Allahabad High Court
Daya Wati Diwan Singh Shukla, Sarasvati ... vs State Of U.P. And 4 Others on 12 July, 2023
HIGH COURT OF JUDICATURE AT ALLAHABAD ?Neutral Citation No. - 2023:AHC:137930 Court No. - 49 Case :- WRIT - B No. - 2426 of 2023 Petitioner :- Daya Wati Diwan Singh Shukla, Sarasvati Vidya Mandir, Inter College And Another Respondent :- State Of U.P. And 4 Others Counsel for Petitioner :- Rahul Singh Dahiya,Anshul Pathak Counsel for Respondent :- CSC Hon'ble Syed Qamar Hasan Rizvi,J.
Civil Misc. Amendment Application No. Nil of 2023
1. Learned counsel for the petitioners has filed an application for amendment in the memo of writ petition to add the Board of Revenue, U.P. Lucknow as respondent No. 6 in the array of parties, the same is taken on record.
2. Learned Additional Chief Standing Counsel appearing for the State submits that he has no objection to the aforesaid amendment.
3. The application for amendment is allowed.
4. The petitioners are permitted to incorporate the necessary amendment in the memo of writ petition during the course of the day.
Order on Order Sheet
1. Heard Shri Gyanendra Kumar Sharma holding brief of Shri Rahul Singh Dahiya, learned counsel for the petitioners and Sri Jitendra Narain Rai, learned Additional Chief Standing Counsel for the State-respondents.
2. By means of the present writ petition, the petitioners have assailed the impugned order dated 12.04.2023 passed by the Board of Revenue U.P. at Lucknow in Revision No. 1014 of 2023 (Shri Ravi Kumar vs. Dayawati Diwan Singh Shukla and others).
3. Sri Jitendara Narain Rai, learned Additional Chief Standing Counsel, appearing for the State-respondents has raised preliminary objection regarding the maintainability of the writ petition on the ground that since the proceedings, in the instant case, have arisen on account of an application being filed under Section 34 of the U.P. Revenue Code, 2006 for the mutation in the revenue records and the said proceedings being summary in nature, the instant writ petition is not maintainable. He has placed reliance on the judgment passed by this Court in the case of Madhav Pandey and others versus Board of Revenue and others; reported in 2002 (2) AWC 1311; wherein it has been held that the mutation proceeding is summary in nature and a writ petition against the summary proceeding is not entertainable under Article 226 of the Constitution of India. In para 26 of the said judgment, it has been very categorically held as under:
"...there is no need to consider the question as to whether the revisional court has committed any error in exercise of jurisdiction. Assuming for argument sake that there is some error in exercise of jurisdiction by the Board of Revenue, the said error will not make the order without jurisdiction. As held above, the writ petition arising out of the summary proceedings, can be entertained only when there is lack of jurisdiction. It being not a case of lack of jurisdiction, no interference is called for in the impugned order on the basis of the above submission of the counsel for the petitioners."
4. This Court in the case of Bhagwan Das and Ors. versus Collector, Jalaun & others; reported in 2021 153 RD 369; has held that ordinarily orders passed by mutation courts are not to be interfered in writ jurisdiction as they are in summary proceedings. Revenue entries in the revenue record do not confer any title and it is only the competent court that declares the rights of the aggrieved party in a regular suit filed for declaration.
5. In the case of Smt. Hadisul Nisha versus Additional Commissioner (Judicial), Faizabad and Ors.; reported in 2021 (6) ADJ 176; this Court has carved out certain exceptions per which the writ petition would be maintainable even against orders passed in summary proceedings despite the said order having been affirmed/ set aside by the Appellate Court and Board of Revenue. For the sake of conveyance, para 19 wherein the said proposition has been laid down, is indicated below:
"19. The Courts in the aforecited decisions have laid down a few parametres for entertaining writs arising out of mutation proceedings. The exceptions that have been carved out being very few, for example:-
i) If the order is without jurisdiction;
ii) If the rights and title of the parties have already been decided by the competent court, and that has been varied by the mutation courts;
iii) If the mutation has been directed not on the basis of possession or simply on the basis of some title deed, but after entering into a debate of entitlement to succeed the property, touching into the merits of the rival claims;
iv) If rights have been created which are against statutory provisions of any Statute, and the entry itself confers a title on the petitioner by virtue of the provisions of the U.P. Zamindari Abolition and Land Reforms Act;
v) Where the orders impugned in the writ petition have been passed on the basis of fraud or misrepresentation of facts, or by fabricating the documents by anyone of the litigants.
vi) Where the courts have not considered the matter on merits for example the courts have passed orders on restoration applications etc (Vijay Shankar v Addl Commissioner; 2015 (33) LCD 1073)"
6. A similar view has been taken by this Court in the case of Smt. Kalawati versus Board of Revenue and others; reported in 2022: AHC: 48201.
