Brahanand Pandey vs State Of U.P. And 4 Others
2023 Latest Caselaw 11429 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

						A.F.R.
 
						Reserved on 24.03.2023.
 
						Delivered on18.04.2023.
 

 
Court No. - 52
 

 
Case :- WRIT - C No. - 143 of 2021
 

 
Petitioner :- Brahanand Pandey
 
Respondent :- State Of U.P. And 4 Others
 
Counsel for Respondent :- C.S.C.,Anand Prakash Srivastava
 

 
Hon'ble Kshitij Shailendra,J.

1. Heard Shri Brahmanand Pandey, the petitioner who has appeared in-person, learned Standing Counsel for the State-respondents and Shri Anand Prakash Srivastava, learned counsel for the respondent no.5-private respondent.

2. This writ petition has been filed by one Brahmanand Pandey S/o Rajmani Pandey, R/o Village-Sasna Vishwanathpur, Police Station-Maharajganj, Pargana Gopalpur, Tehsil-Sagadi, District-Azamgarh who has appeared in-person before this Court.

3 The reliefs claimed in the present writ petition are for quashing of the order dated 25.10.2017 passed by the Collector/District Magistrate-Azamgarh as well as the order dated 21.10.2020 passed by the Commissioner, Azamgarh, Division-Azamgarh.

4. The Collector/District Magistrate, Azamgarh has rejected the case filed by the petitioner under Sections 33/39/225 of U.P. Land Revenue Act-1901 (hereinafter referred to as ''the Act-1901') (Brahmanand Pandey v. State of U.P.) vide impugned order dated 25.10.2017 whereas vide impugned order dated 21.10.2020, the Commissioner, Azamgarh, Division Azamgarh has dismissed the revisions filed under Section 219 of the Act-1901.

5. A perusal of record shows that the petitioner filed a case under Sections 33/39/225 of the Act-1901 against the State of U.P. before the Collector/District Magistrate-Azamgarh alleging therein that certain land covered by Gata No.1149 (renumbered as Gata Nos.329 and 330) is recorded in the names of Ram Prakash, Rajpat Pandey and Hari Mohan as their ''bhumidhari' land. The allegations made in the memo of the said application/case are to the effect that various private persons (including the aforesaid) were obtructing the public passage and have succeeded to get wrongful entries made in their names contrary to the revenue/consolidation records. Three prayers were made in the said application/case:-

(1). The Gata Nos.329 and 330 be declared as "parti/Government land";

(2). Any other relief which may be found appropriate in favour of the petitioner be passed;

(3). The cost of litigation be awarded to the petitioner from the opposite party (State).

6. The order of Collector dated 25.10.2017 shows that for the purposes of disposal of the case, reports from Sub Divisional Officer-Sagadi and Settlement Officer of Consolidation were called for and that the Settlement Officer of Consolidation, in his report dated 26.11.2015, has mentioned that land covered by Gata No.330 area 0.030 Kari has been recorded in the names of Rajpati and Radhika, heirs of Sadanand vide order dated 12.11.1971 passed by the Consolidation Officer in Case No.10459 whereas in respect of Gata No.329 measuring 0.015, the aforesaid two names were continuing in the Khatauni since before. The order further indicates that the State and opposite parties were heard whereas nobody was present to argue the matter on behalf of the petitioner and, therefore, the allegations levelled by the petitioner were not proved and there were contrary reports in favour of the opposite parties, consequently, the case was dismissed.

7. Challenging the order of Collector/District Magistrate-Azamgarh dated 25.10.2017, the petitioner filed revision before the Commissioner, Azamgarh, Division-Azamgarh which was also dismissed vide order dated 20.10.2020.

8. The contention of the petitioner is to the effect that the aforesaid land continued to be recorded in the consolidation record as "Government land", however, the respondent no.5 and various other persons succeeded to get their names recorded in the revenue records and, therefore, the said fraudulent entries are liable to the expugned and the land should be declared as belonging to the ''Government'. The petitioner has referred to various revenue records and has tried to impress the Court that the private persons have usurped the Government land.

9. Per contra, learned Standing Counsel submits that the orders impugned are perfectly in accordance with law, based upon documentary evidence available with the courts below and, therefore, they do not require any interference.

