 Sec 100 mortgage by members of schedule caste and schedule

tribes: this section is to be read with sec 91 and 93 of the code which
provides that no B shall have the right to mortgage any holding or its
part where possession of the mortgaged property is transferred or
agreed to be transferred to the mortgagee as a security of loan.
 Further sec 93says that if any bhumidhar transfers possession of any
holding as a security of loan it shall be deemed to be a sale. Thus a
bhumidhar or an asami belonging to ST or SC cannot mortgage his
SECTION 100 holding or part of it with possession as such mortgage will amount to
sale.
 Exception a B or A of a SC and ST can mortgage his holdings or part
of it without possession as a security for a loan taken or to be taken
from: state govt, cooperative society, u.p. state anglo industrial
corporation ltd, any other financial institution owned or controlled
by govt.
 It is to be noted that sec 100 expressly prohibits mortgage with
possession
  Exchange: sec 101 exchange here means transfer of a piece of land with
another piece of land. Sec 101 and 102 of the code provide provisions as
to exchange. The corresponding provision has been provided under sec
161 of the repealed act. A bhumidhar may exchange land of any other
bhumidhar, gram panchayat, a local authority.
 Conditions of exchange: any exchange of land with another land under
the code can be made with the prior permission in writing of the sub
divisional officer. This sec does not empower any person to exchange his
undivided interest in any holding . but exchange between two or more
Exchange co sharers can be allowed. No provisions of registration act 1908 shall
apoply to an exchange made under this section.
 Procedure of obtaining permission:
 Application for permission:
 Exchange between bhumidhars: rule 100 provides that an application
for permission for exchange is to be made stating the required
particulars as required under sub rule 1a to h accompanied with certified
copies of khatauni of the plots to be given and received in exchange.
 Rule 101 provided for exchange of land from gram sabha or local
authority. This sec provides that an application for permission for
exchange is to be made stating the required particulars.
 On receipt of application SDO shall issue notice to B OR THE GS
concerned to show cause why the permission for exchange should not be
granted.
 SDO shall cause to be calculated the market value of both the lands given
and received in exchange and may also hear the lessees, mortgagees and
other holders of the encumbrances if any;
 After such inquiry if the SDO is satisfied that the parties are agreeable
with their consent then he shall grant permission and direct the ROR to
be corrected accordingly.
 When the permission for exchange shall not be granted:
 Sec 101 (2): when the permission for exchange shall not be granted: for
exchange the foremost requirement is the consent of the parties to the
respective exchange. But in the following conditions the exchange shall
not be granted inspite of the consent of the parties.
 If the proposed exchange is not for securing the convenience in
cultivation or for the consolidation of holdings.
 If the difference between the valuation of lands given and received
in exchange exceeds 10 percent of the lower valuation. The
valuation is to be calculated as prescribed in rule 102(2) on the
market rate of the lands which are to be exchanged.
 If the difference in area of the land given and received in exchange
exceeds 25 percent of lesser area.
 If the land to be exchanged is reserved for planned use or is the
land in which bhumidhari rights do not accrue.
 If the land is not located in the same or adjacent village of the
same tehsil.
 Exchange of land in which bhumidhari rights do not accrue:
 There is an exception to the general rule that the exchange cannot
be made with the land in which bhumidhari right do not accrue or
the land is reserved for any planned use. It can be made with the
permission of the state govt in public interest.
 Thus where an application relates to exchange of the land referred
to in sec 101(1)b and is reserved for planned use or is the land in
which bhumidhari rights do not accrue as mentioned in sec 77 of
the code according to the proviso of sec 101(2) read with rule
102(4) the state govt may permit the exchange for such land in
public interest.
 For example:
 Effect of the order of exchange :where the assistant collector first
class permits exchange he shall also order to correct the relevant
annual registers accordingly. On exchange the tenure holder shall
have the same rights in the land so received in exchange as they
had in the land given in exchange. But the land revenue of the
plots exchanged shall remain unchanged. Against the order of the
asst collector first class revision may lie to the commissioner or to
board of revenue.
 There are some leading cases which explains some aspects of
exchange.
 Raghubar v.commissioner, 1997
 
