Allahabad High Court
Mohd. Ishtiyaq vs Additional District Judge And 10 Others on 2 August, 2024
HIGH COURT OF JUDICATURE AT ALLAHABAD Neutral Citation No. - 2024:AHC:124773 Reserved On: 19.07.2024 Delivered On: 02.08.2024 Court No. - 53 Case :- MATTERS UNDER ARTICLE 227 No. - 3294 of 2019 Petitioner :- Mohd. Ishtiyaq Respondent :- Additional District Judge And 10 Others Counsel for Petitioner :- Ashish Kumar Singh,Ajay Kumar Singh Counsel for Respondent :- Ashutosh Yadav,Abhilasha Singh,Neelabh Srivastava,Pratik Srivastava Hon'ble Manish Kumar Nigam,J.
1. This petition has been filed challenging the order dated 30.03.2019 passed by Additional District Judge, Court No. 12, Allahabad in Second Appeal No. 54 of 2011 (Kafeel Ahmad vs. Taukeer Fatma and others) under Section 476 of U.P. Municipal Corporation Act, 1959 (hereinafter referred as 'Act of 1959').
2. Brief facts as stated in the writ petition are that House No. 60/78 Noorullah Road, Allahabad (property in dispute) was owned by one Asgar Mirza. Asgar Mirza died on 11.11.1995 leaving behind his widow Tauqeer Fatma and minor children, namely, Abul Hasan, Miraz, Km. Arfeen Fatma, Km. Nasreen Fatma, Abu Hasan, Ale Hasan, Sibta Hasan. After the death of Asgar Mirza, name of Tauqeer Fatma was mutated in the year 1996 in the municipal records being legal heir of Asgar Mirza. Tauqeer Fatma transferred the northern portion of the property in dispute in favour of the petitioner and the southern portion was transferred in favour of Mhd. Imtiaz by a registered sale deed dated 14.09.1998. After the purchase of the property in dispute (northern portion), name of the petitioner was mutated in the municipal records on the basis of sale deed executed by heirs of Asgar Mirza and the petitioner was paying all taxes since the date of purchase/mutation. On 20.12.2002, an application was filed by one Kafeel Ahmad-respondent no. 2 for mutation of his name over the property in dispute (northern portion) purchased by the petitioner vide sale deed dated 14.09.1998, on the ground that Asgar Mirza, by a oral gift (zubani hiba) dated 01.01.1994 transferred the same in favour of respondent no. 2. The memorandum of hiba was also executed by Asgar Mirza in favour of respondent no. 2. A suit was filed by the respondent no. 2 being Original Suit No. 681 of 2001 on 24.09.2001 in the court of Civil Judge (Junior Division) East, Allahabad (Kafeel Ahmad Vs. Taqueer Fatma and others) that the plaintiff-respondent no. 2 be declared owner of the property in dispute (northern portion). The said suit was decreed by the Additional Civil Judge (Junior Division) Court No. 10, Allahabad vide its judgment and decree dated 20.03.2002. After the judgment and decree dated 20.03.2002, the application referred above was filed by the respondent no. 2 for mutating his name in the municipal records. In the application, it was stated by the respondent no. 2 that he has come to know that the widow of Asgar Mirza has executed a sale deed on 14.09.1998 of which she has no right and has also impleaded the petitioner in the said application as opposite party. After receiving the notice, the petitioner filed objections to the effect that judgment and decree in Original Suit No. 681/2001 is not binding upon the petitioner as the petitioner was not a party to the aforesaid suit. It was also stated by the petitioner that Kafeel Ahmad-respondent no. 2 was never in possession of the property in dispute nor any hiba as alleged by respondent no. 2 was made by late Asgar Mirza in favour of respondent no. 2. It was also alleged that the petitioner has filed an application for setting aside the ex-parte judgment and decree dated 20.03.2002 passed in O.S. No. 681 of 2001. The application filed by the respondent no. 2 was rejected by the Assistant Municipal Commissioner by its order dated 02.01.2003. Against the order dated 02.01.2003, an appeal was filed by respondent no. 2, being Appeal No. 2 of 2003 and the same was also dismissed by the Judge, Small Causes Court, Allahabad by its judgment and order dated 22.1.2011. Against the judgment and order dated 22.01.2011, the second appeal was filed by the respondent no. 2 before the District Judge, Allahabad and the same has been allowed by the District Judge, Allahabad by judgment and order dated 30.03.2019. Hence the present petition.