10. Shri A.P. Srivastava, who has put in appearance on behalf of respondent no.5, has argued that the writ petition arising out of the proceedings under Sections 33/39/225 of the Act-1901 is not maintainable as the same are ''summary in nature' and even otherwise, it has come on record that the names of the private persons including the respondent no.5 were recorded in the consolidation as well as revenue records on the basis of order dated 12.11.1971 passed by the Consolidation Officer in Case No.10459. Shri Srivastava has further argued that the petitioner has no locus in the matter as neither in his case under Sections 33/39/225 of the Act-1901 nor in the writ petition he has disclosed as to how he is affected by conferring of "Bhumidhari" rights on the contesting respondents and other persons. He further submits that this is not a writ petition in the nature of public interest where anybody can agitate any issue nor is there involvement of element of any public interest. Shri Srivastava further submits that pure findings of fact have been recorded by the revisional court in its order and, in any case, if the petitioner or other person is aggrieved by the entries in the revenue records which are based upon the decision by the competent court of law in statutory proceedings, he has a right to get his grievance redressed in appropriate proceedings of declaration of rights and Sections 33/39 of the Act -1901 is a provision which is meant only for correction of records, in which, the entries have been recorded by clerical mistake or omissions, which is not the case here. He further submits that the beneficiaries including the respondent no.5 continue in actual and physical possession over the land in dispute and the petitioner is trying to harrass the "bhumidhars" and, hence, this writ petition is nothing but an abuse of the process of law.

11. Before this Court proceeds to examine this case either on the ground of maintainability or on merits, it would be appropriate to reproduce Sections 33, 39 and 225 of the Act-1901, which are extracted as under :-

"33. The annual registers. - (1) The Collector shall maintain the record-of-rights, and for that purpose shall annually, or at such longer intervals as the [State Government] may prescribe, cause to be prepared an amended [register mentioned in Section 32.]

The [register] so prepared shall be called the annual register.

[(2) The Collector shall cause to be recorded in the annual register -

(a) all successions and transfers in accordance with the provisions of Section 35; or

(b) 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 a dispute involving any question of title.]

(3) [No such change or transaction shall be recorded without the order of the Collector or as hereinafter provided, of the Tahsildar or [the Kanungo].]

[(4) The Collector shall cause to be prepared and supplied to every person recorded as bhumidhar, whether with or without transferable rights, assami or Government Lessee a Kisan Bahi (Pass book) which shall contain -

(a) such extract from the annual register prepared under sub-section (1) relating to all holdings of which he is so recorded (either solely or jointly with others);

(b) details of grants sanctioned to him; and

(c) such other particulars as may be prescribed :

Provided that in the case of joint holdings it shall be sufficient for the purpose of this sub-section of Kisan Bahi (Pass book) is supplied to such one or more of the recorded co-sharers as may be prescribed.

(4-A) The Kisan Bahi (Pass book) referred to in sub-section (4) shall be prepared in such manner and on payment of such fee, which shall be realisable as arrears of land revenue, as may be prescribed.

(5) Every such person shall be entitled, without payment of any extra fee, to get any amendment made in the annual register under sub-section (2) incorporated in his Kisan bahi (Pass book.)]

(6) The State Government may make rules to carry out the purposes of this section, including, in particular, rules, prescribing the mode of reception in evidence, and of proof in judicial proceedings, of entries in the [Kisan Bahi (Pass Book)], and the mode of its revision and authentication up-to-date and for issue of duplicate copies thereof, and the fees, if any, to be charged for any of the said purposes.

(7) In this section, 'prescribed' means prescribed by rules made by the State Government.

(8) Nothing in sub-sections (4) to (7) shall apply in relation to any area which is either under consolidation operations or under record operations."

39. Correction of mistakes in the annual register. - (1) An application for correction of any error or omission in the annual register shall be made to the Tahsildar.

(2) On receiving an application under sub-section (1) or any error or omission in the annual register coming to his knowledge otherwise, the Tahsildar shall make such inquiry as appears necessary and then refer the case to the Collector, who shall dispose it of, after deciding the dispute in accordance with the provisions of Section 40.

[Provided that nothing in this sub-section shall be construed to empower the Collector to decide a dispute involving any question of title.]

(3) The provisions of sub-sections (1) and (2) shall prevail, notwithstanding anything contained in the U.P. Panchayat Raj Act, 1947.

225. Collector to have all powers of an Assistant Collector. - The Collector may exercise all or any of the powers of an Assistant Collector under this or any other Act for tire time being in force."

12. A bare perusal of aforesaid Sections makes it clear that under Section 33 of the Act-1901, entries on the basis of succession and transfer in accordance with Section 35 can be made and also correction of all errors and omissions can be made by the Collector. Section 39 is a provision for correction of mistakes in the actual register whereas Section 225 has nothing to do with the controversy involved in the present case, rather, it only speaks that "Collector may exercise all or any of the powers of an Assistant Collector under the Act".

13. Keeping in view the aforesaid provisions, averments made in the original case under Sections 33/39/225 of the Act-1901 would show that a declaration was sought from the Collector to the effect that land covered by Gata Nos.329 and 330 be declared as ''parti/Government land", therefore, from the bare perusal of the memo of the case, it is found that it was not a case for correction of records rather the petitioner had sought a declaration in favour of State Government and that is why he arrayed only ''State Government' as a ''party', though allegations upon private persons including the predcessors-in-interest of the private respondent no.5 were also levelled.

