Gyandas And 5 Others vs State Of U.P. And 4 Others
2023 Latest Caselaw 22916 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 


?Neutral Citation No. - 2023:AHC:169648
 
Court No. - 49
 

 
Case :- WRIT - B No. - 2780 of 2023
 

 
Petitioner :- Gyandas And 5 Others
 
Respondent :- State Of U.P. And 4 Others
 
Counsel for Petitioner :- Rajesh Kumar,Ranjana
 
Counsel for Respondent :- C.S.C.
 

 
Hon'ble Syed Qamar Hasan Rizvi,J.

1.Heard Shri Rajesh Kumar, learned counsel for the petitioners and Shri Pankaj Kumar, learned Standing Counsel for State-respondents No. 1 to 3.

2.By means of the present writ petition, the petitioners have prayed for the following relief:-

"1. a writ, order or direction in the nature of certiorari to quash the impugned orders dated 21.1.2003 (Annexure No. 1) passed by the respondent No. 3 in case no. 52/493 (Dukh Haran vs. Gayadeen), under Section 201 of U.P. Land Revenue Act and order dated 19.01.2023 (Annexure No. 4) passed by the respondent no. 2 in revision no. 927/2010-11 and its computer case no. 201117360043795 (Dukhharan vs. Kamlawatti and others) under Section 219 of U.P. Land Revenue Act, 1901.

2. a writ, order or direction in the nature of mandamus commanding the respondents not to dispossess the petitioners from gata no. 121 area 0-10-12 hectare situated in Village Arda, Tehsil Rudhauli, district Basti."

3. The sole contention of learned counsel for the petitioner is that the learned Board of Revenue while passing the impugned order dated 19.1.2023 has dismissed the revision filed by the petitioners without taking into consideration the material facts and evidences that were available on record and the said order has been passed in the most machenical manner without application of judicial mind.

4. The order impugned in the present writ petition is a non speaking order and has been passed merely observing that the petitioners did not have raised any new point other than the points that were raised by them in the lower courts.

5. The learned trial court has simply observed that the learned counsel for the revisionist has failed to establish any relationship between the deceased Gayadeen and the opposite parties and has further observed that the parties have full opportunity to raise their pleas before the lower court and full opportunity of being heard is available before the trial court.

6. Shri Pankaj Kumar, learned Standing Counsel appearing for State-respondent has raised an objection regarding the maintainability of the writ petition. He relied upon the judgment passed by this Court in the case of Madhav Pandey and others versus Board of Revenue and others, reported in 2002(2) AWC 1311, wherein it has been held that the proceedings arising out of mutation are summary in nature and the writ petition against the same are not entertainable under Article 226 of the Constitution of India.

7. Since, the proceedings in the instant case have arisen from an application filed under section 34 of the U.P. Revenue Code, 2006 for the mutation in the revenue records, which is admittedly a summary proceeding, it is necessary to examine the maintainability of a writ petition under Article 226 of the Constitution of India, against the orders passed by the Revenue Courts in mutation proceeding.

8. In the case of Madhav Pandey (Supra); this Court has held that the mutation proceeding is summary in nature and a writ petition against the summary proceeding is not entertainable under Article 226 of the Constitution of India. In para 26 of the said judgement, it has been very categorically held as under,

"26. The last submission of the counsel for the Petitioner is that the revenue court cannot interfere with the finding of fact and the revisional court i.e., the Board of Revenue has wrongly exercised the jurisdiction , hence this court may set aside the order of the board of revenue. As noticed above, there is difference between lack of jurisdiction and erroneous exercise of jurisdiction in a case. The present proceedings arising out of the mutation proceedings which is summary proceeding and the writ petitions against the summary proceedings are not entertained under Article 226 of Constitution of India. There is no need to consider the question as to whether the revisional court has committed any error in exercise of jurisdiction. Assuming for argument sake that there is some error in exercise of jurisdiction by the Board of Revenue, the said error will not make the order without jurisdiction. As held above, the writ petition arising out of the summary proceedings, can be entertained only when there is lack of jurisdiction. It being not a case of lack of jurisdiction, no interference is called for in the impugned order on the basis of the above submission of the counsel for the petitioners."

