Allahabad High Court
Maharaj Kumari Vishnupriya And 2 Others vs State Of Up And 5 Others on 30 April, 2024
Author: Ashutosh Srivastava
Bench: Ashutosh Srivastava
HIGH COURT OF JUDICATURE AT ALLAHABAD ?Neutral Citation No. - 2024:AHC:79333 Court No. - 5 Case :- WRIT - B No. - 1180 of 2024 Petitioner :- Maharaj Kumari Vishnupriya And 2 Others Respondent :- State Of Up And 5 Others Counsel for Petitioner :- Ritvik Upadhya,Sr. Advocate Counsel for Respondent :- C.S.C.,Sanjay Singh,Santosh Kumar Tiwari,Saurabh Raj Srivastava,Surendra Nath Tiwari Hon'ble Ashutosh Srivastava,J.
As per the roster, this Court has been assigned the following jurisdiction:-
"Writ-C- Matters pertaining to UPZA&LR Act, U.P. Land Revenue Act and UP Revenue Code and all other Revenue Laws not provided elsewhere".
The instant Writ-B No. 1180 of 2024 along with the connected Writ-B No. 1181 of 2024 and Writ-C No. 23565 of 2006 have been placed before this Court under the administrative orders of Hon'ble the Chief Justice dated 1st April, 2024 read with order dated 5.12.2018 and office report dated 29.4.2024.
Heard Shri V. K. Upadhyay, learned Senior Advocate assisted by Shri Ritvik Upadhyay, learned counsel for the petitioners, Shri O.P. Sharma, learned Standing Counsel for the State-respondent Nos. 1 to 3, 5 & 6 and Shri R. C. Singh, learned Senior Counsel assisted by Shri S. K. Tiwari and Shri S.R. Srivastava, learned counsels for the contesting respondent No. 4.
The writ petition has been filed seeking issuance of a writ of mandamus modifying the order dated 16.2.2024 passed by the Board of Revenue, U.P. Allahabad by granting the prayer to prohibit/restrain the respondent No. 4 from alienating in any manner whatsoever any part of the property in dispute and/or creating in any manner whatsoever third party interest over any part of the property in dispute and further prohibit any further mutation of any name of any person in the revenue records in respect of the property in dispute, which relief prayed for before the Board of Revenue has been declined on the ground that the relief claimed tantamounts to an injunction and the Board of Revenue is not competent to grant the relief prayed for by the petitioners in their interim relief application relying upon the decision of this Court reported in 2014 (123) RD 724 and has accordingly rejected the interim relief application of the petitioners filed along with the Revision assailing the order dated 30.9.2023 passed by the Sub Divisional Officer/Addl. Sub Divisional Magistrate in appeal under Section 207 of the U.P. Revenue Code, 2006 filed against the order dated 16.3.2022 of the Naib Tehsildar, City Division Varanasi, District Varanasi whereby mutating the name of the respondent No. 4 as well as his transferees over the properties subject matter of the mutation case.
Shri V. K. Upadhyay, learned Senior Counsel appearing on behalf of the writ petitioners submits that proceedings are pending consideration before the Board of Revenue in Revision. However, the respondent No. 4 taking advantage of his name being mutated over the properties in dispute has alienated and is further intending to alienate the properties and create third party rights thereon to the detriment of the interest of the petitioners. He submits that the dispute relates to the personal properties of late Maharaja of Banaras Dr. Vibhuti Narain Singh which properties were left to him after the accession into the Union of India in 1949 and after absorption as areas of the State of U.P. The petitioners herein are the daughters of late Maharaja of Banaras Dr. Vibhuti Narain Singh while the respondent No. 4 is the only son of the late Maharaja and brother of the petitioners. The late Maharaja of Banaras in his own wisdom made an oral family settlement dated 8.12.1969 which was later reduced into writing as a Memorandum of Family Settlement dated 16.7.1970 under which the personal properties of the Maharaja were distributed amongst each member of his family i.e. himself, his wife, three daughters (petitioners) and son (respondent No. 4). The properties which were left out of the aforesaid family settlement were the joint Hindu Family property of late Maharaja Dr. Vibhuti Narain Singh. The said property contained in Khata No. 00036 situate in Mauja Kutlupur, Pargana Ramnagar, Tehsil and District Varanasi is the subject matter of dispute between the petitioners and the respondent No. 4.
