# Union Of India v. B.R. Bajaj reported in

- **Citation:** (2007) 3 ILRA 728
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2007-09-11
- **Case number:** Civil Misc. Writ Petition No. 12959 of 1993
- **Bench:** Krishna Murari
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/union-of-india-v-b-r-bajaj-reported-in-41120
- **Pages:** 6

## Headnote

UPZA & LR Act-1955 Section 161 read
with UP Consolidation of Holdings Act
1963- Section 29(c) 2-exchange of land
reserved for public purpose by Gaon
Sabha-is
permissible-
provided
the
exchanged land also utilized for the
same purpose.

Held: Para 16
Giving strict interpretation to provisions
of Section 29(c)(2) of the Consolidation
of Holdings Act and holding that the land
earmarked in the final consolidation
scheme for a public purpose cannot be
used for any other purpose even though
the purpose may have been frustrated or
failed, like in the case in hand, would be
futile, because in that event public
purpose
for
which
the
land
was
earmarked would not be served having
3 All] Khacheru V. Board of Revenue and others
729
failed, and the land contributed by the
tenure holder for that purpose would go
to waste. In such a situation, if the
exchange is permitted that would further
the cause for which the land was
contributed by the tenure holder and
was earmarked in the final consolidation
scheme and would be for the benefit of
every body. Thus, it would be expedient
and in the interest of justice to hold that;
such land reserved for public purposes
under section 29(c) can be given by the
Gaon Sabha in exchange under Section
161 of the Act subject to the condition
that the land so received in exchange
shall be utilized for the same public
purpose for which the land given in
exchange was being used
Case law discussed:
1971 RD-466
1994 RD(Supp) 554

## Text

728 INDIAN LAW REPORTS ALLAHABAD SERIES [2007
against the petitioner were only connected
with his professional duties and it was
observed that "considering the fact that
the petitioner is a practicing lawyer and
he has been representing co-accused and
the fact that there is no allegation that
petitioner was in any manner involved in
the abduction and torture of respondent
no. 4 and that he has no other connection
with co-accused except that of counsel
and client, and his case is distinguishable
from the case of other co-accused
persons, this petition is disposed of finally
with a direction that arrest of the
petitioner in the aforesaid case shall
remain
stayed
during
investigation
provided
he
cooperates
with
the
investigation." But the facts of this case
are altogether different and the allegations
in the impugned first information report
are not even remotely connected with his
professional duties.

16. In this case after the registration
of the case the looted articles have been
recovered
by
the
police
and
also
statements of the witnesses were recorded
in which the name of the petitioner has
been mentioned and it cannot be said that
there is no allegation against the petitioner
to attract the commission of cognizable
offence. The Apex Court in the case of
Union Of India Vs. B.R. Bajaj reported in
(1994) 2 SCC 777 has held that at the
stage of the FIR the courts should refrain
from interfering when the FIR discloses
the commission of a cognizable offence
and
statutory
power
of
police
to
investigate can not be interfered with in
exercise of the inherent power of the
court.

17. In view of the above no
interference in required and the petition is
dismissed.
18. However, it is provided that in
case the petitioner surrenders within ten
days from today, his application for bail
shall
be
decided
expeditiously
in
accordance with law. Petition Dismissed.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 11.09.2007

BEFORE
THE HON'BLE KRISHNA MURARI, J.

Civil Misc. Writ Petition No. 12959 of 1993

Khacheru

...Petitioner
Versus
Board of Revenue, U. P. at Allahabad &
others

 ...Respondents

Counsel for the Petitioner:
Sri. K.R. Sirohi
Sri. B.K. Pandey

Counsel for the Respondents:
Sri. K.B. Garg
Sri. M.K. Tripathi
Sri. A.D. Prabhakar
Sri. V.K. Singh

UPZA & LR Act-1955 Section 161 read
with UP Consolidation of Holdings Act
1963- Section 29(c) 2-exchange of land
reserved for public purpose by Gaon
Sabha-is
permissible-
provided
the
exchanged land also utilized for the
same purpose.

