Mahanth Chaturbhuj Das @ Chanda vs State Of U.P. Thru D.M./Incharge ...
2021 Latest Caselaw 7992 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 

A.F.R. 
 
Court No. - 6
 
Case :- MISC. SINGLE No. - 14768 of 2021
 
Petitioner :- Mahanth Chaturbhuj Das @ Chanda
 
Respondent :- State Of U.P. Thru D.M./Incharge Nazul, Ayodhya And Ors.
 
Counsel for Petitioner :- Rajeev Narayan Pandey
 
Counsel for Respondent :- C.S.C.
 

 
Hon'ble Mrs. Sangeeta Chandra,J.

1. Heard learned counsel for the petitioner and Sri V.P. Nag, learned standing counsel appearing for the State Respondent.

2. The petitioner is aggrieved by the order dated 03.03.2021 passed by the Commissioner, Ayodhya Division, Ayodhya, and also the order dated 22.05.2017 passed by the Additional District Magistrate (Finance & Revenue)/ Nazul Officer, Faizabad (now Ayodhya) and prays for a mandamus directing the respondent to allow mutation application dated 10.12.2013 filed under Rule 5A of the Nazul Manual in respect of Khasra No.51 ad-measuring 3 Bigha 10 Biswa 12 Biswansi 12 Kachwansi situated in Mohalla Guptarghat, Pargana Haveli Avadh, Tehsil Sadar, District Faizabad.

3. It is the case of the petitioner that he is the successor of Mahant Gopal Das, who was spiritual brother/ Gurubhai of Mahant Maha Tyagi Mohan Das Mauni Baba chela Mahanth Ram Bharosey Das. A nazul lease deed for 90 years with renewal due after every 30 years had been executed between the Secretary of State of Indian Dominion and Baba Janki Das Maharaj Phalahari Chela Sri Ram Sevak Das Ji with respect to the aforesaid Khasra No.51 on 26.07.1927. The same was registered before the Registrar, Faizabad. The lease agreement was renewed by the Competent Authority on an application made by the Mahanth Baba Ram Prasad Das chela Baba Janki Das Maharaj on 04.06.1958. Thereafter, the lease agreement was renewed on an application of Mahanth Mohan Das Mauni Baba on 30.07.1997 with effect from 1987, which was also a registered agreement. Mahanth Mohan Das executed a Will in favour of Mahanth Gopal Das and after death of Mahanth Mohan Das, Mahanth Gopal Das filed a mutation application and his name was noted in the revenue record and he remained in possession over the said Khasra No.51 till his death.

4. Mahanth Gopal Das appointed the petitioner Mahanth Chaturbhuj Das as the Mahanth of the Temple after his death. On the death of Mahanth Gopal Das, a Bhandara was organized on 18.10.2008, wherein all other Mahanths executed Mohajjarnama in favour of the petitioner in respect of the Temple/ Yagyashala situated in Khasra No.51 at Guptarghat. The petitioner moved an application under Rule 5A of the Nazul Rule before the Additional District Magistrate Faizabad/ Ayodhya for mutation of his name. The application was registered as Mutation Case No.639 of 2013. A report of the Naib Tehsildar was sought which was submitted. The petitioner filed the evidence in the form of Mohajjarnama executed on 18.10.2008. The respondent no.3 rejected the mutation application on 11.07.2014.

5. The petitioner being aggrieved filed an Appeal before the Commissioner, Ayodhya Division, registered as Appeal/ Revision No.62 of 2014. Learned Commissioner set aside the order dated 11.07.2014 and remanded the matter to the respondent no.3 to consider afresh.

6. The mutation application was revived and registered as Case No.171 of 2016. The Naib Tehsildar Nazul again submitted a report in favour of the petitioner but the respondent no.3 rejected the mutation application on 22.05.2017 on the ground that the tenure of lease had expired on 22.03.2017 therefore there was no need of mutation of the name of the petitioner. The petitioner being aggrieved filed an Appeal on 22.05.2017 before the Commissioner, Ayodhya Division, Ayodhya, which has been rejected on 03.03.2021 on the ground that the Commissioner had no jurisdiction to hear the matter under Rule 5A of the Nazul Rules.

7. It has been submitted by learned counsel for the petitioner that the order passed by respondent no.3 is arbitrary in nature and therefore the petitioner had filed the Appeal. The Appeal has been rejected on a misconceived ground of being not maintainable under Rule 5A of Nazul land.

It has been submitted by learned counsel for the petitioner that after the matter was remanded by the Commissioner on 01.12.2016, a report was submitted by the Tehsildar, Nazul on 31.12.2016 and had the mutation application be taken up with expedition by the Additional District Magistrate (Finance & Revenue), and orders passed thereon, at that time alone the right of the petitioner for mutation of his name would not have been prejudiced as the lease expired only in March, 2017.

8. Learned counsel for the petitioner has placed reliance upon a Co-ordinate Bench judgement rendered in Naveen Chandra Seth and others Vs. Commissioner, Allahabad and others, 1999 (3) A.W.C. 2444, wherein this Court has held that the Commissioner being a superior officer had power under the Nazul Rules to correct the error of Collector on the administrative side.

