Abhay Kumar Singh And 3 Others vs State Of U.P. And 6 Others
2023 Latest Caselaw 5207 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 


 

 
Court No. - 4
 

 
Case :- WRIT - B No. - 250 of 2023
 

 
Petitioner :- Abhay Kumar Singh And 3 Others
 
Respondent :- State Of U.P. And 6 Others
 
Counsel for Petitioner :- P.K. Upadhyay,Hari Shankar,Vikram Yadav
 
Counsel for Respondent :- C.S.C.,Bhupendra Kumar Tripathi,Shiv Babu Dubey
 

 

 
Hon'ble Jayant Banerji, J.

1. Heard Shri P.K. Upadhyay, learned counsel for the petitioners and Shri Shiv Babu Dubey, learned counsel for the respondent no.7. Learned Standing Counsel appears for the respondent nos.1, 2, and 3, while Shri Bhupendra Kumar Tripathi, learned counsel appears for the respondent nos.4, 5 and 6.

2. Supplementary affidavit filed today on behalf of the petitioners, is taken on record.

3. With the consent of the learned counsel for the parties, the case is taken up for final disposal without calling for any counter affidavit.

4. By means of this writ petition, the petitioners seek the following reliefs:-

"1. Issue a writ, order or direction in the nature of certiorari quashing the order dated 20.12.2022 (Annexure no.28) passed by Hon'ble Board of Revenue, U.P. at Lucknow and the order dated 31.03.2021 (Annexure no.25) passed by the Naib Tehsildar, Majhwar, Chandauli.

2. Issue a writ, order or direction in the nature of mandamus restraining the respondents from interfering with the possession of the petitioners over the above said plots."

5. It is stated on behalf of the petitioners that based on the fraudulent gift deed dated 09.06.2014 in respect of the land in dispute, the respondent no.7 took steps for mutation whereafter proceedings were initiated before the Naib Tehsildar. It is contended that by means of an ex-parte order dated 14.05.2015, the Naib Tehsildar ordered mutation of the name of the respondent no.7 over the land in dispute. It is stated that thereafter on 14.05.2015 itself, the petitioners filed an application in the court of Naib Tehsildar, Chandauli seeking recall/restoration of the order dated 14.05.2015 passed by the Naib Tehsildar. On that very day, the Naib Tehsildar proceeded to recall the order dated 14.05.2015 and restored the case to its original number. Issuance of notice to the respondent no.7 was ordered and the case was fixed for 24.05.2015. It is stated that the aforesaid restoration order dated 14.05.2015 was challenged by the respondent no.7 in a revision before the Additional Commissioner (Administration), Varanasi Division in Case No.977 of 2015, which was dismissed. Thereafter, proceedings for mutation started before the Naib Tehsildar, but it is contended that the respondent no.3, Tehsildar Sadar, by its order dated 31.03.2021, dismissed the restoration application dated 14.05.2015 and upheld the order of mutation dated 14.05.2015.

6. It is contended by the learned counsel for the petitioners that the order passed by the Tehsildar amounts to reviewing the order of restoration dated 14.05.2015, which is impermissible as no power of review has been statutorily conferred on the respondent no.3 to review an order. It is stated that challenging the aforesaid order dated 31.03.2021, a revision was filed before the Board of Revenue but the revision was dismissed by the order dated 20.12.2022, which order is also under challenge in the present writ petition.  The contention is that revisiting of the order of restoration dated 14.05.2015 by the Tehsildar vide its order dated 31.03.2021 is impermissible and, therefore, the order dated 31.03.2021 deserves to be quashed by this Court. Moreover, it is urged that the revisional court failed to exercise its jurisdiction by rejecting the revision.

7. Learned counsel for the respondent no.7 has urged that mutation proceedings does not confer any title on the property and it is for the petitioners to establish their rights before the court of competent jurisdiction.

