of parties to the detriment of the State
and larger public interests in a manner contrary to
law. A mandamus cannot be issued to enforce an
illegal order or for an unlawful purpose. (Ref:
Chandrika Prasad and others Vs Settlement
Officer Consolidation and others, 2009 (8) ADJ
1619). The court in such matters can mould the
relief and pass appropriate orders to ensure faithful
implementation of the law and to serve the
interests of justice.

17. In fact this Court does not have any
hesitation to hold that the aforesaid order dated
26.06.2008 is contrary to law and cannot be
executed. Though the order dated 26.06.2008 is
not under challenge, the rights conferred by such
order are subject matter of this writ petition. In
this wake no rights flow to the petitioner from
the order dated 26.06.2008. A mandamus cannot
be issued to compel the implementation of the
order dated 26.06.2008.

18. The preceding findings have been
made on the footing of the recitals contained in
the order dated 26.06.2008. No affidavit can
improve the content of the order dated
26.06.2008. The order has to stand the test of
legality on the basis of the recitals contained
therein. The recitals in the order could not be
disputed by the learned counsel for the petitioner
nor by the learned Standing Counsel.

19. It is, however, open to the petitioner to
seek fresh proceedings for exchange of land as
per law.

20. While sitting in this jurisdiction I have
noticed the callous attitude of the land
management committees towards litigation in
regard to the Gaon Sabha lands. In a sense Gaon
Sabha lands are ultimately State lands. The State
Government entrusts such lands to the Gaon
Sabha. The State Government by adopting the
procedure prescribed by law can also resume
such lands. Higher public interest demands that
the State Government should exercise vigilance
over exchange of such lands by the Gaon Sabha
with private lands.

21. These observations do not dilute the
rights of the Gaon Sabha accruing from
entrustment made by the State Government to
the Gaon Sabha.

22. Considering the fact that in a large
number of cases under Section 161 of the
U.P.Z.A.&L.R. Act, the interests of the Gaon
Sabha and the State lands are compromised, it is
11 All. C/M Sri Satya Narain Junior High School & Anr. Vs. State of U.P. & Ors.
481
directed that the State of U.P. through the
District Magistrate shall be made necessary
parties in all disputes pertaining to the Gaon
Sabha's lands and in particular in proceedings
under Section 161. It shall be mandatory for the
State through the District Magistrate to file their
affidavits in all such disputes.

23. In light of the of preceding discussions
the writ petition is devoid of merit and is liable
to be dismissed and is dismissed.

Copy of this order shall be communicated by the
Chief Standing Counsel to:

(1)
Principal
Secretary
Panchayat
Raj,
Government of U.P., Lucknow.

(2) Commissioner Prayagraj Division, Prayagraj.

(3) District Magistrate, Prayagraj.

(4) Sub Divisional Magistrate, Handia, Prayagraj.
----------
(2021)12ILR A481
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 16.11.2021

BEFORE

THE HON'BLE MRS. MANJU RANI CHAUHAN, J.

Writ-C No. 24767 of 2018

C/M Sri Satya Narain Junior High School & Anr.
 ...Petitioners
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioners:
Sri Shivendu Ojha, Sri Radha Kant Ojha (Sr. Adv.)

Counsel for the Respondents:
C.S.C., Sri Pranesh Dutt Tripathi, Sri P.D. Tripathi

A.
Junior
High
School
-
Grant-in-aid
-
Entitlement of being enlisted - Application
made in the year 2006 - GO dated 13.07.2017
issued
with
new
policy
restricting
the
institution from being enlisted in grant-in-aid
list
-
Applicability
-
Prospectively
or
retrospectively - Held, any policy decision
taken
by
the
St.
Government
or
any
Government
Order
issued
by
the
St.
Government is given effect prospectively and
not retrospectively. Any government decision
or order will have prospective effect and not
retrospective effect. The same will have effect
with
effect
from
its
date
of
enforcement/issuance not before the said date.
(Para 8 and 13)
B.
Jurisprudence
-
Substantial
justice
-
Procedural technicalities - It's extent - Held,
all
Courts
of
law
are
established
for
furtherance of interest of substantial justice
and not to obstruct the same on technicalities -
No procedure in a Court of law should be
allowed to defeat the cause of substantial
justice on some technicalities. (Para 18)
Writ petition allowed. (E-1)
Cases relied on :-
1. U.O.I. & ors. Vs G.S. Chatha Rice Mills & anr.;
(2021) 2 SCC 209,
2. Jai Jai Ram Manohar Lal Vs National Building
Material Supply; AIR 1969 SC 1267
3. Ghanshyam Dass & ors. Vs Dominion of India &
ors; (1984) 3 SCC 46)
(Delivered by Hon'ble Mrs. Manju Rani
Chauhan, J.)

1. Nobody is present on behalf of
respondent nos. 4 and 5 even in the revised
reading of the list.

2. Heard Mr. R.K. Ojha, learned Senior
Advocate assisted by Mr. Shivendu Ojha,
learned counsel for the petitioners and Dr. Amar
Nath Singh, learned Standing Counsel for the
State-respondents.

3. Since the pleadings have been
exchanged between the learned counsel for the
petitioners and the learned Standing Counsel for
the State-respondents, who are the contesting