Mohd. Saidul Malik vs Additional Commissioner II

Ram Surat Ram (Maurya), J.—Heard Sri N.L. Srivastava for the petitioner. The writ petition has been filed against the order of Naib Tehsildar dated 26.4.2007 and the order of Additional Commissioner dated 31.8.2007 arising out of proceedings u/s 34 of U.P. Land Revenue Act (hereinafter referred to as the Act).

The dispute is related to land of plot No. 185 (area 0.1830 hectare) of village Utraw, pargana Man, district Allahabad. The land in dispute was recorded as Talab in the revenue record. The petitioner filed an application (registered as Case No. 391 of 2007) u/s 34 of the Act for recording his name over the land in dispute. It has been stated in the application that the petitioner is running Madarsa over the land in dispute since 1921 with the permission of then Zamindar and is continuing in possession over it. The petitioner also filed a Civil Suit (registered as O.S. No. 788 of 1992) for permanent injunction, restraining State of U.P., Gaon Sabha, Abdul Vahid and Moh. Yahiya from interfering in the possession of the petitioner over the land in dispute and tilling up the tank. The suit was dismissed by Trial Court by the order dated 31.3.2005. The petitioner filed an appeal (registered as Civil Appeal No. 128 of 2005) from the aforesaid decree which was allowed by the Additional District Judge, Allahabad by order dated 21.8.2006 and the defendant/respondents were restrained from interfering in the possession of the petitioner and filling up tank or raising any construction over it. It appears that no objection has been filed in the application of the petitioner before the Naib Tahsildar. Naib Tahsildar by order dated 25.4.2007 allowed the application of the petitioner and directed for recording his name over the land in dispute. The order dated 25.4.2007 was reviewed by the Naib Tahsildar by the impugned order dated 26.4.2007 and he again restored the entry of Talab and deleted the name of the petitioner from it The petitioner filed a revision against the aforesaid order which was dismissed by Additional Commissioner by order dated 31.8.2007. Hence this writ petition has been filed.

The Counsel for the petitioner submits that Naib Tehsildar has allowed the application of the petitioner on merit as such he has no jurisdiction to review his order. Under U.P. Land Revenue Act the power relating to review has not been provided to Naib Tahsildar and the subsequent order passed by him on 26.4.2007 is without jurisdiction and is null and void. The revision of the petitioner has been illegally dismissed by Additional Commissioner although it ought to have been allowed. He relied upon the Full Bench judgment of this Court in Smt. Shivraji (Decd.) through L.Rs. and Others Vs. Dy. Director of Consolidation and Others, in which it has been held that if the statute does not confer the jurisdiction of revenue then the judicial or quasi judicial authorities have no power to review its judgment.

I have considered the arguments of the Counsel for the petitioner and examined the record. A perusal of the application as well as order passed on 25.4.2007 shows that the Naib Tahsildar has initiated the proceedings u/s 34 of U.P. Land Revenue Act. The relevant portion of section 34 of U.P. Land Revenue Act read as follows:--

Report of succession or transfer of possession--

(1) Every person obtaining possession of any land by succession or transfer (other than a succession or transfer which has already been recorded u/s 33A), shall report such succession or transfer to Tahsildar of the Tahsil in which the land is situated.

Section 34 confers jurisdiction on the Tahsildar to incorporate the mutation in the cases of succession and transfer. Admittedly, there is neither succession nor transfer on the basis of which the petitioner filed the application for mutation of his name as such the application of the petitioner u/s 34 of the Act was not maintainable. The land in dispute was recorded as Talab land in the revenue record. No right can accrue to any person over the land of Talab. Civil Court has not directed to record the name of the petitioner over the land in dispute. The order dated 25.4.2007 is illegal, without jurisdiction and null and void.

Supreme Court in Mohammad Swalleh and Others Vs. Third Addl. District Judge, Meerut and Another, and Ramesh Chandra Sankla Etc. Vs. Vikram Cement Etc., , held that writ jurisdiction cannot be exercised for restoring illegal order. In State of U.P. v. District Judge, Unnao AIR 1964 SC 1401, and Roshan Deen Vs. Preeti Lal, held that the power conferred on the High Court under Articles 226 and 227 of the Constitution is to advance justice and not to thwart it. The very purpose of such constitutional powers being conferred on the High Courts is that no man should be subjected to injustice by violating the law. The lookout of the High Court is, therefore, not merely to pick out any error of law through an academic angle, but to see whether injustice has resulted on account of any erroneous interpretation of law. If justice became the by-product of an erroneous view of law, the High Court is not expected to erase such justice in the name of correcting the error of law.

In this case if the order dated 26.4.2007 is set aside then its effect will be restoring the order dated 25.4.2007 which is passed without jurisdiction is null and void. In view of the Supreme Court judgment, this Court cannot restore the illegal order in exercise of writ jurisdiction. The writ petition is dismissed.