Ritesh Motwani And Another vs State Of U.P. Thru ...
2017 Latest Caselaw 3815 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 

AFR
 
Court No. - 4
 

 
Case :- MISC. SINGLE No. - 20157 of 2017
 

 
Petitioner :- Ritesh Motwani And Another
 
Respondent :- State Of U.P. Thru Prin.Secy.Deptt.Revenue Lucknow And Ors.
 
Counsel for Petitioner :- Sagheer Hasan,Sameer Kalia
 
Counsel for Respondent :- C.S.C.
 

 
Hon'ble Rajan Roy,J.

Heard learned counsel for the petitioners and learned Additional Chief Standing Counsel for the State.

This writ petition has been filed under Article 226 of the Constitution of India seeking a writ of certiorari for quashing the order dated 24.06.2017 passed by the S.D.M. concerned in proceedings under Sections 33/39 of the Land Revenue Act, 1901 (in short 'Act, 1901') at the behest of the petitioners herein for correction of records in respect of Gata No. 6 and 23, as also the revisional order dated 09.08.2017 passed by the Commissioner, Faizabad under Section 210 of the U.P. Revenue Code, 2006.

The facts material to the case are that the petitioners proposed to purchase the land in question from opposite party no.4 on the basis of entries in the revenue records in respect of the said land in Khatauni pertaining to 1396 Fasli - 1401 Fasli in his favour. However, in this process they detected that in the Khatauni for the period 1402 Fasli - 1407 Fasli pertaining to the same land, the name of opposite party no. 5 was recorded, therefore, after collecting relevant information they, alongwith the opposite party no. 4, filed an application dated 29.06.2015 under Section 33/39 of the Act, 1901 for correction of the said records alleging the entries in favour of opposite party no. 5 to be fake and fraudulent and praying that the name of opposite party no. 4 herein (applicant no. 3 before the S.D.M.) Jagdish Pal Maurya be recorded in place of opposite party no. 5 i.e. Prem Chandra. In the interregnum, the opposite party no. 4 entered into an agreement to sell the land in question with the petitioners and got it registered on 06.04.2015. The said agreement specifically mentions that possession was not being handed over to the petitioners herein. On enquiry the S.D.M. found the entry in favour of opposite party no. 4 and the entry in favour of opposite party no. 5, both to be of doubtful veracity. Therefore, he did not accept the claim of the applicants for entering the name of opposite party no. 4 in the revenue records, and their application was rejected with consequential direction to the Tehsildar to examine the points mentioned in his order and also the records and submit a report to his Court for correction of records.

Against this order of the S.D.M., the petitioners who were neither recorded in the revenue records in respect of the land in question at any time nor have any claim to get their names recorded as they have neither purchased the same as yet nor have succeeded to the holding but have only entered into an agreement to sell executed by the opposite party no. 4, whose entitlement to be recorded in respect of the land in question in the revenue records itself has been found to be untenable, filed a revision before the Commissioner without the opposite party no. 4 joining them in such a revision though he was co-applicant with them before the S.D.M. The Commissioner has considered the application for interim relief filed by the petitioners in the said revision for staying the order of the S.D.M and has rejected it vide order dated 09.08.2017. This order has been challenged in this writ petition but while doing so the petitioners have also challenged the original order of the S.D.M. against which the revision is still pending.

A pointed query was put to the learned counsel for the petitioner as to whether he wanted an adjudication on the merits of the order of the S.D.M. also by this Court when the revision is still pending before the Commissioner or would like to pursue the revision before him, as, in the event of passing of an order on merits, this Court would have to touch the question of locus of the petitioners not only before the S.D.M. but also before the revisional court which in fact has also been touched by the revisional court in its order dated 09.08.2017 impugned herein, though not in so many words, learned counsel for the petitioners stated that the Court may pass such order as it proposes to pass. In view of this and also as the petitioners have also challenged the order of the S.D.M. dated 26.06.2017 in these proceedings and have chosen to obtain a decision from this Court, the first and foremost question to be seen is their locus standi to seek correction under Section 33/ 39 of the Act, 1901 and thereafter to maintain a revision before the revisional court as in its absence the Court would not be able to consider the other issues involved.

