Parmanand And 2 Others vs State Of U.P. And 4 Others
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Allahabad High Court

Parmanand And 2 Others vs State Of U.P. And 4 Others on 12 May, 2025

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 


?Neutral Citation No. - 2025:AHC:77422
 
Court No. - 34
 

 
Case :- WRIT - C No. - 41312 of 2024
 

 
Petitioner :- Parmanand And 2 Others
 
Respondent :- State Of U.P. And 4 Others
 
Counsel for Petitioner :- Ram Kishor Gupta,Shiv Shankar Gupta
 
Counsel for Respondent :- C.S.C.
 

 
Hon'ble Syed Qamar Hasan Rizvi,J.
 

1. Heard Sri Ram Kishor Gupta, learned counsel for the petitioners and Sri Awadhesh Kumar Patel, learned Standing Counsel for the State-respondents nos.1 to 3.

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

"Issue a writ, order or direction in the nature of certiorari quashing the judgment and order dated 27.08.2024 passed by Commissioner, Chitrakootdham Mandal, Banda in Revision No. 149 of 2022, Parmanand and others verus Jaypal and others under Section 210 of U.P. Revenue Code, 2006 and judgment and order dated 30.11.2022 passed by Sub Divisional Officer, Rath, in Appeal No.923 of 2016, Parmanand and others vs. Jaypal and others, under Section 35(2) of U.P. Revenue Code, 2006 and judgment and order dated 29.06.2015 passed by Tehsildar, Rath, District- Hamirpur in Case No. T2015073202196 of 2012/2015, under Section 34 of the U.P. Revenue Code, Mauza Pathnaudi, Tehsil Rath, District- Hamirpur."

3. Precisely, the submission of the learned counsel for the petitioner is that the mutation proceedings under Section 34 of the U.P. Revenue Code, 2006 were initiated on the application by the respondent no.4 and 5 on the basis of a Will dated 07.06.2012. The contention of the learned counsel for the petitioner is that the said Will dated 07.06.2012 is a forged and fabricated document and the mutation orders have been passed by the revenue authorities treating the said Will to be genuine.

4. Sri Awadhesh Kumar Patel, learned Standing Counsel appearing for the State-respondents has raised a preliminary objection regarding the entertainability of the present writ petition in the light of the judgment rendered 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. Confronted with the aforesaid preliminary objection, the learned counsel for the petitioner, Sri Gupta submitted that the impugned order passed by the revenue authorities being without jurisdiction is amenable to writ jurisdiction of this Court. In support of his submission, he has relied upon the judgment passed by this Court in the case of Smt. Kalawati versus The Board Of Revenue And 6 Others; reported in 2022 (4) ADJ 578, wherein this Court has held as under:

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

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."

6. 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 petitioners, this Court in the interest of justice, deems it appropriate to record its observation that the petitioners are always at liberty to get their rights adjudicated or declared by the competent court of jurisdiction.

7. 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 :- 12.5.2025

Abhishek Gupta