3. Contention of learned counsel for the petitioner is that after the death of Asgar Mirza on 11.11.1995, the name of his widow was recorded in the municipal records. Thereafter, Tauqeer Fatma, widow of Asgar Mirza executed a sale deed in favour of the petitioner on 14.09.1998 and the name of the petitioner was also mutated over the property in dispute in the municipal records on the basis of sale deed executed in his favour. The respondent no. 2 alleges oral hiba in his favour dated 01.01.1994 but neither during the lifetime of Asgar Mirza nor after the death of Asgar Mirza, any proceeding was initiated by the respondent no. 2 for getting his name mutated in the municipal records. It was only after the judgment and decree in the Original Suit No. 681 of 2001, the application was moved by the respondent no. 2. It was further contended that in the aforesaid suit, petitioner was not impleaded as party though the name of the petitioner was recorded in the municipal records on the basis of sale deed executed in his favour. The suit was decreed vide judgment and decree dated 20.03.2002. Soon thereafter, the application for mutation was filed in which it was categorically stated by the respondent no.2 that widow of Asgar Mirza has executed a sale-deed in favour of the petitioner. The petitioner was also impleaded as party in the aforesaid application. It has also been contended by learned counsel for the petitioner that from the perusal of the judgment of Original Suit No. 681 of 2001, which is filed at page 57 of the paper-book, it is clear that the defendants in the suit has colluded with the plaintiff-respondent no. 2 as they had admitted the case of the plaintiff which resulted in decree in favour of respondent no. 2. It is next contended by learned counsel for the petitioner that sale deed in favour of the petitioner has never been cancelled by any competent court. It is also informed by learned counsel for the petitioner that the restoration application under Order 9 Rule 13 C.P.C. filed by the petitioner was rejected as not maintainable. The Assistant Municipal Commissioner has rightly rejected the application filed by the respondent no. 2 as petitioner was not party to the Original Suit No. 681 of 2001. It has also been held that after the death of Asgar Mirza, no efforts were made by respondent no. 2 to get his name mutated on the basis of oral hiba allegedly executed in his favour on 01.01.1994. It was only after the judgment and decree in Original Suit No. 681 of 2001, the application was moved. In 1996-97 the name of Tauqeer Fatma was recorded over the house in dispute. No objection was filed by the respondent no. 2 to the mutation in favour of Tauqeer Fatma. On the date of filing of the suit, the heirs of Asgar Mirza were left with no right and title in the property in dispute as they had already sold the property to the petitioner therefore, deliberately, the heirs of Asgar Mirza were impleaded as party in the suit which demonstrates the collusion between them. The appeal filed by the petitioner was also rejected by the first appellate court. The first appellate court recorded a finding that after the execution of the sale deed in favour of the petitioner, the suit was filed in the year 2001 almost after four years without impleading the petitioner as defendant in the suit. The ground taken by the appellant that the sale-deed in favour of the petitioner was a forged document from which the petitioner cannot derive any right and for the cancellation of the same proceedings are undertaken, was rejected by the appellate court on the ground that no such document was filed by the respondent no. 2 to prove his allegations. Respondent no. 2 has filed along with his affidavit paper no. 37-Ga, the copy of the plaint of Original Suit No. 776 of 2005 (Ibme Hasan Vs. Mhd. Imtiaz and others) which was filed for cancellation of the sale deed but was later on withdrawn by the plaintiff Ibme Hasan on 12.04.2006. It was also held by the first appellate court that mutation on the basis of a registered sale-deed cannot be said to be illegal. The contention of the appellant before the first appellate court that in the year 1996-1997 at the time of mutation proceedings, notice was given to him but over the northern part his name was not mutated, was repelled by appellate court and a finding has been recorded by the appellate court that in case, the name of the respondent no. 2 was not mutated in the mutation proceedings, no appeal was not filed by the respondent no. 2 and from the perusal of the paper no. 44-Ga, it is clear that respondent no. 2 has knowledge of the mutation proceedings since beginning and therefore, contention of the appellant that he had no knowledge of the mutation proceedings or he had no knowledge of execution of sale deed in favour of the petitioner, therefore he has not impleaded petitioner as defendant in the suit is not worth accepting.
