Gaj Ram vs State Of U.P. & 5 Others
2017 Latest Caselaw 4018 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

?AFR
 
Court No. - 7
 

 
Case :- WRIT - B No. - 26157 of 2017
 

 
Petitioner :- Gaj Ram
 
Respondent :- State Of U.P. & 5 Others
 
Counsel for Petitioner :- Munesh Kumar,Ashish Kumar
 
Counsel for Respondent :- C.S.C.,Girish Tiwari
 

 
Hon'ble Vivek Kumar Birla,J.

Heard Sri Munesh Kumar, learned counsel for the petitioner, learned Standing Counsel appearing for the respondent nos. 1, 2, 3 and 5 and Sri Girish Tiwari, learned counsel appearing for the respondent no. 4.

Present petition has been filed for quashing of the order dated 27.4.2001 passed by Naib Tehsildar, Bilari, Moradabad and order dated 26.3.2002 passed by respondent no. 3-Sub Divisional Magistrate / Assistant Collector-1st Class, Bilari, Moradabad and order dated 16.1.2017 passed by Board of Revenue U.P. at Lucknow.

A preliminary objection has been raised regarding maintainability of the writ petition that the present writ petition arises out of proceedings under Section 34 of the U.P. Land Revenue Act and as such this writ petition would not be maintainable. Reliance was placed on judgment of this Court in the case of Ram Chandra Vs. Board of Revenue U.P. at Lucknow reported in 2013 Law Suit (All) 707 and order dated 8.9.2015 passed in Writ B No. 50844 of 2015, Vibhuti Narayan Singh and 2 others Vs. State of U.P. and 6 others, relevant extract whereof is quoted as under:

"In any case the writ petition is arising out of the proceeding under Section 34 of UP Land Revenue Act and this Court has consistently taken a view that writ petition is not maintainable in such cases. He relied upon the judgments of this Court in Vishwanath and others Vs. Board of Revenue, 2004 (4) AWC, 3141, Madhav Pandey V s. Board of Revenue, 2002 (2) AWC 1311 and Bindeshwari Vs. Board of Revenue 2002 (1) AWC 498. In those cases this Court has relied upon the judgment of Division Bench in Jaipal (minor) Vs Board of Revenue, UP AIR, 1956 ALJ 807 in which it has been held that orders passed under Section 34 of UP Land Revenue Act cannot be challenged in the writ petition.

In view of the aforesaid settled view of this Court, the writ petition is dismissed on the ground of maintainability."

Learned counsel for the petitioner has placed reliance on judgments of this Court in the cases of Lal Bachan Vs. Board of Revenue, U.P. 2002 (1) AWC 169 and Puran Singh Vs. Board of Revenue 2004 (1) AWC 853 to contend that the present writ petition is maintainable and in view of the facts and circumstances of the present case the case falls within the exceptions carved out by this Court in the above noted two cases.

The law laid down by Hon'ble Division of this Court in Jaipal (supra) as noted in the extract of the judgment quoted above in paragraph 11 of Lal Bachan (supra) is quoted as under:-

"11. This Court had occasion to consider the scope and nature of proceedings under Section 34 of the Act in several decisions. The Division Bench of this Court considered the controversy in case of Jaipal Minor o. Board of Revenue, U.P., Allahabad and others. 1956 ALJ 807. The Division Bench in the aforesaid judgment held that it has been the consistent practice of the High 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. The Division Bench laid down the law in following words :

'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.'

Paragraph 5 of Puran Singh (supra), wherein exceptions have been noted, 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."

From perusal of the judgments in the cases of Lal Banchan (supra) and Puran Singh (supra) clearly indicates that apart from the exception that has been carved out in Lal Banchan (supra) the writ petition can be entertained.

In Lal Banchan (supra) one party was claiming their right on the basis of succession and the other party was claiming their right on the basis of sale deed and it was found that the dispute was squarely covered by Section 34 of the Act, which is summary in nature, which does not entitle the petitioner to invoke the jurisdiction of this Court under Article 226 of the Constitution of India and the petition was dismissed.

In the case of Puran Singh (supra) also the petition was dismissed as there had been a dispute about rights of the parties over the property in dispute.

In the present case also the petitioner is claiming title on the basis of sale deed executed on 9.5.1980, whereas the private respondents are claiming right on the basis of sale deed dated 16.2.1998. Name has been recorded on the basis of sale deed. Thus, both the parties are disputing the title of the other party on the basis of sale deed executed in their favour, which in summary proceedings of Section 34 of the Act, cannot be decided.

As such, undisputedly, present writ petition arising out of mutation proceedings and the petitioner has a right to file suit for title / cancellation of sale deed therefore, in view of the law as referred to above, I am not inclined to entertain the present writ petition.

This writ petition is, accordingly, dismissed. No costs.

Order Date :- 6.9.2017

Lalit Shukla