Allahabad High Court
Alladin vs State Of U.P. And 12 Others on 29 November, 2022
Author: Y.K. Srivastava
Bench: Yogendra Kumar Srivastava
HIGH COURT OF JUDICATURE AT ALLAHABAD AFR Court No. - 19 Case :- WRIT - C No. - 21993 of 2022 Petitioner :- Alladin Respondent :- State Of U.P. And 12 Others Counsel for Petitioner :- Hari Prakash Mishra,Dharmendra Kumar Srivastava Counsel for Respondent :- C.S.C.,Ishir Sripat,Krishna Kant Singh,Mithilesh Kumar Mishra,Saurabh Patel And Case :- WRIT - C No. - 22082 of 2022 Petitioner :- Alladin And Another Respondent :- State Of U.P. And 7 Others Counsel for Petitioner :- Hari Prakash Mishra,Dharmendra Kumar Srivastava Counsel for Respondent :- C.S.C.,Ishir Sripat,Krishna Kant Singh,Mithilesh Kumar Mishra Hon'ble Dr. Yogendra Kumar Srivastava,J.
1. The two writ petitions are based on similar set of facts and raise common questions of law, accordingly with the consent of the parties, the petitions are being taken up for hearing together.
2. Heard Sri Dharmendra Kumar Srivastava, learned counsel for the petitioner, Sri Abhishek Shukla, learned Additional Chief Standing Counsel for the State respondents, Sri Ishir Sripat, learned counsel for the private respondents and Sri Pawan Kumar Singh, holding brief of Sri K.K. Singh, learned counsel for the Gram Sabha.
3. Writ C No. 21993 of 2022 has been filed seeking to assail the order dated 7.6.2019 passed by the Sub Divisional Magistrate, Kasganj in Case No. RST/03294 of 2018 (Computer Case No. T201818750103294, Alladin vs. State of U.P.) under Section 38(1) of the U.P. Revenue Code, 2006 and also the order dated 24.2.2022 passed by the Additional Commissioner (Judicial) Aligarh in Case No. 00051/2020 (Computer Case No. C 202018000000051, Alladin vs. Gram Panchayat and others) under Section 210 of the U.P. Revenue Code, 2006.
4. Writ C No.-22082 of 2022 has been filed challenging the order dated 7.6.2019 passed by the Sub Divisional Magistrate, Kasganj in Case No. RST/03292 of 2018 (Computer Case No. T201818750103292, Alladin vs. State of U.P.) under Section 38(1) of the U.P. Revenue Code, 2006 and also the order dated 24.2.2022 passed by the Additional Commissioner (Judicial) Aligarh in Case No. 00052/2020 (Computer Case No. C 202018000000052, Alladin vs. Gram Panchayat and others) under Section 210 of the U.P. Revenue Code, 2006.
5. On the previous occasion an objection had been raised by the counsel appearing for the State respondents and the counsel appearing for the private respondents with regard to the entertainability of the writ petition by pointing out that the petition arises out of summary proceedings under Sections 32/38 of U.P. Revenue Code, 2006.
6. Counsel for the petitioners after making submissions to some extent has fairly conceded to the settled legal position that summary proceedings relating to correction of revenue records do not decide any question of title and the orders passed in such proceedings do not come in way of a person getting his rights adjudicated in a regular suit and it is for the said reason, that a consistent view has been taken by the courts that writ petitions arising out of such summary proceedings, are not to be entertained in exercise of powers under Article 226 of the Constitution of India.
7. In regard to the aforestated legal proposition, counsel for the parties are ad idem, and have placed reliance on the recent judgement of this Court in Smt. Kalawati vs. The Board of Revenue and 6 Others1.
8. The question of entertainability of a writ petition against orders passed in summary 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 would not entertain writ petitions which arise out of such proceedings.
9. The settled legal position that an entry in revenue records does not confer title on a person whose name appears in records-of-rights and that such entries are only for 'fiscal purposes' and no ownership is conferred on the basis thereof, and further that the question of title of a property can only be decided by a competent court having jurisdiction in such matters, has been restated in recent decisions of this Court in Harish Chandra vs. Union of India & Ors.2, Mahesh Kumar Juneja and another vs. Additional Commissioner Judicial Moradabad Division and others3, and Smt. Kalawati vs. The Board of Revenue and 6 Others (supra).
