Ajay Kumar Gupta And 3 Othrs. vs Board Of Revenue, U.P. At Lucknow ...
2017 Latest Caselaw 7163 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

A.F.R.
 
Reserved
 
Court No. - 30
 
Case :- WRIT - B No. - 41206 of 2017
 
Petitioner :- Ajay Kumar Gupta And 3 Othrs.
 
Respondent :- Board Of Revenue, U.P. At Lucknow And 4 Othrs.
 
Counsel for Petitioner :- Vinod Kumar Singh,Manvendra Nath Singh
 
Counsel for Respondent :- C.S.C.
 

 
Hon'ble Vivek Kumar Birla, J.

1. Heard Sri W.H. Khan, learned Senior Advocate assisted by Sri Vinod Kumar Singh and Sri Manvendra Nath Singh, learned counsels for the petitioners and Sri Rajesh Kumar Singh, learned Standing Counsel appearing for the respondents no. 1, 2, 3 and 4 and perused the record.

2. The present petition has been filed by four petitioners through their registered power of attorney holder Mohammad Aslam seeking a writ of certiorari quashing the impugned order dated 25.8.2017 passed by the respondent no. 1-Board of Revenue, U.P. at Lucknow in Revision No. 130 of 2002-03 (National Sugar Institute vs. Ajay Kumar Gupta and others). It is further prayed in the nature of mandamus directing the respondent no. 3-Tehsildar, Sadar, District Kanpur Nagar to decide the Mutation Application No. 540 of 2001-02 (Ajay Kumar Gupta and others vs. National Sugar Institute) pending before him within a stipulated period.

3. Facts, in brief, are that the petitioners through their power of attorney holder Mohammad Aslam filed an application supported by an affidavit on 25.2.2002 under Sections 34 and 35 of the U.P. Land Revenue Act (apparently wrongly mentioned as U.P. Z.A. & L.R. Act) for mutation of their names on arazi nos. 645, 655, 656, 657, 669, 670, 671, 672 and 673 before the Tehsildar, Sadar, Kanpur Nagar on the ground that they have purchased the land in question through sale deeds executed from the years 1957 to 1959, copies whereof were annexed along with the affidavit filed in support of the application. From perusal of the record, it appears that these sale deeds were executed on 17.4.1956, 17.4.1957, 22.4.1957, 18.12.1958 and 13.2.1959. The aforesaid application was allowed by the Tehsildar on 12.4.2002. It may be noticed that the aforesaid application was filed after about 43 years from the date of execution of the last sale deed. In the order, it has been noticed that due process was taken to serve the respondent no. 5-Natonal Sugar Institute, Kalyanpur, Kanpur Nagar (hereinafter referred to as the 'N.S.I.') and from 4.8.2002 to 12.4.2002 (i.e. within a period of four days), N.S.I. was thrice granted time to file objections, however no objection was filed to the mutation application, therefore, the name of N.S.I. was deleted from the record and names of the petitioners were directed to be recorded. Further, perusal of the order indicates that the sale deed was executed by the private parties and the record also reflects that the land in fact had been acquired for N.S.I. and name of the N.S.I. had already been mutated in place of private land holders. The N.S.I. filed a restoration application before the Tehsildar for recalling the order dated 12.4.2002 and the Tehsildar vide order dated 20.4.2002 recalled its earlier order dated 12.4.2002 and issued notices to the parties as objections have already been received by him. The aforesaid order of the Tehsildar dated 20.4.2002 was challenged by the petitioners by filing revision before the respondent no. 2-Additional Commissioner (Administration), Kanpur Division, Kanpur under Section 219 of the UP Land Revenue Act. The said revision was allowed by the respondent no. 2 vide order dated 2.12.2002 and the order of the Tehsildar dated 20.4.2002 was set aside and his earlier ex-parte order dated 12.4.2002 was restored. The aforesaid order dated 2.12.2002 passed by the respondent no. 2 was challenged by the N.S.I. before the Board of Revenue, UP, Lucknow (respondent no. 1). The aforesaid revision was allowed vide order dated 25.8.2017, which is under challenge in the present petition.

