Allahabad High Court
Mahesh Kumar Juneja And Another vs Addl. Commissioner Judicial Moradabad ... on 7 January, 2020
Author: Y.K. Srivastava
Bench: Yogendra Kumar Srivastava
HIGH COURT OF JUDICATURE AT ALLAHABAD AFR Court No. - 58 Case :- WRIT - C No. - 45595 of 2008 Petitioner :- Mahesh Kumar Juneja And Another Respondent :- Addl. Commissioner Judicial Moradabad Division And Others Counsel for Petitioner :- K. Ajit,Arvind Srivastava Iii Counsel for Respondent :- C.S.C.,D.V. Jaiswal,G.C. Pant,Harsh Vikram Hon'ble Dr. Yogendra Kumar Srivastava,J.
1. Heard Sri Prateek Kumar, advocate holding brief of Sri Arvind Srivastava-III, learned counsel for the petitioners and Sri D.V. Jaiswal alongwith Sri G.C. Pant, learned counsel appearing for respondent nos.3 and 4.
2. The present petition has been filed seeking to assail the order dated 28.01.2008 passed by the Sub-Divisional Officer, Milak, Rampur/respondent no.2 and also the order dated 25.07.2008 passed by the Additional Commissioner (Judicial), Moradabad Division, Moradabad/respondent no.1 in proceedings arising out of Section 34 of the U.P. Land Revenue Act, 19011.
3. In terms of the order dated 28.01.2008 passed by respondent no.2 the appeal filed by respondent no.4 was allowed and the matter was remitted back to the court below leaving it open to the parties to raise their contentions on merits of the case.
4. The revisional court has specifically recorded a finding that the mutation court had erred in rejecting the objections filed by the respondents without due consideration thereof and in view of the same the order passed in the appeal remitting the matter for consideration afresh did not suffer from any error. It has also been recorded that the order passed in the appeal being simply an order of remand for a fresh decision on merits after consideration of the maintainability of the objections leaving it open to the parties to place all contentions on the merits of the case there was no occasion for the revisional court to interfere in the matter.
5. Counsel for the petitioners has not been able to point out any material error or irregularity in the orders passed by the courts below so as warrant interference.
6. This apart the counsel for the petitioners has also not been able to give any satisfactory response to the preliminary objection raised by the counsel for the respondents that the proceedings under Section 34 of the Act, 1901 are summary in nature and ordinarily a writ petition against such orders is not entertained.
7. The question of the maintainability of a writ petition against orders passed in mutation proceedings has come up before this Court earlier and it has consistently been held that normally the High Court in exercise of its discretionary jurisdiction does not entertain writ petitions against such orders which arise out of summary proceedings.
8. In the case of Jaipal Vs. Board of Revenue, U.P., Allahabad & Ors.2 notice was taken of the consistent practice of this Court not to interfere with the orders made by the Board of Revenue in cases in which the only question at issue was whether the name of the petitioner should be entered in the record of rights. The observations made in the judgment in this regard are as follows:-
"3. ...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..."
9. The question with regard to the maintainability of a writ petition arising out of mutation proceedings fell for consideration in the case of Sri Lal Bachan Vs. Board of Revenue, U.P., Lucknow & Ors.3 and it was held that the High Court does not entertain a writ petition under Article 226 of the Constitution of India for the reason that mutation proceedings are only summarily drawn on the basis of possession and the parties have a right to get the title adjudicated by regular suit. The observations made in the judgment are extracted below:-
"17. 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 under Section 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 decides 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.
18. In view of the above discussions, it is clear that although the writ petition arising out of the mutation proceedings cannot be held to be non-maintainable but this Court does not entertain the writ petition under Article 226 of the Constitution due to reason that parties have right to get the title adjudicated by regular suit and the orders passed in mutation proceedings are summary in nature."
10. A similar view was reiterated in the case of Bindeshwari Vs. Board of Revenue & Ors.4, wherein it was stated as follows:-
"11. ...The present writ petition arising out of the summary proceeding of mutation under Section 34 of U.P. Land Revenue Act, cannot be entertained under Article 226 of the Constitution of India. The mutation proceedings do not adjudicate the rights of the parties and orders passed in the mutation are always subject to adjudication by the competent court."
