Rudra Mani Shukla vs Subhash Kumar & 2 Ors. on 9 February, 2017

[Cites 14, Cited by 5]

Allahabad High Court

Rudra Mani Shukla vs Subhash Kumar & 2 Ors. on 9 February, 2017

This is a writ petition under Article 226 of the Constitution of India challenging the order dated 02.01.2017 passed by the Tehsildar under Section 34 of the Land Revenue Act, 1901. This Court on 06.01.2017 had passed the following order:-

"Heard learned counsel for the petitioner and learned Additional Chief Standing Counsel for the State.

One of the questions which falls for consideration is as to whether this writ petition should be entertained directly against an order passed in mutation proceedings under Section 34 of the Land Revenue Act when there is a remedy of appeal under Section 210 and further remedy under Section 219 of the U.P. Land Revenue Act.

In this regard the contention of Shir Girish Chandra Sinha, learned counsel for the petitioner is firstly that the report for mutation was filed based on registered Gift Deed in respect of the land in question said to have been executed by the Bhoomidhar in favour of the opposite party no. 1. After hearing the matter, orders were reserved on the maintainability of objections of the petitioner on 26.12.2016 calling for written arguments from the parties, which according to the learned counsel for the petitioner was submitted on 30.12.2016. Thereafter, the petitioner filed an application for transfer of the proceedings to some other Court before the Collector on the basis of certain events which transpired on 30.12.2016 when the petitioner's counsel went to submit written arguments as the same are mentioned in the writ petition, the petitioner apprehended that he will not get justice.

According to the learned counsel surprisingly enough, though, the order was reserved on the maintainability of objections while pronouncing the order on 02.01.2017 the mutation proceedings were decided on merits that too without any inquiry into possession or holding any proceedings involving proving of the Gift Deed, which is the normal procedure i.e. without following the procedure prescribed, even if, the objections of the petitioner were to be held as not maintainable.

As regards locus, the learned counsel for the petitioner placed reliance upon Section 164 to contend that the physical possession of the land in question was handed over by his uncle Sangam Prasad in lieu of loan advanced to him, therefore, it was covered under the said provision. It is also the contention that Sangam Prasad himself in proceedings under Section 145 Cr.P.C. gave it in writing that he was still owner and in possession over the land in question. Further more, he contends that the opposite party no. 1 himself gave a complaint that the petitioner was forcibly cultivating the land and harvesting the crops thereon, therefore, apparently he was not in possession thus, in view of Sections 34 and 35 of the Land Revenue Act, 1901 order of mutation could not have been passed by the Tehsildar in the manner in which it was done, without ascertaining the fact as regards actual possession. There are also allegations of undue political influenced being exercised in the matter.

Considering the facts and issues involved, though, ultimately a writ petition against an order of mutation is not directly maintainable, but, then it is a Rule of restraint exercised by this Court under Article 226 of the Constitution of India, however, if the factual scenario as asserted by the petitioner is ultimately found to be correct it would be difficult for this Court to close its eyes and relegate the matter to the alternative remedy referred herein above.

However, without drawing any conclusive opinion in this regard as of now, let notice be issued to the opposite parties no. 1 and 2 returnable at an early date.

List/ put up on 27.01.2017 as fresh.

Considering the assertions of the petitioner as noted herein above, assuming that the petitioner did not have locus the mutation order could not have been passed without due inquiry as per the procedure prescribed into the question of possession as also the requirement of proving the Gift Deed, therefore, the impugned order shall not be given effect till the next date of listing.

The Tehsildar, who has passed the impugned order shall appear along with original records before this Court on the next date."

In the aforesaid order in the last paragraph at internal page 2 the word "ultimately" has erroneously been typed whereas it should be 'normally,' therefore, the order shall stand corrected of which cognizance has been taken by the Court suo motu.

This Court entertained the writ petition in the peculiar circumstances of the case as existence of alternative remedy is not an absolute bar.

The contesting respondents have put in appearance and filed affidavit and thereafter the matter has been heard today and is being decided accordingly.

The land in dispute is part of Khata No. 434, Gata Nos. 159 and 183 which was recoded in the name of Sangam Prasad the tenure holder and uncle of the petitioner herein. It is said that this very land was mortgaged with a Bank on 28.02.2015 in lieu of loan of Rs.3,00,000/-. Barely 15 days thereafter on 21.03.2015 a gift deed is said to have been executed by Sangam Prasad opposite party no.2 in favour of Subhash Kumar opposite party no.1. In view of amended provision of Registration Act and the circular of Board of Revenue intimation of this transfer which was got registered with the Sub Registrar was sent to the Tehsildar concerned whereupon a proclamation was issued on 21.03.2015, a fact which is not in dispute. Thereafter, two objections were filed and Lekhpal submitted his report on 15.02.2016 on the printed format. The beneficiaries i.e. opposite party no.1 filed an affidavit on 05.03.2016. Two objections were filed one by Karuna Kant and the other by the petitioner herein Rudramani Shukla. The matter was posted on various dates as is evident from the order sheet contained in Annexure No.5 to the writ petition.

