Allahabad High Court
Rakesh Kumar Goel vs Commissioner And 3 Ors. on 23 May, 2022
Author: Prakash Padia
Bench: Prakash Padia
HIGH COURT OF JUDICATURE AT ALLAHABAD A.F.R. JUDGEMENT RESERVED ON 07.05.2022 JUDGEMENT DELIVERED ON 23.05.2022 Court No. - 18 Case :- WRIT - C No. - 39791 of 2014 Petitioner :- Rakesh Kumar Goel Respondent :- Commissioner And 3 Ors. Counsel for Petitioner :- Ramesh Kumar Shukla Counsel for Respondent :- C.S.C.,Alok Tiwari Hon'ble Prakash Padia,J.
1. Heard Shri Ramesh Kumar Shukla, learned counsel for the petitioner, Shri K. R. Singh, learned Standing Counsel for respondent Nos.1 to 3 and Sri Alok Tiwari, learned counsel for respondent No.4.
2. The petitioner has preferred the present writ petition seeking to raise a challenge to the orders dated 29.03.2014, 22.07.2013 and 25.06.2010 passed by respondent No.1, 2 & 3 namely Commissioner Moradabad Division Moradabad, Parganadhikari Najibabad District Bijnor and Tehsildar, Najibabad District Bijnor respectfully. By the aforesaid order, the application filed by the petitioner for mutation was rejected.
3. The case set up by the petitioner was based on the Registered Mortgage Deed dated 16.09.1973 and a non-registered Family Settlement dated 21.09.1986. On the basis of the aforesaid documents, the petitioner stated that he is entitled for mutation of his name in the Revenue Records. On the other hand, the case set up by the respondent No.4 is on the basis of Registered Will Deed dated 18.01.2005 executed by Sri Ved Prakash Goyal/husband of the respondent No.4. The claim set up by the petitioner was rejected by all the courts below on the ground that the Family Settlement dated 21.09.1986 is an unregistered documents and the same will not prevail over the Registered Will Deed dated 18.01.2005.
4. It is argued by learned Standing Counsel for the respondent Nos.1 to 3 and Sri Alok Tiwari, learned counsel for respondent No.4 that no writ petition lies against summary proceedings and in the present case mutation proceedings had been contested by the petitioner till the stage of revision and no writ petition lies against the order of revisional authority and the only relief can be claimed by filing a regular suit for declaration of title. It is further argued that as the mutation proceedings are summary in nature, petitioner has remedy of filing a declaratory suit for declaring his right under Section 144 of the U.P. Revenue Code, 2016.
5. Having heard learned counsel for the parties and from perusal of the record, it appears that petitioner had contested the mutation proceedings filed under Section 34 of the U.P. Land Revenue Act till the stage of revision. It had been a constant view of this Court as well as the Apex Court that mutation proceedings are summary in nature wherein the title over the land is not decided and the proceedings are only for fiscal purpose to enable the State to collect revenue from the person whose name is on record. The mutation proceedings does not confer upon any right or title on the person whose name is entered in the revenue records.
6. In Mathura Vs. State of U.P. and others, 2012 (4) AWC 3825 this Court while dealing with this aspect as regards the proceedings under Section 35 of the U.P. Land Revenue Act held as under;
"5. In pith and substance proceedings of mutation, correction of revenue entries and settlement of disputes as to entries in annual registers as prescribed under Section 33 of the Act initiated or decided under 40 and 54 of the Act are all summery proceedings subject to determination of rights of the parties in holding by the competent court of jurisdiction.
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.
3. 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."
7. 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. 2002 (93) RD 6 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:-
"11. 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."
8. A similar observation was made in Narain Prasad Aggarwal Vs. State of Madhya Pradesh (2007) 11 SCC 736, 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...''
9. The principle that an entry in revenue records is only for fiscal purpose and does not confer title on a person whose name appears in record-of-rights and title to the property can only be decided by a competent civil court was reiterated in the decision of Suraj Bhan and others Vs. Financial Commissioner and others (2007) 6 SCC 186 and it was stated as follows :-
"9...It is well settled that an entry in revenue records does not confer title on a person whose name appears in record-of-rights. It is settled law that entries in the revenue records or jamabandi have only "fiscal purpose" i.e. payment of land revenue, and no ownership is conferred on the basis of such entries. So far as title to the property is concerned, it can only be decided by a competent civil court..."
10. Reference may also be had to the judgment in Faqruddin Vs. Tajuddin (2008) 8 SCC 12, 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 in this regard 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.''
11. 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 decision in the case of Bhimabai Mahadeo Kambekar Vs. Arthur Import and Export Company & Ors. (2019) 3 SCC 191 placing reliance upon earlier decisions in Balwant Singh Vs. Daulat Singh (1997) 7 SCC 137 and Narasamma Vs. State of Karnataka (2009) 5 SCC 591. 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 has it 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)."
12. A coordinate Bench of this Court in case of Mahesh Kumar Juneja and Ors. Vs. Addl. Commissioner Judicial, Moradabad Division and Ors. 2020 (3) ADJ 104 reiterated the same view and held as under;
"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."
13. In Harish Chandra Vs. Union of India & Ors. 2019 (5) ADJ 212 Division Bench of this Court while dealing with an issue in regard to the land acquisition proceedings had the occasion to discuss the matter relating to revenue records and held as under;
"37. This Court may also take into consideration that it is settled law that the revenue records do not confer title and even if the entries in the revenue record of rights carry value that by itself would not confer any title upon the person claiming on the basis of the same.
38. The Supreme Court in Guru Amarjit Singh Vs. Rattan Chand & Ors.3 held that entry in Jamabandi (revenue records) are not proof of title, and it was stated as follows:-
"2. ...It is settled law that entries in the Jamabandi are not proof of title. They are only statements for revenue purpose. It is for the parties to establish the relationship or title to the property unless there is unequivocal admission..."
14. Apex Court in case of Union of India (UOI) & Ors. Vs. Vasavi Co-op. Housing Society Ltd. & Ors. MANU/SC/0001/2014 while dealing with the entries of the revenue records relying upon the earlier judgments of the Apex Court, held that revenue records are not the document of title and the same cannot be basis for declaration of title. Relevant paragraph no. 17 is extracted here as under;
"17. This Court in several Judgments has held that the revenue records does not confer title. In Corporation of the City of Bangalore v. M. Papaiah and another (1989) 3 SCC 612 held that "it is firmly established that revenue records are not documents of title, and the question of interpretation of document not being a document of title is not a question of law." In Guru Amarjit Singh v. Rattan Chand and others (1993) 4 SCC 349 this Court has held that "that the entries in jamabandi are not proof of title". In State of Himachal Pradesh v. Keshav Ram and others (1996) 11 SCC 257 this Court held that "the entries in the revenue papers, by no stretch of imagination can form the basis for declaration of title in favour of the plaintiff."
15. 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.
16. 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.
17. 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."
18. 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).
19. 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).
20. 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.
21. 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.
22. Thus, it had been constant view of the Hon'ble Apex Court as well as this Court that mutation proceedings are summary in nature and no right or title is created. The revenue entries is only for the collection of revenue from the person whose name is entered in the records. The title can only be seen in a regular suit filed for declaration and not in a writ petition which arises out of summary proceedings.
23. In view of the above the orders passed by the revenue authorities need no interference and writ petition is dismissed, accordingly. However, it is open to the petitioner to file declaratory suit claiming his right over the land in dispute.
Order Date :- 23.05.2022 saqlain