Daud Ahmad and Another vs Addl. Commissioner (Admn.) and Others

N.K. Mehrotra, J.—This is the petition for a writ of certiorari under Article 226 of the Constitution of India for quashing the order dated 29.11.2000 (Annexure-1) passed by the opposite party No. 1, the Additional Commissioner, Faizabad Division, Faizabad and the order dated 3.6.1999 (Annexure-2) passed by the opposite party No. 2, the Tehsildar, tehsil Rudauli, district Barabanki.

The brief facts as alleged in the petition are that the dispute relates to mutation over the land of khasra No. 38 situated in village Birahimpur which was recorded in the names of the Petitioners and their third brother Sikander Ahmad who died some time in 1991. After the death of Sikander Ahmad, the names of the Petitioners were mutated in place of deceased Sikander Ahmad on the application for mutation moved by the Petitioners. This order mutating the names of the Petitioners was passed on 30.4.1993 and the khatauni of 1357 fasli to 1402 fasli were prepared. The opposite party No. 3, Smt. Bilqis Banoo is the widow of Sikander Ahmad. According to the Petitioners, Smt. Bilqis Banoo was divorced by Sikander Ahmad. According to the Petitioners, they came into possession over the disputed land after the death of Sikander Ahmad in 1991. In 1998, the opposite party No. 3 Smt. Bilqis Banoo moved an application for restoration and the opposite party No. 2 Tehsildar allowed that application vide order dated 3.6.1999 after condoning the long delay of more than five years on the costs of Rs. 100. It is alleged by the Petitioners that this cost has not been paid and the application for restoration moved by the opposite party No. 3 did not even disclose the source and manner of knowledge about the order dated 30.4.1993. The Petitioners have admitted that Sikander Ahmad was employed in Ordnance Factory, Jabalpur and after his death, the pension was given to his widow, the opposite party No. 3 because the Petitioners being capable persons could not get that pension. It is further alleged that there are no grounds in the restoration application moved by the opposite party No. 3 to recall the order dated 3.6.1999. The opposite party No. 3 was not in possession over the disputed property. The Petitioners'' preferred a revision against the order dated 3.6.1999 but that revision has been dismissed by the impugned order dated 29.11.2000. It is also stated that a Regular Suit u/s 229B of the U.P.Z.A. and L.R. Act has been filed by the opposite party No. 3 herself which is pending in the Court of the Pargana Adhikari, Rudauli, Barabanki. In view of the pendency of the suit, there was no justification for disturbing the mutation order. According to the Petitioners'' contention, the orders passed by the opposite party Nos. 1 and 2 are bad in law because the title suit claiming possession in the revenue court is pending.

The opposite party No. 3 filed the counter-affidavit contending that the order dated 30.4.1993, mutating the names of the Petitioners in place of Sikander Ahmad was an ex-parte order without getting a proper proclamation issued and served on her in accordance with the provisions of the Revenue Court Manual. On coming to know about the ex-parte order, the opposite party No. 3 being widow of deceased Sikander Ahmad made an application for recall of the said order before the Tehsildar who had allowed the same and the revision filed by the Petitioners has also been dismissed. It is contended that in view of the well-settled proposition of law laid down by the Supreme Court, the hearing should not be shut and as far as possible, the case should be decided on merit after affording opportunity to the parties. No jurisdictional error has been pointed out by the Petitioners so as to call for any interference in exercise of extra writ jurisdiction under Article 226 of the Constitution of India and the writ petition is liable to be dismissed. The opposite parties denied the allegation of her divorce and she alleges that she remained the wife of Sikander Ahmad till his death and she is getting the family pension after the death of her husband from the Ordnance Factory, Jabalpur. The opposite party No. 3 is a preferential heir and is entitled to mutation of her name. The Petitioners were not allowing her to reside in the house of her husband; therefore, she has been residing at her maternal house. The fact of pending the suit u/s 229B of the Act is admitted but it is contended that filing of the suit cannot deprive the opposite party No. 3 to move for restoration of ex-parte order. It is also contended that the finding of fact recorded by the opposite party Nos. 1 and 2 cannot be interfered in this writ petition.