It is contended on behalf of the petitioners that the properties in dispute contained in Khata No. 00036 are properties over which the provisions of the Uttar Pradesh Zamindari Abolition & Land Reforms Act, 1950 or the U.P. Urban Areas Zamindari Abolition & Land Reforms Act, 1956 are not applicable. The said properties are otherwise non agricultural and thus, outside the domain of the aforesaid two enactments. The properties contained in Khata No. 00036 situate in Mauja Kutlupur, Pargana Ram Nagar, Tehsil and District Varanasi belong equally to the petitioners and the respondent No. 4 having devolved upon them after the demise of their father late Maharaja of Banaras Dr. Vibhuti Narain Singh on 25.12.2000.
It is next contended that the respondent No. 4 got his name surreptitiously recorded over the Khata No. 00036 as exclusive Bhumidhar under the order of the Revenue Inspector dated 8.8.2001 under PA-11 of Fasli Year 1405 to 1410. The petitioners on coming to know of the illegal mutation order and also to get their names recorded over the properties filed an application dated 28.1.2021, under Section 34/35 of the U.P. Revenue Code, 2006 before the respondent No. 3, the Naib Tehsildar City Division, Varanasi which proceedings were registered as Case No. RST/03144 of 2021. The petitioners also filed objections to the claim of the respondent No. 4 to be recorded as exclusive Bhumidhar. During the pendency of the proceedings, the respondent No. 4 alienated part of the properties under sale deeds dated 7.1.2022 and 10.1.2022 and also donated some properties under gift deed dated 18.1.2022. The petitioners sought interim relief restraining the respondent No. 4 from alienating the properties but no orders were passed and ultimately the mutation case was decided against the petitioners by a patently erroneous order dated 16.3.2022. The order passed by the respondent No. 3 was put to challenge in appeal under Section 207 of the U.P. Revenue Code, 2006 which appeal was registered as Appeal/Case No. 1660 of 2022. The Appellate Authority /respondent No. 2 vide order dated 25.4.2022 stayed the order dated 16.3.2022 and directed parties to maintain status quo while issuing notices to the parties. The respondent No. 4 despite the stay order sold some part of the properties vide sale deed dated 27.4.2022 which were brought to the knowledge of the Appellate Authority. The Appellate Authority instead of proceeding against the respondent No. 2 who had admittedly flouted the stay order proceeded to withdraw the stay order dated 25.4.2022. The petitioners were compelled to approach the Board of Revenue by filing a Revision under Section 210 being Revision No. 3407 of 2022. The petitioners pressed their application for interim relief but the Board of Revenue did not pass any orders and merely issued notices. The petitioners were compelled to approach this Court by means of Writ Petition (B) No. 3639 of 2022 assailing the orders dated 3.10.2022 and 16.3.2022. This Court vide interim order dated 21.12.2022 while keeping the writ petition pending directed the Board of Revenue to decide the Revision No. 3407 of 2022. The Board of Revenue in compliance of the order of this Court decided the revision vide order dated 20.3.2023 on erroneous grounds. The order dated 20.3.2023 was sought to be assailed in the pending Writ Petition (B) No. 3639 of 2022 by moving an amendment application.
This Court, however, declined to entertain the amendment being of the view that the Board of Revenue had directed the Appeal to be decided on merits and there was no error or illegality committed so as to interfere with the said order rejected the amendment vide order dated 03.07.2023 and dismissed the writ petition as infructuous. It, however, directed that for a period of four months from 03.07.2023 the private parties to the writ petition were directed to maintain status-quo as on date and not to create any third party rights.
It is next contended by learned Senior Counsel for the petitioner that the Respondent No.2 proceeded to decide the appeal and vide order dated 30.09.2023 dismissed the same without adverting to the grounds taken in appeal. The petitioners filed Writ-C No.37780 of 2023 assailing the order dated 30.09.2023 deciding the Appeal. This Court vide its order dated 03.11.2023 corrected vide order dated 09.11.2023 permitted the petitioners to withdraw the writ petition to avail the alternative remedy of filing a Revision before the Board of Revenue within one month and further directed the Board of Revenue to decide the stay application within 15 days from the date of filing of the Revision and thereafter decide the Revision itself within 9 months.
It is contended that in compliance of the direction of this Court in Writ-C 37780 of 2023, the petitioners filed the Revision along with a stay application on 28.12.2023 which Revision has been registered as Revision No.4425 of 2023. It is submitted that the Board of Revenue did not comply with the mandate of this Court to decide the stay application within 15 days of filing the Revision and the petitioners had to resort to contempt proceedings to ensure compliance. It was only when the contempt petition was entertained and instructions sought that the Board of Revenue proceeded to decide the stay application.
