Allahabad High Court
Smt. Jhinka vs Addl. Commissioner (Admin-Ii) Devi ... on 2 January, 2020
Author: Sangeeta Chandra
Bench: Sangeeta Chandra
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH ?Court No. - 25 Case :- MISC. SINGLE No. - 36462 of 2019 Petitioner :- Smt. Jhinka Respondent :- Addl. Commissioner (Admin-Ii) Devi Patan Division Gonda &Ors Counsel for Petitioner :- Karunakar Srivastava Counsel for Respondent :- C.S.C.,Indrajeet Shukla Hon'ble Mrs. Sangeeta Chandra,J.
(Oral)
1. Heard learned counsel for the petitioner and learned counsel for the respondent.
2. This petition has been filed by the petitioner challenging the order dated 21.11.2019 passed by the Additional Commissioner (Administration-II), Devi Patan Division, Gonda in Case No.375 of 2017 (Smt. Jhinka Vs. Swami Nath) as well as order dated 24.06.2017 passed by the respondent no.2 i.e. Tehsildar, Tarabganj, District Gonda.
3. A preliminary objection has been raised regarding maintainability of the petition on the ground that the petitioner had approached the Additional Commissioner against an order passed under Section 34 of the U.P. Revenue Code 2006 which related to the mutation proceedings at an interim stage and the Revision has been rejected by the Additional Commissioner only on the ground that against an interlocutory order, no Revision is maintainable.
4. It has been submitted that it is settled law that against the mutation proceedings and orders passed therein, the writ petitions are not ordinarily entertained as the rights of the parties are to be settled by the competent court. In this case, infact no orders have been passed mutating the name of either of the parties by the Tehsildar. The initial order passed by the Revenue Inspector on 21.06.2017 has merely been stayed and the proceedings are pending before the Tehsildar, which fact has been noted by the Revisional Court in its order dated 21.11.2019.
5. It has been further submitted that the Additional Commissioner (Administration) has also directed the Tehsildar to decide the matter on merits within two months in the order impugned.
6. Learned Counsel for the petitioner has submitted that the petitioner is daughter of one Ram Lal, who is the recorded tenure holder of Khata No.00293 of Gatas No. 613, 811, 812, 813 and 814. The petitioner moved an application on death of her father for mutation of her name under Section 33 of the U.P. Revenue Code 2006 before the Revenue Inspector. The Revenue Inspector recorded the name of the petitioner as successor of Ram Lal on 21.06.2017. The contesting respondent no.3 however filed an application for mutation before the Tehsildar on the same day and the Tehsildar summoned the record and came to the conclusion that the succession was disputed and no orders could have been passed under Section 33 of U.P. Revenue Code, 2006 and only a report should have been submitted to the Tehsildar, who would have passed orders thereafter on hearing both the parties.
7. Learned counsel for the petitioner has placed reliance upon the judgment rendered by the Co-ordinate Bench of this Court in Smt. Kaushalya Devi Vs. Board of Revenue, 1995 (13) LCD 58, wherein this Court has observed that an order passed under Section 33A of the U.P. Revenue Code, 2006, for recording the name of the petitioner as successor of the property of his father could not have been cancelled or stayed unless another order was passed by the competent authority in exercise of jurisdiction vested in him in a mutation case registered under Section 34 of the Act. The succession matter being converted into the contested one after the claim made by the contesting respondent, could be culminated after due inquiry by a valid order passed under Section 35 of the Act. This Court had observed that the Naib Tehsildar had no jurisdiction to recall the order passed by him earlier.
8. This Court finds from a perusal of the said judgment relied upon by the petitioner that ultimately the Court directed that the order passed by the Naib Tehsildar may not be implemented and because the mutation proceedings were still subjudice, the entry made in favour of the petitioner by the Kanoongo was subject to the final decision of the case to be now decided by the Tehsildar.
9. It has been submitted by learned counsel for the respondent that the respondent had filed the application for mutation on the basis of the registered sale deed on the same day on which the petitioner had filed the application on the basis of succession before the Revenue Inspector. Under Section 33 of the U.P. Revenue Code, the Revenue Inspector was to submit a report in case the succession was contested and the Tehsildar was to then make an inquiry and pass appropriate orders. In this case the Revenue Inspector entertained the mutation application on the basis of succession and without making any inquiry and submitting the report passed the order himself, although on the same day the Tehsildar had entertained the mutation case of the petitioner.
10. It has also been submitted that in any case the mutation does not confer any right on any of the parties and the matter regarding mutation either through succession or through registered sale deed is still pending enquiry before the Tehsildar. The Tehsildar has only stayed the order passed by the Revenue Inspector and there is already a direction of the Commissioner that the parties be heard and the matter be finally decided on merits within two months.
11. Learned counsel for the respondent also states that the contesting respondent is not averse to any order passed by this court for maintenance of status quo and prohibiting either of the parties from creating any third party interest in the property in question during the pendency of the matter before the Tehsildar.
12. This petition is disposed of with a direction to the parties to maintain status quo and not to create any third party interest during the pendency of the dispute to be settled before the Tehsildar. The Tehsildar shall hear the parties and pass appropriate orders in accordance with law within a period of two months from today.
Order Date :- 2.1.2020 Rahul