Annesh And 3 Others vs State Of U.P. And 3 Others
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Allahabad High Court

Annesh And 3 Others vs State Of U.P. And 3 Others on 23 May, 2025

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 


?Neutral Citation No. - 2025:AHC:88494
 
Court No. - 34
 

 
Case :- WRIT - C No. - 5265 of 2025
 
Petitioner :- Annesh And 3 Others
 
Respondent :- State Of U.P. And 3 Others
 
Counsel for Petitioner :- Tara Chand Kaushal
 
Counsel for Respondent :- C.S.C.
 

 
Hon'ble Syed Qamar Hasan Rizvi,J.
 

1. Heard Shri Tara Chand Kaushal, learned counsel for the petitioners and Shri Awadhesh Kumar Patel, learned Standing Counsel representing the State respondents No. 1, 2 and 3.

2. By means of present writ petition, the petitioners have challenged the order dated 24.01.2025 passed by the Commissioner, Azamgarh Division, Azamgarh (respondent No.2) in revision No. 233/M (Computerized No. C202415000001189) under Section 210 of U.P. Revenue Code, 2006 (Annesh and others Vs. Madan Mohan and others) and the order dated 10.07.2024 passed by the Sub-Divisional Magistrate (Tehsil Level), Judicial, Tehsil Ghosi, District Mau in case No. 2394 of 2021 (Computerized case No. T202115510202394) under Section 35(2) of the U.P. Revenue Code, 2006.

3. Shri Awadhesh Kumar Patel, learned Standing Counsel representing the State-respondents raised preliminary objection regarding the entertainability of the writ petition firstly on the ground that the present writ petition arising out of mutation proceeding is not at all entertainable under Article 226 of the Constitution of India and secondly that by means of the impugned order dated 10.07.2024 the petitioner has been given full opportunity to pursue his case before the Court of learned Tehsildar concerned, and as such the same does not suffer from any illegality and deserves no interference by this Court under Article 226 of he Constitution of India.

4. In support of his contentions, the learned Standing Counsel appearing for the State-respondents has relied upon the judgment rendered by this Court in the case of Smt. Kalawati versus The Board Of Revenue And 6 Others; reported in 2022 (4) ADJ 578. He also relied upon the judgment passed by this Court in the case of Amritansh Pandey versus State of U.P. and others; reported in 2023(9) ADJ 457, wherein this Court has held as under:

"..................

19. 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.

20. 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. At the same time, it must be remembered that mere availability of an alternative remedy of appeal or revision, which the party invoking the jurisdiction of the High Court under Article 226 of the Constitution has not pursued would not oust the jurisdiction of the High Court and render a writ petition 'not maintainable'.

21. The Hon'ble Supreme Court in the case of M/s. Godrej Sara Lee Ltd. versus Excise and Taxation Officer-cum-Assessing Authority and others; reported in AIR 2023 Supreme Court 781, has been pleased to explain the distinction between the 'entertainability' and 'maintainability' of a writ petition. The extract from paragraph 4 of the said judgment is quoted below:

"......Though elementary, it needs to be restated that 'entertainability' and 'maintainability' of a writ petition are distinct concepts. The fine but real distinction between the two ought not to be lost sight of. The objection as to 'maintainability' goes to the root of the matter and if such objection were found to be of substance, the courts would be rendered incapable of even receiving the lis for adjudication. On the other hand, the question of 'entertainability' is entirely within the realm of discretion of the high courts, writ remedy being discretionary. A writ petition despite being maintainable may not be entertained by a high court for very many reasons or relief could even be refused to the petitioner, despite setting up a sound legal point, if grant of the claimed relief would not further public interest..........."

22. The reluctance of this Court to interfere with the orders under challenge in the instant petition, is primarily that the same are the outcome of the mutation proceedings and it is a settled legal position that entry in the revenue records does not confer title to a person whose name appears in the records-of-rights, which is maintained for revenue purpose and an entry therein has reference only to possession. Further, the provision of Section 39 of the U.P. Revenue Code, 2006 makes it more clear that orders passed under the provisions relating to mutation of revenue records would not act as a bar against any person from establishing his rights in the property by way of suit for declaration. For ready reference the provision of Section 39 of the U.P. Revenue Code, 2006 is quoted below:-

"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."

23. Normally, the High Court in exercise of its plenary power does not entertain writ petition under Article 226 of the Constitution of India, against the orders passed by the Revenue Courts in mutation proceedings, except under the conditions as formulated by this Court in cases as mentioned above.

24. 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. 25. It is well 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 the Writ Courts decline to entertain the writ petition as not entertainable 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.

26. 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. Needless to say, it is always open to the petitioner to get his rights/title in respect of the land in question be crystallised by competent Civil Court."

5. Taking into consideration the aforesaid settled legal preposition that ordinarily the writ petitions are not entertainable against the orders passed by the Revenue Court in the mutation proceedings and further the controversy involved herein does not attract any of the exceptions as carved out in paragraph no.40 of the judgment passed by this Court in the case of Smt. Kalawati (supra), this Court is of the considered view that the present writ petition is not entertainable under Article 226 of the Constitution of India. Accordingly, the same is consigned to record. However, without entering into the merit of the claims of the petitioner, this Court in the interest of justice, deems it appropriate to record its observation that the petitioner is always at liberty to get his rights adjudicated or declared by the competent court of jurisdiction.

6. Needless to say that the order passed in the mutation proceedings would abide by the decision of the competent court and the said court while deciding the case before it, would not, in any manner, be influenced by any findings or observations made by the Revenue Court in the mutation proceedings.

Order Date :- 23.5.2025

Karan