9. This Court has carefully perused the judgement cited by learned counsel for the petitioner and finds that it was rendered in respect of a subsisting lease of Nazul land situated in George Town, Allahabad, ad-measuring 1007 sq.yards. The original lease agreement was executed on 23.10.1914 to be effective from 01.01.1910 for the period of 90 years subject to renewal after every 30 years in favour of one Rai Keshri Narain Chaddha. The original lessee built a bungalow over the said plot of land and on his death, his son Triyugi Narain Chaddha inherited the lease hold rights to the property. On death of Sri Triyugi Narain Chaddha, his two sons, namely, Satyugi Narain Chaddha and Triloki Narain Chaddha, inherited the lease hold rights and lease hold rights renewed in their names. Sri Satyugi Narain Chaddha had only one daughter Smt. Raj Kumari Seth who was not bequeathed the said property by Satyugi Narain Chaddha. Satyugi Narain Chaddha executed a Will on 19.04.1967 which was witnessed by Two Judges of the Allahabad High Court as well as two Advocates as Satyugi Narain Chaddha was a renowned Advocate of the Allahabad High Court. Satyugi Narain Chaddha in his Will specifically mentioned that he wanted the property to remain in the maleline and therefore had Willed it to his nephew- the son of Triloki Narain Chaddha.

After the death of Satyugi Narain Chaddha, the land in question was mutated in the name of his nephew- Dev Narain Chaddha and Smt. Raj Kumari Seth had endorsed a ''no objection' in her handwriting on the application of mutation moved by the sons of Triloki Narain Chaddha. The order of mutation was passed on 20.06.1963. The house built over the Nazul land had been Willed by Satyugi Narain Chaddha to Raj Kumari Seth and house was therefore mutated in the name of Smt. Raj Kumari Seth. Sri Triloki Narain Chaddha executed a Will in respect of lease hold rights of Nazul land in favour of his grand-son Deepak Narain Chaddha, who moved an application for mutation on the basis of the said Will dated 03.07.1983. During the course of mutation, an objection was filed by Smt. Raj Kumari Seth. It was alleged that the Additional District Magistrate (Nazul) rejected the objection of Raj Kumari Seth arbitrarily and mutation was done in favour of Deepak Narain Chaddha on 19.03.1997. The mutation proceedings having become final, no Appeal was filed by Raj Kumari Seth, instead she filed a representation to the District Magistrate/ Collector who by an order dated 17.08.1998 rejected the mutation of the name of Deepak Narain Chaddha. The order passed by the Collector was carried out. It was this order which was challenged by Deepak Narain Chaddha before the Divisional Commissioner. He also filed a writ petition before the Court saying that the Appeal was pending before the Divisional Commissioner and he was not deciding the same. This Court had disposed of the writ petition on 15.01.1999 with a direction to the Commissioner to decide the representation. The Divisional Commissioner allowed the representation by an order dated 09.03.1999.

10. It was this order which was challenged by Naveen Chandra Seth before this Court on the ground that the Additional District Magistrate/ Nazul Officer had no power of mutation under the Nazul Rules. It was only the Collector who could do so. This Court found that the Additional District Magistrate/ Nazul Officer was authorized to order mutation as in the Act itself there was a provision that the word "Collector" shall include the "Additional District Magistrate" as well. The Court also observed that after the competent authority i.e. Additional District Magistrate/ Nazul officer had made the order in favour of respondent, it could not have been set aside by the Collector on a representation, as the power of the Collector had already been exercised by the Additional District Magistrate. It was further observed by the Court that the order of the Collector being without jurisdiction, it could certainly be corrected by the Commissioner of the Division who was a higher Administrative Officer. If the subordinate officer had wrongly assumed jurisdiction, the superior officer must certainly pass appropriate orders to correct the error on the administrative side. It was observed that orders passed by the Additional District Magistrate were passed in their capacity as Collector and therefore such orders could not be set aside by the District Magistrate and if the District Magistrate had taken to his head in an illegal manner to set aside the orders passed by the Additional District Magistrate, in that event, the officer superior to the District Magistrate should set aside the order passed by the District Magistrate. The Court held the order passed by the Commissioner to be equitable and just. It moreover observed in paragraph 14 thus:-

"14. The mutation proceedings are summary in nature. In clause (4) of Rule 5A of the Nazul Manual, it has been provided that no order passed under Rule 5A shall debar any person from establishing his right to the property in any civil or revenue court having jurisdiction. If the petitioners are really aggrieved of the orders passed by the Commissioner of the Division, or for that matter, the Additional District Magistrates, exercising the power of the Collector, in that event they can get their rights established by filing a suit before an appropriate Court to challenge the execution, validity and effect of the Wills, in question."