4. At the very outset, a preliminary objection has been taken by the learned Standing Counsel that the present petition is arising out of mutation proceedings and therefore, the present petition is not maintainable. In support of his arguments, he has placed reliance on the judgements of this Court in the case of Ram Chandra vs. Board of Revenue U.P. At Lucknow, 2013 Law Suit (All) 707; Vibhuti Narayan Singh and 2 others vs. State of U.P. and 6 others (passed by this Court in Writ-B No. 50844 of 2015 vide order dated 8.9.2016); Smt. Somati and another vs. State of U.P. and others, 2011 (5) ADJ 838; Narendra Singh vs. Smt. Leela Mathur and others, 2004 (97) RD 642; Tulsi Ram and others vs. Addl. Commissioner (Judicial), Lucknow and others, 2016 (131) RD 361; Mahavir vs. Board of Revenue and others, 2002 (93) RD 882; and Smt. Durgawati vs. Additional Commissioner, Azamgarh Division, Azamgarh and others, 2006 (2) ADJ 271 (All).

5. In reply, Sri W.H. Khan, learned Senior Counsel for the petitioners has submitted that the order dated 20.4.2002 was passed without hearing the petitioners and therefore, the present petition would be maintainable. Sri W.H. Khan, learned Senior Counsel further submitted that by the impugned order, the Board of Revenue has further directed for lodging of first information report against the then officials including the Tehsildar and present petitioners as well as the power of attorney holder Mohammad Aslam and has also recommended departmental enquiry against the officials of the revenue department and to that extent the cases are liable to be considered by this Court. In support of his arguments, he has placed reliance on a judgement of Hon'ble Apex Court in the case of K.P. Tiwari vs. State of M.P., AIR 1994 SC 1031.

6. Per contra, learned Standing Counsel has submitted that the order is well within the jurisdiction of the respondent no. 1-Board of Revenue, which has been passed after appreciating the record of the case and the respondent no. 1 has come to the conclusion that such action is liable to be taken and as such, no interference is warranted by this Court at the instance of petitioners by this Court and there is no reason to hold the petition maintainable.

7. I have considered the rival submissions and perused the record.

8. From perusal of the record, I find that the claim of the petitioners is based on allegations that N.S.I. (respondent no. 5 herein) vide letter dated 27.12.1997 has relinquished its rights over the land in dispute and the Collector, Kanpur has also written to the Secretary, Industries Department, Lucknow to this effect. A copy of the letter dated 7.7.1959 written by the Director of the N.S.I. to Up-Sachiv, Industries Department, UP Govt. Lucknow has been placed as Annexure No. 4 to the present petition, on the basis whereof it is being claimed that N.S.I. has relinquished its right over the land in question and therefore, the name of the petitioners was liable to be mutated and therefore, the observation to this extent is being challenged.

9. A perusal of the aforesaid letters clearly indicate that even the award under the land acquisition proceedings had been passed, which must have been given effect to because as observed in the impugned order of the Board of Revenue, rights were never finally relinquished by N.S.I. over the land in question and it is only a permission that was sought from the UP Govt. to relinquish the same. Record nowhere indicates that this permission was ever granted to the N.S.I. Further, the petitioners, who were alleged owners, never came forward for such mutation proceedings for more than 43 years of the alleged sale deeds (for obvious reasons as the alleged sale deeds could not even have been executed in their favour), which have till date not been proved before any Court of Law and mutation application was filed through power of attorney holder only. In the application for mutation and the affidavit filed therewith not a single word has been averred for such huge inordinate delay. The manner in which mutation application was allowed within a period of four days, which was filed after about 43 years, raised suspicion which has already been appreciated by the Board of Revenue. Apart from that, perusal of the letters from N.S.I., as already referred to above, also indicates that the land had already been acquired and was in possession of the N.S.I. and as such, it is not understandable as to how the erstwhile land owners, whose land was acquired as already noticed, could have executed such sale deeds in favour of the petitioners. Even the mutation order also refers the names of the private individuals who have allegedly executed the sale deed in favour of the petitioners and used the word 'badahu' (thereafter) N.S.I. Thus, it is apparent on the face of record that earlier names of private land owners were existing on revenue record, which had already been substituted with the name of N.S.I. and the categorical case of the N.S.I. in the revision filed before the Board of Revenue was that the mutation in favour of the N.S.I. had already taken place pursuant to the notification under Sections 4 and 6 of the Land Acquisition Act prior to execution of the alleged sale deeds in favour of the petitioners and the land was in possession of N.S.I. since June, 1957. The manner in which the order dated 12.4.2002 was passed by the then Tehsildar, has been challenged by giving specific details of each date (paragraph 5 of the revision, which is annexure 10 to the writ petition). The Board of Revenue has also noticed the fact that the mutation was applied after about 45 years and even though there may not be any limitation provided under Section 34 of the Land Revenue Act, such inordinate delay raised suspicion in view of the law laid down by Hon'ble Apex Court in the case of Brijesh Kumar and others vs. State of Haryana and others, (2014) 11 SCC 351 whereby it was held that there is difference between delay and inordinate delay and such delay can not be condoned on misplaced sympathy.

