Allahabad High Court
Abdul Hameed And Another vs Nagar Palika Parishad Bela Pratapgarh ... on 7 February, 2019
Author: Sangeeta Chandra
Bench: Sangeeta Chandra
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH AFR Court No. - 25 Case :- MISC. SINGLE No. - 347 of 2012 Petitioner :- Abdul Hameed And Another Respondent :- Nagar Palika Parishad Bela Pratapgarh And Others Counsel for Petitioner :- Ravi Shankar Somvanshi Counsel for Respondent :- C.S.C.,Akhilesh Pandey,Sampurnanand Shukla Hon'ble Mrs. Sangeeta Chandra,J.
Oral
1. Heard the learned counsel for the petitionhers, Sri Ravi Shankar Somvanshi and Sri Akhilesh Pandey who appears for the opposite party nos. 4 to 9 and Sri Sampurnanand Shukla who appears for the Nagar Palika Parishad is not present.
2. The matter was heard on an earlier occasion, but Sri Sampurnanand Shukla failed to assist this Court.
3. The order impugned in this writ petition has been passed on 6.7.2006 by the SDM, Sadar, Pratapgarh under Section 147 of the U.P. Municipalities Act, 1960 as well as the order dated 2.7.2011 passed by the Chief Judicial Magistrate, Pratapgarh in Appeal No. 4135 of 2006 preferred under Section 160 of the Act.
4. It has been submitted by the learned counsel for the petitioners that the petitioners as respondent nos. 4 to 9 are related to each other. He has referred to paragraph 4 of the writ petition which sketches out the pedigree of Smt. Moona. It is his submission that the house in question was owned by Smt. Moona who had performed two marriages, one with Bhagole and the other with Subrati and is the line of Bhagole, the petitioner and his brother, Abdul Rasheed trace their line to Mattan Miyan son of Bhagole. On the other hand, the respondent - Badrunnisha and others belong to the line of Habeebullah son of Subrati.
5. It has been submitted that initially Habeebullah and Mattan Miyan both were living together and had a joint business along with one Abdul Rahman @ Lurki in the name and style of a partnership Firm in 1966. Due to some differences, a compromise and a partition took place and it was agreed that house no. 79 situated at School Ward Jail Road, Pratapgarh would exclusively fall in the share of Abdur Rahman and the Northern-Eastern Room along with Verandah of House No. 84 would go to Mattan Miyan and the remaining part of the house would fall in the share of Habeebullah. There were other properties also which were divided amongst these three persons on the basis of compromise which was reduced in writing in Muruwa language on 1.4.1966 and all parties had put their signatures to the said compromise.
6. It has been submitted further by the learned counsel for the petitioners that his father Mattan Miyan was in possession of the Northern-Eastern portion of House No. 84, and running a shop therein during his lifetime, and after his death, it came in the possession of the petitioners.
7. The petitioners moved an application before the opposite party no. 3 on 12.3.2003 for entry of their name in the assessment register of the Nagar Palika Parishad, Belha, Pratapgarh. On 17.12.2003, the Chairman, Nagar Palika Parishad, Belhi Pratapgarh directed the name of the petitioners to be recorded with regard to Northern-Eastern room and Verandah in House No. 84.
8. However, the respondent no. 4 filed an Appeal under Section 160 before the Collector, Pratapgarh and the matter was remanded with a direction to opposite party no. 1 to take a decision afresh after providing opportunity to all the parties to produce evidence.
9. In pursuance of the remand order dated 4.5.2005, the Sub Divisional Magistrate, Pratapgarh rejected the application of the petitioners by his order dated 6.7.2006. The petitioners being aggrieved preferred an Appeal before the Chief Judicial Magistrate, Pratapgarh who rejected the same on 20.7.2011.
10. It has been submitted by the learned counsel for the petitioners that from a perusal of the orders impugned, it is apparent that the petitioners were able to establish their possession over the Northern-Eastern room of House No. 84 and in terms of Section 147 of the U.P. Municipalities Act, 1960, a tax assessment list can be altered or amended by entering therein the name of the persons on any properties which ought to be entered for their liability to pay tax after due authentication, once such a name is entered, it can be substituted for the name of the owner or occupier of the said property who had succeeded by transfer or otherwise to the ownership or occupation of the property.
11. It has been argued that the petitioners were able to prove their possession over the property although with regard to ownership of the property, the dispute was pending before the Civil Court in Civil Suit No. 1278 of 2005. The petitioners' claim for their name to be recorded in the assessment register on the basis of their possession had been arbitrarily rejected by the respondent no.3 and the Appeal also has been rejected.