10. The reluctance of the Courts to interfere with orders arising out of mutation proceedings is primarily for the reason that the question at issue is with regard to correction of record-of-rights which is primarily maintained for revenue purposes and an entry therein has reference only to possession and does not ordinarily confer upon the person in whose favour it is made any title to the property in question.
11. The aforesaid inference that revenue entries made on the basis of orders of mutation do not ordinarily confer upon a person in whose favour they are made, any title to the property in question, stands fortified from the express provision contained under Section 39 of the Code which states in clear terms that the orders passed under the provisions relating to mutation of revenue records would not act as a bar against any person from establishing his rights to the land by means of a declaratory suit.
12. Section 39 of the Code, as referred to above, is being extracted below :-
"39. Certain orders of Revenue Officers not to debar a suit :- No order passed by a Revenue Inspector under Section 33, or by a Tehsildar under sub-section (1) of Section 35 or by a Sub-Divisional Officer under sub-section (3) of Section 38 or by a Commissioner under sub-section (2) of Section 35 or sub-section (4) of Section 38 shall debar any person from establishing his rights to the land by means of a suit under Section 144."
13. The aforementioned section clearly provides that no person shall be debarred from establishing his rights to the land by means of a declaratory suit under Section 144, irrespective of the fact that an order has been passed by; (i) a Revenue Inspector under Section 33 (mutation in case of succession), or (ii) a Tehsildar under sub-section (1) of Section 35 (mutation in case of transfer or succession), or (iii) a Sub-Divisional Officer under sub-section (3) of Section 38 (correction of error or omission), or (iv) a Commissioner under sub-section (4) of Section 38 (correction of error or omission).
14. Section 39 which expressly provides that the orders passed by revenue officers in cases of a mutation and correction of revenue entries would not debar filing of a declaratory suit, is a substantive provision, and corresponds to a similar provision contained under Section 40-A of the U.P. Land Revenue, 1901 (now repealed).
15. The language of the section emphasizes that it applies to all orders passed by the revenue officers in matters relating to mutation and correction of errors or omission of revenue entries and it provides in clear terms that such order shall not debar any person from establishing his rights to the land by means of a declaratory suit under Section 144.
16. The object of the section being to enable a person to seek declaration of his rights on questions of title irrespective of the orders passed in mutation proceedings with regard to correction of revenue entries, the remedy of seeking a declaration on questions of title by filing a declaration suit remains open. The existence of an efficacious statutory alternative remedy would therefore also be a reason for not entertaining a writ petition in exercise of discretionary jurisdiction under Article 226.
17. It may be added as a word of caution that the rule of exhaustion of statutory remedies is a rule of policy, convenience and discretion and existence of an alternate remedy would not divest the High Court of its powers under Article 226 which may be exercised in appropriate cases.
18. The refusal of the Court to exercise its discretionary jurisdiction under Article 226 in such matters would be subject to the exceptions as laid down in the case of Smt. Kalawati (supra), which are as follows:-
(i) the order or proceedings are wholly without jurisdiction;
(ii) rights and title of the parties have already been decided by a competent court, and that has been varied in these proceedings;
(iii) the order has been passed after entering into questions relating to entitlement, touching the merits of the rival claims;
(iv) rights have been created which are against provisions of any statute, or the entry itself confers a title by virtue of some statutory provision;
(v) the order has been obtained on the basis of fraud or misrepresentation of facts, or by fabricating documents;
(vi) the order suffers from some patent jurisdictional error i.e. in cases where there is a lack of jurisdiction, excess of jurisdiction or abuse of jurisdiction;
(vii) there has been a violation of principles of natural justice.
19. Counsel for the petitioners, has fairly submitted that the aforestated exceptions with regard to the rule of exhaustion of statutory remedy, would not be attracted in the facts of either of the writ petitions. Learned counsel states that he does not wish to press the petitions and that the petitioners would seek declaration of their rights by instituting proceedings before the appropriate forum.
20. Counsel for the State respondents and the counsel for the private respondents have no objection.
21. The writ petitions stand disposed of in terms of the prayer so made.
Order Date :- 29.11.2022 Kirti (Dr. Y.K. Srivastava, J)