7. The submission of the learned counsel for the petitioners is that the impugned order dated 12.04.2023, passed by the learned Board of Revenue, U.P. at Allahabad, in Revision No. 1014/2023 by means of which the operation of the order dated 14.03.2023 passed by the Additional Commissioner, Administration-IIIrd, Meerut Division, Meerut has been stayed, is an ex-parte order and has been passed without affording an opportunity of hearing to the petitioner. He further submits that the Sub Divisional Officer, Sadar, Bulandshahar was not legally competent to decide the validity of the Wills dated 10.03.2004 and 05.05.2015. It has been further submitted by the learned counsel for the petitioners that it was the intention of the testator which should have been considered for passing an order under mutation proceeding and not a compromise between the few beneficiaries of the Will and it was legally open for the Sub Divisional Officer, Sadar, Bulandshahar to decide on the competency of the testator, capability and position of testator and it was impropriety just to take decision on the basis of the compromise between the few beneficiaries of the different Wills. He further submits that the fate of any Will cannot be decided on the basis of compromise between the beneficiaries without considering the above factors necessary to execute a legal Will.
8. Learned counsel for the petitioners further submits that he challenged the order dated 11.08.2022, passed by the Sub Divisional Officer, Sadar, Bulandshahar by filing a revision before the learned Commissioner, Meerut Division, Meerut which was registered as Case No. 1897 of 2022 (Dayawati Diwan Singh Shukla versus Ravi Kumar and others) and the learned Commissioner was pleased to stay the effect and operation of the order dated 11.08.2022. The private respondents challenged the aforesaid order dated 14.03.2023 by filing a revision before the learned Board of Revenue, U.P. at Allahabad which has been registered as Case No. 1014 of 2023 (Sri Ravi Kumar versus Dayawanti Diwan Singh Shukla and others). Learned counsel for the petitioner has very categorically made a statement that the learned Board of Revenue, U.P. at Allahabad vide the impugned order dated 12.04.2023 passed an interim order staying the aforesaid order dated 14.03.2023 without giving any opportunity to the petitioner and fixed 06.06.2023 for hearing. He submits that the aforesaid order passed by the learned Board of Revenue dated 12.04.2023 is an ex-parte order and also without jurisdiction and as such the writ petition is maintainable.
9. Taking into consideration the submissions made by the learned counsels for the parties, as narrated above, it is a settled position that proceedings arising out of the mutation proceedings are summary in nature and a writ petition against the summary proceedings is not maintainable under Article 226 of the Constitution of India, as has been held in the case of Madhav Pandey (supra). The contention of the learned counsel for the petitioner is that so far as the paragraph 26 of the same categorically provides that there is no need to consider the question as to whether the revisional court has committed any error in exercise of the jurisdiction, the said order will not make the order without jurisdiction. The writ petition arising out of the summary proceedings can be entertained only when there is a lack of jurisdiction. It being not a case of lack of jurisdiction, no interference is called for under Article 226 of the Constitution of India. The orders passed in the summary proceedings are always subject to the final adjudication by the competent court. The order and findings rendered in summary proceedings do not bind the competent court while adjudicating the title of the parties. It is always open to the aggrieved party to seek adjudication of rights by competent court and in that process of adjudication, the order passed in summary proceeding does not come in way.
10. In the case of Jitendra Singh versus State of Madhya Pradesh; reported in 2021 0 Supreme (SC) 487; Hon'ble the Supreme Court of India has been pleased to hold as under. For the sake of conveyance, paragraphs 5, 6 & 6.1 are reproduced as under:
?..............5. We have heard Shri Nishesh Sharma, learned Advocate appearing for the petitioner.
It is not in dispute that the dispute is with respect to mutation entry in the revenue records. The petitioner herein submitted an application to mutate his name on the basis of the alleged will dated 20.05.1998 executed by Smt. Ananti Bai. Even, according to the petitioner also, Smt. Ananti Bai died on 27.08.2011. From the record, it emerges that the application before the Nayab Tehsildar was made on 9.8.2011, i.e., before the death of Smt. Ananti Bai. It cannot be disputed that the right on the basis of the will can be claimed only after the death of the executant of the will. Even the will itself has been disputed. Be that as it may, as per the settled proposition of law, mutation entry does not confer any right, title or interest in favour of the person and the mutation entry in the revenue record is only for the fiscal purpose. As per the settled proposition of law, if there is any dispute with respect to the title and more particularly when the mutation entry is sought to be made on the basis of the will, the party who is claiming title/right on the basis of the will has to approach the appropriate civil court/court and get his rights crystalised and only thereafter on the basis of the decision before the civil court necessary mutation entry can be made.