14. I find from the perusal of the record that during the pendency of the aforesaid case, the Collector-Azamgarh passed an order dated 19.10.2015 after taking into consideration the reports of Sub Divisional Officer and Settlement Officer of Consolidation concerned that in the revenue records, the names of Radhika, Ram Prakash, Santosh Kumar and Jhinka were recorded as "bhumidhar with transferable rights" and, therefore, the said persons shall be "affected parties" and hence, their impleadment in the proceedings is necessary. Accordingly, the Collector directed impleadment of the aforesaid persons and issued notices to them.

15. The Court finds that two revisions bearing nos.47/A C-205015000000037 of 2019-20 (Brahmanand Pandey v. District Magistrate, Azamgarh & Anr.) and Revision No.50/A C-201715001297 of 2017-20 (State of U.P. through District Magistrate-Azamgarh v. Ram Prakash & Ors.) were filed against the order dated 25.10.2017 passed by the Collector/District Magistrate-Azamgarh. From perusal of the aforesaid, it is clear that even the ''State of U.P.' was aggrieved by the order dated 25.10.2017 passed by the Collector/District Magistrate-Azamgarh.

16. The petitioner has drawn attention of the Court to the order passed by this Court in Writ C No.18613 of 2019 (Brahmanand Pandey v. State of U.P. & 4 Ors.) which was filed and decided at the stage when, vide order dated 23.01.2019, the Commissioner had decided the revision filed by the petitioner but did not decide the revision filed by the State, though both the revisions were filed against the order 25.10.2017. Under the said circumstances, the writ petition was allowed by this Court vide order dated 02.07.2019 with the following directions:-

"Accordingly, the petition is allowed, the impugned order dated 23.01.2019, is set-aside to the extent it dismisses petitioners revision as, not maintainable. It is directed that petitioners revision be connected with, and be decided along with Revision No.306/A, State of U.P. Vs. Ram Prakash & others."

17. In pursuance of the aforesaid order of this Court dated 02.07.2019, both the revisions were clubbed and decided together by the Commissioner vide impugned order dated 21.10.2020.

18. During the course of arguments, a query was raised by the Court from the petitioner, Shri Srivastava and learned Standing Counsel as to whether against the impugned order dated 25.10.2020 passed by the Commissioner, the State has filed any writ petition or not. Answer to the said query was that nobody was aware about the filing of the writ petition by the State.

19. Under such circumstances, the Court has examined the counter affidavit 27.08.2021 filed by the State, the deponent whereof is one Vasudev Ji, the then Consolidation Officer, Azamgarh. Certain relevant paragraphs of the said counter affidavit are reproduced hereinbelow:-

"11. That the contents of paragraph 4 of the writ petition are not admitted as stated, hence denied. In reply thereto it is submitted that the Respondent No. 1, Commissioner, Azamgarh Division, Azamgarh after affording due opportunity of hearing to the parties as well as after scrutinizing entire material available on record has passed the order dated 21.10.2020, which is perfectly just, legal and valid order and there is no illegality in it.

12. That the contents of paragraph 5 of the writ petition are not admitted as stated, hence denied. In reply thereto it is submitted that, in the enquiry report submitted before the District Magistrate, Azamgarh it has been mentioned that Gata No.329 Area 0.015 hectares had been registered in the name of Rajapati and Radhika sons Sadanand from the previous year Khatauni and on the basis of the same the District Magistrate and Commissioner Azamgarh Division, Azamgarh has also mentioned the same in their orders.

13. That the contents of paragraph 6 of the writ petition are not admitted as stated, hence denied. In reply thereto it is submitted that, in CH Form 41 Gata No. 329 area 0.015 hectare was carved out from Old Gata No. 1149/2 area 0.015 hectare. The names of Rajpati and Radhika sons of Sadanand were recorded in Khata No.78 of CH Form 45 which was excluded from the Consolidation proceedings, therefore, on that basis the same was recorded as "Parti/Rakba" in the Special Column. In view of above it is clear that, the aforesaid land belongs to tenure holder and is not the land of Gram Samaj or Parti account.

14. That the contents of paragraphs 7 and 8 of the writ petition are not admitted as stated, hence denied. In reply thereto it is submitted that, by means of order dated 12.11.1971 passed in the Case No. 10459 passed by the Consolidation Officer the name of Sabhapati Panchanan was expunged and the name of Radhika and Rajpati sons of Sadanand were recorded over New Gata No. 330 area 0.030 Kari of Old Gata No. 1149/3 which is evident from the enquiry/inspection report dated 26.11.2015.

15. That the contents of paragraph 9 of the writ petition are not admitted as stated, hence denied. In reply thereto it is submitted that the orders passed by the authority concerned is perfectly just, legal and valid order and there is no illegality in it.

16. That the contents of paragraphs 10 and 11 of the writ petition are not admitted as stated, hence denied. In reply thereto it is submitted that the order passed by District Magistrate dated 25.10.2017 as well as by Commissioner, Azamgarh Division, Azamgarh dated 21.10.2020 perfectly, just, legal and valid order and there is no illegality or infirmity in it.