Held: Para 16
Giving strict interpretation to provisions
of Section 29(c)(2) of the Consolidation
of Holdings Act and holding that the land
earmarked in the final consolidation
scheme for a public purpose cannot be
used for any other purpose even though
the purpose may have been frustrated or
failed, like in the case in hand, would be
futile, because in that event public
purpose
for
which
the
land
was
earmarked would not be served having
3 All] Khacheru V. Board of Revenue and others
729
failed, and the land contributed by the
tenure holder for that purpose would go
to waste. In such a situation, if the
exchange is permitted that would further
the cause for which the land was
contributed by the tenure holder and
was earmarked in the final consolidation
scheme and would be for the benefit of
every body. Thus, it would be expedient
and in the interest of justice to hold that;
such land reserved for public purposes
under section 29(c) can be given by the
Gaon Sabha in exchange under Section
161 of the Act subject to the condition
that the land so received in exchange
shall be utilized for the same public
purpose for which the land given in
exchange was being used
Case law discussed:
1971 RD-466
1994 RD(Supp) 554

(Delivered by Hon'ble Krishna Murari, J.)

1. Heard Sri K. R. Sirohi, learned
senior counsel assisted by Sri B. K.
Pandey appearing for the petitioner and
Sri M. K. Tripathi, appearing for the
contesting respondent no. 5.

2. By means of this petition filed
under Article 226 of the Constitution of
India, the petitioner has prayed for
issuance of a writ of certiorari to quash
the order-dated 22.03.1993 passed by
Board! of Revenue allowing the second
appeal filed by respondent no. 5 arising
out of the proceedings under Section 161
of U. P. Zamindari Abolition & Land
Reforms Act ( for short the ,'Act').

Facts giving rise to the dispute are as
under;

3. Gaon Sabha proposed exchange
of its Plot No. 610 area 6 biswas 16
biswansis with Plot No. 617 area 8 biswas
10 biswansis of the petitioner and
accordingly passed a resolution dated
11.4.1991. Thereafter, petitioner moved
an application under Section 161 of the
Act before the Sub Divisional Officer. An
objection was filed by respondent no. 5
assailing the exchange on the ground that
plot no. 610 of Gaon Sabha had been
reserved
for
manure
pits
during
consolidation operation and the land
being reserved for public purposes could
not be given in exchange. Sub Divisional
Officer vide order dated 30.12.1991
declined to grant permission for exchange
and dismissed the application. Petitioner
went
up
in
appeal.
Additional
Commissioner, Meerut Division Meerut
vide order dated 30.7.1992 allowed the
appeal against which respondent no. 5
went up in Second Appeal. Board of
Revenue vide order dated 22.3.1993
allowed the same and set aside the order
of
Additional
Commissioner
and
maintained the order of Sub Divisional
Officer.
Aggrieved,
petitioner
has
approached this Court.

4. Sub Divisional Officer though
found that Gaon Sabha has passed a
resolution for exchange and the difference
in land revenue of the two land sought to
be exchanged was less than 10 per cent
and the exchange was duly recommended
by the Supervisor Kanoongo vide report
dated 16.8.1991, yet refused to grant
permission to the exchange on the ground
that the land reserved for public purpose,
could not have been given in exchange.
Lower appellate Court allowed the appeal
on the ground that since 'abadi' has
developed around the land which was
reserved for manure pits and there is not
much difference, in the land revenue of
the two lands sought to be exchanged and
the exchange is for the benefit of the
tenure holders of the village at large.
730 INDIAN LAW REPORTS ALLAHABAD SERIES [2007
Board of Revenue held that since the land
is not vested in the Gaon Sabha or under
the provisions of Section 117 of the Act
but it was vested under Section 29(c) of
the Consolidation Act as land reserved for
public purpose and it can only be utilized
for the purpose for which it has been
earmarked in the consolidation operation
as such the exchange is not permissible.

5. It has been urged by learned
counsel for the petitioner that there is
nothing in Section 29(c) which may go to
show that land reserved for public
purpose cannot be given in exchange
rather section itself provides that where
the purpose for which the land had been
earmarked, is frustrated then it can be
utilized for such other purpose as may be
prescribed. It has further been urged that
Plot no. 610, which had been earmarked
for manure pits in the final consolidation
scheme, came to lie in the densely
populated area of the village with the
extension of 'abadi'. Since continuation of
manure pits at the site would cause more
inconvenience to the public and would be
hazardous to public health, Gaon Sabha
rightly passed a resolution to exchange its
plot with another plot which be used as
manure pits.

6. My attention has been drawn to
the provisions of Section 161(2) which
provides that when exchange is made in
accordance with sub-Section (l), they
shall have the rights in the land so
reserved in exchange as they had in the
land given in exchange.