8. A perusal of the record reveals that the order of mutation dated 14.05.2015 was recalled by the Naib Tehsildar on 14.05.2015 and the case was restored to its original number. After rejection of the revision filed by the respondent no.7 before the Additional Commissioner, mutation proceedings re-started before the authority. A perusal of the order passed by the respondent no.3 dated 31.03.2021 reveals that the revision was dismissed by the court of Additional Commissioner (Administration) on 21.02.2019, thereafter, the case was placed for filing of evidence and recording of testimony. On 16.08.2019, though the counsel for the respondent no.7 was present, the petitioners were absent. It has been mentioned in the order dated 31.03.2021 passed by the respondent no.3 that the case was being listed since 05.11.2020 for evidence of the petitioners. On 17.12.2020, the petitioners were absent. The case was then fixed for delivery of order, whereafter the petitioners with advocate appeared and filed a restoration application for filing evidence and objections which was accepted and 24.12.2020 was fixed in the matter. On 24.12.2020, the petitioners asked for a further opportunity to present their arguments and opportunity was granted to submit written arguments and oral arguments. It is mentioned in the order that despite several dates being fixed in the matter, the petitioners never filed their written arguments. The petitioners, thereafter, filed a transfer application dated 31.12.2020 before the court of the District Magistrate, which was rejected on 24.02.2021 with the direction that the case be decided within two months fixing short dates. Thereafter, the respondent no.3 records, that on 23.03.2021, the file was placed and both parties were present, but time was sought by the counsel for the petitioners to file evidence, which was opposed by the learned counsel for the respondent no.7. However, in the interest of justice, the petitioners were granted time as a last opportunity to file documentary evidence and make their oral submissions. On the date fixed, i.e., 25.03.2021, both parties were present in the court but the petitioners again sought time to file their evidence and written arguments. The court waited till 5:00 p.m. for the petitioners to file their evidence but neither evidence nor written arguments were filed. The opportunity to furnish evidence and to file written arguments was, therefore, closed by the court and 31.03.2021 was fixed for delivery of orders. It is mentioned that the petitioners were asked to file their evidence and written arguments before 31.03.2021. It is stated that an application dated 31.03.2021 alongwith an adjournment application of the same date was filed by the petitioners to file evidence/written arguments and for adjourning the matter. It was observed by the respondent no.3 that adequate opportunity has been afforded to the petitioners but now no more time could be given. The application for adjournment was dismissed accordingly. Thereafter, the respondent no.3 proceeded to pass the order impugned.

9. A perusal of the order passed by the Board of Revenue in revision also reveals that the matter was considered in its entirety and the revision was dismissed.

10. It is to be noted that though the petitioners have challenged the order of the Board of Revenue, however, the Board of Revenue has not been impleaded as a respondent in the writ petition. A perusal of the supplementary affidavit that has been filed today, reveals that a suit was filed by the petitioners against the respondent no.7 (who is the sole defendant therein) in which the reliefs sought are of declaration of the alleged gift deed dated 09.06.2014 as void and ineffective, and for permanent injunction restraining the respondent no.7 from forcibly occupying the suit property or from transferring the same or interfering in the peaceful possession of the suit property by the plaintiffs/petitioners. It needs no iteration that in mutation proceedings, substantive rights of parties qua property are not decided. Mutation proceedings are decided on the basis of possession, only to enable the statutory authorities to conclude as to who would be liable to pay revenue. It has been held in various judgments of the Supreme Court as well as of this Court that mutation proceedings do not confer any title on parties. Reference may be had to the judgment of a coordinate Bench of this Court in the case of Smt. Kalawati vs. Board of Revenue and Ors.1 in which it is observed as follows:-

"21. 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. It is for this reason that it has consistently been held that such petitions are not to be entertained in exercise of powers under Article 226 of the Constitution of India. The consistent legal position with regard to the nature of mutation proceedings, as has been held in the previous decisions, may be stated as follows :-

(i) mutation proceedings are summary in nature wherein title of the parties over the land involved is not decided;

(ii) mutation order or revenue entries are only for the fiscal purposes to enable the State to collect revenue from the person recorded;

(iii) they neither extinguish nor create title;

(iv) mutation in revenue records does not have any presumptive value on the title and no ownership is conferred on the basis of such entries;

(v) the order of mutation does not in any way effect the title of the parties over the land in dispute; and

(vi) such orders or entries are not documents of title and are subject to decision of the competent court.

..............

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."

11. Learned counsel for petitioners has not been able to point out any circumstance which may persuade this Court to entertain the writ petition in exception to the settled legal position that ordinarily orders passed in mutation proceedings are not to be interfered with in exercise of the extraordinary jurisdiction of this Court under Article 226 of the Constitution of India.

12. As observed above, the petitioners have already filed a suit for declaration and permanent injunction. It is for the petitioners to establish their rights before the court of competent jurisdiction with regard to the property in question.

13. In view of the facts and circumstances of the case, interference in writ jurisdiction in the orders impugned is declined. This writ petition is, accordingly, dismissed.

Date 16.02.2023

SK

(Jayant Banerji, J.)