18. That the contents of paragraphs 17 to 19 of the writ petition need no comments being related to passing of the order in Civil Appeal No. 9996/2018 and passing of the orders by District Magistrate, Azamgarh as well as Commissioner, Azamgarh Division, Azamgarh which are perfectly just, legal and valid orders and requires no interference by this Hon'ble Court.

20. That the grounds taken in paragraph 21 of the writ petition are not sustainable in the eyes of law as such the writ petition as framed and filed by the petitioner being devoid of merit is liable to be dismissed."

20. Therefore, in view of the clear stand taken by the State in the counter affidavit which was filed on behalf of respondent nos.1 ot 4 to the effect that the orders impugned have been passed on the basis of record of Arazis validly settled in favour of the private respondents and other persons and that the impugned orders are perfectly in accordance with law, not calling for any interference, necessary inference can be drawn to the effect that the "State" is not aggreived by the dismissal of its revision by the Commissioner vide order dated 21.10.2020. The consequence of such stand taken before this Court on oath is that the State, Commissioner, the Collector, the Settlement Officer of Consolidation as well as the Sub Divisional Officer consider the entire records in favour of the private persons who have been arrayed in a very strange capacity in the writ petition as ''Hari Mohan Pandey (beneficiary and representatives of many other beneficiaries)'.

21. In view of the above, once the original relief claimed in the proceedings under Sections 33/39/225 of the Act-1901 was to make a declaration of the land covered by Gata Nos.329 and 330 as "Government Land" and the Government has acquised to the merits of the impugned orders passed by the Commissioner, on the one hand by not challenging the same despite dismissal of its revision and, on the other hand, by taking a clear stand in the counter affidavit that the orders impugned are perfectly in accordance with law which do not call for any interference and that the rights in the aforesaid land have been settled in favour of the private persons on the basis of judicial/statutory proceedings, the Court does not find any good ground to entertain the claim made by stranger (petitioner), particularly, when absolutely no disclosure about the petitioner's personal grievance has been made either in the entire writ petition or in the pleadings exchanged between the parties.

22. The petitioner has tried to refer to the objections filed by the private respondents in the court of Commissioner and has submitted that ''what was not stated before the Collector was not open to be stated before the Commissioner'. He has also argued that Commissioner was not competent to reappreciate the evidence. He has further argued that the documents filed by the private respondents were not sufficient for holding their rights as valid. In support of his submissions, the petitioner has placed reliance upon the judgement of Supreme Court in the case of Rukmini Amma Saradamma v. Kallyani Sulochana & Ors. reported in (1993) 1 S.C.C. 499 with special reference to ''paragraph 20' which is quoted hereinbelow:-

"20. We are afraid this approach of the High Court is wrong. Even the wider language of Section 20 of the Act cannot enable the High Court to act as a first or a second court of appeal. Otherwise the distinction between appellate and revisional jurisdiction will get obliterated. Hence, the High Court was not right in re-appreciating the entire evidence both oral or documentary in the light of the Commissioner's report (Exts. C-1 and C-2 mahazar). In our considered view, the High Court had travelled far beyond the revisional jurisdiction. Even by the presence of the word "propriety" it cannot mean that there could be a re-appreciation of evidence. Of course, the revisional court can come to a different conclusion but not on a re-appreciation of evidence; on the contrary, by confining itself to legality, regularity and propriety of the order impugned before it. Therefore, we are unable to agree with the reasoning of the High Court with reference to the exercise of revisional jurisdiction. "

23. He has also placed reliance upon another judgment of Supreme Court in the case of Hiya Associates & Ors. v. Nakshatra Properties Private Limited reported in (2018) 18 S.C.C. 358 with special reference to ''paragraph 19' which is quoted as below:-

"19. In our opinion, the documents sought to be filed by the defendants (revision petitioners) were neither relevant nor material for deciding the legality and correctness of the order impugned in the revision could be decided one way or the other without the aid of any additional document but on the basis of material already on record keeping in view the law laid down by this Court in several decided cases on the issue in question. Indeed, if the executing court could decide the issue finally at its level, the Revisional Court too could do the same at it level"

24. This Court is not inclined to give any benefit of the aforesaid decisions to the petitioner as the judgment in the case of Rukmini (supra) had been delivered in a case arising out of Kerala Buildings (Lease and Rent Control) Act -1965 where the Supreme Court was examining the scope of interference by the High Court in exercise of revisional jurisdiction with reference to "re-appreciation of evidence". Similarily in the case of Hiya Associates & Ors. (supra), the Supreme Court was dealing with an issue as to whether a revisional court can decide the matter by taking additional evidence.

