LUCKNOW vs Counsel for Petitioner(s)

1. Heard Sri G.C. Verma, learned counsel for the petitioners, learned Standing Counsel for the State-respondent and Sri Mohan Singh, learned counsel for respondent No.3.

2. The present writ petition has been filed on the following prayer :- "[a] To issue a writ, order or direction in the nature of certiorari quashing the impugned order dated 15.4.2005 passed by the Opp-party no.1 and order dated

28.8.1998 passed by the Opp-party no.2, the true copies of which are contained as Annexure Nos. 1 and 2 respectively to this writ petition. [b] To issue a writ, order or direction in the nature of mandamus commanding the Opp-party no.2 to exchange the land of petitioners' plot No.88 area 0.033 hectare from the Gaon Sabha Gata No. 63 area 0.028 hectare situate in village Thauri, Pargana Chanda, Tehsil Lambhua, district Sultanpur. [c] To issue a writ, order or direction in the nature of mandamus commanding the Opp-parties not to disturb the peaceful possession of the petitioners over the land in dispute allotted in favour of the petitioners through the residential Lease. [d] ... [e] ..."

3. Factual matrix of the case is that plot No.63 situated in village Thauri, 2 WRIC No. 1003106 of 2005 Pargana Chanda, Tehsil Lambhua, District Sultanpur is recorded as Naveen Parti in the village revenue records and the same is adjacent to the house of the petitioners. The petitioners moved an application before the Sub Divisional Magistrate, Kadipur, District Sultanpur for allotment of plot No.63 area 0.120 hectares, who granted residential lease in favour of the petitioners vide order dated 29.1.1992. The Land Management Committee, after the grant of lease in favour of the petitioners, filed Suit No.178 under Section 115[P] of U.P. Zamindari Abolition and Land Reforms Act in the Court of Additional District Magistrate, Finance and Revenue, Sultanpur, who called for the report from the Naib Tehsildar, Chanda and the report was submitted on 23.10.1992.

4. Vide order dated 16.6.1997, passed by the Additional District Magistrate, Finance and Revenue, Sultanpur, whereby it was directed that the house was constructed on the land, therefore, exchange is permissible and that should be made. The respondent No.3 did not file an appeal or revision against the aforesaid order dated 16.6.1997, therefore, it attained finality in the eyes of law.

5. The petitioners moved an application dated 31.7.1997 for exchange of land from gaon sabha land of plot No.63. A resolution was passed by the Land Management Committee on 28.12.1991, resolving to exchange the land in dispute from the petitioners. The respondent No.2 passed an order dated 28.8.1998, whereby taking into consideration Section 168-A, it was held that exchange of the land is not permissible in the eyes of law. Aggrieved by the order dated 28.8.1998, the petitioners filed an appeal before the respondent No.1, wherein interim order was passed in favour of the petitioners on 9.10.1998.

6. In the meantime, an amendment was incorporated vide notification dated 23.8.2004, whereby Section 168-A of U.P. Zamindari Abolition and Land Reforms Act was omitted. The petitioners moved an application before the respondent No.1 for disposal of the appeal on 17.2.2005 in the light of the government order dated 23.8.2004, whereby the impugned order dated 15.4.2005 was passed and the petitioners were deprived of the benefit of the amendment incorporated vide government order dated 23.8.2004. 3 WRIC No. 1003106 of 2005

7. Submission of learned counsel for the petitioners is that once Section 168-A of U.P. Zamindari Abolition and Land Reforms Act was omitted from the statute book by permitting exchange of the land, the order passed by the appellate authority without considering the same, is wholly illegal and arbitrary in nature. Next submission is that the gaon sabha has also passed a resolution for exchange of land from the petitioners. Last submission is that notification permits exchange of land, therefore, due to non-consideration of this aspect of the matter by the appellate court, the impugned order dated 15.4.2005, after the amendment incorporated, is wholly illegal and unjustified.

8. On the other hand, learned counsel for the respondent No.3 and learned Standing Counsel submit that in case amendment has been incorporated by omitting Section 168-A of U.P. Zamindari Abolition and Land Reforms Act from the statute book, the exchange is permissible in the eyes of law.