It is next urged by Shri V. K. Upadhyay, learned Senior Counsel appearing for the petitioners that the stay application was vehemently pressed before the Board of Revenue laying emphasis on the need for grant of the interim order and advancing arguments amongst others as under:-
"i) The properties in question are Non-ZA properties. Kutlupur, Pargana Ramnagar area of Varanasi comes under the Nagar Nigam/Nagar Palika and UPZA&LR Act is not applicable.
ii) There is declaration u/s 143 of the UPZA&LR Act on some portions of the properties in question.
iii) The properties are being alienated by the O.P. No. 4, Dr. Anant Narain Singh.
iv) The properties belong to revisionists by succession as daughters of late Maharaja Dr. Vibhuti Narain Singh who are entitled to an equal share as the respondent No. 4.
v) The order dated 30.09.2023 (passed by the O.P. No. 2) was passed without affording opportunity of hearing and therefore violative of the principles of natural justice and therefore void in law.
vi) The rejection of the Amendment Application of the revisionists dated 22.12.2022 for adding some paragraphs and documents in the appeal without recording reasons was violative of the principles of natural justice and thus void in law.
vii) The order dated 30.09.2023 (passed by O.P. No. 2), in dismissing the Appeal on maintainability is illegal and contrary to the direction issued by this Hon'ble Court in Writ-C No. 3639 of 2022.
viii) Urgent need for staying the alienation of the property in dispute as it creates third-party interest and imminent threat of causing irreparable loss to the revisionists/petitioners."
The arguments did not find favour with the Board of Revenue and consequently the stay application of the petitioners has been rejected by the order dated 16.02.2024.
Shri Upadhyay, learned Senior counsel for the petitioners submits that the Board of Revenue has acted arbitrarily in passing the impugned order dated 16.02.2024. It has completely ignored the provisions of Section 214 of the U. P. Revenue Code, 2006 as well as the Rules 186 and 188 of the U. P. Revenue Code Rules, 2016 which deal with the applicability of the provisions of the Code of Civil Procedure, 1908 or the principles enshrined in the CPC and principles of natural justice upon the proceedings before the Revenue Courts. It is argued that the underlying principles and object behind the Section 214 and Rule 186 & 188 is to protect the property in dispute and to ensure that the property in dispute is not frettered or alienated rendering the pending dispute as infructuous. It is submitted that the Board of Revenue failed to fulfill its bounded duty of protecting the alienation of the properties subject matter of the proceedings pending before it despite existence of a strong prima-facie case in favour of the petitioners. It is accordingly prayed that this Court considering the peculiar facts and circumstances may pass suitable orders to protect the properties from being alienated unabated at the instance of the Respondent No.4 till the pendency of the proceedings before the Board of Revenue.
The writ petition has been opposed by Shri R. C. Singh, learned Senior counsel assisted by Shri S. K. Tiwari and Shri S. R. Srivastava, learned counsels appearing for the Respondent No.4 on the ground that the proceedings before the Board of Revenue are summary proceedings and no rights are determined in such proceedings. Besides the Board of Revenue has rejected the stay application of the petitioners on the ground that it has no jurisdiction to grant injunction in summary proceedings relying upon a decision of this Court reported in 2014(123) RD 724. No illegality has been committed by the Board of Revenue so as to warrant any interference by this Court under Article 226 of the Constitution of India. There is already a direction by this Court to decide the Revision within 9 months which is being complied with. It is, accordingly, prayed that the writ petition deserves to be dismissed at the threshold.
I have heard the respective counsels for the parties and have perused the record.
A perusal of the impugned order dated 16.2.2024 passed by the Board of Revenue reveals that the stay application filed by the petitioners in the revision has been rejected solely on the ground that the Revenue Courts do not have the jurisdiction to grant interim injunction in mutation proceedings which are summary in nature relying upon the decision of this Court in case of Umakant Dev versus State of U.P. reported in 2014 (123) RD 724.
I have gone through the aforesaid decision relied upon by the Board of Revenue to non suit the petitioners and find that the decision aforesaid was rendered in facts peculiar to that case. In the aforesaid case, mutation application under Section 34 of the UPLR Act, 1901 came to be filed on the basis of a sale deed. The sale deed was subsequently set aside by an exparte decree passed in a suit for cancellation of the sale deed. The mutation application was dismissed in default. The exparte decree cancelling the sale deed was recalled and the suit was restored to its original number. Recall of the order dismissing the mutation case was filed which came to be allowed and mutation application was restored to its original number. A revision was filed against the said order, which was dismissed. The orders were put to challenge in the writ petition. The heirs of the vendor who were in possession over the property (subject matter of the sale deed) sought interim protection not to mutate the name of the vendee consequent to the sale deed as if name is mutated the vendee would alienate the property. This Court declined to entertain the writ petition, on the ground that the question as regards the sale deed having not been obtained by committing fraud and the question that the vendee did not get possession over the land in dispute were issues still to be decided by the mutation Court or the Civil Court. Observing that proceedings under Section 34 of the U.P. Land Revenue Act is still pending and that there was no provision for grant of interim injunction, the petitioners were relegated to move an appropriate Court in the pending civil suit for grant of interim injunction. Thus, from the facts, it was clear that a civil suit between the parties was pending and the injunction prayed for could very well be obtained in the said suit proceedings.
