Uttarakhand High Court
Santosh Agarwal vs Commissioner on 8 April, 2022
Author: Sharad Kumar Sharma
Bench: Sharad Kumar Sharma
IN HIGH COURT OF UTTARAKHAND
AT NAINITAL
Writ Petition No.709 of 2022 (M/S)
Santosh Agarwal .....Petitioner
Vs.
Commissioner, Garhwal Division Pauri & others ...Respondents
Advocate: Mr. D.S. Patni, Senior Advocate assisted by Mr. Siddhartha Sah, Advocate for the
petitioner.
Mr. Yogesh Tiwari, Addl. C.S.C. for the State of Uttarakhand/respondent nos.1 to 3.
Mr. Bhupesh Kandpal, Advocate for the caveator.
Hon'ble Sharad Kumar Sharma, J.
Brief facts of the case are that the petitioner before this Court has raised his grievances, as against the impugned revisional court's order, which had been passed by the learned court of Board of Revenue, on 05.04.2022, in Revision No.08 of 2021-2022 Santosh Agarwal vs. Umesh Kumar and Another, as well as the revisional court's order dated 31.03.2022 which was passed by the court of Commissioner Garhwal Division, Pauri Camp, Dehradun in Revision No.09 of 2021-2022 Umesh Kumar vs. Santosh Agarwal and others. In the proceedings which were held under Section 219 of the Land Revenue Act, 1901 arising out of the orders dated 19.03.2020/20.03.2020 in Case No.75 of 1987, which was instituted under Section 34 of the Uttar Pradesh Land Revenue Act, for mutation.
2. Brief facts which engages consideration in the present writ petition are that a proceeding under Section 34 of the U.P. Land Revenue Act of 1901, was initiated and registered before the court of the Tehsildar as Case No.75 of 1987, Indrawati vs. Kunwar Chand Bahadur, in the said case for mutation of entries which was instituted in the court of Additional Tehsildar vide its order of 17.06.1988, had directed making the alteration in the revenue records, on the basis of the registered sale deed, which finds 2 referenced in the order in relation to Khasra Nos.203, 204, 205, having an annual revenue accruing to it of Rs.67/-.
3. In fact the genesis of the proceedings is emanating from the proceedings which were held under Section 34 of the Land Revenue Act, in relation to a land which falls under Chapter A-8 of the Land Record Manual, as contained in para A-124. Para A-124 of the Land Record Manual classifies the arrangement of holdings and revenue entry of the petitioner, as recorded in the khatauni, the reference of which has been made by the petitioner pertains to the revenue entries which were made in 1399 to 1404 fasli, in relation to the land which in column 4 is shown to have been recorded as Shreni 1-Ka Land. Shreni1-ka land would be falling to be a land which has been classified under Section 129 of the Uttar Pradesh Zamidari Abolition and Land Reforms Act of 1950 (hereinafter to be referred to as ZA & LR Act) wherein in under Sub Clause (1), it provides that Shreni 1, land would be the land of a bhumidhar for transferable rights which has to be read in consonance to the provisions contained under Section 130 of the ZA & LR Act which elaborates upon Bhumidhari Land with transferable rights. It is on the basis of the order passed by the Tehsildar under Section 34 of the Land Revenue Act 1901, in relation to the aforesaid khasras, it is contended, that as a consequence of allowing of the mutation application of Smt. Indrawati, the property stood recorded in the name of Smt. Indrawati, the mother of the petitioner.
4. The mother of the petitioner met with the sad demise on 22.08.1988 intestate, hence, the petitioner, since claiming himself to be one of the surviving heirs and successor to whom the property would devolved as per Section 172 of the U.P. Z.A. & L.R. Act, had contended, that after the sad demise of the mother on 22.08.1988, since their estates already stood vested with a female, the right of succession would be governed by the provisions of Section 172 of U.P. Z.A. & L.R. Act, applicable to the 3 devolvement of rights to a female estate. The petitioner contends that upon the death of his mother he applied for the mutation of his name in the revenue records in place of his mother by filing an application to the said effect on 17.01.2020, for recording his name as against Khata No.57, which included within it Khasra Nos.203, 204 and 205 of village Raipur, District Dehradun.