12. It has been argued that the Appellate Court while recording that in Mutation Proceedings only prima-facie occupation has to be seen and in summary proceedings and title or ownership cannot be decided, still relied upon the statement of respondent nos. 4 to 8 that they were in fact the true owners of the property and the petitioners were only licensee.
13. Learned counsel for the private respondent nos. 4 to 8 on the other hand has pointed out that after recording the submissions made by the learned counsel for the petitioners/applicants and the respondents, the Competent Authority has found that no documentary evidence could be produced by the petitioners to show that the property in question had been transferred either by way of inheritance or by sale to them.
14. In the orders impugned, the Reference to the family settlement has been found to be without any basis as no documentary evidence with regard to the same was filed by the applicant. The applicant could also not show that after the alleged family settlement was entered into, it was acted upon by the parties thereto.
15. It has also been argued by the learned counsel for the private respondents that in any case Mutation Proceedings do not decide any question with regard to tile or ownership. They are summary proceedings for deciding only the liability for taxation.
16. It is admitted by the petitioners that a Civil Suit for eviction, namely Suit No. 1278 of 2005 has been filed by the respondent no. 4 and others for eviction from the property in question and the property is under the rightful ownership of Badrunnisha and others. Abdul Hameed and Abdul Rasheed are liable to be evicted therefrom. Since, rights of the parties are yet to be decided in the said Civil Suit, this Court should not interfere in writ jurisdiction.
17. Learned counsel for the private respondents has placed reliance upon Bindeshwari Devi Vs. Board of Revenue reported in 2002 (20) LCD 206 where a Coordinate Bench of this Court was considering the U.P. Land Revenue Act and proceedings taken under Section 34 thereon. This Court had placed reliance upon earlier judgment to the same effect, namely 1999 RD 633 Rani Devi Vs. Board of Revenue where this Court had held that writ petition cannot be entertained against orders passed in Mutation Proceedings under Section 34 of the U.P. Land Revenue Act.
18. It has been submitted that Section 34 of the U.P. Land Revenue Act is pari-materia with Section 147 of the U.P. Municipalities Act, 1960. An application can be filed by a person obtaining possession of any land either by succession or by transfer on which a report is called for from the Revenue Officials and the Tehsildar thereafter passes an order recording such Mutation.
19. This Court had held that since Mutation Proceedings are summary proceedings orders passed therein do not create any right and are subject to adjudication of right of the parties by a competent Court of law, hence this Court should not entertain such writ petition under Article 226 of the Constitution.
20. Learned counsel for the petitioners in rejoinder has submitted that the writ petition has been pending since 2012 and due to pendency for the past six years, this Court should not thrown it out but and pass an order in this writ petition. He has also submitted that the petitioners cannot be left remedy-less against orders passed under the U.P. Municipalities Act, 1960 and therefore this Court should entertain the writ petition.
21. Learned counsel for the petitioners has also submitted that since the order has been passed by the Chief Judicial Magistrate, this writ petition is not maintainable and this Court, but should be transferred to a Court where matters under Article 227 of the Constitution of India. He says that the law in this regard is settled by Radhey Shyam Vs. Chhabi Nath 2015 (5) SCC 423.
22. This Court finds that the order passed by the Chief Judicial Magistrate is under the powers exercised under the U.P. Municipalities Act, 1960 and not under the Civil Procedure Code, therefore this argument of sending the writ petition to Court dealing with Article - 227 matters raised by the learned counsel for the petitioners, is untenable.
23. This Court has also considered the argument regarding long pendency of the writ petition. The Supreme Court in this regard has laid down the law in State of U.P. Vs. U.P. Rajya Khanij Vikas Nigam Sangharrsh Samiti & others 2008 (12) SCC 675 where it has observed that even an admitted petition can be dismissed on the ground of maintainability, at the time of final hearing. It is apparent that this writ petition was never admitted, only affidavits were called for.
24. This Court has already held in Awadhesh Singh Vs. Additional Commissioner, 2017 (9) ADJ 378 that writ petitions against Mutation Proceedings can be entertained, but on two grounds only (a) if the order impugned has been passed without jurisdiction or going beyond the jurisdiction that is vested in the authority by the Act and the Rules (b) if the order impugned creates, rights in favour of the parties or liabilities against the parties, which are against the settled provisions of the Statute or against a decision given inter-parties by a Competent Court of law.
25. The orders passed in Mutation Proceedings being summary in nature, writ petitions are usually not entertained, except for the exception carved out as referred to herein above.
26. Also, it is not that the petitioners are left remedyless in such matters. The petitioners can approach the competent Court of law for declaration of their rights on the basis of family settlement, if any, that was entered into between the parties in 1966.
27. This writ petition is therefore dismissed with liberty as aforesaid.
Order Date :- 7.2.2019 Arif