Smt. Somati & Another vs State Of U.P. & Others
2011 Latest Caselaw 900 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

?Court No. - 6
 

 
Case :- WRIT - C No. - 16575 of 2011
 

 
Petitioner :- Smt. Somati & Another
 
Respondent :- State Of U.P. & Others
 
Petitioner Counsel :- Raj Kumar
 
Respondent Counsel :- C.S.C.
 

 
Hon'ble Rajiv Sharma,J.

Heard learned counsel for the parties.

Counsel for the petitioner submits that when the petitioner came to know that on the basis of sale deed executed by Sadhana Sahakari Samiti, the respondent no.5 and 6 got their names mutated in the revenue record through an ex-parte order dated 9.12.1996, they moved an application for recall of the ex-parte order dated 9.12.1996 as well as order dated 8.11.2000. The said application was allowed vide order dated 30.1.2006. Respondent no. 5 and 6 preferred a Appeal before the Sub Divisional Magistrate, which was dismissed vide order dated 30.5.2006. Thereafter aforesaid respondents filed a revision, which was also allowed vide order dated dated 26.11.2010. Feeling aggrieved by the said order, the petitioner filed a revision before the Board of Revenue but the same was dismissed.

Counsel for the contesting respondents raised a preliminary objection that the present writ petition is not maintainable since it relates to mutation proceedings.

Under these circumstances, the primary question to be decided is as to whether the writ petition arising out of mutation proceedings under Section 34 of Land Revenue Act is maintainable or not.

It is settled law that the writ petition arising out of the proceedings under Section 34 of the Land Revenue Act, 1901 is not maintainable as the proceedings are summary in nature. Both the Court below have passed order against the petitioner. Counsel for the petitioner contends that his case falls in the exception carved out by this Court in number of judgments in which it has been held that the writ petition can be entertained subject to the availability of the remedy to the party aggrieved as the property in dispute was auctioned during the pendency of the original suit. He further submits there is no absolute bar to interfere with the mutation order in appropriate cases.

The question whether the writ petition in such matter is maintainable or not has been examined in various cases. In Puran Singh vs. Board of Revenue and others 2004(1) AWC 853 while formulating the categories, observed as under in paragraph 5 of the report:

" After hearing the arguments, the Court has examined the matter. Needless to say that decision given in the case of Lal Bachan (supra) relied upon by the counsel for the petitioner has also laid down that ordinarily orders passed by mutation courts are not to be interfered as they are in summary proceedings, subject to regular suit. Exceptions have been carved out in various decisions of this Court including the decision in the case of Lal Bachan (supra) and even the decisions as has been given in the case of Ram Kumar (supra), on which the reliance has been placed by the learned counsel for the respondent which can be categorized as thus:

(i) if the order is without jurisdiction;

(ii) if the rights and title of the parties have already been decided by any competent court and that had been varied by mutation courts;

(iii) if the mutation had been directed not on the basis of possession or simply on the basis of some title deed but after entering into debate of entitlement to succeed the property touching into merits of rival claims."

In Jailpal vs. Board of Revenue 1957 AIR All. 205, the learned Single Judge of this Court while dismissing the writ petition observed that it has however been the consistent practice of this Court not to interfere with orders made by the Board of Revenue in cases in which the only question at issue is whether the name of the petitioner should be entered in the record of rights. That record is primarily maintained for revenue purposes and an entry therein has reference only to possession. Such an entry does not ordinarily confer upon the person in whose favour it is made any title to the property in question, and his right to establish his title thereto is expressly reserved by Section 40(3) of the Act. The only exception to this general rule is in those cases in which the entry itself confers a title on the petitioner by virtue of the provisions of U.P.Zamindari Abolition and Land Reforms Act.

As averred above, mutation proceedings doe not decide the right or title of the parties rather these proceedings are just fiscal in nature. They have just got legal effect of entering name of vendee in place of the vendor or the name of lessee in place of lessor. These mutation proceedings are to enable the State to receive revenue from vendee. [See: Ram Bharose Lal vs. State of U.P. and others 1991 RD 72 and Smt. Queeni Banerji and another vs. Board of Revenue 1997(15) LCD 1182].

In the case of Sri Lal Bachan v. Board of Revenue, Uttar Pradesh [2002 AWC 1-169], this Court held in paragraph 22 as under:-

"22. The cases in which writ petition can also be entertained arising out of the mutation proceedings may be cases in which an authority not having jurisdiction has passed an order or interfered with an order passed in the proceedings. The writ petition challenging an order passed without jurisdiction can be entertained by the Court despite availability of an alternative remedy. However, in that case also, the Court will interfere only when it appears that substantial injustice has been suffered by a party. In view of the above discussion, it is held that the writ petition arising out of the mutation proceedings under Section 34 U. P. Land Revenue Act cannot be entertained by this Court subject to only exception as laid down by the Division Bench in Jaipal's case (supra). The writ petition may also be entertained where authority passing the order had no jurisdiction."

In Sridhar Tripathi vs. Board of Revenue; 1996 RD 100 on which reliance has been placed by the Counsel for the petitioner, is of no avail to him as in that case this Court held that the writ petition is maintainable for the reason it was not a pure and simple case of mutating the name of the respondent no.3 on the basis of the sale deed, but the opposite party no.3 claimed to get his name mutated on the basis of mutation order in 1968 made by the Consolidation Authorities in proceedings under Section 12 of U.P.C.H.Act. Under these circumstances, the learned Single Judge observed that these facts makes a sea of difference and cannot be said to be a simple case of mutation.

However, it may be added that in the cases where the order of mutation has been obtained by fraud or misrepresentation of fact or by fabricating the documents, the writ petition cannot be dismissed on the ground of it being not maintainable. The Court cannot shut its eyes and be a party in perpetuating injustice.

In the instant case, the entire proceedings under Section 34 of the L.R.Act were initiated first and second set of respondents to get their names entered on account of unregistered Will Deed dated 10.9.1994 by filing the case no. 399/98 whereas Smt. Kudia died on 17.8.2007. From the record, it appears that first set and second set of the respondents got the revision decided in terms of the compromise. The order in revision was passed behind the back of the petitioners as the petitioners were not arrayed party, though they were necessary party. Thus it comes out that some fraud has been played upon the Court.After hearing learned Counsel for the parties and perusing the impugned orders, for reasons discussed above, the writ petition falls in the exceptions clause, which accordingly is allowed. The impugned order dated 15.11.2010 passed by Additional commissioner(Administration) Moradabad Division, Moradabad is hereby set-aside. The respondent no.2 is directed to decide the Revision No. 160 of 2009-2010 afresh after giving reasonable opportunity of hearing to the petitioners in accordance with law. It will be open to the parties to file any document in support of their case.

Order Date :- 6.4.2011

HM