5. The application thus preferred by the petitioner for recording himself on 17.01.2020 was considered by the court of Additional Tehsildar and petitioner was directed to be mutated, on the basis of the order of 19.03.2020 and 21.3.2020, in the revenue records of village Raipur, District Dehradun. In fact the application which was thus submitted by the petitioner on 17.01.2020, would fall to be an application within the ambit and scope of the provisions contained under Section 33 & 34 of the Land Revenue Act, where a report of succession or a transfer of possession, or of vesting of any land, by way of succession is required to be recorded in the revenue records and this was on the basis of this application which according to this Court, would fall to be an application under Section 34 of the Land Revenue Act, the petitioner stood recorded.
6. Under the Land Revenue Act of 1901, on recording of the name of a person in the revenue records by way of a succession under Section 34 of the Land Revenue Act, any person who is aggrieved by the said order has got a right of appeal which has been reserved under Section 210, as well as the revision too provided under Section 219 of the Land Revenue Act; subject to the condition that the invocation of the Revisional Forum directly is only available, when revisionist has not already exhausted the Appellate Forum available to him under Section 210 of the Land Revenue Act of 1901.
7. In this case the revision which was preferred before the Commissioner by the respondents herein; as against the order of mutation 4 was allowed by the revisional court of Commissioners by an order of 31.3.2022, passed by the court of Commissioner Garhwal Division, Pauri Camp in Revision No.09 of 2021-2022 Umesh Kumar vs. Santosh Kumar and Another. The revisional court's order (Annexure 9 to the writ petition) while considering the claim to be recorded, had also considered the impact of the orders which were passed by the competent Ceiling Authority, in Ceiling Proceedings by way of Case No.13 of 1996-1997 and in the light of the provisions contained under Section 71 of the Uttarakhand Ceiling on Land Holdings Act of 1960.
8. As a consequence of the impact of the provisions of Uttar Pradesh Ceiling On Land Holdings Act, the learned revisional court vide it's judgment of 31.03.2022, impugned in the writ petition has set aside the order passed in the proceedings under Section 34 of the Land Revenue Act, holdings it to be bad, for the reasons given therein, that the mutation proceedings would stand vitiated, where there is a non-compliance of the provisions contained under Section 197 to be read with Para A-374, A-377 of the Revenue Court Manual, where a proclamation is mandatorily required to be made prior to effecting upon or passing any orders under Section 34 of the Land Revenue Act; which was the proceedings which were invoked by the petitioner by filing of an application on 17.01.2020. Hence in fact one of the orders, which is under challenge that is the revisional court's order of 31.03.2022, which had its genesis from the orders, which has been passed in the proceedings under Section 34 of the Land Revenue Act, which was instituted by the petitioner himself.
9. The invocation of the proceedings under Section 219 of the Land Revenue Act is an admitted forum, which was chosen to be enforced by the petitioner, by filing a revision against the order which was passed in Case No.75 of 1987, in which the petitioner has filed an application under Section 34, upon the death of Indrawati, to be recorded in the revenue records, on which the order of 09.03.2020 and 21.03.2022 was passed. If 5 the revisional provisions are taken into consideration as contained under Section 219 of the Land Revenue Act, which is extracted hereunder:-
"[219. Revision. - (1) The Board or the Commissioner or the Additional Commissioner or the Collector or the Record Officer, or the Settlement Officer, may call for tire 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 tire 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 bylaw, 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 tire Settlement Officer, as tire case may be, pass such order in the case as he thinks fit.
(2) If an application under this section has been moved by any person either to tire Board, or to the Commissioner, or to the Additional Commissioner, or the Collector or to the Record Officer or to the Settlement Officer, no further application by the same person shall be entertained by any other of them.]"
