- (1.)Heard Sri P.K.S. Paliwal alongwith Sri Harindra Prasad learned counsel for the petitioners and Sri Rajesh Kumar, learned Standing Counsel appearing; for the State respondents. 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.
(2.)Sri P.K.S. Paliwal, learned counsel for the petitioners contends that the Sub-Divisional Officer is statutorily bound to decide his application for exchange of the land with the Gaon Sabha 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).
(3.)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. 28.1.1977)) may exchange with-

(a) any other bhumidhar (omitted by U.P. Act No. 8 of 1977 (w.e.f. 28.1.1977) 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 117-A" 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.

(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.