7. In reply, it has been: submitted
that since land was reserved in final
consolidation scheme for manure pits in
accordance with provisions of Section
29(C) of the said Act, the land cannot be
utilized for any other purpose as such it
could not have been given in exchange.
Reliance in support of the contention has
placed on the decision of learned single
Judge in the case of Lalji & another vs.
Board of Revenue & others 1971 RD 466

8. I have considered the arguments
advanced on behalf of learned counsel for
the parties and perused the record. I

Section 161 of the Act providing for
exchange reads as under;

"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.

(l-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
in exchange.

Section 29(c) of Consolidation Act
providing for vesting of land for public
purpose reads as under;
3 All] Khacheru V. Board of Revenue and others
731
 29-C Vesting of land contributed for
public
purposes.-(1)
The
land
contributed for public purposes under
this Act shall, with effect from the date
on which the tenure-holders became
entitled to enter into possession of the
chaks allotted to them under the
provisions of this Act as amended from
time time, vest and be always deemed
to have vested in the Gaon Sabha in an
area in which Section 117 of the Uttar
Pradesh Zamindari Abolition and
Land Reforms Act, 1950 applies and in
the State Government in any other
area, and shall be utilized for the
purpose for which it was earmarked in
the final Consolidation Scheme, or in
case of failure of that purpose, for
each other purposes as may be
prescribed.

 (2) The provisions of Section 117 of
the Uttar Pradesh Zamindari Abolition
and Land Reforms Act 1950 (U. P. Act
No.1 of 1951) shall mutatis mutandis
apply to such land vested in the Gaon
Sabha as if the land had vested in the
Gaon Sabha by virtue of a declaration
made by the State Government under
sub-Section (1) of that section and as if
the declarations were made subject to
the conditions respecting utilization
specified in sub-section (1) of this
section.

9. From a reading of the provisions
of Section 161 of the Act it is clear that
any land vested in Gaon Sabha or local
authority under Section 117 of the said
Act can be subject matter of exchange
with the land of any bhumidhar.

10. However, a reading or Section
29(c) of U. P. C. H. Act prima facie goes
to show that land contributed for public
purpose during consolidation shall be
deemed to be vested in Gaon Sabha under
Section 117 of the Act but the same
would be subject to the condition with
regard to utilization only for the purpose
for which it has been earmarked in the
final consolidation scheme that is to say
that though land stands vested in Gaon
Sabha in accordance with the provisions
of Section 117 of the Act but a restriction
appears to have been placed on the
powers of the Gaon Sabha with respect to
such land and the same can only be
utilized for the purpose for which it has
been earmarked in the final consolidation
scheme. However on a closer and deeper
analysis of the aforesaid provision, a
completely contradictory picture emerges
out.
Section
29(C)(1)
of
U.
P.
Consolidation of Holdings Act though
provides that the land contributed for the
public purpose and earmarked for the
same in the final consolidation scheme
shall be utilized only for the said purpose
but it also provides that in case of failure
of that purpose that land can be utilized
by Gaon Sabha for such other purposes as
may be prescribed.

11. 'Word prescribed' occurring in
section would normally mean prescribed
either under the Act or under the Rules.
However, there is nothing either in the
Act or in the in rules prescribing the
otherwise user of the land earmarked for
the public purpose in the in event of
failure of the original purpose. The
purpose of placing such restriction is that
Gaon Sabha may not utilize the land for
any other purposes other than the public
purpose or purposes for which it has been
earmarked. Thus, what is relevant is the
purpose for which the land has been
contributed by the tenure holder of the
village and earmarked in the final
732 INDIAN LAW REPORTS ALLAHABAD SERIES [2007
consolidation scheme and the same
should not be allowed to be frustrated by
the action of Gaon Sabha by diverting the
user of said land for any purpose other
than the one for which it was contributed
and earmarked. Viewed from this angle it
is the 'purpose' which is relevant and
important and not the place or the site.

12. Legislature being conscious of
the fact while enacting the provisions of
the exchange under Section 161 also
enacted section 161(2) which clearly
provides that on exchange made in
accordance with sub Section (1), the
parties shall have the same rights in the
land so received in exchange as they had
in the land given in exchange.

13. In the case in hand, resolution of
Gaon Sabha indicates that land received
in exchange from the petitioner shall be
used as manure pits. Apart from the
resolution even under the provisions of
Section 161(2) of the Act, the land
received in exchange from the petitioner
could not have been used by the Gaon
Sabha for any other purpose except for
manure pits.