10. It goes without saying that on its simplicitor interpretation since the order, which was passed on 31.03.2022, was in a revision preferred by the respondents herein, it could not have debarred the petitioner from filing a revision under Section 219 of the Land Revenue Act, before the Board of Revenue which happens to be next superior authority which would be available to the petitioner, which could have exercised the revisional powers qua the party to the proceedings, who has not already invoked the revisional forum either before the Commissioner or before the Board of Revenue. The ambit and scope of exercise of powers of the revisional jurisdiction under Section 219 of the Land Revenue Act, is a parameteria provision, to the provisions contained under Section 115 of the Code of Civil Procedure, where the scope of interference to the impugned order, before revisional court in the exercise of revisional jurisdiction has been limited to the ambit prescribed therein in 6 the provisions itself as contained under Section 219 of the Land Revenue Act itself. However, the revision thus preferred by the petitioner before Board of Revenue, against the revisional court's order of the Commissioner dated 31.03.2022, has been decided by the Member, Board of Revenue by the impugned order on 05.04.2022, holding thereof that in the light of the judgment rendered by this Court in Writ Petition (M/S) No.2412 of 2020, as decided on 06.12.2020, it was observed, that when the land falls to be within a territorial jurisdiction of an area which has been notified with the Nagar Nigam, the mutation proceedings has had to be carried, as per the provisions contained under the Uttarakhand Nagar Nigam Act of 1959.
11. In that eventuality, it has been observed that once the land falls within the territorial area of Nagar Nigam and the provisions of Nagar Nigam Act, itself is a self contained provision, containing a provision of mutation also, in that eventuality, the land when or as soon as it falls to a semi urbanized or urbanized area it is taken outside the ambit of the definition of the land, as confined under Sub Section (14) of Section 3 of the U.P. Z.A. & L.R. Act. In that eventuality when the land itself is ousted from the purview of a revenue jurisdiction over which the provision of the ZA & LR Act or the Land Revenue Act could have been made applicable quite obviously the Section 34 of the Land Revenue Act, would not be available, may be even at the instance of the petitioner, when he filed his application to be mutated after the death of his Late mother.
12. The constitution of a local body, which includes the Nagar Nigam and Nagar Panchayats at a different level as contemplated under part IX-A of the Constitution of India, the municipality or Nagar Nigam will in itself constitute to be a legal entity as per Sub Clause (c) of Article 243-Q. It is while having its source of constitution of the local body, the Nagar Nigam is constituted by virtue of a declaration made by the Government in the notification, which are issued while in the exercise of 7 powers under Sub Clause (2) of Article 243-Q of the Constitution of India as to be a larger urban area governed by the local body i.e. Nagar Nigam. The notification of a larger urban area will itself give it a different distinct entity and the provisions of recording the name of rights in the documents on record maintained by Nagar Nigam qua the area which has been notified to be included under Section 3 to be read with Article 243-Q(2) would fall to be in an exclusive domain of an exercise of powers by the Nagar Nigam under the Act of 1959 and it will not be clouded by the provisions of Land Revenue Act of 1901, which pertains to the land covered by the land defined under Section 3 of Sub Section (14) of the U.P. Zamindari Abolition & Land Reforms Act.
13. This is what the ratio has been laid down by this Court in the judgment referred to by the Board of Revenue, in one of the impugned judgments of the revisional court dated 05.04.2022, wherein it has been observed, that in view of the ratio laid down by the High Court in the aforesaid judgment bringing the ambit of mutation under the provisions of the U.P. Nagar Nigam Act of 1959 and taking it outside the ambit of the Land Revenue Act of 1901, deciding the revision on the said pretext, that the Revision No.08 of 2021-2022 Santosh Agarwal vs. Umesh Kumar, would not be tenable does not suffer from any apparent error, as such because the decision of the revisional court dated 05.04.2022, which has been foundation on the judgment of 06.12.2020, which was rendered in Writ Petition (M/S) No.2412 of 2020, will still not deprive the petitioner to get his name recorded in the municipal records of Nagar Nigam, but only as per the provisions of the Nagar Nigam Act of 1959. The recording of the name in the records of the Nagar Nigam, in relation to the land which has been taken over by the Nagar Nigam, due to the de-limiation exercise of the State of the area, the mutation under Section 34 of the Land Revenue Act, could not be resorted to by the petitioner but appropriate recourse for recording the name, as a consequence of vesting of rights over any land or 8 property lying within the territory of Nagar Nigam, would be governed by the Nagar Nigam Act.
