B. L. Yadav, J. - (1.) THE present petition under Article 226 of the Constitution is directed against the order dated 1-2-1978 passed by the Board of Revenue and the order dated 16-12-1975 passed by the Additional Commissioner Ist, Agra Division, Agra and the order dated 18-12-1974, passed by the Sub-Divisional Officer, Koil, Aligarh. THE prayer is that a writ of certiorari may be issued and these orders may be quashed.
(2.) THE facts of the case are that an application under section 161 of the UP ZA and LR Act, 1950, (U. P. Act No. 1 of 1951) (hereinafter referred to as the Act for the sake of brevity) was filed by petitioners' father, Ram Swarup, for making exchange of the plots in dispute with respondents nos. 4 and 5. THE application, for exchange dated 16-3-1974 is annexure 2 to the petition, (page 14 of the paper book). It appears that before that a registered deed dated 3-1-1974 was got executed by the parties in accordance with their convenience and in view of the provisions of section 161 of the Act, keeping in view that the difference between the rental value of the land given in exchange and of the land received in exchange calculated at the hereditary was not more than 10% as provided in the proviso to section 161. Similar application appears to have been filed by respondents nos. 4 and 5. THEreafter the Sub-Divisional Officer directed the Naib Tahsildar to make an enquiry on the application submitted by both the parties and to submit a report. THE witnesses were examined on behalf of both the parties before the Naib Tahsildar and he submitted a report dated 20-7-1974 that actually the parties were willing to enter into exchange as contemplated by law. It appears that much thereafter the petitioners' father Ram Swarup changed his mind and he moved another application dated 16-8-1974 that his application for exchange may be dismissed. THE Sub-Divisional Officer, Koil, Aligarh, considered the application of Ram Swarup, father of the petitioners (Annexure 3) and passed an order dated 18-12-1974 (Annexure 4) for withdrawal of the application for exchange and he passed an order that the exchange of the plots may be made and he further directed that the report of the Naib Tahsildar dated 20-7-1984 shall form part of the order. Against the aforesaid order dated 18-12-1974, the petitioners' father Ram Swarup preferred an appeal which was dismissed on 16-12-1975 and bis second appeal met the same fate on 1-2-1978. The petitioners being the sons of Ram Swarup have challenged these orders. I have heard learned counsel for the parties. Learned counsel for the petitioner contended that previous permission of the Sub-Divisional Officer must have been obtained before passing the order dated 18-12-1974 (annexure 4) and since prior permission was not obtained, the order was illegal. I have looked into the order. It appears that the same day the permission was granted by the Sub-Divisional Officer, Koil, for entering into the exchange. In this connection the relevant statutory provision is set out below :- " Section 161. Exchange (1) A bhumidhar or Sirdar may exchange :- (a) any other bhumidhar or sirdar land held by him, or (b) any Gaon Sabha or local authority lands for the time being vested in 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 in exchange. "
(3.) FROM the aforesaid provision it is clear that the proviso lays down that the permission of the Assistant Collector has to be obtained. It does not provide that permission should be previously obtained. It may be recalled that under similar situation under section 5 (1) (c) (i) (ii) of U. P. Consolidation of Holdings Act where the permission of the Settlement Officer Consolidation was to be obtained for making sale, gift or exchange it has been specifically provided that permission should be previously obtained. It is better that the relevant provision is set out below ; - " 5 (1) (c) (i) (ii). Notwithstanding anything contained in the UP ZA and LR Act, 1950, no tenure-holder, except with the permission in writing of the Settlement Officer, Consolidation, previously obtained shall- (i) use his holdings or any part thereof for purposes not connected with agriculture, horticulture or animal husbandry including pisciculture and poultry farming, or (ii) transfer by way of sale, gift or exchange his holding or any part thereof the consolidation area ". It is accordingly clear that in connection of a sale deed or exchange to be executed or entered in during consolidation operation, the legislature was conscious to make the provision that the permission of the Settlement Officer Consolidation should be previously obtained. Similarly in the present context under the UP ZA and LR Act, if the Legislature intended that the permission should be previsously obtained, there should have been specific provision for the same, but there is no such provision. The function of the court is not to read in between the lines and to substitute words which have not been provided by the legislature. Solemn function of the court is to interpret the law as it is and not as it ought to be. In the instant case I am afraid there is no provision that the premission of the Assistant Collector should be previously obtained and thereafter the exchange should be made. Hence the first contention of the learned counsel for the petitioner has no substance. The learned counsel has next contended that since the petitioners' father, Ram Swarup, has made an application on 16-8-1974 (annexure 3 to the writ petition) hence the Sub-Divisional Officer was bound to pass an order that the application for exchange may be dismissed. In this connection the learned counsel has placed reliance on Bijayananda Patnaik v. Satrughana Sahu, AIR 1963 SC 1566. But in that case the facts were entirely different and the case is distinguishable. In that case the power of the High Court under section 116-A (2) of the Representation of Peoples Act, 1951, was considered. It is well known that the election petition is filed by the petitioner alone and not by the respondent whereas an application for exchange as contemplated under section 161 of the Act is filed by both the parties, the petitioner and the respondent. In reference of section 116-A (2) of the Representation of the Peoples Act, 1951 their Lordships of the Supreme Court held that where an application for unconditional withdrawal of an appeal has been filed, the High Court is to allow such withdrawal and it cannot say that it will not permit the appeal to be withdrawn. Reference was made to Order 23, rule 1 and section 107 CPC and the powers of the court specified therein were indicated. But in the instant case the facts are entirely different. No exchange can be made unless the application is made by the petitioners and the respondents or in other words by the plaintiff and the defendant and mind of both the parties should coincide and meet at one point before an order can be passed and once that has happened and later on that was strengthened by the statement of the parties before the Naib Tahsildar when they admitted that they have made an application and they want that the exchange may be permitted. Hence there was no occasion that simply because the petitioners' father has made an application for withdrawal of the application for exchange, that could be allowed. This point was urged before the Board of Revenue also and under para 6 of the order of the Board of Revenue (annexure 6, on page 28 of the paper book) this argument has been discussed and the Board of Revenue has held that the Naib Tahsildar has made an enquiry into the application of both the parties and even witnesses were examined. Ram Swarup, the father of the petitioners was also examined. The statements of the witnesses were on the record and in case any fraud would have been committed the petitioners' father should have pointed it out then and there. Cosidering these facts the Board of Revenue has held that the objection of the petitioner's father was frivolous and hence it has been correctly rejected.;