WPMS/2682/2017
2021 Latest Caselaw 1237 UK

IN THE HIGH COURT OF UTTARAKHAND
                    AT NAINITAL
       ON THE 31ST DAY OF MARCH, 2021
                         BEFORE:
 HON'BLE SHRI JUSTICE MANOJ KUMAR TIWARI


     WRIT PETITION (M/S) No. 2682 of 2017

BETWEEN:

Dayanand Siksha Sansthan.                        ....Petitioner
     (There is no representation for the petitioner)

AND:
Sri Prem Singh and others.                    ...Respondents
     (By Mr. M.S. Tyagi, Senior Advocate, assisted by Mrs.
     Prabha Naithani, Advocate for respondent nos. 1 to 6 and
     Mr. Pradep Hariya, Standing Counsel for the State of
     Uttarakhand)


                       JUDGMENT

Petitioner is challenging the order dated 24.07.2017 passed by Assistant Collector, Ist Class (Sadar), Dehradun, in summary proceedings, under Section 33/39 of U.P. Land Revenue Act, 1901. He is also challenging the judgment dated 21.09.2017 passed by Commissioner, Garhwal Division, whereby his revision, challenging the order passed by Assistant Collector, was dismissed.

2. It transpires that respondent nos. 1 to 6 moved an application, under Section 33/39 of U.P. Land Revenue Act, contending that their forefathers were joint tenure holders in respect of land in question, however, after the Fasli Year 1373, names of their forefathers have been omitted from the Annual Register, therefore, the Annual Register be

corrected. The said application made by the private respondents was allowed by Assistant Collector, Ist Class on a report submitted by the concerned Lekhpal (Revenue Inspector). Petitioner, who was not party to the proceedings under Section 33/39 of U.P. Land Revenue Act, filed a revision under Section 219 of U.P. Land Revenue Act, 1901, contending that the erstwhile State of Uttar Pradesh had acquired land comprised in Village Rangadwala and Village Mitthibedi, Pargana Pachwadoon and, out of the land so acquired, 10 acre land was allotted to the petitioner for running D.A.V. Inter College and he was a necessary party to the proceedings under Section 33/39 of the Act. Before the Revisional Court, private respondents contended that the revision filed by the petitioner is not maintainable, as he was not a party to the proceedings before Assistant Collector and he did not move any application seeking his impleadment. It was further contended that although petitioner contends that he was allotted a piece of land by the State Government; but, no document has been produced by him in support of his claim.

3. Learned Revisional Court dismissed the revision filed by the petitioner vide judgment dated 21.09.2017, by holding that petitioner was not party to the proceedings pending before the Assistant Collector and he did not file any application seeking his impleadment in the said proceedings. It was further held that petitioner could have filed application for seeking recall of the order dated 24.07.2017, if it was an ex-parte order. The Revisional Court further held that petitioner has not been able to place any material on record, in support of his claim, regarding title over the subject land, however, while dismissing

petitioner's revision, Revisional Court granted him liberty to approach learned Assistant Collector seeking recall of the order and also for seeking his impleadment in the proceedings.

4. A Co-ordinate Bench of this Court vide order dated 02.11.2017 had directed the Principal Secretary, Department of Revenue to conduct enquiry, as to whether the procedure, prescribed under Section 33 (4) of U.P. Land Revenue Act, 1901, was followed or not by the Assistant Collector while deciding the application filed by private respondents.

5. A compliance affidavit has been filed by Mr. Harbans Singh Chugh, In-Charge Secretary, Revenue. Alongwith compliance affidavit, an order passed by In-Charge Secretary, Revenue on 21.12.2017 has been enclosed. Perusal of the said order indicates that Secretary, Revenue has given clean chit to Sub Divisional Magistrate (Sadar), Dehradun and has held that there is no procedural lapse in the matter. Petitioner has not filed any objection to the compliance affidavit filed by In-Charge Secretary, Revenue.