Learned counsel for the petitioners also contended that now after passing of the order of the S.D.M. on 24.06.2017 the opposite party no. 4 had not challenged the same, therefore, it is left to the petitioners to do so accordingly. They have filed a revision against such order but the revisional court arbitrarily rejected the application for interim relief on the erroneous premise that final orders have not yet been passed by the S.D.M. whereas the rights of the petitioners and those of opposite party no. 4 and 5 have already been determined once he has held the entries in respect of opposite party no. 4 and 5 to be unreliable, fraudulent and fake.

On being asked as to what was the locus of the petitioners to maintain an application for correction of records under Section 33/39 of the Act, 1901 based on a mere agreement to sell specially when the said agreement mentions that possession is not being handed over to the petitioners and also in view of the fact that the entries which are in dispute are of the year 1991 and 1994 whereas the agreement is of recent origin, i.e., 06.04.2015, learned counsel for the petitioners asserted that the name of the opposite party no. 5 was fraudulently entered in the Khataunis pertaining to 1402 Fasli-1407 Fasli without there being any order of any competent court in this regard, therefore it is the name of opposite party no. 4 which was recorded in the earlier Khatauni pertaining to 1396 Fasli -1401 Fasli which should be restored and the records should be corrected accordingly. It is also contended that the petitioners intending to purchase the land in question from the opposite party no. 4 have a right to seek such correction in the revenue records.

Learned counsel for the petitioners seems to have missed the woods for the trees as first of all their right to seek correction of the revenue records in respect of the land in question has to be seen.

Sri Dilip Kumar Pandey, learned Additional Chief Standing Counsel contends that as of now as regards the initiation of proceedings under Section 33/39 of the Act, 1901, no right had accrued in favour of the petitioners to seek correction of the records, viz., the records of rights contained in the annual register, merely on the basis of agreement to sell.

On a perusal of the application for correction of revenue records filed by the petitioners jointly with the opposite party no. 4 it is found that the correction prayed for therein was the deletion of the name of opposite party no. 5 herein and entry of the name of opposite party no.4. It is obvious as the petitioners herein not having a substantial right at the said moment could not have sought the recording of their names but had only joined the opposite party no. 4 in view of their intention to purchase the said land even though stricto sensu they did not have any locus in this regard as would be evident from the reasons mentioned herein.

An agreement to sell does not create any right or title in favour of an intending buyer is the settled legal position as held in the case of Meghmala & others versus G. Narasimha Reddy & others reported in (2010) 8 SCC 383. In the case of Suraj Lamp & Industries Pvt. Ltd. versus State of Haryana reported in JT 2011 (12) S.C. 654, it has been held that transfer of immovable property by way of sale can only be made by a deed of conveyance. In the absence of such deed right, title or interest in immovable property cannot be said to have been transferred. Thus an agreement to sell does not transfer the right, title or interest in an immovable property. More so as in the present case when it contains a recital that the possession was not being transferred.

The correction of annual registers containing record of rights (Khatauni) as in this case is prescribed in Section 33(2)(b) read with Section 39 thereof. Under Sub-section (2) of Section 33 the Collector causes to be recorded in the annual register all successions and transfers in accordance with the provisions of Section 35. The case at hand is not one of succession. It is also not of transfer as an agreement to sell does not amount to transfer of the land. Even as per the inclusive definition of "transfer" as contained in the explanation to Section 34 of the Act, 1901 the said term has to be understood in the light of what is meant by transfer under the Transfer of Property Act, 1882. The term transfer of property has been defined in Section 5 of the Act, 1882 to mean an act by which a living person conveys property, in present or in future to one or more other living persons, or to himself, and to transfer property is to perform such Act. An agreement to sell is not "a sale" within the meaning of Section 54 therefore not a transfer. Rights interests and title do not transfer based on such an agreement. Moreover, the petitioners did not apply for inclusion of their name in the revenue records in terms of Sub-section (2)(a) of Section 33 read with Section 34 and 35 of the Act, 1901. Their application as already stated was only for correction. Now this correction is permissible under Clause (b) of Subsection (2) of Section 33 read with Section 39 under which a Collector is empowered to effect other changes that may take place in respect of any land, and shall also correct all errors and omissions in accordance with the provisions of Section 39; provided that the power to record a change under Clause (b) shall not be construed to include the power to decide the dispute involving any question of title. Thus, questions of title cannot be gone into such proceedings as is also mentioned in Sub-section (2) of Section 39.