 Nain raj v utpatti, 1998
 In this case civil suit regarding the title was already pending and under criminal
proceeding under sec 145 crpc land was attached and handed over to the
supurdgar and concealing these facts land was exchanged under sec 161 of the
act the attachment order was challenged in criminal jurisdiction before the High
Court. The court allowing the criminal revision directed the land will remain in
the custody of the supurdgar till the decision of the civil suit and exchange order
being based on fraud is illegal and effectless.
 In a worth noted case of Gangotri Singh v. Gaon Sabha 1992, an application
was filled by Gangotri singh under sec 161 of UPZALRA seeking exchange of
certain lands belonging to himself with other land belonging to Gram Sabha. He
claimed that the previous collector of Mirzapur had given him an assurance that
he would be given the land in lieu of his own plot which he had permitted to be
used for the purpose of construction of harijan abadi. The gaon sabha contested
the application that no resolution of the LMC has been passed regarding the
exchange of gaon sabha land. The incharge of sub division passed the order
approving the exchange. The additional commissioner in appeal set aside the
order of lower court. Board of revenue also approved his decision and held that
there is legally no exchange unless both the parties are agreed to exchange.
 And prior permission of Ast Collector first class is important.
 102 Consequences of exchange.- Where an exchange is made in accordance with
section 101-
 the parties to the exchange shall have the same rights in the land received in
exchange as they had in the land given;
 the Sub-Divisional officer shall order the record of rights (Khatauni) to be corrected
accordingly; and
 the amount of land revenue assessed, payable or deemed to be payable for the land
so exchanged shall not be affected thereby.
 103 Effect of lease in contravention of this Code.- Where a bhumidhar has let out
his holding or any part thereof in contravention of section 94, section 95, section 96
or section 99, the lessee shall, notwithstanding anything contained in any law or
contract or document of lease, become and be deemed to be-
 Where the total area of the land held by him, together with the land held by his

family, including the land let out to him and any member of his family, does not
exceed 5.0586 hectares in Uttar Pradesh, bhumidhar with non-transferable rights
thereof; and
 where the total area as aforesaid exceeds 5.0586 hectares, a purchaser thereof,
and the provisions of section 89 shall, apply thereto.
 104 Transfer in contravention of this Code to be void.- Except as provided in section
103, every transfer of interest in any holding or part thereof made by a bhumidhar or any
asami in contravention of the provisions of this Code shall be void.
 105 Consequences of transfer by bhumidhar in contravention of the Code.- (1) Where
transfer of interest in any holding or part made by a bhumidhar is void under section 104,
the following consequences shall, with effect from the date of such transfer, ensue,
namely:-
 the subject matter of such transfer shall vest in the State Government free from all
encumbrances;
 the trees, crops, wells and other improvements, existing on such holding or part shall
vest in the State Government free from all encumbrances;
 the interests of the transferor and the transferee in the properties specified in clauses (a)
and (b) shall stand extinguished;
 the extinction of interest of the transferor under clause (c) shall operate to extinguish the
interest of any asami holding under him.
 (2) Where any land or other property has vested in the State Government under sub-
section (1), it shall be lawful for the Collector to take over possession of such land and
other property, and to direct that any person occupying such land or property be evicted
there from, and for that purpose, the Collector may use or cause to be used such force as
may be necessary and the provisions of section 59 mutatis mutandis shall apply to such
property.
 106 Consequences of transfer made by asami in contravention
of this Code.-Where transfer of interest in any holding or part
made by an asami is void

under section 104, such asami shall be liable to ejectment on the
suit of the Gram Panchayat or other land holder, as the case may
be, in accordance with the provisions of this Code.