Dhirendra and Another vs Additional Commissioner, (Administration) and Others

Vikram Nath, J.—This Writ petition under Article 226, Constitution of India has been filed for quashing the orders dated 4.2.2011, 9.9.1997 and 28.11.1996 passed by the Respondent Nos. 1, 2 and 3 respectively whereby the mutation application filed by Vishwanath Singh had been rejected as being not maintainable.

The Petitioners are the legal heirs of Vishwanath Singh. The land in dispute was recorded in the name of Shyam Narain. The fathers of Vishwanath Singh and Shyam Narain were real brothers being sons of Mahadev. Shyam Narain executed a will dated 17.5.1990 in favour of Vishwanath Singh. On the basis of the will, Vishwanath Singh filed a mutation application in the year 1994. The original will was filed by Vishwanath Singh before the Nayab Tehsildar. An objection regarding maintainability of the said proceedings was filed by Mandavi Devi, Respondent No. 4 on 8.11.1994. The said objection of Mandavi Devi was rejected by a detail order dated 13.11.1995 by the Nayab Teshildar, holding that the application was maintainable, a copy of the said order has been filed as Annexure 4 to the writ petition.

Thereafter it appears that Mandavi Devi filed another application dated 7.2.1996 again raising the same objection that the application of Vishwanath Singh for mutation was not maintainable for the same reason that the name of the daughters of Shyam Narain had already been incorporated in the revenue records in his place. By the impugned order dated 28.11.1996, Nayab Tehsildar held that the mutation application was not maintainable and accordingly rejected the same. Vishwanath Singh filed an appeal which was dismissed by the Deputy Collector vide order dated 9.9.1997. In the meantime as Shyam Narain had died the Petitioners who are his legal heirs filed a revision which has also been dismissed by the Additional Commissioner (Admin.), Varanasi Division, Varanasi vide order dated 4.2.2011. It is against these orders that the present petition has been filed.

I have heard Sri C.S. Agnihotri, learned Counsel for the Petitioners, Sri R.N. Singh, learned Senior Advocate assisted by Sri Ajay Kumar Singh, learned Counsel appearing for the Respondent Nos. 4 to 7 and also Sri Triveni Shankar, learned Counsel appearing for the same Respondents, learned Standing Counsel representing Respondent Nos. 1 to 3 and 12 and Sri Mahesh Narain Singh, learned Counsel representing Respondent Nos. 8 to 11.

Respondent Nos. 4 to 7 are the main contesting parties. Sri R.N. Singh, learned Senior Advocate appearing for them, upon instructions has stated that he does not propose to file counter affidavit in this matter.

With the consent of the learned Counsel for the parties, as all the parties are represented, this petition has been heard finally at the admission stage itself.

The arguments advanced on behalf of the Petitioners is firstly that under the provisions of U.P. Land Revenue Act, 1901 (hereinafter referred to as the Act) except the Board of Revenue no other authority or Court has the power of review. The power of review cannot be assumed unless conferred by a statute. As the Land Revenue Act does not confer any power of review, the Nayab Tehsildar could not have reviewed the earlier order dated 13.11.1995, by the subsequent order dated 28.11.1996. Further submission is that the impugned orders have taken an erroneous view that the Petitioners could not have maintained the mutation application merely because the names of the daughters had been recorded.

It is further submitted that Vishwanath Singh and thereafter the Petitioners were entitled to establish their claim on the basis of the will. The Courts below having closed their opportunity by not allowing them to establish the will committed serious illegality

The impugned orders thus, suffer from the vice of principles of natural justice and fair play as the Petitioners have been denied opportunity of evidence and hearing. In support of his submissions Sri Agnihotri has relied upon the following three decisions-

(1) Puran Singh Vs. Board of Revenue and Others, .

(2) Smt. Shivraji (Decd.) through L.Rs. and Others Vs. Dy. Director of Consolidation and Others, .

(3) Lal Bachan v. Board of Revenue, U.P. Lucknow and Ors. reported in 2002 RD 6.

On the other hand Sri R.N. Singh, learned Senior Advocate has firstly submitted that petition arises out of the proceedings u/s 34 of the U.P. Land Revenue Act, which are summary in nature as such would not be maintainable. The Petitioners have an alternative remedy of filing a regular declaratory suit for adjudication of their rights. It is further submitted that in any case even if the Petitioners are afforded an opportunity and the matter is decided on merits, the losing party will agitate the matter before the regular Court. He has further submitted that the applications filed by the Respondents for mutation has been allowed by the Tehsildar after following due procedure prescribed under law and therefore in case the Petitioners had any objection, they ought to have filed a restoration/recall application of the said mutation order passed in favour of the Respondents instead of filing separate mutation application. It is also submitted that mutation application has been filed after about more than three years from the date of death of the testator and in fact it was an abuse of process of law. Sri Singh has largely relied upon the judgment of the Additional Commissioner which has dealt with the various mutation proceedings initiated with regard to the property in dispute and where some of the litigating parties had failed to lead any evidence. In these circumstances it was submitted that the petition deserves to be dismissed. In support of his submissions he has referred to two Full Bench decisions of the Board of Revenue as part of his arguments and another judgment of this Court on the question that where the procedure provided under land Revenue Act and the Revenue Court Manual had been duly followed the appropriate remedy open to the Petitioner was to file a recall/restoration application. The details of the three decisions is given hereunder-

(I) Ram Yagya v. Brihshpati Nath and Ors. reported in 1978 RD 157 (Board of Revenue-FB).