9. This Court in the case of Smt. Kalawati vs. The Board Of Revenue And 6 Others reported in 2022 (4) ADJ 578 has carved out certain exceptions under which a writ petition may be entertained against the orders passed in mutation proceedings. For a ready reference paragraph No. 40 of the said judgment is reproduced below:-

"40. Having regard to the foregoing discussion the exceptions under which a writ petition may be entertained against orders passed in mutation proceedings would arise where :

i) the order or proceedings are wholly without jurisdiction;

(ii) rights and title of the parties have already been decided by a competent court, and that has been varied in mutation proceedings;

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

(iv) rights have been created which are against provisions of any statute, or the entry itself confers a title by virtue of some statutory provision;

(v) the orders have been obtained on the basis of fraud or misrepresentation of facts, or by fabricating documents;

(vi) the order suffers from some patent jurisdictional error i.e. in cases where there is a lack of jurisdiction, excess of jurisdiction or abuse of jurisdiction;

(vii) there has been a violation of principles of natural justice."

10. Almost the similar situation has been dealt with by this Court in the case of Hadisul Nisha vs. Additional Commissioner (Judicial) Faizabad and others reported in 2021 (6) ADJ 176, wherein the Court has laid down the exceptions, per which a writ petition would be maintainable even against the orders passed in summary proceedings despite the said order having been affirmed/set aside by the appellate or revisional court. For the sake of convenience, paragraph No. 19 of the same is indicated below:-

"19. The Courts in the afore-cited decisions have laid down a few parameters for entertaining writs arising out of mutation proceedings. The exceptions that have been carved out being very few, for example:-

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)"

11. In the case of Jitendra Singh versus The State of Madhya Pradesh and Ors. reported in 2021 (6) Supreme 185, the Hon'ble Supreme Court of India has been pleased to hold as under,

"5?. Be that as it may, as per the settled proposition of law, mutation entry does not confer any right, title or interest in favour of the person and the mutation entry in the revenue record is only for the fiscal purpose. As per the settled proposition of law, if there is any dispute with respect to the title and more particularly when the mutation entry is sought to be made on the basis of the will, the party who is claiming title/right on the basis of the will has to approach the appropriate civil court/court and get his rights crystalised and only thereafter on the basis of the decision before the civil court necessary mutation entry can be made."

12. It is settled law that the revenue records do not confer title and even if the entries in the revenue record of rights carry value that by itself would not confer any title upon the person claiming on the basis of the same. The mutation proceedings being of a summary nature drawn on the basis of possession do not decide any question of title and the orders passed in such proceedings do not come in the way of a person in getting his rights adjudicated in a regular suit. Mutation in revenue records neither creates nor extinguishes title of the person nor it has any presumptive value on title. Such entries are relevant only for the purpose of collecting land revenue. In view thereof, this Court has consistently held that such writ petitions are not to be entertained in exercise of discretionary power conferred under Article 226 of the Constitution of India.

13. It would not be out of place to mention here that the power to issue prerogative writs under Article 226 is plenary in nature. It does not, in terms, impose any limitation or restraint on the exercise of the power to issue writs. It is the discretion of the Writ Court whether to entertain writ petition or not depending upon the facts and circumstances of each particular case. One of the self imposed restrictions on the exercise of the power under Article 226 of the Constitution that has evolved through judicial precedents is that the High Court should normally not entertain a writ petition, where an effective and efficacious alternative remedy is available.

14. It is the settled legal position that mutation in revenue records neither creates nor extinguishes title of the person nor it has any presumptive value on title. Such entries are relevant only for the purpose of collecting land revenue.

15. The fact of the present case does not attract the above mentioned exceptions as carved out by this Court under which this Court in exercise of its power under Article 226 of the Constitution may entertain a writ petition against the order passed in mutation proceedings that are admittedly summary in nature.

16. In view of the above, as no substantive rights of the parties have been decided or are likely to be decided in the mutation proceedings, no case for exercise of extra-ordinary writ jurisdiction under Article 226 of the Constitution of India is made out.

17. Learned counsel for the petitioner submits that since the case under Section 34 is already pending for disposal before the respondent No.3 and as such, he does not want to press the prayers made in the petition at this stage and prayed for a direction to the respondent No. 3, Tehsildar, Tehsil Rudhauli, District Basti to decide the case of the petitioner expeditiously within a stipulated period of time.

18. In view of the nature of the order proposed to be passed, the service of notice upon respondents Nos. 4 and 5 are dispensed with.

19. Without adverting on the merits of the case, considering the prayer as sought by the learned counsel for the petitioner, the writ petition is finally disposed of with the direction to respondent No. 3-Tehsildar, Tehsil Rudhauli, District Basti to decide the aforesaid case within a maximum period of six months from the date of production of certified copy of this order, strictly in accordance with law after affording full opportunity of hearing to the parties concerned.

Order Date :- 23.8.2023

Sumaira