Mandir Rambagh Committee vs State Of U.P. And 5 Others
2022 Latest Caselaw 11366 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

?Court No. - 52
 

 
Case :- WRIT - B No. - 755 of 2022
 

 
Petitioner :- Mandir Rambagh Committee
 
Respondent :- State Of U.P. And 5 Others
 
Counsel for Petitioner :- Vashishtha Tiwari
 
Counsel for Respondent :- C.S.C.,Vidya Dhar Dubey
 

 
Hon'ble Dinesh Pathak,J.

Heard learned counsel for the petitioner, learned counsel for the respondent no. 6 and learned Standing Counsel representing respondent nos. 1 to 5.

Grievance of the petitioner is that respondent no. 3 (Commissioner) and respondent no. 2 (Board of Revenue) have illegally passed mutation order to record the name of private respondent no. 6 over the property in question which belongs to the society (petitioner).

The petitioner has invoked the extraordinary jurisdiction of this Court under Article 226 of the Constitution of India challenging the order dated 19.12.2020 passed in the revision and order dated 20.12.2021 passed in the review application by the Board of Revenue (respondent no. 2) and order dated 28.04.2004 passed by the Additional Commissioner.

Facts culled out from the pleading in the writ petition are that the present writ petition is arising out of mutation proceeding under Section 34 of U.P. Land Revenue Act (in brevity "L.R. Act"). The land in question i.e. Plot No. 2133/0.299 hectare is recorded as Non Z.A. Land, which is governed, managed and supervised by registered society in the name of Brahma Sammelan Rambagh Committee, Sikandra Rao, District- Hathras (in brevity "Society"). Copy of the bye-laws of the Society and the copy of the Society Registration Certificate are collectively annexed as Annexure No. 1 to the writ petition.

It is averred that the predecessor in the interest of respondent no. 6 in collusion with the Lekhpal concerned has got the name of Jai Devi w/o Ganga Prasad recorded in the revenue record in proceeding under Section 34 of L.R. Act. Against the entry made in favour of predecessor in the interest of respondent no. 6, a recall application has been moved on behalf of the petitioner, which was allowed on 31.10.1983. Feeling aggrieved against the order dated 31.10.1983, contesting respondents have preferred an appeal which was allowed and parties were relegated before the Tehsildar to decide the mutation application afresh. After remand, the Tehsildar has passed the order dated 29.07.1991 to record the name of Kishan Lal Sharma, Secretary, Brahma Sammelan Rambagh Committee. The order dated 29.07.1991 was affirmed by the Sub Divisional Officer, vide order dated 06.02.1993, on the appeal preferred on behalf of the contesting respondents. The Additional Commissioner, on second appeal being preferred on behalf of the contesting respondents, has quashed the order dated 06.02.1993 and 29.07.1991 passed by the court below and affirmed the earlier order dated 06.06.1983 passed by the Tehsildar in favour of the contesting respondents, vide its order dated 28.04.2004. Having being aggrieved against the order dated 28.04.2004, present petitioner has preferred revision before the Board of Revenue which was dismissed, vide order dated 09.12.2020, affirming the order passed by the Additional Commissioner. The review application filed on behalf of the petitioner was also dismissed by the Board of Revenue by its subsequent order dated 20.12.2021. Present petitioner, having being aggrieved with the orders passed by the Additional Commissioner and Board of Revenue, has preferred the instant writ petition.

Learned counsel for the petitioner submits that the land in question is a Non-Z.A. Land and therefore same cannot be decided in the proceeding under Section 34 of L.R. Act. It is further submitted that the property in question belongs to the Society, therefore, it can only be settled/managed under the Society Registration Act. It is further submitted that the property in question particularly belongs to Brahmin caste, therefore, it cannot be vested in favour of other caste, namely, Ghosi. The Tehsildar as well as the Sub Divisional Officer have rightly decided the matter in favour of the petitioner, after conducting the preliminary enquiry, that the property in question belongs to the Society but the said finding returned by the Tehsildar and the Sub Divisional Officer has illegally been ignored and are not reversed by the learned Additional Commissioner as well as Board of Revenue. It is further submitted that the Board of Revenue has indirectly decided a title in favour of the contesting respondents which is not permissible in a summary/fiscal proceeding under Section 34 of L.R. Act, therefore, the observation made by the Board of Revenue will create a stigma in the title of the present petitioner. It is further submitted that the civil suit filed on behalf of some of the persons with respect to the property in question is still pending, therefore, proceeding under Section 34 of L.R. Act is not maintainable. It is next submitted that the order passed by the learned Additional Commissioner and learned Board of Revenue are illegal, unwarranted under the law and tained with irregularities which are liable to be quashed.