(II) Ashok Kumar v. Smt. Sheoranva reported in 1996 RD (504) (Board Revenue-FB).

(III) Gulab Shankar Tiwari Vs. The Deputy Director of Consolidation and Others, .

In rejoinder it has been submitted by Sri Agnihotri that an independent right accrued to the Petitioners on the basis of the will executed in their favour, they could always maintain the mutation application. It was further submitted that there was no bar under the Act restraining the Petitioners from filing a separate application. It is further submitted by Sri Agnihotri that Petitioners have not given any reply on the two arguments raised by him with regard to the powers of review and lack of opportunity.

Having considered the submissions advanced I find that under the Land Revenue Act, the powers of review have been conferred only on the Board of Revenue u/s 220 which reads as follows-

Power of Board to review and alter tits order and decrees.- (1) The Board may review, and may rescind, alter or confirm any order made by itself or by any of its members in the course of business connected with settlement.

(2) No decree or order passed judicially by it or by any of its members shall be so reviewed except on the application of a party to the case made within a period of ninety days from the passing of the decree or order, or made after such period if the applicant satisfies the Board that he had sufficient cause for not making the application within such period.

Members not empowered to alter each other''s orders.- (3) A single member vested with all or any of the powers of the Board shall not have power to alter or reverse a decree or order passed by the Board or by any members other than himself.

It is well settled that power of review is to be specifically conferred by statute and is not inherent in any Court or authority. The Land Revenue Act does not confer power of review upon any authority except the Board of Revenue. In the Full Bench decision in the case of Smt. Shivraji (supra) while dealing with the provisions of the U.P. Consolidation of Holdings Act this Court after considering the various authorities on the point in paragraph 35 has laid down as follows-

Any tribunal exercising judicial or quasi-judicial power, which is not vested with power of review under the statute expressly or by necessary implication, has an inherent power of review of its previous order in any circumstances. In our view the decisions only lay down the proposition that a tribunal exercising judicial or quasi judicial power has the inherent power to correct a clerical mistake or arithmetical error in its order and has the power to review an order which has been obtained by practicing fraud on the Court, provided that injustice has been perpetrated on a party by such order. Therefore, these decisions should not be construed as laying down any proposition of law contrary to the well settled principle of law that any order delivered and signed by a judicial or quasi judicial authority attains finality subject to appeal or revision as provided under the Act and if the authority passing the order is not specifically vested with power of review under the statute, it cannot reopen the proceeding and review/revise its previous order.

Sri R.N. Singh, learned Senior Counsel appearing for the Respondents has not touched this argument of the Petitioners'' counsel in his reply. Thus, I find that the Nayab Tehsildar acted beyond jurisdiction while exercising power of review. Therefore, the order of the Nayab Tehsildar cannot be sustained in law. The Appellate and the Revisional Court have not dealt with this aspect of the matter, which being a question of jurisdiction goes to the root of the matter.

Coming to the argument advanced on behalf of the Respondents it may be noticed that although the judgment of the Additional Commissioner is very lengthy but it deals with the conduct of the various parties who had initiated mutation proceedings but failed to lead any evidence, but it does not deal with the case of the Petitioners. No finding has been recorded by any of the Courts including the Additional Commissioner that the Petitioners failed to lead evidence in support of their mutation application. The fact remains that the Petitioners'' application was rejected on a preliminary objection raised by the Respondents regarding maintainability when in fact on earlier occasion the Nayab Tehsildar had held while deciding similar objection that the mutation application filed by the Petitioners was maintainable. Thus the argument of the learned Counsel for the Respondents cannot be accepted that the Petitioner also failed to lead any evidence.

The other argument advanced on behalf of the Respondents that the petition deserves to be dismissed on the ground of alternative remedy of filing a regular declaratory suit cannot be accepted as Courts below failed to grant any opportunity to the Petitioners to establish his case. It is true that in case the parties had contested the matter on merits, in that event this Court under its extraordinary powers could have declined to entertain this petition and dismissed it on the ground of alternative remedy but where principles of natural justice are violated or an order is passed which is totally without jurisdiction, the writ petition would be maintainable. This Court while dealing with the scope of entertaining petition arising out of the summary proceedings u/s 34 of the U.P. Land Revenue Act has laid down similar view. In the case of Lal Bachan (supra) this Court while relying upon the Division Bench judgment of this Court in the case of Jaipal versus Board of Revenue and Ors. reported in 1956 A.L.J. 807, went on to hold in paragraph 16 as follows-

The cases in which the writ petition can also be entertained arising out of the mutation proceedings may be cases in which an authority not having jurisdiction has passed an order or interfered with an order passed in the proceedings. The writ petition challenging an order passed without jurisdiction can be entertained by the Court despite availability of an alternative remedy. However, in that case also the Court will interfere only when it appears that substantial injustice has been suffered by a party. In view of the above discussion it is held that the writ petition arising out of the mutation proceedings u/s 34 U.P. Land Revenue Act cannot be entertained by this Court subject to only exception as laid down by the Division Bench in Jaipal''s case (supra). The writ petition may also be entertained where authority passing the order had no jurisdiction.

In view of the above discussion the petition deserves to be allowed.

It is accordingly allowed. The impugned orders dated 4.2.2011, 9.9.1997 and 28.11.1996 passed by the Respondent Nos. 1, 2 and 3 are hereby quashed and the matter is remitted to the trial court (Nayab Tehsildar) to decide the mutation application of the Petitioners or their predecessor in interest on merits after affording due opportunity of evidence and hearing to the parties.

In the facts of the case there shall be no order as to costs.