6. Right from 1997, the law is very clear. In the case of Balwant Singh v. Daulat Singh (D) By Lrs., reported in (1997) 7 SCC 137, this Court had an occasion to consider the effect of mutation and it is observed and held that mutation of property in revenue records neither creates nor extinguishes title to the property nor has it any presumptive value on title. Such entries are relevant only for the purpose of collecting land revenue. Similar view has been expressed in the series of decisions thereafter.
6.1 In the case of Suraj Bhan v. Financial Commissioner, (2007) 6 SCC 186, it is observed and held by this Court that an entry in revenue records does not confer title on a person whose name appears in record-of-rights. 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. It is further observed that so far as the title of the property is concerned, it can only be decided by a competent civil court. Similar view has been expressed in the cases of Suman Verma v. Union of India, (2004) 12 SCC 58; Faqruddin v. Tajuddin (2008) 8 SCC 12; Rajinder Singh v. State of J&K, (2008) 9 SCC 368; Municipal Corporation, Aurangabad v. State of Maharashtra, (2015) 16 SCC 689; T. Ravi v. B. Chinna Narasimha, (2017) 7 SCC 342; Bhimabai Mahadeo Kambekar v. Arthur Import & Export Co., (2019) 3 SCC 191; Prahlad Pradhan v. Sonu Kumhar, (2019) 10 SCC 259; and Ajit Kaur v. Darshan Singh, (2019) 13 SCC 70...............?
11. In view of above, it is the settled proposition of law that if there is any dispute with respect to the title and more particularly when mutation entry is sought to be made on the basis of Will, party who is claiming title/right on the basis of the Will has to approach appropriate civil court and get his rights crystallised and only thereafter on the basis of the decision by the civil court, necessary mutation entry can be made. Mutation of property in revenue records neither creates nor extinguishes title to property not has it any presumptive value on title. Such entries are relevant only for the purpose of collecting land revenue.
12. In the light of the judgment passed in the case of Smt. Hadisul Nisha (supra), the writ petition does not fall within any of exceptions that have been carved out by this Court and as such the writ petition under Article 226 of the Constitution of India is not entertainable.
13. After arguing the matter at some length, the learned counsel for the petitioners submitted that instead of defending the objections on the question of maintainability of the writ petition, he would prefer not to press the prayer no.1 made in the instant writ petition. However, he prayed that in the interest of justice, a liberty to be granted to the petitioners to move an application for filing application for vacation of interim order dated 12.04.2023, passed by the learned Board of Revenue in Revision No. 1014 of 2023 (Ravi Kumar versus Dayawati Diwan Singh Shukla and others).
13. Learned Additional Chief Standing Counsel appearing on behalf of the State submits that he has no objection to the extent that this writ petition be disposed of with the liberty to the petitioner to file application for vacation or recall of the order dated 12.04.2023 before the learned Board of Revenue in Revision No. 1014 of 2023.
14. In view of the nature of the relief proposed to be granted in the present writ petition, service of notices upon the respondent nos. 2, 3, 4 & 5 is dispensed with.
15. Considering the facts and circumstances of the case, this Court, in the interest of justice, deems it appropriate to finally dispose of the present writ petition with a direction to the learned Board of Revenue, U.P. at Allahabad (respondent no.6) to consider and pass appropriate orders in accordance with law on the application, if any, for vacation of the aforesaid order dated 12.04.2023 passed in the Revision No. 1014 of 2023, strictly in accordance with law, after affording full opportunity of hearing to the parties concerned.
16. As prayed by the learned counsel for the petitioners, it is further provided that in case any such application for vacation of the order dated 12.04.2023 is filed within ten days from today, the same shall be decided by the learned Board of Revenue, U.P. at Allahabad (respondent no.6) within a period of four weeks from the date it is filed along with certified copy of this order.
17. With the aforesaid direction, the present writ petition is, accordingly, disposed of.
18. It is made clear that the revisional court/learned Board of Revenue shall pass appropriate orders on the aforesaid application for vacation or recall of the order dated 12.04.2023 on its own merits.
Order Date :- 12.7.2023 Abhishek Gupta/Sumaira