In the case at hand, no civil suit is pending between the parties where the injunction can be obtained. The case relied upon is clearly distinguishable of facts.
In the opinion of the Court, interim order is passed as a temporary arrangement to preserve the status quo till the matter is decided finally, to ensure that the matter does not become either infructuous or a fait accompli before the final hearing. The object of an interim order is to protect the party seeking the interim relief against injury by violation of rights for which the party could not be adequately compensated in damages recoverable in action if the uncertainty would resolve in its favour at the trial. The grant of an interim relief in regard to the nature and extent thereof depends upon the facts and circumstances of each case and no straitjacket formula can be laid down. There may arise a situation wherein the respondent may use the property subject matter of the proceedings in such a manner that the situation becomes irretrievable or for that matter very onerous to reverse. The Court is not required to hold a mini trial at the stage of grant of temporary injunction and the grant of injunction may be considered on the three basic principles i.e. prima facie case, balance of convenience and irreparable injury.
The Court finds that there is no such consideration by the Board of Revenue while passing the order dated 16.2.2024.
The Court further finds that the U.P. Revenue Court Manual lays down the general rules for the General Conduct of Business and Procedure in Revenue Courts. Chapter XLIX of the Revenue Court Manual deals with interlocutory order and stay order. Para 489 under the said chapter deals with ad-interim exparte order and is reproduced hereunder:-
"489. Ad interim ex parte order-(1) The court may, on the application of any party to a suit, appeal, revision, review or other proceeding and on such terms as it thinks fit, make an order for preservation of any land which is the subject matter of the suit, appeal, revision, review or other proceeding.
(2) The court shall in all cases, except where it appears that the object of making the order for preservation would be defeated by the delay, before making the order, direct notice of the application for the same to be given to the opposite party:
Provided that where it is proposed to make an order without giving notice of the application to the opposite party, the court shall record the reasons for its opinion that the object of making the order would be defeated by delay, and require the applicant-
(a) to deliver to the opposite party or to send to him by registered post/speed post immediately after the order has been made, a copy of the application for the order together with-
(i) a copy of the affidavit filed In support of the application;
(ii) a copy of the plaint, memo of appeal, memo of revision of other application on which the proceeding has been initiated; and
(iii) copies of documents on which the applicant relies; and
(b) to file, on the date on which the order is made or on the working day immediately following that day, an affidavit stating that the copies aforesaid have been so delivered or sent.
(3) If the condition mentioned in clause (b) of sub-para (2) of this para is not complied with, the interlocutory order shall be vacated automatically.
(4) Where an order has been made under this para without giving notice to the opposite party, the court shall make an endeavour to finally dispose of application within thirty days from the date on which the order was made and where it is unable so to do it shall record its reasons for such inability.
A perusal of the aforesaid provision reveals that the Revenue Courts on an application of any party to a suit, appeal, revision, review or other proceeding and on such terms as it thinks fit make an order for preservation of any land which is the subject matter of the suit, appeal, revision, review or other proceedings. It appears that the Board of Revenue while passing the impugned order was oblivious of Para 489 of the Revenue Court Manual.
In view of the above, this Court is of the considered opinion that the Board of Revenue committed manifest error of law in rejecting the stay application moved by the petitioner in the pending Revision No. 4425 of 2023. The parties ought to have required to maintain status quo as regards the nature and possession of the properties and the respondent No. 4 was liable to be restrained from creating third party rights over the properties in dispute.
Accordingly, the writ petition is allowed in part. The order of the Board of Revenue dated 16.2.2024 passed in Revision No. 4425 of 2023 is modified by directing the parties to maintain status quo as on date and no third party rights in respect of the properties shall be created during the pendency of the revision before the Board of Revenue. All endeavour shall be made by the Board of Revenue to decide the revision within the time frame fixed by this Court by order dated 3.11.2023 passed in Writ Petition No. 37780 of 2023.
The writ petitions connected with the present petition are directed to be de-linked from the present petition and the same are ordered to be listed separately in the next cause list before the appropriate Court.
Order Date :- 30.4.2024 Ravi Prakash (Ashutosh Srivastava, J.)