25. In the present case, a perusal of the impugned order dated 25.10.2017 passed by the Collector/District Magistrate-Azamgarh shows that the report dated 26.11.2015 submitted by the Settlement Officer of Consolidation was relied upon by the Collector before deciding the matter. Similarily, the Commissioner has also placed reliance upon the same report. The findings recorded by the Collector in the impugned order dated 25.10.2017 to the aforesaid effect are as follows:-

"प्रकरण के न्यायसंगत निस्तारण हेतु उप जिलाधिकारी सगडी एवं बन्दोबस्त अधिकारी चकबन्दी से आख्या प्राप्त की गयी। बन्दोबस्त अधिकारी चकबन्दी की आख्या दिनांक 26.11.2015 में यह उल्लेख किया गया है कि गाटा सं० 330 क्षे० 0.030 कडी चकबन्दी अधिकारी के मु०न० 10459 आदेश दिनांक 12.11.1971 द्वारा सभापति, पंचानन्द का नाम खारिज करके राजपति, राधिका पुत्रगण सदानन्द का नाम आया है व गाटा सं० 329 क्षे० 0.015 पूर्व में राजपति, राधिका पुत्रगण सदानन्द का नाम पूर्व खतौनी के आधार पर ही चला आ रहा है। "

26. The findings recorded by the Commissioner in its impugned order dated 21.10.2020 are as follows:-

"8- अवर न्यायालय की पत्रावली पर उपलब्ध बन्दोबस्त अधिकारी चकबन्दी की आख्या दिनांक 26.11.2015 के अवलोकन से स्पष्ट है कि आकार पत्र-11 के खाता सं० 154 सभापति, पंचानन्द पुत्रगण गजाधर के नाम अन्य गाटों के साथ 1149/3 रकब/ 0.030 अंकित है। खाते पर चकबन्दी अधिकारी के मु०नं० 10459 निर्णय दिनांक 12.11.1971 द्वारा गाटा सं0 1149/3 रकबा 0.030 से सभापति, पंचानन्द का नाम खारिज करके राजपति, राधिका पुत्रगण सदानन्द का नाम दर्ज होने का आदेश अंकित है। गाटा सं०- 1149/3 रकबा 0.030 का नया नम्बर 330/0.030 हे० बन्दोबस्त बनाते समय कायम किया गया है एवं आकार पत्र-11 के खाता सं०-129 राजपति, राधिका पुत्रगण सदानन्द के नाम अन्य गाटों के साथ 1149/2 रकबा 0.020 हे० अंकित है बन्दोबस्त बनाते समय 1149/2 रकबा 0.020 का नया नम्बर 329/0.015 कायम किया गया है। इस प्रकार गाटा सं०- 330/0.030 चकबन्दी अधिकारी के मु०नं०- 10459 निर्णय दिनांक 12.11.1971 द्वारा सभापति, पंचानन्द का नाम खारिज करके राजपति, राधिका पुत्रगण सदानन्द का नाम आया है एवं गाटा सं० 329/0.015 में राजपति राधिका पुत्रगण सदानन्द का नाम पूर्व के आधार वर्ष खतौनी से ही चला आ रहा है। यह भी उल्लेखनीय है कि उ०प्र० भू- राजस्व अधिनियम की धारा 33/39 के अन्तर्गत केवल लिपिकीय त्रुटि दुरूस्त किया जा सकता है। इस प्रकार विद्वान अवर न्यायालय ने पत्रावली पर उपलब्ध अभिलेखों के विधिवत अवलोकन व परीक्षणोपरान्त तथ्यात्मक विवेचना के आधार पर विधि सम्मत आदेश पारित किया है, जिसमें किसी प्रकार के हस्तक्षेप का कोई औचित्य व आधार नहीं पाया जाता है। दोनो निगरानियां निरस्त होने योग्य है। "

27. The aforesaid report dated 26.11.2015 has also been annexed at ''page no.88' of the writ petition and reads as follows:-

" कृपया न्यायालय/जिलाधिकारी आजमगढ के पत्र सं- 278(1) पेशकार दिनाक 20.11.2015 का सन्दर्भ ग्रहण करने का कष्ट करें जिसके द्वारा प्रतिलिपि आदेश दिनांक 19.10.2015 में पत्र सं० 238(1) रीडर डी०एम० दिनांक 23.10.2015 द्वारा ग्राम ससना विश्वनाथपुर के वर्तमान खतौनी 1419 फसली से 1424 फसली में गाटा सं० 329/0.015 व 330/0.030 हे० राधिका, सदानन्द, रामप्रकाश, संतोष कुमार पुत्रगण राजपति व झिनका पत्नी राजपति के नाम संक्रमणीय भूमिधर दर्ज है, किन्तु यह किस आदेश दर्ज है अंकन सही अथवा गलत है बिन्दू पर आख्या उपलब्ध कराये जाने की अपेक्षा की गयी है।