9. After having heard the submission advanced by learned counsel for the parties, I perused the material on record

10. The gaon sabha has passed a resolution for exchange of land on

14.9.1997. Section 168-A of U.P. Zamindari Abolition and Land Reforms Act reads as under :- "168-A. Transfer of fragments. - [1] Notwithstanding the provisions of any law for the time being in force no person shall transfer whether by sale, gift or exchange any fragment situate in a consolidated area except where the transfer is in favour of tenure holder who has a plot contiguous to the fragment or where the transfer is not in favour of any such tenure-holder the whole or so much, of the plot in which the person has bhumidari rights, which pertains to the fragment is thereby transferred. [2] The transfer of any land contrary to the provisions of sub-section [1] shall be void. [3] When a bhumidar has made any transfer in contravention of the provisions of sub- section [1] the provisions of Section 167 shall mutatis mutandis apply."

11. On perusal of the aforesaid Section, it is evident that there was a bar 4 WRIC No. 1003106 of 2005 in exchange of land of the gaon sabha. During the pendency of the appeal, an amendment was incorporated in the U.P. Zamindari Abolition and Land Reforms Act on 23.8.2004, whereby Section 168-A was omitted from the statute book and by adding new provision, exachange of land from the gaon sabha was made permissible. In view of the above, due to non consideration of the aforesaid aspect of the matter, while passing the order dated 15.4.2005, which was passed subsequent to the amendment incorporated in the statute book, is illegal and is not sustainable in the eyes of law, therefore, this Court is of the opinion that without considering the relevant provision of the amendment made on 23.8.2004, is not permissible in the eyes of law. The exchange as per law, is permissible and that can be made.

12. In view of facts and circumstances of the case narrated above, I am of the considered opinion that the impugned order dated 15.4.2005 is wholly illegal and therefore, it is hereby quashed. The writ petition succeeds and is allowed.

13. However, the Sub Divisional Magistrate, Lambhua, District Sultanpur is directed to consider the resolution of the gaon sabha dated 14.9.1997 and permit exchange of lands in view of amended provision made vide notification dated 23.8.2004 within a period of six months from the date of production of a certified copy of this order. September 4, 2025 Gautam (Irshad Ali,J.) GAUTAM TECKCHANDANI High Court of Judicature at Allahabad, Lucknow Bench

1. Heard Sri G.C. Verma, learned counsel for the petitioners, learned Standing Counsel for the State-respondent and Sri Mohan Singh, learned counsel for respondent No.3.

2. The present writ petition has been filed on the following prayer :- "[a] To issue a writ, order or direction in the nature of certiorari quashing the impugned order dated 15.4.2005 passed by the Opp-party no.1 and order dated

28.8.1998 passed by the Opp-party no.2, the true copies of which are contained as Annexure Nos. 1 and 2 respectively to this writ petition. [b] To issue a writ, order or direction in the nature of mandamus commanding the Opp-party no.2 to exchange the land of petitioners' plot No.88 area 0.033 hectare from the Gaon Sabha Gata No. 63 area 0.028 hectare situate in village Thauri, Pargana Chanda, Tehsil Lambhua, district Sultanpur. [c] To issue a writ, order or direction in the nature of mandamus commanding the Opp-parties not to disturb the peaceful possession of the petitioners over the land in dispute allotted in favour of the petitioners through the residential Lease. [d] ... [e] ..."

3. Factual matrix of the case is that plot No.63 situated in village Thauri, 2 WRIC No. 1003106 of 2005 Pargana Chanda, Tehsil Lambhua, District Sultanpur is recorded as Naveen Parti in the village revenue records and the same is adjacent to the house of the petitioners. The petitioners moved an application before the Sub Divisional Magistrate, Kadipur, District Sultanpur for allotment of plot No.63 area 0.120 hectares, who granted residential lease in favour of the petitioners vide order dated 29.1.1992. The Land Management Committee, after the grant of lease in favour of the petitioners, filed Suit No.178 under Section 115[P] of U.P. Zamindari Abolition and Land Reforms Act in the Court of Additional District Magistrate, Finance and Revenue, Sultanpur, who called for the report from the Naib Tehsildar, Chanda and the report was submitted on 23.10.1992.

4. Vide order dated 16.6.1997, passed by the Additional District Magistrate, Finance and Revenue, Sultanpur, whereby it was directed that the house was constructed on the land, therefore, exchange is permissible and that should be made. The respondent No.3 did not file an appeal or revision against the aforesaid order dated 16.6.1997, therefore, it attained finality in the eyes of law.