I have heard the learned Counsel for the parties at length and have perused the record.

One of the impugned order dated 3.6.1999, passed by the Tehsildar, Rudauli, Barabanki is Annexure-2. The opposite party No. 2, the Tehsildar has recorded a finding that it is possible that the applicant (opposite party No. 3) was not residing in the area; therefore, she could not have the knowledge of the proclamation issued by the Tehsildar earlier. The Tehsildar has also recorded a finding that the opposite party No. 3 is the widow of Sikander Ahmad and the allegation of divorce by Sikander Ahmad is not proved and, therefore, on the basis of probability of no knowledge to the applicant, the Tehsildar condoned the delay and recalled the ex-parte order of mutation of the names of the Petitioners on payment of costs. The Tehsildar has also taken into consideration the fact that the opposite party No. 3 is getting the family pension after the death of her husband Sikander Ahmad.

The second impugned order dated 29.11.2002, passed in revision by the Commissioner, Faizabad Division, Faizabad is Annexure-1. The Additional Commissioner is of the view that the opposite party No. 3 Smt. Bilqis Banoo is the natural heir of the deceased Sikander Ahmad and the fact of divorce has not been proved and she is getting the pension of the services of her husband and since the Petitioners have sufficient opportunity to defend their right, therefore, there is no reason to interfere in the order dated 30.6.1999, passed by the Tehsildar, Rudauli, Barabanki. The learned Counsel for the Petitioners in support of his contention has relied on Amitab Chaudhary Vs. District Judge, Allahabad and Another, , in which it was held that mere mention of sufficient ground without giving any reason is not sufficient for condonation of delay u/s 5 of the Limitation Act. This finding was recorded on the facts of that case. Further, the learned Counsel for the Petitioners has referred a case of Smt. Malti Devi Vs. Hon''ble Board of Revenue, U.P. and others, , in which it was held that if the restoration has been allowed after 13 years without considering the correctness of the reasons assigned for delay, the order of restoration is not proper and the Court cannot refuse to interfere under Article 226 of the Constitution of India on the ground that by granting hearing to the parties, justice will be done. The Petitioners have further referred a case of Shridhar Tripathi v. Board of Revenue, U.P. 1997 (15) LCD 464, in which it was held that if a person sleeps over his right for a period of 18 years and does not look to the revenue record prepared after consolidation for about 18 years, cannot be permitted to say that he was asking for mutation of his name on the basis of certain record/sale-deed which was not disputed at all.

All the aforesaid judgments cited by the learned Counsel for the Petitioners are based on the facts of those cases. In the instant petition under judgment, the facts are such in which no interference is warranted in the order of recalling the ex-parte order of mutation in the name of the Petitioners who are the brothers of the deceased Sikander Ahmad after ignoring the claim of the widow who was getting family pension after the death of her husband and who was not residing in the area where the proclamation was issued on the application of the mutation by the Petitioners.

The learned Counsel for the opposite parties has referred the decision of the Supreme Court in Ramji Dass and Ors. v. Mohan Singh, 1978 ARC 496. In this case, an ex-parte decree passed eight years ago was set aside by the Court which passed it and the order was confirmed in revision by the district court. When the High Court set aside that order in revision, the Supreme Court in civil appeal held that as far as possible, the Courts'' discretion should be exercised in favour of hearing and not to shut out hearing. I am of the view that the relief in the writ petition is a discretionary and the discretion should not be exercised in favour of the Petitioners unless a gross injustice is prima facie proved. In Prem Chandra and Anr. v. Deputy Director of Consolidation and others 1983 (1) LCD 118, it was held that whether delay should have been condoned or not, was a matter for consideration by the authorities concerned and it raises no question of jurisdiction so as to call for interference by the Court in exercise of the power under Article 226 of the Constitution and it is well-settled that liberal view should be taken in condoning the delay. In Shanti Prasad Gupta v. Dy. Director of Consolidation, Camp at Meerut and others 1984 RD 382, it was held by the Supreme Court that whether or not there is sufficient cause for condonation of delay, is a question of fact dependent upon the facts and circumstances of a particular case and the proposition is well-settled that when order has been made u/s 5, Limitation Act by the lower court in the exercise of its discretion allowing or refusing an application to extend time, it cannot be interfered with in revision unless the lower court has acted with material irregularity or contrary to law or has come to that conclusion that there is no evidence.