प्रश्नगत प्रकरण में चकबन्दी अधिकारी सगडी नियम 109 से जांच करायी गयी। उन्होने अपनी जांच आख्या में उल्लेख किया है कि ग्राम के अभिलेख अभिलेखागार में जमा है जिसमें आधार वर्ष खतौनी व जो०च०अ० आकार पत्र 2(क) उपलब्ध नहीं है तथा आकार पत्र 11 के खाता सं० 154 सभापति, पंचानन्द पुत्रगण गजाधर के नाम अन्य गाटों के साथ 1149/3 रकबा 0.030 अंकित है। खाते पर चकबन्दी अधिकारी मुकदमा नं० 10459 ता०फै० 12.11.1971 के द्वारा गाटा सं० 1149/3 रकबा 0.030 से सभापति, पंचानन्द का नाम खारिज करके राजपति, राधिका पुत्रगण सदानन्द का नाम दर्ज होने का आदेश अंकित है। गाटा सं० 1149/3 रकबा 0.030 का नया नम्बर 330/0.030 हे० बन्दोबस्त बनाते समय कायम किया गया है व आकार पत्र 11 के खाता सं० 129 राजपति राधिका पुत्रगण सदानन्द के नाम अन्य गाटों के साथ 1149/2 रकबा 0.020 हे० अंकित है। बन्दोबस्त बनाते समय 1149/2 रकबा 0.020 का नया नम्बर 329/0.015 कायम किया गया है। इस प्रकार गाटा सं० 330/0.030 चकबन्दी अधिकारी के मु०नं० 10459 ता०फै० 12.11.1971 द्वारा सभापति, पंचानन्द का नाम खारिज करके राजपति, राधिका पुत्रगण सदानन्द का नाम आया है व गाटा सं0 329/0.015 पूर्व में राजपति, राधिका पुत्रगण सदानन्द का नाम पूर्व के आधार वर्ष खतौनी से ही चला आ रहा है।

आख्या सेवा में सादर प्रेषित।

बन्दोबस्त अधिकारी चकबन्दी

आजमगढ।"

28. Therefore, the Court finds that the entire record conferring "bhumidhari rights" upon private persons including the respondent no.5 is in their favour and, merely, because the petitioner, having no locus in the matter is trying to agitate the issue, which even otherwise, does not fall within the ''zone of consideration' under Sections 33/39 of the Act-1901, the reliefs claimed cannot be granted.

29. Before arriving at the conclusion, it would be necessary to refer certain provisions of law as well as the authorities dealing with powers of the court in the matters arising out of proceedings for correction of revenue records.

30. Section 40-A of the Act-1901 provides for filing of suit in a competent court for relief on the basis of a right in a holding and the orders passed under Sections 33, 35, 39, 40, 41 and 54 of the Act-1901 would not create any bar in any such suit. Section 40-A is extracted as under:-

"[40A. Saving as to title suits. - No order passed under Section 33, Section 35, Section 39, Section 40, Section 41 or Section 54 shall bar any suit in a competent Court for relief on the basis of a right in a holding.]"

31. Since as of now, the provisions of U.P. Revenue Code-2006 have also come into operation, identical provision is found under Section 39 of the Code-2006 reads as follow:-

"39. Certain orders of revenue officers not to debar a suit. -No order passed by a Revenue Inspector under section 33, or by a Tahsildar under sub-section (1) of Section 35 or by a Sub-Divisional Officer under sub-section (3) of section 38 or by a Commissioner under sub-Section (4) of Section 38 shall debar any person from establishing his rights to the land by means of a suit under section 144."

32. The question of the maintainability of a writ petition against orders passed in mutation proceedings has come up before this Court earlier and it has consistently been held that normally the High Court in exercise of its discretionary jurisdiction does not entertain writ petitions against such orders which arise out of summary proceedings. In the case of Jaipal Vs. Board of Revenue, U.P., Allahabad & Ors., Air 1957 ALL 205, notice was taken of the consistent practice of this Court not to interfere with the orders made by the Board of Revenue in cases in which the only question at issue was whether the name of the petitioner should be entered in the record of rights. The observations made in the judgment in this regard are as follows:-

"3. ...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..."

33. The question with regard to the maintainability of a writ petition arising out of mutation proceedings fell for consideration in the case of Sri Lal Bachan Vs. Board of Revenue, U.P., Lucknow & Ors.2 2002 (93) RD 6 and it was held that the High Court does not entertain a writ petition under Article 226 of the Constitution of India for the reason that mutation proceedings are only summarily drawn on the basis of possession and the parties have a right to get the title adjudicated by regular suit. The observations made in the judgment are extracted below:-

"11. This Court has consistently taken the view as is apparent from the decisions of this Court referred above that writ petition challenging the orders passed in mutation proceedings are not to be entertained. To my mind, apart from there being remedy of getting the title adjudicated in regular suit, there is one more reason for not entertaining such writ petition. The orders passed under Section 34 of the Act are only based on possession which do not determine the title of the parties. Even if this Court entertains the writ petition and decides the writ petition on merits, the orders passed in mutation proceedings will remain orders in summary proceedings and the orders passed in the proceedings will not finally determine the title of the parties."

