Mohammad Ismaiel @ Kallu vs Board of Revenue U.P. and Others

Arvind Kumar Tripathi (II), J.—Heard learned counsel for the parties. This writ petition has been filed by Mohammad Ismaiel @ Kallu for quashing the order dated 16.11.2012 by which review petition filed by the petitioner was rejected and also for quashing the order dated 8.7.2008 by which revision filed by opposite party No. 7 Smt. Sabira has been allowed and order of Additional Commissioner was quashed and order of S.D.O. dated 25.6.1999 and order of Tehsildar dated 5.8.1996 was upheld.

Perusal of record reveals that after death of Noor Mohammad, her alleged widow Sabira and one another Mohammad Ismaiel @ Kallu moved an application for mutation. Application of Mst. Sabira was allowed and that of Mohammad Ismaiel @ Kallu was rejected. Against that order, an appeal was filed by Mohammad Ismaiel @ Kallu which too was rejected. Against that order, a revision was filed by the petitioner which was allowed by the Additional Commissioner and both the orders of lower courts were quashed. Feeling aggrieved Mst. Sabira again filed a revision before the Board of Revenue which was allowed vide order dated 8.7.2008. Later on a review petition was filed by the petitioner which too was rejected.

Opposing the writ the learned Additional Chief Standing Counsel stated that the writ petition arises out of a proceeding u/s 34 of Land Revenue Act which is a summary proceeding and the petitioner has equally efficacious remedy available and he can file a suit u/s 229(b) U.P.Z.A. and L.R. Act to claim his title.

In the case of Jai Narain Ojha v. Gauri Shanker and others, 1999 (17) LCD 918, Apex Court has held that:

question of title is not conclusively decided in mutation proceedings and parties can get a judgment from the appropriate Court on question of their title over disputed property. In the case of Ram Pratap Tiwari and another v. Board of Revenue and others (supra) this Court has held that it is open for the petitioner to question the validity of the Will deed executed in favour of the respondent No. 3 before the civil court and thus he can get adjudicated his right to title before civil court because as has been held by the Division Bench of this Court hereinbefore, the entry in the revenue records made u/s 34 does not confer any title to the land in question.

In the case of Sri Lal Bachan Vs. Board of Revenue, Uttar Pradesh and Others, , this Court has held that:

This Court had occasion to consider the scope and nature of proceedings u/s 34 of the Act in several decisions. The Division Bench of this Court considered the controversy in case of Jaipal Vs. Board of Revenue and Others, . The Division Bench in the aforesaid judgment held that it has been the consistent practice of the High 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. The Division Bench laid down the law in following words:

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 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 the case of Madhav Pandey and Others Vs. Board of Revenue and Others, . this Court has held that:

The last submission of the counsel for the petitioners is that the revenue court cannot interfere with the finding of fact and the revisional court, i.e., the Board of Revenue has wrongly exercised the jurisdiction hence this Court may set aside the order of the Board of Revenue. As noticed above, there is difference between the lack of jurisdiction and erroneous exercise of jurisdiction in a case. The present proceedings arise out of the mutation proceeding, which is summary proceedings and the writ petitions against the summary proceedings are not entertained under Article 226 of the Constitution of India. There is no need to consider the question as to whether the revisional court has committed any error will not make the order without jurisdiction. As held above, the writ petition arising out of the summary proceedings can be entertained only when there is lack of jurisdiction. It being not a case of lack of jurisdiction, no interference is called for in the impugned order on basis of above submission of the counsel for the petitioners.

A perusal of these decisions reveal that they are directly on the point and controversy here and almost all the decisions have relied upon a Division Bench case in Jaipal Vs. Board of Revenue and Others, , and anothers.

In another Division Bench case of Ram Bharose Lal v. State of U.P. and others, 1991 RD 72. it has been held that:

As a matter of fact, the mutation proceedings may be u/s 34 of U.P. Land Revenue Act or under some other similar Act, but the legal effect in both the events remains the same. These proceedings do not decide the right or title of the parties rather these proceedings are just fiscal in nature. They have just got legal effect of entering name of vendee in place of the vendor or the name of lessee in place of lessor or donee in place of donor. These mutation proceedings are to enable the State to receive revenue from vendee.

By now it is well-settled that where the dispute is in mutation proceedings which do not adjudicate upon rights or title of the parties, this Court need not interfere under Article 226 of the Constitution. In such matters person aggrieved shall have rider to seek remedy in the appropriate Court.

In the case of Vishwanath Vs. Board of Revenue and Others, , it has been held that:

Findings recorded by mutation Courts are findings only in summary proceedings and have no bearing when the title is adjudicated by competent Court on the basis of right claimed by the petitioners. In view of the proposition laid down in Lal Bachan''s case (supra), I do not find it a fit case to entertain petition under Article 226 of the Constitution it being arisen out of summary proceedings of mutation petition u/s 34 of U.P. Land Revenue Act, 1901.