4. The second appellate court has reversed the judgment passed by both the courts below only on the ground that the decree in favour of the respondent no. 2, unless set-aside cannot be ignored by the mutation authorities or the appellate court.
5. It has been further contended by learned counsel for the petitioner that the finding of the second appellate court that the respondent no. 2 was declared owner by the competent civil court. The Assistant Municipal Commissioner and the Additional Judge Small Causes has no jurisdiction to ignore the decree passed by the civil court or to refuse to pass an order on the mutation application because the Mutation Officer has no right to comment upon the decree passed by the civil court to be correct or incorrect, is erroneous. The finding of the second appellate court that the person in whose favour the mutation order has been passed, in case, a decree is passed against such person or his vendor then because of said decree, the mutation order will be of no consequence and the decree passed by the competent civil court will be effective as civil rights are decided by the competent civil court and not in the mutation proceedings, is also erroneous. The second appellate court has also not considered at all the overall facts of the case that the petitioner was not made party in the civil suit in which decree of declaration was passed in favour of respondent no. 2, the defendants in the aforesaid suit were left with no right in the property after execution of sale-deed in favour of the petitioner and from the perusal of judgment of the civil court, it is apparent that the defendants in the suit (heirs of Asgar Mirza) has colluded with the plaintiff/ respondent no. 2 as they have admitted the case of the plaintiff. The decree in the suit has not become final as an appeal against an order rejecting the application of the petitioner under Order 9 Rule 13 of CPC, is pending and also the suit for cancellation of the aforesaid decree has been filed by the petitioner, is also pending. It is also been contended by learned counsel for the petitioner, unless, the rights of the parties are conclusively decided by a competent civil court and entry made in favour of the petitioner on the basis of sale deed in the year 1998 was rightly not interfered with on an application moved by the respondent no. 2 on the basis of a decree passed in his favour in which the petitioner was not a party. The courts below had rightly not interfered with the mutation entry in favour of the petitioner, merely, on the basis of an ex-parte decree which on the face of it appears to be collusive and was under challenge in a suit for cancellation of decree being O.S No. 264 of 2004 and also in appeal filed against an order rejecting the application under Order 9 Rule 13 C.P.C. filed by the petitioner. The second appellate court has erred in law in holding the said decree to be binding on the mutation court and consequently, setting aside the orders passed by the courts/ authority below and remanding the matter for a decision afresh in view of the judgment and decree dated 20.03.2002 and also after making an enquiry as to possession after hearing both the parties.
6. Learned counsel for the petitioner relied upon judgment of this Court in the case of Hukmanand Sharma Vs. The Chief Judicial Magistrate, reported in 1999 (35) ALR 332 and the judgment of this Court in the case of Nirmala Devi and Ors. Vs. Upper Commissioner Nagar Nigam and Ors. reported in 2011 (8) ADJ 385.
7. Per contra, learned counsel for the respondent submitted that mutation proceedings are fiscal in nature and do not decide the right and title of the parties and therefore, the writ petition under Article 226 of the Constitution of India is not maintainable challenging the orders passed by the mutation courts. In this connection, the counsel for the respondent relied upon judgment in the case of Jaipal (Minor) Vs. The Board of Revenue, U.P. Allahabad and Others reported in 1956 ALJ 807 and the judgment of this Court in the case of Ram Bharose Lal Vs. State of U.P. reported in 1991 RD 70. It has been further contended by learned counsel for the respondent that after the oral Hiba in favour of respondent no. 2 by Asgar Mirza, his heirs were left with no right, title or interest in the property and therefore, the sale deed executed by the heirs of the deceased Asgar Mirza in favour of the petitioner is void and will not create any right, title or interest in the property in dispute in favour of the petitioner. It has been further contended by counsel for the respondent no. 2 that a declaratory decree has been passed in favour of the respondent no. 2 in Original Suit No. 681 of 2001 on 20.03.2002 by the Civil Judge (Junior Division), East Allahabad declaring the respondent no. 2 to be the owner of the property in dispute and the said decree has not been set aside by the court of law and therefore, the same is binding. It has also been contended by counsel for the respondent no. 2 that application filed by the petitioner under Order 9 Rule 13 CPC for setting aside the judgment and decree dated 20.03.2002 in Original Suit No. 681 of 2001 has been rejected by the court below. It has also been submitted by counsel for respondent no. 2 that the authorities below have erroneously refrained from passing orders on the application filed by the respondent no. 2, which has been rightly set aside by the second appellate court. Lastly, it was submitted by the counsel for the respondent no. 2 that order impugned is only a remand order and will not cause any prejudice to the petitioner as the petitioner will have an opportunity to contest the matter on merits.