34. Reiterating a similar view in the case of Bindeshwari Vs. Board of Revenue & Ors., 2002 (1) AWC 498, it was stated that mutation proceedings do not adjudicate the rights of parties and orders passed in the said proceedings are always subject to adjudication by the competent Court and therefore a writ petition against an order in mutation proceedings would not be entertainable. It was observed as follows:-

"11. ...The present writ petition arising out of the summary proceeding of mutation under Section 34 of U.P. Land Revenue Act, cannot be entertained under Article 226 of the Constitution of India. The mutation proceedings do not adjudicate the rights of the parties and orders passed in the mutation are always subject to adjudication by the competent Court."

35. The settled legal position that orders of mutation are passed on the basis of possession and since no substantive rights of the parties are decided, ordinarily a writ petition would not be entertainable against such orders unless the same are found to be wholly without jurisdiction or have the effect of rendering findings which are contrary to title already decided by a competent court, was reiterated in the case of Vinod Kumar Rajbhar Vs. State of U.P. and others, 2021 (1) ADJ 792.

36. Taking note of the nature and scope of mutation proceedings which are summary in nature and also the fact that orders in such proceedings are passed on the basis of possession of the parties and no substantive rights are decided, this Court in Buddh Pal Singh Vs. State of U.P. & Ors. reported in 2012 (5) ADJ 266, restated the principle that ordinarily a writ petition in respect of orders passed in mutation proceedings is not maintainable. It was observed as follows:-

"7. It is equally settled that the orders for mutation are passed on the basis of the possession of the parties and since no substantive rights of the parties are decided in mutation proceedings, ordinarily a writ petition is not maintainable in respect of orders passed in mutation proceedings unless found to be totally without jurisdiction or contrary to the title already decided by the competent Court. The parties are always free to get their rights in respect of the disputed land adjudicated by competent Court."

37. The proposition that mutation entries in revenue records do not create or extinguish title over land nor such entries have any presumptive value on title has been restated in a recent decision in the case of Bhimabai Mahadeo Kambekar Vs. Arthur Import and Export Company & Ors. (2019) 3 SCC 191, placing reliance upon earlier decisions in Balwant Singh Vs. Daulat Singh (1997) 7 SCC 137 and Narasamma Vs. State of Karnataka (209) 5 SCC 591 . The observations made in the judgment are as follows:-

"6. This Court has consistently held that mutation of a land in the revenue records does not create or extinguish the title over such land nor has it any presumptive value on the title. It only enables the person in whose favour mutation is ordered to pay the land revenue in question. (See Sawarni v. Inder Kaur, Balwant Singh v. Daulat Singh and Narasamma v. State of Karnataka)."

38. Reference may also be had to the judgment in Faqruddin Vs. Tajuddin (2008) 8 SCC 12, wherein it was held that the revenue authorities cannot decide questions of title and that mutation takes place only for certain purposes. The observations made in this regard are as follows:-

''45. Revenue authorities of the State are concerned with revenue. Mutation takes place only for certain purposes. The statutory rules must be held to be operating in a limited sense... It is well-settled that an entry in the revenue records is not a document of title. Revenue authorities cannot decide a question of title.''

39. A similar observation was made in Narain Prasad Aggarwal Vs. State of Madhya Pradesh, (2007) 11 SCC 736 wherein it was held as follows:-

''19. Record-of-right is not a document of title. Entries made therein in terms of Section 35 of the Evidence Act although are admissible as a relevant piece of evidence and although the same may also carry a presumption of correctness, but it is beyond any doubt or dispute that such a presumption is rebuttable...''

40. In Union of India and others Vs. Vasavi Cooperative Housing Society Limited & Ors.(2014) 2 SCC 269, the principle that entries in revenue records do not confer any title was reiterated and referring to the previous decisions in Corpn. Of the City of Banglore v. M. Papaiah, (1989) 3 SCC 612; Guru Amarjit Singh v. Rattan Chand (1993) 4 SCC 349 and H.P. v. Keshav Ram (1996) 11SCC 257, it was stated thus :-

"21. This Court in several judgments has held that the revenue records do not confer title. In Corpn. Of the City of Bangalore v. M. Papaiah this Court held that: (SCC p. 615, para 5)

''5. ...It is firmly established that the revenue records are not documents of title, and the question of interpretation of a document not being a document of title is not a question of law.''

In Guru Amarjit Singh v. Rattan Chand this Court has held that: (SCC p. 352, para 2) '

'2. ...that entries in the Jamabandi are not proof of title.

'' In State of H.P. v. Keshav Ram this Court held that: (SCC p. 259, para 5)

"'5. ...an entry in the revenue papers by no stretch of imagination can form the basis for declaration of title in favour of the plaintiffs.''

