Nasir vs State of U.P. and Others

Rajiv Sharma, J.—Heard Mr. Prateek Sinha, learned Counsel for the Petitioner and learned Standing Counsel.

The instant writ petition arises out of the proceedings initiated u/s 34 Land Revenue Act.

The Petitioner is the tenure holder of the property in question and the same has been mortgaged in favour of Bank of India, Lalpur Branch. After the said mortgage, a registered power of attorney was executed in favour of his son, namely, Islam, who in turn, on the basis of the said power of attorney sold the property to the opposite party No. 5 by means of registered sale deed. While executing the sale deed, Islam has specifically stated that the land in question is free from all encumbrances. Therefore, he did not disclose that the property is mortgaged against which a loan of Rs. 3 lakhs is outstanding.

Subsequently, the Tahsildar passed the impugned order dated 26.7.2010 u/s 34 of Land Revenue act, without considering the truthfulness of Power of Attorney and the sale deed executed by Islam in favour of his wife. Being aggrieved, the Petitioner preferred an appeal u/s 210 of Land Revenue Act before the Sub-Divisional Magistrate, Hapur, District Ghaziabad, which was rejected by the impugned order dated 19.11.2010. Thereafter, he filed a revision u/s 219 before the Commissioner, Meerut Division, Meerut, which too was rejected by the judgment and order dated 2.2.2011.

Counsel for the contesting Respondents raised a preliminary objection that the present writ petition is not maintainable since it relates to mutation proceedings.

Under these circumstances, the primary question to be decided is as to whether the writ petition arising out of mutation proceedings u/s 34 of Land Revenue Act is maintainable or not.

It has been brought to the notice of the Court a finding of fact has been recorded by both the authorities below and as such no interference is required under Article 226 of the Constitution of India. It is not justified to reappraise the same by merely stating the findings of fact recorded by the authorities below were perverse. The above view is supported by the judgment rendered in O.T.M.O.M. Meyyappa Chettiar Vs. O.T.M.S.M. Kasi Viswanathan Chettiar and Another, relied upon by the Standing Counsel.

In D.P. Maheshwari v. Delhi Administration and Ors. (1993) 4 SCC 293, the Hon''ble Supreme Court has observed that the nature of jurisdiction under Article 226 is supervisory and it is not open for the Court to exercise jurisdiction of the Trial Court or the Tribunals.

Further Hon''ble Apex Court in several decisions has held in explicit words that there should be judicial restraint while interfering with the concurrent finding of facts. The duty of the Court is (a) to confine itself to the question of legality; (b) to decide whether the decision-making authority exceeded its powers; (c) committed an error of law; (d) committed breach of the rules of natural justice; and (e) reached a decision which no reasonable tribunal would have reached; or (f) abused its powers.

The Petitioner has failed to show any good ground to warrant interference by the Court in the concurrent finding of fact recorded by the Court below. Accordingly, the Petitioner is not entitled for any relief.

It is settled law that the writ petition arising out of the proceedings u/s 34 of the Land Revenue Act, 1901 is not maintainable as the proceedings are summary in nature. Both the Court below have passed order against the Petitioner. Counsel for the Petitioner contends that his case falls in the exception carved out by this Court in number of judgments in which it has been held that the writ petition can be entertained subject to the availability of the remedy to the party aggrieved as the property in dispute was auctioned during the pendency of the original suit. He further submits there is no absolute bar to interfere with the mutation order in appropriate cases.

The question whether the writ petition in such matter is maintainable or not has been examined in various cases. In Puran Singh Vs. Board of Revenue and Others, while formulating the categories, observed as under in paragraph 5 of the report:

After hearing the arguments, the Court has examined the matter. Needless to say that decision given in the case of Lal Bachan (supra) relied upon by the Counsel for the Petitioner has also laid down that ordinarily orders passed by mutation Courts are not to be interfered as they are in summary proceedings, subject to regular suit. Exceptions have been carved out in various decisions of this Court including the decision in the case of Lal Bachan (supra) and even the decisions as has been given in the case of Ram Kumar (supra), on which the reliance has been placed by the learned Counsel for the Respondent which can be categorized as thus:

(i) if the order is without jurisdiction;

(ii) if the rights and title of the parties have already been decided by any competent Court and that had been varied by mutation Courts;

(iii) if the mutation had been directed not on the basis of possession or simply on the basis of some title deed but after entering into debate of entitlement to succeed the property touching into merits of rival claims.

In Jaipal Vs. Board of Revenue and Others, the learned Single Judge of this Court while dismissing the writ petition observed that 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 U.P. Zamindari Abolition and Land Reforms Act.

As averred above, mutation proceedings doe 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. These mutation proceedings are to enable the State to receive revenue from vendee. [See: Ram Bharose Lal v. State of U.P. and Ors. 1991 RD 72 and Smt. Queeni Banerji and Anr. v. Board of Revenue 1997(15) LCD 1182].

In the case of Sri Lal Bachan Vs. Board of Revenue, Uttar Pradesh and Others, , this Court held in paragraph 22 as under:

The cases in which 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 Sridhar Tripathi v. Board of Revenue; 1996 RD 100 on which reliance has been placed by the Counsel for the Petitioner, is of no avail to him as in that case this Court held that the writ petition is maintainable for the reason it was not a pure and simple case of mutating the name of the Respondent No. 3 on the basis of the sale deed, but the opposite party No. 3 claimed to get his name mutated on the basis of mutation order in 1968 made by the Consolidation Authorities in proceedings u/s 12 of U.P.C.H. Act. Under these circumstances, the learned Single Judge observed that these facts makes a sea of difference and cannot be said to be a simple case of mutation.

Accordingly, the writ petition is dismissed. However, it is clarified that the observations made here-in-above will not come in the way of the Court deciding the declaratory Suit and Court concerned will be free to form his own independent opinion.