10. Thus, the ruling relied on by the learned counsel for the petitioners is not applicable in the present case.

11. I have considered the question of maintainability of the petition arising out of the proceedings under Section 34 of the U.P. Land Revenue Act in Gaj Ram vs. State of U.P. & 5 others, 2017 (11) ADJ 206 and have refused to entertain the petition vide judgement and order dated 6.9.2017. There is no doubt that there may be certain circumstances that present petition can be entertained, however since the proceedings under Section 34 of the U.P. Land Revenue Act are summary in nature, therefore, it is only under exceptional circumstances the writ petition can be entertained. In the present case, the admitted position is that the petitioners are claiming that they have purchased the land in dispute from the years 1957 to 1959 and mutation application has been filed in the year 2002 only through a power of attorney, which was allowed within a period of four days from the date of appearance of N.S.I. (respondent no. 5 herein) ex-parte. Record reflects that alleged sale deeds were allegedly executed by the alleged private land owners after the land had already been acquired from N.S.I. And possession was delivered to N.S.I. and award had also been given. Further, the power of attorney is coming forward from mutation after almost 45 years. In such circumstances, the law laid down by Hon'ble Division Bench in Jaipal (minor) vs. Board of Revenue, UP & others, 1956 ALJ 807 clearly applies. Relevant extract is quoted as under:

"'The contention of learned counsel for the petitioner is that the Board of Revenue in passing this order exceeded its jurisdiction. 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 the U. P. Zamindari Abolition and Land Reforms Act. This petition does not fall in that class and we think, therefore, this Court should not entertain it. It is accordingly dismissed with costs." (Emphasis supplied)

Paragraph 5 of Puran Singh vs. Board of Revenue, 2004 (1) AWC 853 is also quoted as under:

"5. 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 has 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 categorised as thus :

(i) if the order is without jurisdiction ;

(ii) if the rights and title of the parties has 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 claim."

12. Moreover, the N.S.I. claims to be in possession over the land in question. Mutation orders under Section 34 of the Land Revenue Act are in reference only to possession as observed in the case of Jaipal (supra) wherein it has been laid down that record is primarily maintained for revenue purpose and an entry therein has reference only to possession. The mutation order in favour of petitioner was without any finding regarding their possession and therefore, this finding is illegal.

13. Thus, there appears no exceptional circumstances in the present case to entertain the present petition.

14. In such view of the matter, I do not find any legal infirmity in the observations that have been made in the impugned order.

15. In the totality of the circumstances, I find no exceptional ground to hold the petition maintainable and hence, in view of the discussions made hereinabove, the present petition cannot be entertained and is accordingly dismissed.

16. Office is directed to supply certified copy of this order to learned Standing Counsel within 7 days for communication to the National Sugar Institute and to the Collector, Kanpur Nagar as well as to the Board of Revenue.

17. No order as to costs.

Order Date :- 21.11.2017

Abhishek