The petitioner herein filed his objections on 11.03.2016 contending that he was in possession of the land in question which had been handed over to him by Sangam Prasad in lieu of loan advanced to him, therefore, it was a deemed sale within the meaning of Section 164 of the U.P. Zamindari Abolition and Land Reforms Act. Ultimately, an order was passed by Tehsildar on 26.12.2016 which reads as under:-

"PUKAR KARAI GAYEE. PAKSHKAR UPASTHITI. APPATI-PATRA KI POSHNIYTA PAR PAKSHKAR LIKHIT BAHASH HETU 30.12.2016 TATHA POSHNIYATA PAR ADESH HETU DINAK 2.1.2017 KI TITHI NIYAT KEE JATI HAI. "

The matter was fixed for 02.01.2017 for orders on maintainability of the objections i.e. of Karuna Kant and Rudramani Shukla the petitioner herein. On 02.01.2017 the order was pronounced which is impugned in this petition.

The contention of the counsel for petitioner is that though the orders were reserved on maintainability of the objection in mutation proceedings but to the utter surprise when it was pronounced, the merits of the matter itself was decided and the proceedings were concluded by him. The contention based on provisions of Rule A-375 of the Revenue Court's Manual is that after the proclamation, the person who has obtained possession as also any other person who may wish to file objection may do so and the proclamation has to be issued to the this effect. The said proclamation should also require such person for producing such evidence as may be in his possession in support of his objection. The contention is that the petitioner being in possession his objection was maintainable, therefore, this issue had to be decided in pursuance to the order dated 26.12.2016 by which the orders were reserved by the Tehsildar for a decision on this issue. Whether or not the objections would be tenable in the eyes of law after the evidence is led was a separate matter to be decided separately after due enquiry as contemplated in rules of the Revenue Code Manual, therefore, the Tehsildar erred in passing the impugned order dated 02.01.2017 deciding the matter on merits itself apart from rejecting the objection of the petitioner.

The counsel for the petitioner also sought to allege malafide against the Tehsildar on various grounds based on averments made in the writ petition.

The counsel for respondents Sri Ramendra Kumar Mishra along Sri A.B. Srivastava submit on the other hand submit that the claim which appears to be based on Section 164 of the U.P. Zamindari Abolition and Land Reforms Act, 1950 was absolutely misconceived as there was no proceedings in terms of Rule 148 and 149 of the U.P. Zamindari Abolition and Land Reforms Rules, 1952. He also relied upon a decision of this court reported in 1979 RD page 23 to contend that the alleged receipt which was filed by the petitioner in the proceedings under Section 145 and which appears to have been the basis of his claim and a copy of which has been annexed as Annexure-3 to the counter affidavit of Sangam Prasad is not admissible as evidence in the eye of law as it is not registered and in fact it is a bogus document. He also referred to the FIR lodged against the petitioner for having forcibly cut the crops from the land in question as also the proceedings under Section 145 Cr. P.C. etc. On the question of maintainability he submitted that a stranger cannot maintain an objection in these proceedings.

Under Section 34 of the Land Revenue Act, 1901 every person obtaining possession of any land by succession or transfer (other than a succession or transfer which has already been recorded under Section 33-A), shall report such succession or transfer to the Tehsildar of the Tehsil in which the land is situate.

Section 35 of the Land Revenue Act, provides that on receiving a report of transfer or succession or upon facts otherwise coming to his knowledge, the Tehsildar shall make such inquiry as appears necessary, and if the succession or transfer appears to have taken place, he shall direct the annual registers to be amended accordingly. Section 40 provides that all disputes regarding entries in the annual registers shall be decided on the basis of possession. Sub section 2 of Section 40 provides that if in the course of inquiry into a dispute under this Section, the Tehsildar is unable to satisfy himself as to which party is in possession. He shall ascertain in summary inquiry who is the person best entitled to the property and shall put such person in possession.

In the present case, the transfer was reported by the Sub Registrar also to the Tehsildar on 21.03.2015, whereon a proclamation was issued, whether it was in terms of Rules or not is a separate matter which need not be gone into at this stage. Consequent to the proclamation two persons namely Karuna Kant and Rudramani Shukla filed objections. The procedure to be followed in such mutation proceedings has been laid down in Rule A-366 to A-384, of Part 3 of Chapter A-XXXVII of the U.P. Revenue Court Manual. Rule A-367 deals with the report to be submitted to the Tehsildar under Section 34 and its requisite contents. As per Rule A-372 no report shall be deemed to be invalid merely for reason of some of the particulars required to be specified having been omitted or having been incorrectly stated. In such cases the Tehsildar shall ascertain from the person making the report or form any other source considered convenient, such particulars as may be necessary to complete or correct the report.