11. The observations made by the Coordinate Bench in the case of Naveen Chandra Seth (supra) were made in the peculiar facts and circumstances of the case where the Additional District Magistrate having passed the order under Rule 5A of the Nazul Rules, being the competent authority, and acting in the capacity of the District Magistrate, the District Magistrate had stepped out of his jurisdiction and set aside the order passed by the Additional District Magistrate. Therefore, Court observed that if a subordinate officer assumes the power which is not there and has not vested in him, the superior officer can undo the wrong committed by his subordinate. It was only in this context that the Court observed that Commissioner could interfere in the order passed by the Collector.

12. This Court having gone through the orders impugned finds that the Additional District Magistrate (Finance & Revenue)/ Nazul Officer, Faizabad (now Ayodhya) had rejected the mutation application of the petitioner only on the ground that the term of lease executed in 1917 had come to an end, therefore, there was no reason for mutation of the name of the petitioner on the basis of such lease which had already expired. This order was challenged by the petitioner by filing Appeal/ Revision before the Commissioner. The Commissioner observed that under Rule 5A of the Nazul Rules, the office of the Commissioner had no role to play and had no jurisdiction to consider the Appeal/ Revision. He thus rejected the said Appeal/ Revision as not maintainable by his order dated 03.03.2021.

13. The order dated 03.03.2021 suffered from some typographical error and therefore, it was corrected by the order dated 19.03.2021.

14. This Court has perused Rule 5 and 5A of the Nazul Rules, which are being quoted hereinbelow:-

"5. Change entries in Nazul register.-Entries in the Nazul register shall not be changed except under the orders of the Collector. Where a local authority is entrusted with the management of nazul, it shall be the duty of the local authority to maintain nazul register up-to-date and where it proposes to change any entry in the nazul register as a result of succession, transfer or assignment of any lease for building purposes, or on the discovery of any error or omission in such register, it shall submit its proposal to the Collector, who, if he is satisfied after such enquiry as he considers necessary, that a succession, transfer or assignment has taken place or that an error or omission exists, shall order the register to be corrected accordingly.

5-A. Mutation procedure.-(1) On each transfer by succession, sale, assignment or otherwise, the lessee and the person to whom the lease rights are so transferred, shall, within two months, of the same, deliver a notice in writing to the Collector or the Nazul Officer appointed by the Collector, setting forth the names and other particulars of the persons from whom and to whom the transfer take place and the nature and description of the transfer.

(2) The Collector, on receiving such report, or upon the facts coming otherwise to his knowledge, shall decide the matter on the basis of possession, and shall order mutation in the name of the transferee in the records accordingly.

(3) If in the course of enquiry into a dispute under this rule, the Collector is unable to satisfy himself as to which party is in possession, he shall ascertain by summary inquiry the person best entitled to the property, and shall order the name of such person to be entered in the records accordingly.

(4) No order passed under this rule shall debar any person from establishing his right to the property in any Civil or Revenue Court having jurisdiction."

15. Learned counsel for the petitioner has submitted that if this Court finds that the Commissioner had no role to play in the matter of mutation of Nazul property then the petitioner would be rendered remediless and the only course open for him was to file a writ petition before this Court.

16. This Court finds from sub-Rule 4 of Rule 5A that a remedy is provided in the Nazul Rules itself as it says that no order passed under the Rule shall debar any person from establishing his right to the property in any civil or revenue court having jurisdiction.

17. It is settled law that mutation proceedings are summary in nature and if an order is passed in such proceedings or any writ petition thereafter challenging such orders passed in mutation proceedings, in favour of a litigant, it would not establish his right to the property in question. The ultimate establishment of right would only be through a competent court by way of a declaration, therefore, this Court ordinarily does not interfere in orders passed in mutation proceedings. There have been exceptions carved out which have been mentioned in detail by this Court in its order dated 25.06.2021 in Writ Petition No.5147 (M/S) of 2015:Smt. Hadisul Nisha Vs.Additional Commissioner (Judicial) Faizabad And Ors., which exceptions from the said judgment are being quoted hereinbelow:-

"i) If the order is without jurisdiction;

ii) If the rights and title of the parties have already been decided by the competent court, and that has been varied by the mutation courts;

iii) If the mutation has been directed not on the basis of possession or simply on the basis of some title deed, but after entering into a debate of entitlement to succeed the property, touching into the merits of the rival claims;

iv) If rights have been created which are against statutory provisions of any Statute, and the entry itself confers a title on the petitioner by virtue of the provisions of the U.P. Zamindari Abolition and Land Reforms Act;

v) Where the orders impugned in the writ petition have been passed on the basis of fraud or misrepresentation of facts, or by fabricating the documents by anyone of the litigants.

vi) Where the courts have not considered the matter on merits for example the courts have passed orders on restoration applications etc (Vijay Shankar v Addl Commissioner; 2015 (33) LCD 1073)."

18. The case of the petitioner does not fall in any of the exceptions that have been carved out by this Court for showing interference in an order passed in mutation proceedings.

19. The writ petition is dismissed leaving it open for the petitioner to establish his right before the competent Civil or Revenue Court with regard to the property in question.

Order Date :- 15.7.2021

Rahul