8. I have considered the submission of learned counsel for the parties and have perused the record.
9. In the present case, the orders have been passed under the provisions of U.P. Municipal Corporation Act, 1959. Relevant sections of the Act of 1959 is quoted as under:-
"213. Amendment and alteration of list.- (1) The Executive Committee or a sub-committee thereof appointed in this behalf may at any time alter or amend the assessment list,-
(a) by entering therein the name of any person or any property which ought to have been entered or any property which has become liable to taxation after the authentication of the assessment list; or
(b) by substituting therein for the name of the owner or occupier of any property the name of any other person who has succeeded by transfer or otherwise to the ownership or occupation of the property; or
(c) by enhancing the valuation of, or assessment on, any property which [has become incorrectly valued or assessed or which, by reason of fraud, misrepresentation or mistake, has been incorrectly valued or assessed]; or
(d) by revaluing or re-assessing any property the value of which has been increased by additions or alterations to buildings; or
(e) where the percentage on the annual value at which any tax is to be levied has been altered by the Corporation under the provisions [of this Act] by making a corresponding alteration in the amount of the tax payable in each case; or
(f) by reducing upon the application of the owner or on satisfactory evidence that the owner is untraceable and the need for reduction established, upon its own initiative, the valuation of any building which has been wholly or partly demolished or destroyed; or
(g) by correcting any clerical, arithmetical or other apparent error;
Provided that the Executive committee or the sub-committee, as the case may be, shall give at least one month's notice to any person interested in any alteration [or amendment] which the Executive Committee or sub-committee proposes to make under clauses (a), (b), (c) or (d) of sub-section (1) and of the date on which the alteration [or amendment] will be made.
[(1-A) For the removal of doubts it is hereby declared that it shall not be necessary to follow the procedure laid down in Sections 199 to 203 or in Sections 207 to 210 in respect of any alteration made under clause (e) of sub-section (1) as a result of a determination of the rate of tax under Section 148.].
(2).......
(3) Every alteration [or amendment] made under sub-section (1) shall be authenticated by the signature or signatures of the person authorised by Section 210 and, subject to the result of an appeal under Section 472, shall take effect from the date on which the next instalment falls due."
Sub-section (3) of Section 213 clearly contemplates filing of an appeal under Section 472.
10. Sub-sections (1) and (2) of Section 472 are relevant in the present case which are as follows:
"472. Appeals when and to whom to lie.- (1) Subject to the provisions hereinafter contained, appeals against any annual value or tax fixed or charged under this Act shall be heard and determined by the Judge:
[Provided that any such appeal pending at any stage before the Judge may be transferred by the District Judge for hearing and disposal, to any Additional Judge of the Court of Small Causes or Civil Judge or Additional Civil Judge having jurisdiction in the City.] (2) No such appeal shall be heard unless-
(a) it is brought within fifteen days after the accrual of the cause of complaint;
(b) in the case of an appeal against an annual value an objection has previously been made [and has been disposed of under Section 209];
(c) in the case of an appeal against any tax in respect of which provisions exists under this Act for an objection to be made to the [Municipal Commissioner] against the demand; such objection has previously been made and disposed of;
[(d) in the case of an appeal against any amendment or alteration made in the assessment list for property taxes under sub-section (1) of Section 213, an objection has been made in pursuance of a notice issued under the proviso to the said sub-section and such objection has been disposed of;]
(e) in the case of an appeal against a tax, or in the case of an appeal made against an annual value after a bill for any property tax assessed upon such value has been presented to the appellant, the amount claimed from the appellant has been deposited by him with the [Municipal Commissioner]."