5. The petitioners moved an application dated 31.7.1997 for exchange of land from gaon sabha land of plot No.63. A resolution was passed by the Land Management Committee on 28.12.1991, resolving to exchange the land in dispute from the petitioners. The respondent No.2 passed an order dated 28.8.1998, whereby taking into consideration Section 168-A, it was held that exchange of the land is not permissible in the eyes of law. Aggrieved by the order dated 28.8.1998, the petitioners filed an appeal before the respondent No.1, wherein interim order was passed in favour of the petitioners on 9.10.1998.

6. In the meantime, an amendment was incorporated vide notification dated 23.8.2004, whereby Section 168-A of U.P. Zamindari Abolition and Land Reforms Act was omitted. The petitioners moved an application before the respondent No.1 for disposal of the appeal on 17.2.2005 in the light of the government order dated 23.8.2004, whereby the impugned order dated 15.4.2005 was passed and the petitioners were deprived of the benefit of the amendment incorporated vide government order dated 23.8.2004. 3 WRIC No. 1003106 of 2005

7. Submission of learned counsel for the petitioners is that once Section 168-A of U.P. Zamindari Abolition and Land Reforms Act was omitted from the statute book by permitting exchange of the land, the order passed by the appellate authority without considering the same, is wholly illegal and arbitrary in nature. Next submission is that the gaon sabha has also passed a resolution for exchange of land from the petitioners. Last submission is that notification permits exchange of land, therefore, due to non-consideration of this aspect of the matter by the appellate court, the impugned order dated 15.4.2005, after the amendment incorporated, is wholly illegal and unjustified.

8. On the other hand, learned counsel for the respondent No.3 and learned Standing Counsel submit that in case amendment has been incorporated by omitting Section 168-A of U.P. Zamindari Abolition and Land Reforms Act from the statute book, the exchange is permissible in the eyes of law.

9. After having heard the submission advanced by learned counsel for the parties, I perused the material on record

10. The gaon sabha has passed a resolution for exchange of land on

14.9.1997. Section 168-A of U.P. Zamindari Abolition and Land Reforms Act reads as under :- "168-A. Transfer of fragments. - [1] Notwithstanding the provisions of any law for the time being in force no person shall transfer whether by sale, gift or exchange any fragment situate in a consolidated area except where the transfer is in favour of tenure holder who has a plot contiguous to the fragment or where the transfer is not in favour of any such tenure-holder the whole or so much, of the plot in which the person has bhumidari rights, which pertains to the fragment is thereby transferred. [2] The transfer of any land contrary to the provisions of sub-section [1] shall be void. [3] When a bhumidar has made any transfer in contravention of the provisions of sub- section [1] the provisions of Section 167 shall mutatis mutandis apply."

11. On perusal of the aforesaid Section, it is evident that there was a bar 4 WRIC No. 1003106 of 2005 in exchange of land of the gaon sabha. During the pendency of the appeal, an amendment was incorporated in the U.P. Zamindari Abolition and Land Reforms Act on 23.8.2004, whereby Section 168-A was omitted from the statute book and by adding new provision, exachange of land from the gaon sabha was made permissible. In view of the above, due to non consideration of the aforesaid aspect of the matter, while passing the order dated 15.4.2005, which was passed subsequent to the amendment incorporated in the statute book, is illegal and is not sustainable in the eyes of law, therefore, this Court is of the opinion that without considering the relevant provision of the amendment made on 23.8.2004, is not permissible in the eyes of law. The exchange as per law, is permissible and that can be made.

12. In view of facts and circumstances of the case narrated above, I am of the considered opinion that the impugned order dated 15.4.2005 is wholly illegal and therefore, it is hereby quashed. The writ petition succeeds and is allowed.

13. However, the Sub Divisional Magistrate, Lambhua, District Sultanpur is directed to consider the resolution of the gaon sabha dated 14.9.1997 and permit exchange of lands in view of amended provision made vide notification dated 23.8.2004 within a period of six months from the date of production of a certified copy of this order. September 4, 2025 Gautam (Irshad Ali,J.) GAUTAM TECKCHANDANI High Court of Judicature at Allahabad, Lucknow Bench