Per contra, learned counsel for the respondent has contended that the plea qua maintainability of the proceeding under Section 34 of L.R. Act has not been pressed at any stage, it has been raised for the first time before this Court. It is further contended that the land in question specifically belongs to the private persons and there is no evidence on record to prove that the land in question was ever recorded in the name of Society, therefore, the Society can not claim to be mutated in the revenue record over the property in question. It is further submitted that the Board of Revenue has considered the matter in detail and discussed all the aspects of the case including the enquiry, the order passed by the Tehsildar and the order dated 25.11.2003 passed by the Division Bench of this Court. After considering all the documents on record the Board of Revenue has affirmed the order passed by the learned Additional Commissioner. It is next contended that that there is no illegality, perversity and ambiguity in the impugned order passed by the learned Additional Commissioner and the Board of Revenue, therefore, present writ petition deserves to be dismissed in limine.

Having considered the rival submissions advanced by the counsel for the parties and perusal of the record, it reveals that the petitioner (Society) is claiming its right and title over the property in question on the basis of the bye-laws dated 28.07.1983 and the registration certificate of the Society dated 29.09.1983, which are collectively filed as Annexure No. 1 to the writ petition. Neither there is any averment in the writ petition nor there is any documentary evidence available on record to prove that the land in question was ever recorded in the name of the Society. Record reveals that initially mutation order was passed on 06.06.1983 and after the order dated 06.06.1983 bye-laws was prepared on 28.07.1983 and Society was got registered on 29.09.1983 and before registration of the Society, restoration application dated 16.09.1983 was preferred against the order dated 06.06.1983 which was got allowed by the order dated 31.10.1983.

So far as the finding of possession is concerned, Tehsildar, in its order dated 29.07.1991, has returned a finding that from perusal of the evidence on record possession of Brahma Sammelan over Rambagh Mandiri is clear and same is managed by Brahma Sammelan but unfortunately he has not discussed any documentary evidence to prove that the property was ever recorded in the name of Rambagh Mandir or the Society. Pendency of the civil suit is also one of the important factor. The civil suit (O.S. No. 249 of 2011) has been instituted on behalf of Anil Kumar, Girish Chandra Patel, Subhash Chandra Sharma, Jagatwati Pathak and Kanhaiya Lal Gupta against Vishwa Swaroop (respondent no. 6 herein) and 6 others. At the time of institution of the aforesaid suit, Civil Court has granted permission under Section 91 of C.P.C. vide its order dated 16.04.2011. Aforesaid suit has been filed with respect to the property in question on the ground that over the property in question temple and some other structure exist. Aforesaid civil suit is still pending for consideration.

The Board of Revenue has discussed the matter in detail referring the order dated 25.11.2003 passed by the Division Bench of this Court, wherein it has been observed by the Hon'ble Division Bench that the petitioner (herein), who was also petitioner in the said writ petition, has failed to demonstrate that the land in question was belonged to it. The order dated 25.11.2003 passed in Writ Petition No. 52210 of 2003 is quoted herein below:-

"This writ petition has been filed in a most casual and cavalier manner without any sense of responsibility seeking relief of removal of encroachment without impleading any person who is said to have made any kind of encroachment.

It is settled proposition that no order can be passed unless the necessary party is impleaded in the petition. A Constitution Bench of the Hon'ble Supreme Court in Udit Narain Singh Malpaharia Vs. Additional Member, Board of Revenue, Bihar & anr., AIR 1963 SC 786 has categorically held that if the necessary party is not impleaded in the writ petition and the order is passed by the writ Court, such a party has full right to ignore the order passed by the writ Court for the reason that there has been flagrant violation of the principles of natural justice.

In this writ petition, as no person who is to be dispossessed and who has made encroachment upon the land in dispute, has been impleaded, the writ petition is not maintainable.