41. A similar view was taken in the case of Sawarni (Smt.) Vs. Inder Kaur (Smt.) and others, (1996) 6 SCC 223 and it was observed that the mutation of name in the revenue records does not have the effect of creating or extinguishing the title nor has any presumptive value on title and it only enables the person concerned to pay land revenue. It was stated thus :-

"7...Mutation of a property in the revenue record does not create or extinguish title nor has it any presumptive value on title. It only enables the person in whose favour mutation is ordered to pay the land revenue in question..."

42. The principle that an entry in revenue records is only for fiscal purpose and does not confer title on a person whose name appears in record-of-rights and title to the property can only be decided by a competent Civil Court was reiterated in the decision of Suraj Bhan and others Vs. Financial Commissioner and others (2007) 6 SCC 186 and it was stated as follows :-

"9...It is well settled that an entry in revenue records does not confer title on a person whose name appears in record-of-rights. It is settled law that 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. So far as title to the property is concerned, it can only be decided by a competent Civil Court..."

43. The legal position that entries in revenue records do not confer any title has been considered and discussed in a recent decisions of this Court in Harish Chandra Vs. Union of India & Ors., 2019 (5) ADJ 212 (DB) and Mahesh Kumar Juneja and another Vs. Additional Commissioner Judicial Moradabad Division and others, 2020 (3) ADJ 104 and it was restated that ordinarily orders passed by mutation courts are not to be interfered in writ jurisdiction as they are summary proceedings, and as such subject to a regular suit.

44. The settled legal position that an entry in revenue records does not confer title on a person whose name appears in record-of-rights and that such entries are only for "fiscal purpose" and no ownership is conferred on the basis thereof and further that the question of title of a property can only be decided by a competent Civil Court has again been restated in a recent decision of the Supreme Court in Jitendra Singh Vs. State of Madhya Pradesh and others, 2021 SCC OnLine SC 802; wherein after referring to the previous authorities on the point in Suraj Bhan Vs. Financial Commissioner, (2007) 6 SCC 186, Suman Verma Vs. Union of India, (2004) 12 SCC 58, Faqruddin Vs. Tajuddin (2008) 8 SCC 12, Rajinder Singh Vs. State of J & K, (2008) 9 SCC 368, Municipal Corporation, Aurangabad Vs. State of Maharashtra, (2015) 16 SCC 689, T Ravi Vs. B. Chinna Narasimha, (2017) 7 SCC 342, Bhimabai Mahadeo Kambekar Vs. Arthur Import & Export Co.(2019) 3 SCC 191; Prahlad Pradhar Vs. Sonu Kumhar, (2019) 10 SCC 259 and Ajit Kaur Vs. Darshan Singh (2019) 13 SCC 70, it was observed thus :-

"8. 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; Faqruddin v. Tajuddin (2008) 8 SCC 12; Rajinder Singh v. State of J&K, (2008) 9 SCC 368; Municipal Corporation 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."

45 The aforesaid propostion of law has recently been reiterated by this Court in the case of Smt. Kalawati v. Board of Revenue & Ors. reported in 2022 (4) ADJ 578. Similar view has been taken in another recent decision of this Court in the case of Alladin v. State of U.P. & Ors. reported in 2023 (3) ADJ 41.

46. Therefore, the orders impugned in the present writ petition would not debar institution of any suit by any person having right in the holding in a competent court. The person can be private, individual or even the State. Here reference to the definition of "person" contained in the General Clauses Act-1897 can also be made. Section 2(42) of the said Act defines "person" in the following terms:-

"2(42)- "Person" shall include any company or association or body of individuals, whether incorporated or not."

47. The definition of "person" is not exclusive but inclusive and considering the language used in the Statute with reference to the proceedings giving rise to the present case, in the opinion of the Court, the "State" would fall in the definition of "person" who having failed to challenge the impugned orders by means of writ petition, on one hand, and accepting the same as valid as aforesaid, before this Court by means of the counter affidavit and advancing arguments, the challenge made to the impugned orders at the behest of a stranger (petitioner) having no concern with the property in dispute is liable to be discarded.

48. This Court is of the considered view that this is not a fit case where any of the exceptions stands attracted requiring interference in exercise of powers under Article 226 of the Constitution of India, particularly, when the main party to be aggreived by the impugned orders or by the nature of relief claimed in the original proceedings under Sections 33/39 of the Act-1901 is the ''State of U.P' which, on the one hand, has not challenged the impugned orders and, on the other hand, has acquised to the orders impugned by terming them as based upon documentary evidence and perfectly, in accordance with law.

49. The petitioner, apart from having no locus in the matter and even otherwise, having failed to make a case for interference in view of the record of "bhumidhari rights" setttled in favour of the private respondents and other beneficiaries and further in the light of law laid down by the Apex Court and this Court, I am not inclined to interfere in the orders impugned.

50. The writ petition is, accordingly, dismissed. No order as to costs.

Order Date:-18.04.2023

Jyotsana

(Kshitij Shailendra, J.)