In the case of State Bank of India Vs. Firm Jamuna Prasad Jaiswal and Sons, , it has been held that:

Learned counsel for the contesting respondents is right in his submission that mutation proceedings are summary in nature. In those proceedings, titles of the parties are not decided finally. A reference in this regard may be made to the decisions in Avadhesh Pratap Singh and others, Smt. Lakhpati and another v. Board of Revenue; Chhedi Lal v. Board of Revenue; Mohar Tewari v. Board of Revenue, U.P. and another and Nagai and another v. Board of Revenue and others. In all the aforesaid decisions, it has consistently been held that the mutation proceedings are summary in nature. The findings recorded and observations made by the authorities in those proceedings have got no binding effect on the regular side either upon the parties or upon the Courts. In the Present case, as stated above, the petitioner has already filed suit for cancellation of sale-deeds in question and has, thus, already availed of the alternative remedy. Thus, the present petition filed under Article 26 of the Constitution of India is legally not maintainable. It is, however, observed that the findings recorded and observations made by the Courts below on the merits of the case, will have no adverse effect upon the parties and the Courts will be at liberty to decide the said suits on the basis of the evidence produced by the parties ignoring the orders passed in the mutation proceedings.

In the case of S. Nagai v. Board of Revenue (HC), 2002 (93) RD 365, it has been held that:

Learned counsel appearing for the respondent No. 3 raised preliminary objection to the maintainability of the present petition. It was urged that the mutation proceedings are summary in nature and the title of the parties are not decided in these proceedings. Orders passed by the Courts in the said proceedings have got no binding effect on the regular side and do not operate res judicata between the parties. The party aggrieved by the orders passed in those proceedings, has got the liberty to approach the competent authority for declaration of his rights and for other appropriate relief. The writ petition is of availability of alternative remedy. Reliance is being placed upon the decisions of this Court in the cases of Smt. Lakhpati and another v. Board of Revenue, U.P. Allahabad and another and Brahma Deo and others v. Board of Revenue, U.P. and another.

In the case of Lal Bachan v. Board of Revenue, U.P. Lucknow (HC), (supra), it has been held that:

This Court has consistently taken the view as is apparent from the decisions of this Court referred above that writ petition challenging the orders passed in mutation proceedings are not to be entertained. To my mind apart from there being remedy of getting the title adjudicated in regular suit there is one more reason for not entertaining such writ petition. The orders passed u/s 34 of the Act are only based on possession which do not determine the title of the parties. Even if this Court entertains the writ petition and decide the writ petition on merits, the orders passed in mutation proceedings will remain orders in summary proceedings and the orders passed in the proceedings will not finally determine the title of the parties.

It is settled proposition of law that the proceedings u/s 34 of the Land Revenue Act does not decide the right and title of the parties. The object of mutation proceedings is as to from whom the State has to recover the land revenue. It becomes immediately imperative to have got the name of some successor mutated in place of the deceased so that the land revenue can be recovered from him. The scope of these proceedings are not that any right or title of any body is sought to be decided.

Further, it is settled view of this Court that it should not interfere with the order issued by the authorities while deciding the proceedings u/s 34 of the Land Revenue Act, as in the said proceedings the issue only in respect to record the name of tenure holder in the revenue record is under consideration. Such an entry does not ordinarily confer upon the person in whose favour it is made any title of property in question and his right is to be established as per the procedure provided under law (See Jaipal Vs. Board of Revenue and Others, ; Smt. Lakhpati and another v. Board of Revenue. U.P., 1984 RD 378; State of U.P. Vs. Board of Revenue and Others, ; Shiv Raj Gupta Vs. Board of Revenue and Others, ; Puran Singh Vs. Board of Revenue and Others, and Ram Kumar Vs. Board of Revenue and Others, ).

In the case of U.P. State Cooperative Land Development Bank Ltd. v. Chandra Bhan Dubey and others, (1991) 1 SCC. 741, Apex Court has held that:

But then the power conferred upon the High Courts under Article 226 of 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.

Summing up all the decisions discussed and referred above, following position emerges:

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 justice has been suffered by a party and in those cases in which the entry itself confers a title on the petitioner by virtue of the provisions of Uttar Pradesh Zamindari Abolition and Land Reform Act.

Considering all the decisions of this Court it is abundantly clear that when the petitioner has an alternative remedy of filing a suit u/s 229(b), U.P.Z.A. and L.R. Act, then no writ petition lies. Petitioner can claim his title in the Revenue Court. The writ is not maintainable and is liable to be dismissed and is hereby dismissed.