11. Section 476 of the U.P. Municipal Corporation Act, 1959 provides for an appeal to the District Magistrate.
Section 476 of the Act of 1959 is quoted as under:-
"476. Appeal to the District Judge. - An appeal shall lie to the District Judge--
(a) from any decision of the Judge in an appeal under Section 472 by which an annual value in excess of twelve thousand rupees is fixed, and
(b) from any other decision of the Judge in an appeal under the said section, upon a question of law or usage having the force of law or the construction of a document:
Provided that no such appeal shall be heard by the District Judge unless it is filed within one month from the date of the decision of the Judge."
12. So far as contention of learned counsel for the respondent that mutation proceedings do not decide right or title of the parties rather these proceedings are just fiscal in nature is correct. As a matter of fact, the mutation proceedings may be under Section 213 of Act of 1959 or under the U.P. Land Revenue Act, 1901 or U.P. Land Revenue Code, 2006 or any other law but the legal effect in all the events remains the same. These proceedings do not decide the right or title of the parties rather these proceedings are just fiscal in nature. They just have got legal effect of entering the name of the vendee in place of vendor or the name of lessee in place of lessor or donee in place of donor or any other case where there is devolution or transfer of rights. These mutation proceedings are to enable the State to receive revenue from the person whose name is recorded in the revenue records.
13. It is well settled that where the dispute is in the mutation proceedings which do not adjudicate upon the rights or title of the parties, this Court need not to interfere under Article 226 of the Constitution of India. In such matters persons aggrieved shall have right to seek remedy in an appropriate court.
14. In case of Ram Bharose Lal Vs. State of U.P. (supra), the review petition against an order passed by the writ court was dismissed by the Division Bench of this Court. The Division Bench held that the main relief sought by the petitioner is to direct the District Magistrate to effect change or mutation in the relevant revenue records of rights by expunging the name of the vendors and entering the name of the vendees, actually seeking direction to the Collector to make mutation of the name of the petitioner similar to an application under Section 34 of the U.P. Land Revenue Act, 1901. Even though, the relief sought by the petitioner may be under different Act, but the legal effect of the order of mutation in that event also remains same. The Division Bench dismissed the review petition.
15. In case of Jaipal (Minor) Vs. The Board of Revenue U.P., Allahabad and others (supra), the Division Bench of this Court held as under:-
"The contention of learned counsel for the petitioner is that the Board of Revenue in passing this order exceeded its jurisdiction. 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 Sec. 40 (3) of the Act. The only excерtion 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 the e U. P. Zamindari Abolition and Land Reforms Act. This petition does not fall in that class and we think therefore this Court should not entertain it. It is accordingly dismissed with costs."
16. There is no dispute to the proposition that ordinarily the writ court do not interfere with the orders passed by the mutation courts but the contention of the counsel for the respondent that such a writ petition is not maintainable, is not tenable.
17. This Court in the case of Lal Bachan Vs. Board of Revenue, Uttar Pradesh and Ors, reported in 2002 (46) ALR 564 has held in paragraph nos. 15, 16, 17,18 after considering the various authorities of this Court as well as of the Apex Court, which is quoted as under:-
"15. As far as questions of maintainability of the writ petition against the orders passed by the Board of Revenue or Tehsildar is concerned, writ petition cannot be held to be non-maintainable, whenever any Court or Tribunal exercising statutory Jurisdiction passes an order, the writ petition against the said order of any public officer is maintainable under Article 226 of the Constitution because High Court has power to correct any error committed by any public authority in exercise of statutory power
16. But I hasten to add in the aforesaid observation that this court has refused to entertain the writ petition challenging the orders passed in proceedings under Section 34 of the Act on the ground that there is always an alternative remedy of adjudication of title by civil suit. Learned single Judge in Lekhraj and others v. Board of Revenue and others, 1980 ALJ 905, after considering various judgments of this Court has held:
"Accordingly, I uphold the preliminary objection raised on behalf of the opposite party No. 4 and dismiss this petition under Article 226 of the Constitution on the ground of the existence of an equally efficacious alternative remedy by way of filing the regular suit to establish title."
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."
