BAHORI LAL Vs. BOARD OF REVENUE U P

JUDGEMENT

(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.

(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 ; -