No explanation has been furnished by the learned counsel for the petitioner as how this petition could be entertained without impleading the necessary parties. Nor he is seeking time to implead those persons.

This writ petition does not disclose anywhere as when and how the petitioner got possession of the land and under what circumstances he extablished the institution on the land in dispute.

It is a fit case where a direction be issued to the learned District Collector, Mahamaya Nagar to examine as to whether the petitioner has any title over the land on which he has established the institution by holding a full fledged enquiry by an officer not below the rank of the Sub Divisional Magistrate. In case the petitioner has himself encroached upon the land in dispute, he shall be thrown out.

The writ petition is dismissed. The Registry is directed to provide a certified copy of this order to the learned Standing Counsel within two days to furnish the same along with a copy of the writ petition to the District Magistrate, Mahamaya Nagar forthwith."

In this view of the matter, I do not find any illegality, perversity or ambiguity in the order dated 09.12.2020 passed by the Board of Revenue and its review order dated 20.12.2021. No justifiable ground is made out to interfere in the order under challenge.

Even otherwise the legal proposition with respect to the nature and scope of proceeding under Section 34 of the L. R. Act is no more res integra. Mutation proceeding is fiscal and summary in nature which does not confer any right or title in favour of any party. Any order passed in the mutation proceeding is always subject to the final adjudication of right and title of the parties in a regular proceeding by the competent court. The Hon'ble Supreme Court in its recent judgment dated September 06, 2021(Special Leave Petition (C) No. 13146 of 2021; Jitendra Singh vs. State of Madhya Pradesh & Others), has expounded that title of the parties can only be decided by the court having competent jurisdiction and the mutation of the property in the revenue records neither creates nor extinguish title of the property nor has it any presumptive value on title. Relevant paragraph nos. 6, 6.1 & 7 of the said judgment is quoted below :-

"6. Right from 1997, the law is very clear. In the case of Balwant Singh v. Daulat Singh (D) By Lrs., reported in (1997) 7 SCC 137, this Court had an occasion to consider the effect of mutation and it is observed and held that mutation of property in revenue records neither creates nor extinguishes title to the property nor has it any presumptive value on title. Such entries are relevant only for the purpose of collecting land revenue. Similar view has been expressed in the series of decisions thereafter.

6.1 In the case of Suraj Bhan v. Financial Commissioner, (2007) 6 SCC 186, it is observed and held by this Court that an entry in revenue records does not confer title on a person whose name appears in record-of-rights. Entries in the revenue records or jamabandi have only "fiscal purpose", i.e. payment of land revenue, and no ownership is conferred on the basis of such entries. It is further observed that so far as the title of the property is concerned, it can only be decided by a competent civil court. Similar view has been expressed in the cases of Suman Verma v. Union of India, (2004) 12 SCC 58; Raqruddin v. Tajuddin (2008) 8 SCC 12; Rajinder Singh v. State of J&K, (2008) 9 SCC 368; Municipal Corporation, Aurangabad v. State of Maharashtra, (2015) 16 SCC 689; T. Ravi v. B. Chinna Narasimha, (2017) 7 SCC 342; Bhimabai Mahadeo Kambekar v. Arthur Import & Export Co., (2019) 3 SCC 191; Prahlad Pradhan v. Sonu Kumhar, (2019) 10 SCC 259; and Ajit Kaur v. Darshan Singh, (2019) 13 SCC 70.

7. In view of the above settled proposition of law laid down by this Court, it cannot be said that the High Court has committed any error in setting aside the order passed by the revenue authorities directing to mutate the name of the petitioner herein in the revenue records on the basis of the alleged will dated 20.05.1998 and relegating the petitioner to approach the appropriate court to crystalise his rights on the basis of the alleged will dated 20.05.1998. We are in complete agreement with the new taken by the High Court."

In this conspectus as above, I am of the opinion that the petitioner has an alternative remedy to file a declaratory suit before the court having competent jurisdiction.

Accordingly, order under challenge is affirmed and present writ petition is dismissed.

It is made clear that any objection made by this Court in deciding the instant writ petition would not affect the merit of the case to be filed by the petitioner.

Order Date :- 29.8.2022

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