6. Heard learned counsel for the respondents and perused the record. Learned Revisional Court has discussed the matter in great detail and has given valid reasons for dismissing petitioner's revision filed under Section 219 of Land Revenue Act. Learned Revisional Court has noted the submission made on behalf of respondent nos. 1 to 6 that petitioner was not affected by partition of the country, therefore, he is not a refugee as such his claim that he was allotted land by the Relief & Rehabilitation Department of

State Government is not acceptable. It has further noted the submission that name of the petitioner was never entered in the Annual Register/revenue records, therefore, he has no prima facie case in his favour. This Court concurs with the reasoning given by the Revisional Court.

7. Even otherwise also, the proceedings under Section 33/39 of U.P. Land Act are summary in nature. Under these proceedings, any error or omission in the Annual Register can be corrected, however, disputed question of title cannot be decided in these proceedings. Section 33 & 39 of the Act are reproduced below:

"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 tire order of the Collector or as hereinafter provided, of tire 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.

(4A) 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 tire 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.

[33A. Correction of annual registers in cases of uncontested successions. - (1) Where a person obtains possession of any land by succession, tire Kanungo shall make such enquiry as may be prescribed and if the case is not disputed record the same in the annual registers.]

[(2) The provisions of sub-section (1) shall mutatis mutandis apply -

(i) to a person, who has been admitted as a sirdar of any land under Section 195 of the Uttar Pradesh Zamindari Abolition and Land Reforms Act, 1950 before tire commencement of the Uttar Pradesh Land Laws (Amendment) Act, 1977 or as a bhumidhar with non-transferable rights under tire said section after such commencement, or as an asami of any land under Section 197 of the first mentioned Act.

(ii) to every settlement of land made under sub-section (3) of Section 27 of the Uttar Pradesh Imposition of Ceiling on Land Holdings Act, 1960.]"

"[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."

8. Chapter IX of the aforesaid Act lays down the procedure of Revenue Courts/Officers. Section 200 of the said Act enables the Revenue Court to dismiss a case for default or to hear and determine a case in the absence of any party to the proceedings, if he neglects to attend the Court on the date fixed. Section 201 of the said Act provides that no Appeal shall lie from an ex-parte order passed under Section

200. However, it further provides that if the party, against whom judgment has been given, appears either in person or by agent and shows good cause for his non-appearance, and satisfies the officer making the order that there has been a failure of justice, such officer may, upon such terms as to costs or otherwise as he thinks proper, revive the case and alter or rescind the order, according to the justice of the case.

9. In view of the Scheme of the Act, especially the provisions contained in Section 200 & 201 of the Act, the Revisional Court was justified in dismissing the revision filed by the petitioner, with liberty to him to file an application seeking recall of the order passed by Assistant Collector and also seeking re- hearing of the matter, after getting himself impleaded. The Commissioner, while exercising revisional powers under Section 219 of the Act, could not have adjudicated upon the issues raised by the petitioner for the first time in his Revision Petition. Thus, the proper remedy for the petitioner was to file application seeking recall of the order before the Assistant Collector, where he could have raised all

contentions, factual as well as legal. The jurisdiction available to Revisional Court is circumscribed by provision contained in Section 219(1) of Land Revenue Act.

10. Disputed question of title cannot be gone into in proceedings for correction of Annual Register/ revenue record, which are summary in nature and the purpose of making such entries is collection of tax only and entry of name in the Annual Register/annual record does not confer title to a person. Section 40-A of U.P. Land Revenue Act, 1901 also provides that 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. If petitioner is asserting title over the subject land, then his remedy lies elsewhere.

11. In view of aforesaid discussion, this Court does not find any scope for interference with the impugned judgment & orders while exercising supervisory jurisdiction under Article 227 of Constitution of India.

12. Accordingly, the writ petition fails and is dismissed.

(MANOJ KUMAR TIWARI, J.) Arpan