18. Now, coming to the facts of the present case and the submissions made by the counsel of rival parties, it is not disputed that property in dispute was owned by one Asgar Mirza. After the death of Asgar Mirza, the heirs of deceased Asgar Mirza executed a sale deed in favour of the petitioner in the year 1998. The respondent no. 2 claim that an oral Hiba was made by the deceased Asgar Mirza in the year 1994. It is also not in dispute that after the death of Asgar Mirza, name of his widow Tauqeer Fatma was recorded in the revenue records in the year 1996 and after execution of sale deed by Tauqeer Fatma in favour of the petitioner, name of the petitioner was mutated in municipal records in the year 1998. Though, allegedly Hiba was made in favour of respondent no. 2 in the year 1994, a suit was filed being Original Suit No. 681 of 2001 by respondent no. 2 in the year 2001 for declaring him to be the owner of the property in dispute. In the aforesaid suit, the heirs of deceased Asgar Mirza were made party but the petitioner was not impleaded as defendant though, his name was recorded in the municipal records. Without commenting upon the merits of the judgment and decree passed in Original Suit No. 681 of 2001, it is clear that a declaratory decree was passed in favour of respondent no. 2. After passing of declaratory decree on 20.03.2002 for the first time, an application made by the respondent no. 2 for mutating his name on 20.12.2002, impleading petitioner as one of the opposite party in the aforesaid application with an averment that the heirs of the deceased Asgar Mirza has no right to execute the sale deed in favour of the petitioner. The petitioner filed an application under Order 9 Rule 13 CPC for setting aside the judgment and decree dated 20.03.2002 in Original Suit No. 681 of 2001 which was rejected by the court below. Against the said order, a First Appeal From Order has been filed by the petitioner which is pending. In the meantime, Original Suit No. 776 of 2005 (Ibme Hasan Vs. Mhd. Imtiaz and others) was filed by one of heirs of the deceased Asgar Mirza for cancellation of sale deed executed in favour of the petitioner but the said suit was subsequently withdrawn by the heirs of the deceased Asgar Mirza. It has also come in evidence as filed by the respondent no. 2 that after the execution of oral Hiba, an application was filed by the respondent no. 2 for mutating his name and has also received notices when an application was filed by the widow of the deceased Asgar Mirza for mutating her name, but no action was taken once the name of the widow of Asgar Mirza was recorded and also when the name of the petitioner was recorded in the year 1998 after execution of sale deed in his favour. It was only after the decree passed in suit which was filed by the respondent no. 2 for declaration, another application for mutation was moved by the respondent no. 2, which was rejected by the Assistant Municipal Commissioner by order dated 02.01.2003 and it was directed that the name of the petitioner be continued till disposal of Misc. Case No. 9 of 2002. Appeal filed by the petitioner has also been dismissed.
19. Relying upon the judgment, in case of Hukmanand Sharma Vs. The Chief Judicial Magistrate (supra). Learned counsel for the petitioner submitted even assuming the order of mutation passed in favour of the petitioner in the year 1998 was incorrect, the remedy open for the respondent to have file an appeal against the said order and not to file a fresh application on the basis of decree passed in his favour.
20. In case of Hukmanand Sharma (supra) after the death of admitted owner of the property in August, 1967, the petitioner i.e. Hukmanand Sharma has applied for mutation on the basis of Will. The Executive Officer, Municipal Board by order dated 14.07.1970, ordered the name of Hukmanand Sharma, the petitioner in the aforesaid petition to be recorded in the assessment list as owner of the said plot. In the year 1973, respondent no. 4 in the said writ petition moved an application claiming that name of Hukmanand Sharma was wrongly recorded. These proceedings remained pending for several years and ultimately by the impugned order dated 15.06.1981, order was passed in favour of respondent no. 4 and the appeal filed by the petitioner i.e. Hukmanand Sharma against order dated 15.06.1981 was also dismissed.