14. From a perusal of the resolution
passed by Gaon Sabha, it also becomes
clear that there has been a complete
failure of purpose i.e.. keeping manure
pits inasmuch as on account of extensive
extension of village 'abadi', the said land
was surrounded by 'abadi' and thus was
not fit to be utilized as manure pits as it
would be hazardous to the public health
and the land so reserved was also being
encroached upon illegally.

15. Learned single Judge in the case
of Lalji & another vs. Board of Revenue
& others (supra) relied upon by the
learned counsel for the respondent has not
considered the matter from this aspect. It
failed to consider the words in the case of
failure of that purpose for such other
purpose as may be prescribed as well as
the provisions of Section 161(2) of the
Act. The said judgment straight way
considered the provisions of Section
29(c)(2) of U. P. Consolidation of
Holdings Act as well as Section 161 of
the Act and failed to take into account the
words in the case of failure of that
purpose used in Section 21(C) (2) of U. P.
Consolidation of Holdings Act as well as
in Section 161(2) of the Act and as such it
cannot be said to be a good law. The same
view has been taken by another learned
single judge in the case of Jagannath vs
U. P. Board of Revenue & Others 1994
(Suppl.) RD 554.

16. Giving strict interpretation to
provisions of Section 29(c)(2) of the
Consolidation of Holdings Act and
holding that the land earmarked in the
final consolidation scheme for a public
purpose cannot be used for any other
purpose even though the purpose may
have been frustrated or failed, like in the
case in hand, would be futile, because in
that event public purpose for which the
land was earmarked would not be served
having failed, and the land contributed by
the tenure holder for that purpose would
go to waste. In such a situation, if the
exchange is permitted that would further
the cause for which the land was
contributed by the tenure holder and was
earmarked in the final consolidation
scheme and would be for the benefit of
every body. Thus, it would be expedient
and in the interest of justice to hold that;
such land reserved for public purposes
under section 29(c) can be given by the
Gaon Sabha in exchange under Section
3 All] Ram Chandra V. State of U.P. and others
733
161 of the Act subject to the condition
that the land so received in exchange shall
be utilized for the same public purpose for
which the land given in exchange was
being used

17. In view of the aforesaid
discussions, impugned order passed by
the Board of Revenue dated 22.3.1993
refusing the exchange cannot be sustained
and is hereby quashed and that of
Additional
Commissioner
dated
30.7.1992 stands affirmed.

18. The writ petition stands allowed.

However,
in
the
facts
and
circumstances, there shall be no order as
to costs.

 Petition Allowed.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 01.09.2007

BEFORE
THE HON'BLE S.U. KHAN, J.

Civil Misc. Writ Petition No. 19718 of 2000

Ram Chandra

...Petitioner
Versus
State of U.P and others. ...Respondents

Counsel for the Petitioner:
Sri A.N. Shukla
Sri R.A. Verma
Sri Yogesh Agrawal

Counsel for the Respondents:
S.C.

U.P.
Recruitment
to
Services
(Determination of Date of Birth) Rules
1974-Rule-2-Date of Birth-recorded in
service
book
initially-can
not
be
changed-school certificate below class
10-held-not authentic document.

Held: Para 8

Whatever may be basis of first entry of
date of birth in the service book,
Subsequently it cannot be changed
unless there is some rule in that regard
and representation is made promptly for,
change of date of birth. Petitioner did
not make any representation. The campclerk got the second entry of 10.10.1948
made in the service book after few
months of the first entry, which was not
permissible.
Case law discussed:
AIR 2006 SC-2157 relied on.

(Delivered by Hon'ble S.U. Khan, J.)

Heard learned counsel for the parties.

1. The question to be decided in this
writ petition is as to whether one of the
two dates of birth of petitioner as entered
in his service book i.e. 10.10.1948 was
rightly scored off? The age of retirement
of Class of employees to which petitioner
belongs is 60 years. According to the
petitioner he should have been permitted
to continue in service until 10.10.2008,
however, he was wrongly retired on
1.8.1998. Original service book was
summoned and perused by the court.
Photostat copy of the first page of original
service book was directed to be filed by
learned standing counsel who has filed the
said photostat copy. On the first page of
the service book, certificate issued by
C.M.O dated 1.8.1986 was annexed.
Photocopy of the said certificate has also
been filed. These two copies have also
been filed along with other affidavits. The
certificate was issued under Rule 10 of
Fundamental Rules on the proforma given
thereunder. The title of the certificate was
Certificate of Fitness for government
servants. In the certificate which was on
the printed proforma as prescribed by