11. Taking note of the nature and scope of mutation proceedings which are summary in nature and also the fact that orders in such proceedings are passed on the basis of possession of the parties and no substantive rights are decided, this Court in Buddh Pal Singh Vs. State of U.P. & Ors.5, restated the principle that ordinarily a writ petition in respect of orders passed in mutation proceedings is not maintainable. It was observed as follows:-
"6. The law is well-settled that:
(i) mutation proceedings are summary in nature wherein title of the parties over the land involved is not decided;
(ii) mutation order or revenue entries are only for the fiscal purposes to enable the State to collect revenue from the person recorded;
(iii) they neither extinguish nor create title;
(iv) the order of mutation does not in any way effect the title of the parties over the land in dispute; and
(v) such orders or entries are not documents of title and are subject to decision of the competent court.
7. It is equally settled that the orders for mutation are passed on the basis of the possession of the parties and since no substantive rights of the parties are decided in mutation proceedings, ordinarily a writ petition is not maintainable in respect of orders passed in mutation proceedings unless found to be totally without jurisdiction or contrary to the title already decided by the competent court. The parties are always free to get their rights in respect of the disputed land adjudicated by competent court."
12. The proposition that mutation entries in revenue records do not create or extinguish title over land nor such entries have any presumptive value on title has been restated in a recent judgment in the case of Bhimabai Mahadeo Kambekar Vs. Arthur Import and Export Company & Ors.6 placing reliance upon earlier judgments in the case of Sawarni Vs. Inder Kaur7, Balwant Singh Vs. Daulat Singh8 and Narawamma Vs. State of Karnataka9. The observations made in the judgment are as follows:-
"6. This Court has consistently held that mutation of a land in the revenue records does not create or extinguish the title over such land nor it has any presumptive value on the title. It only enables the person in whose favour mutation is ordered to pay the land revenue in question. (See Sawarni v. Inder Kaur, Balwant Singh v. Daulat Singh and Narasamma v. State of Karnataka)."
13. Reference may also be had to the judgment in Faqruddin Vs. Tajuddin10, wherein it was held that the revenue authorities cannot decide questions of title and that mutation takes place only for certain purposes. The observations made by the Supreme Court in the said order are as follows:-
''45. Revenue authorities of the State are concerned with revenue. Mutation takes place only for certain purposes. The statutory rules must be held to be operating in a limited sense... It is well-settled that an entry in the revenue records is not a document of title. Revenue authorities cannot decide a question of title.''
14. A similar observation was made in Narain Prasad Aggarwal Vs. State of Madhya Pradesh11, wherein it was held as follows:-
''19. Record-of-right is not a document of title. Entries made therein in terms of Section 35 of the Evidence Act although are admissible as a relevant piece of evidence and although the same may also carry a presumption of correctness, but it is beyond any doubt or dispute that such a presumption is rebuttable...''
15. In Union of India and others Vs. Vasavi Cooperative Housing Society Limited & Ors.12, the same legal position has again been stated in the following terms:-
''21. This Court in several judgments has held that the revenue records do not confer title. In Corpn. of the City of Bangalore v. M. Papaiah [(1989) 3 SCC 612] this Court held that: (SCC p. 615, para 5) ''5. ...It is firmly established that the revenue records are not documents of title, and the question of interpretation of a document not being a document of title is not a question of law.'' In Guru Amarjit Singh v. Rattan Chand [(1993) 4 SCC 349] this Court has held that: (SCC p. 352, para 2) ''2. ...that entries in the Jamabandi are not proof of title.'' In State of H.P. v. Keshav Ram [(1996) 11 SCC 257] this Court held that: (SCC p. 259, para 5) ''5. ...an entry in the revenue papers by no stretch of imagination can form the basis for declaration of title in favour of the plaintiffs.''
16. The settled legal position that entries in revenue records do not confer any title has been considered and discussed in a recent judgment of this Court in Harish Chandra Vs. Union of India & Ors.13.
17. In view of the foregoing discussion, it may be restated that ordinarily orders passed by mutation courts are not to be interfered in writ jurisdiction as they are in summary proceedings, and as such subject to a regular suit.
18. The mutation proceedings being of a summary nature drawn on the basis of possession do not decide any question of title and the orders passed in such proceedings do not come in the way of a person in getting his rights adjudicated in a regular suit. In view thereof this Court has consistently held that such petitions are not to be entertained in exercise of powers under Article 226 of the Constitution of India.
19. The writ petition thus fails and is accordingly dismissed.
Order Date :- 7.1.2020 Shahroz (Dr. Y.K. Srivastava,J.)