On a perusal of the provisions referred herein above, the scheme of the Act, 1901, the nature of an agreement to sell, the judicial pronouncements of the Supreme Court referred herein and the facts of the case this Court finds that the petitioners were not having any locus standi to maintain an independent application for correction of the records in question in the manner prayed for in the application actually submitted by them but they joined in the application of the opposite party no. 4, who had the cause as he was earlier recorded in respect of the said land, merely on account of their intention to purchase the said land which in fact has no sanctity in law for the purposes of seeking correction in the revenue records. Once the S.D.M. found the entry in favour of the opposite party no. 4 Jagdish Pal Maurya to be unreliable and also the entry in favour of the opposite party no. 5 to be so, then it is these two parties who could have filed a revision against the said order. As pointed out by the learned counsel for the petitioners himself the opposite party no. 4 has not challenged the order of the S.D.M. and is now playing truant by not challenging the said order which prejudices the petitioners, if it is so, the same may give him a cause of action to the petitioners for maintaining civil proceedings before the civil court against the said opposite party no. 4 but this does not give them any locus standi to challenge the order of the S.D.M. passed under Section 33/39 before the revisional court as firstly they have no subsisting right in respect of the land in question nor to get themselves recorded in the revenue records in respect thereof as of now. All that they have is an agreement to sell but when the right of the opposite party no. 4 itself is suspect and the petitioners cannot claim anything beyond his right, it hardly needs to be elaborated that the petitioners could neither seek correction of the revenue records in respect of such land nor maintain revisional proceedings in respect thereof. The petitioners were never recorded tenure holders of the land in question nor are entitled as of now to be recorded. Admittedly, the opposite party no. 4 has not joined the petitioners in the revision pending before the Commissioner, therefore, in these circumstances the petitioners have absolutely no locus standi in the matter. The entry in favour of opposite party no. 4 which is in dispute is of the year 1991 and the entry in favour of opposite party no. 5 which is in dispute is of the year 1994, both these entries have been held to be unsustainable. Whether the entry of the opposite party no. 5 was fake or fraudulent or not is not for the petitioners to allege as of now.

In view of what has been held herein above the other issues raised by the petitioners that the revisional court has erred in rejecting the interim relief application on the ground that the S.D.M. had not passed the final orders and that the orders have been passed under the provisions of U.P. Revenue Code, 2006 and not under the U.P. Land Revenue Act, 1901 pale into insignificance as in the absence of locus standi it is not open for the petitioners to raise all these pleas. The revisional court has also mentioned that the petitioners are only claiming on the basis of mere agreement to sell, therefore, what has been indicated in the impugned order is that they did not have locus standi. In fact the revisional court could have disposed of the revision itself on this ground but did not do so. Nevertheless now that the petitioners have pressed on a decision on merits including on the original order of the S.D.M. dated 24.06.2017 inspite of being forewarned of the consequences which may result in the dismissal of the revision itself on the ground of absence of locus standi, all these issues as aforesaid are not required to be considered suffice it to say that the opposite parties who had passed the impugned order are the same who are empowered under the Land Revenue Act, 1901 to do so and the scope of the provisions is also the same, therefore, it cannot be said that they have acted without jurisdiction or in excess of it as mere mentioning of a wrong provision itself is not sufficient to invalidate any order if the exercise of power can be traced to other provisions as in this case. The revision of the petitioners in fact was filed by them under the U.P. Revenue Code, 2006.

In this view of the matter, the writ petition of the petitioners is not maintainable and is dismissed. As the petitioners do not have any locus standi in the matter therefore, there is no reason why the revisional proceedings should be allowed to continue before the Commissioner, therefore, the same are also quashed but without prejudice to the rights of opposite parties no. 4 and 5 to challenge the order of the S.D.M.

This order shall however not come in the way of the petitioners in initiating any proceedings against the opposite party no. 4 for claiming suitable relief based on the agreement to sell if the same is permissible in law, subject of course to the observations made herein above.

The Standing Counsel shall communicate this order to the revisional court as also to the S.D.M. concerned who shall now proceed in accordance with his order dated 24.06.2017 as per law.

 
Order Date :- 30.8.2017
 
Akanksha						(Rajan Roy,J.)