14. Even if, for a moment the argument extended by the learned counsel for the petitioner, that he could not be deprived of his right to get himself recorded under Section 34 of the Land Revenue Act, is taken into consideration, in that eventuality to the principle order which was passed on his application under Section 34 of the Act and thereafter the order passed by the revisional court of Commissioner on a revision which was preferred by the petitioner, if the petitioner admits the land to be a land recorded in Sherin 1, accepts the applicability of the Land Revenue Act of 1901, thus obviously the observation made in the judgment of 05.04.2022, will bring the case of the petitioner within the ambit of the provisions of Nagar Nigam Act and not under the Land Revenue Act of 1901, and if the petitioner persists to argue that the provision of the Land Revenue Act of 1901,will still continue to apply because the principal proceedings itself was initiated by the Late mother of the petitioner, in that eventuality an embargo of Section 40-A of the Land Revenue Act will come into play, because in an eventuality, the question and the propriety of an order passed under Section 34 of the Act has been disturbed in a revision under Section 219 of the Land Revenue Act, by the court of Commission the appropriate recourse which would be available to the petitioner, would be under Section 40-A and not by way of filing of the present writ petition. If at all the petitioner's contention of applicability of U.P. Land Revenue Act 1901, is accepted, to be applicable over the land.
15. The petitioner seeks a parity from the context, that this Court has taken a view about the tenability of the proceedings under Section 34 of the Act, in a judgment rendered in Writ Petition (M/S) No.1403 of 2021 as decided on 26.07.2021. He submits that in the said case the court has observed that the bar of continuance of a proceedings under the Land Revenue Act, will not be created irrespective of the land being brought 9 within the ambit of a local body. This Court is not in an agreement with the argument extended by the learned Senior Counsel for the petitioner for the reason being that the land which was subject matter of consideration in the judgment rendered by this Court in Writ Petition (M/S) No.1403 of 2021 as decided on 26.07.2021, was in relation to a land which was falling in Shreni-6 Ka, which as per the provisions contained under the Land Record Manual would be an "Abadi Land" and not a land which is falling under Shreni-1 Ka, to bring it to be a land under Section 131 of the ZA & LR Act. Since the very foundation and the consideration recorded by the court in the judgment of 26.07.2021, it was in relation to the land lying in Shreni 6(2).
16. The equivalence sought by the petitioner for applying the said ratio in the present case too, is not available, when it is not the case of the petitioner, that it was a land lying in Shreni 6(2) which is an "Abadi Land", as per the categorization made in the Land Record Manual, and hence the principle laid thereon will not be applicable in the instant case.
17. Secondly, it has been argued by the learned counsel for the petitioner that the bar of Section 40-A, will not come into play. This Court is of the view that in view of the observations already made above, when the court has arrived to a conclusion, that according to their own revenue entries the land is recorded in Shreni-1ka, it is a bhomidhari land which will be a land falling within the definition of land under Section 3(14), in that eventuality where he himself has invoked Section 34 of Land Revenue Act 1901, to get himself recorded after the death of his mother, the bar of Section 40-A will come into play, in the light of the judgment rendered in Manorma Devi's case as reported in (2004) 2 RD 696. Although there is no debate as such, as the issue stand settled that the recording of the name under Section 34 of the Act, since only takes the shape of fiscal entries made in the revenue record and it is not a determination of a title or ownership and that is why the scope of the proceedings under Section 40-A 10 has been left open to be resorted to, in that eventuality the observations made by the revisional court, that since the land has been brought within the territorial notification issued under the Act of 1959, as notified under Chapter II of the Act of 1959, the observations made by the revisional court of not sustaining the revision, since the land having brought within the ambit of Nagar Nigam, do not suffer from any apparent vices or any apparent error at all to call for any interference under Article 227 of the Constitution of India, because the impact of the judgment of 05.04.2022, will not be an ouster of an availability of the platform to the petitioner for the redressal of his grievances, qua the entries which is required to be made in the revenue records, as a consequence of the death of his mother. In that eventuality, this Court is not inclined to interfere in the writ petition. The writ petition is accordingly dismissed, but without prejudice to the rights of the petitioner to file an appropriate application under the Nagar Nigam Act of 1959 in order to get himself recorded over the land which stood vested in the name of his mother as per the revenue entries made under Section 34 of the Land Revenue Act of 1901. Accordingly, the writ petition is dismissed.
(Sharad Kumar Sharma, J.) 08.04.2022 Arti