The learned Counsel for the opposite parties has further referred in Smt. Rani Devi Vs. Board of Revenue, U.P. at Lucknow and others, , in which this Court held that the writ petition is not maintainable against the orders passed in mutation proceedings.

The learned Counsel for the opposite parties has further referred Sri Lal Bachan Vs. Board of Revenue, Uttar Pradesh and Others, , in which it was held that the orders passed in mutation proceedings are not amenable to interference in writ jurisdiction.

A Division Bench of this Court in Jaipal Minor v. Board of Revenue U.P., Allahabad and others 1956 ALJ 807, has held as follows : "The contention of learned Counsel for the Petitioner is that the Board of Revenue in passing this order exceeded its jurisdiction. It has however, been the consistent practice of this Court not to interfere with orders made by the Board of Revenue in cases in which the only question at issue is whether the name of the Petitioner should be entered in the record of rights. That record is primarily maintained for revenue purposes and an entry therein has reference only to possession. Such an entry does not ordinarily confer upon the person in whose favour it is made any title to the property in question and his right to establish his title thereto is expressly reserved by Section 40(3) of the Act. The only exception to this general rule is in those cases in which the entry itself confers a title on the Petitioner by virtue of the provisions of the U.P. Zamindari Abolition and Land Reforms Act. This petition does not fall in that class and we think therefore, this Court should not entertain it. It is accordingly dismissed with costs."

The same view has been followed by this Court in several other decisions in Smt. Lakmati and Anr. v. Board of Revenue, U.P., Allahabad and Anr. 1985 ALJ 70; Smt. Kalindri Devi v. Board of Revenue 1987 (2) AWC 5 : 1987 ALJ 919 ; Smt. Rani Devi Vs. Board of Revenue, U.P. at Lucknow and others, ; Kunj Behari Vs. Board of Revenue, U.P. Lucknow and others, . In U.P. State Cooperative Land Development Bank Ltd. Vs. Chandra Bhan Dubey and Others, , the Apex Court while considering the scope of Article 226 of the Constitution of India has held as under : "When any citizen or person is wronged, the High Court will step in to protect him, be that wrong be done by the State, an instrumentality of the State, a company or a cooperative society or association or body of individuals, whether incorporated or not, or even an individual. Right that is infringed may be under Part III of the Constitution or any other right, which the law validly made, might confer upon him. But then the power conferred upon the High Courts under Article 226 of the Constitution is so vast, this Court has laid down certain guidelines and self-imposed limitations have been put there subject to which the High Courts would exercise jurisdiction, but those guidelines cannot be mandatory in all circumstances. The High Court does not interfere when an equally efficacious alternative remedy is available or when there is an established procedure to remedy a wrong or enforce a right. A party may not be allowed to bypass the normal channel of civil and criminal litigation. The High Court does not act like a proverbial "bull in a China shop" in the exercise of its jurisdiction under Article 226."

In view of the aforesaid settled legal proposition, I am of the opinion that in the instant case, the recall of the ex-parte order of mutation in favour of the brothers of the deceased after ignoring the claim of the widow who had no knowledge of the application for mutation moved by the Petitioners does not call for any interference in the writ jurisdiction under Article 226 of the Constitution of India. Therefore, the writ petition is liable to be dismissed.

In result, the writ petition is dismissed.