Kali Shanker Dwivedi vs Board of Revenue and Another

Naseemuddin, J.—By this writ petition under Article 226 of the Constitution of India order dated 12.7.99 passed by Board of Revenue (Annexure 5 to the writ petition) has been sought to be set aside.

The matter pertains to mutation of agricultural land under Section 34 of the Land Revenue Act. A preliminary objection was raised to the effect that no writ petition lie in a case where the proceedings are not conclusive and can be decided by regular suit and that mutation proceedings being also of summary nature and do not decide the title of the parties, therefore, no writ petition lie under Article 226 of the Constitution of India. It was also opposed on the ground that since alternative remedy is available, therefore, the writ petition also does not lie in cases of mutation proceedings. Learned counsel supported his argument with the case of Akhtar Hussain and another v. Board of Revenue (1987 Allahabad Law Journal 272) wherein it has been held that question of title is not conclusively decided in mutation proceedings and parties can get a judgment from appropriate court on question of their title over disputed property. The other case is that of Shiv Raj Gupta v. Board of Revenue U.P.(1989 RD 35) wherein it has been held that a writ petition under Article 226 of the Constitution of India is not maintainable challenging an order passed by revenue authorities in mutation proceedings under Land Revenue Act because the judgment and order passed by the revenue authorities in mutation proceedings are not conclusive because competent court in a regular suit for title can ignore the observations made by the revenue authorities in mutation proceedings. In the present case also it is not disputed that the order was passed in mutation proceedings under the Land Revenue Act. In view of the above citations the writ petition is not maintainable and is to be dismissed.

It was submitted on behalf of the petitioner that second revision was not maintainable in view of new Section 219 of the Land Revenue Act which has been substituted by L.R. Act No.20 of 1997. Under subsection(1) of Section 219 the Board or the Commissioner or the Additional Commissioner or the Collector or the Record Officer, or the Settlement Officer, may call for the record of any case decided or proceeding held by any revenue court subordinate to him in which no appeal lies or where an appeal lies but has not been preferred, for the purpose of satisfying himself as to the legality or propriety of the order passed or proceeding held and if such subordinate revenue court appears to have :

(a) exercised a jurisdiction not vested in it by law, or

(b) failed to exercise a jurisdiction so vested, or

(c) acted in the exercise of jurisdiction illegally or with material irregularity.

the Board or the Commissioner or the Additional Commissioner or the Collector or the Record Officer, or the Settlement Officer, as the case may be, pass such order in the case as he thinks fit.

(2)..........................................................�

It was argued that this revision no.145/9798 filed before the Board of Revenue was passed against the revision decided by the Additional Collector (Finance and Revenue). It may be mentioned that the substitution of Section 219 of the L.R. Act has prospective effect and it does not affect the cases pending in Revision on the coming into force of the amendment Act. Therefore, the old law applies. The learned counsel for the respondent supported his argument with section 6 of the General Clauses Act under which the previous existing law applies to the pending proceedings. This argument of the learned counsel for the respondent has got force. So the revision pending before the Court below was not hit by the newly substituted Section 219 L.R. Act.

On merits also it would be found that the Board of Revenue has mentioned the circumstances on merits also. Respondent no.2 Bachnoo Dwivedi had obtained an order of mutation of the disputed property in his favour on 31.1.79. Kali Shanker Dwivedi, the petitioners moved for setting aside that order and for setting aside mutation after 17 years on 24.7.96.

A compromise was filed in between the present parties in the court of Munsif in the Civil litigation which was made part of the decree in March 1987. According to para 5 of that compromise Kali Shanker had admitted Bachnoo Dwivedi as the validly adopted son of Avadh Bihari and had further admitted Bachnoo Dwivedi to be in possession over the subject matter of the suit viz. the land under litigation. Before the Revenue court of Assistance Collector 1st Class a suit under Section 176 Z.A. & L.R. Act was filed. In that case also the share of Bachnoo Dwivedi to the extent of one third was accepted by Kali Shanker. In suit before the S.D.M. Kali Shanker had moved an application for withdrawal of suit under section 229B of Z.A. & L.R. Act but this application dated 28.11.98 was rejected and it was observed by the S.D.O. that in the suit for partition shares of the parties have already been declared, therefore, permission to withdraw the suit was not justified. This all shows that the matter was fought in Revenue as well as in Civil Court. The Civil Court had given the finding in favour of the adopted son and and compromise decree was admittedly passed and is in force. The Board of Revenue found that the finding of the Civil Court viz. the Court of Munsif is binding and prevails. So on merits also the matter in between the parties has become final and this court is not going to evaluate the evidence again. There was correctly found to be no justification to revive the proceedings under Section 34 of the Land Revenue Act after more than 17 years particularly when the adoption was admitted and litigations were fought and there was no justification for condonation of delay of 17 years for restoration because the period of limitation for going to the higher court against the order of mutation was only 30 days. So on merits also there is no justification to interfere in the present matter in writ jurisdiction. On all these points the writ petition is neither maintainable nor has got force on merits. The writ pettiion is accordingly dismissed.

(Petition dismissed)