21. This Court relying upon the provisions of Section 141 of U.P. Municipalities Act which are similar to Section 213 of Act of 1959; has held in paragraph no. 12 of the judgment of Hukmanand Sharma (supra) as under:-
"12. Proceedings for mutation in the municipal records are fiscal in nature and are limited to the realisation of municipal taxes. The Nagar Palika has no authority to conclusively decide as to who is the rightful owner of the property. This power is vested in a Civil Court and the party, who is aggrieved by mutation, can go to a civil court for declaration of its rights and for such relief, as the circumstances of the case may warrant. The learned counsel for the respondents, therefore, contended that the petitioner's remedy lies in approaching a Civil Court for determination of its rights. It is true that either of the parties can approach to the Civil Court, but that does not mean that an illegal order passed by the Nagar Palika can be allowed to stand merely because It is not conclusive. The petitioner's name was already recorded in the municipal records. The respondent No. 4 did not appeal to the appellate authority. After the order, it applied in 1973 for mutation of its name and the proceedings lingered on for several years. The administrative authorities are not at liberty to pass any order whatever and when ever they like. The order passed by the executive officer expunging the name of the petitioner was, therefore, illegal and deserves to be quashed. The writ petition is, accordingly allowed and the order dated 15th June, 1981 passed by the executive officer, Nagar Palika, Rishikesh, a copy of which is Annexure '2' to the writ petition, is hereby quashed. In the circumstances of the case, the parties will bear their own costs."
22. In the case of Nirmala Devi and Ors. Vs. Upper Commissioner Nagar Nigam and Ors (supra), necessary facts before the court were that a mutation order dated 11.06.2007 was passed for mutating the name of the writ petitioners which was made subject to decision of the civil court, in pending Civil Suit no. 613 of 1989. After the said order was passed, the proceedings were reopened on the application submitted by the respondent nos. 5 to 7 before the Mayor. On the application certain directions were issued by the Mayor and in compliance of the aforesaid directions, again notices were issued to the parties and after hearing the parties, fresh order dated 19.05.2008 has been passed by which earlier order dated 11.06.2007 has been set aside and a direction was issued for mutating the names of respondent nos. 5, 6 and 7. The petitioner aggrieved by the said order filed a writ petition.
In paragraph nos. 16 and 21 of the aforesaid judgment, this Court has allowed the writ petition filed by the petitioner and held as under:-
"16. In the present case we are of the view that the petition has substance and the order dated 11.6.2007 could not have been reviewed by the Up Nagar Ayukt and the remedy available to the respondents was to file an appeal under Section 472 of the Municipal Corporation Act, 1959.
Learned counsel for the respondents have submitted that the petitioners having challenged the order passed by the municipal authorities in mutation proceedings, the remedy available to the petitioners is to institute a suit in the competent court and the writ petition be not entertained.
21. In mutation proceedings when an order is passed by the authority which is without jurisdiction this Court can interfere with such an order in exercise of writ jurisdiction. Present is the case of a nature where the Up Nagar Adhikari having already decided the matter on merit has reviewed the same without there being any jurisdiction to review the judgment on merits."
23. In the present case, I am of the opinion that once an order was passed by the Assistant Municipal Commissioner in favour of the petitioner in the year 1998 on the basis of sale deed, which is admittedly not set aside by any court of law till now, the application filed by the respondent no. 2 on the basis of declaratory decree in his favour in a suit in which the petitioner i.e. recorded tenure holder was not party and which was also subject to challenge before the civil court, Assistant Municipal Commissioner and the first appellate court were right in rejecting the application filed by the respondent no. 2 on the basis of aforesaid decree which was not final. At the best, the proper remedy for the respondent no. 2 to have challenged the order passed in favour of the petitioner in an appeal on the basis of decree passed in his favour. The second appellate court has erroneously allowed the second appeal filed by the respondent no. 2 and remanded the matter holding the decree to be binding, ignoring the fact that the said decree was ex-parte against the petitioner and was under challenge before the competent court.
24. I am of the considered opinion, the second appellate court has erred in allowing the appeal, it ought to have directed the parties to get their rights decided finally by a competent civil court and the mutation court to follow the said final judgment passed by the competent civil court deciding the rights of the parties.
25. Consequently, the order dated 30.03.2019 passed by Additional District Judge, Court No. 12, Allahabad impugned in the present petition is quashed and the writ petition is allowed, however, it is made clear that the mutation entry in favour of the petitioner will not confer any right or title to the petitioner and is only for the fiscal purposes, for realization of taxes by the Nagar Nigam and will always be subject to final adjudication of rights of petitioner viz-a-viz respondent no. 2 by the competent civil court in the pending litigation between them.
Order Date: 02.08.2024 Nitika Sri. (Manish Kumar Nigam, J.)