As per Rule A-373 upon the receipt of such a report under section 34 or on facts otherwise coming to his knowledge the Tehsildar shall cause a proclamation to be issued free of charge in the manner provided in Section 197 of the Land Revenue Act, notifying that proceedings for mutation of names have been started. This rule further provides that "without waiting for the issue of proclamation, the Tehsildar shall make necessary enquiries about the existing entries in the relevant papers and other details pertaining to the land in question from the office of the Registrar Kanungo and from the Halqa Lekhpal also, if necessary". Rule A-374 deals with the proclamation and its contents. Rule A-375 which is relevant for present case says that "the proclamation shall also require the person who has obtained possession also any other persons who may wish to file objection to attend on the date to be specified in the proclamation and for producing such evidence as may be in his possession in support of his objection".

As this court is concerned with the maintainability of the objection in the proceedings under Section 34 of the Act, 1901 for which orders were reserved on 26.12.2016 and ultimately pronounced on 02.01.2017 the aforesaid Rule A-375 makes it very clear that any other person who may wish to file objection can do so and he can also produce evidence in support of his objection. In the present case on a reading of objections filed by the petitioner and considering the provisions contained in Rule A-375, it cannot be said that objection on his part was not maintainable. Moreover the order having been reserved for pronouncement on maintainability of the objection, the issue which should have been decided was such maintainability, instead, the Tehsildar decided the merits of the controversy itself as also the validity of the objections on merits and ordered the mutation of the name of respondent no.1 in place of respondent no.2. This in the opinion of this court was not the correct procedure adopted by him. There was no necessity for such a hurry in the matter. No doubt the rule speaks of such enquiry on his part as may be necessary but even in matters where a discretion is vested it should be used judiciously. Moreover, in this context Rule A-379 which pertains to proceedings under Section 34 based on ''transfer' is relevant as it says that in all cases of transfer where an objection is filed under Rule A-375, the Tehsildar shall record necessary evidence adduced by the parties. He may also ask for evidence about it, if he has reasons to believe that declaration made in the affidavit under Rule A-376 is not sufficient and in order. On completion of the enquiry, he shall submit a report along with connected file to the Collector after having given a date to the parties to appear in that Court. The Collector may make such further enquiry as he may consider necessary and he shall dispose of the matter after giving an opportunity to the parties to be heard. This part of the rule requiring the Tehsildar to send a report to the Collector is no longer in operation, though still on statute book, as, under the substantive provision contained in Sections 34 and 35 etc. it is the Tehsildar who is competent to pass a final order in such mutation proceedings but nevertheless the use of word "on completion of the enquiry" are important as they are indicative of an enquiry to be conducted by the Tehsildar in terms mentioned in Rule A-379 read with section 35 and 40, as the case may be..

As far as succession is concerned the relevant rules in this regard are A-378(a) and A-378(b). The two rules relate to two different situations of undisputed succession and disputed succession but as far as the present case is concerned it being based on transfer through Gift deed the relevant rule is as aforesaid Rule A-379.

In the present case as already observed earlier the Tehsilar should have decided the maintainability and thereafter proceeded to hold enquiry as aforesaid. In matters of mutation based on transfer the rule does not make any distinction between a disputed case and an undisputed case as is evident from the use of word "in all cases of transfer".

Mutation proceedings are important proceedings as, entries based thereon in the record of rights (Khatauni) are presumed to be correct under Section 35 of the Land Revenue Act 1901 as also Section 40 of the U.P. Revenue Code 2006 and practically all transaction are made after perusing such entries. No doubt in matters of sale the purchaser is required to make due inquiry with diligence as to the real owner and any dispute in respect thereof but if the name is recorded in the revenue records, sale transaction etc., are easily made. True it is that Revenue records are not documents of title by themselves and are for purposes of realization of revenue but in view of the presumption attached to them especially in view of the contents of Khatauni as prescribed in Section 31 of the Revenue Code, 2006 their importance in practical terms hardly needs to be emphasized. It is easy to say that an aggrieved party may establish his title in regular proceedings but the fact is that such proceedings go on for years together, therefore, judicious application of mind in mutation proceedings, even though they are summary proceedings, can at times prevent injustice and prolonged litigation. This is not to suggest that interference in such matters should be made in a routine manner.

In view of the above, without entering into the merits of controversy which has to be seen by the Tehsildar concerned, this Court has no hesitation in saying that the manner in which the order impugned has been passed, is de-hors of provisions of Sections 34 and 35 of the Land Revenue Act, 1901 read with aforesaid Rules of Revenue Courts Manual,therefore, the same is liable to be set-aside and is accordingly set aside in exercise of extra-ordinary jurisdiction of this court under Article 226 of the Constitution. Consequently the proceedings shall stand restored before the Tehsildar and shall be decided as per law say within a period of six months from the date a certified copy of this order is produced before him after giving due hearing to the parties as per law.

The parties shall not alienate the property in question till disposal of the mutation proceedings and shall maintain status-quo on the spot as existing today.

The writ petition is allowed in the aforesaid terms without prejudice to the rights of the parties and with the observation that the Tehsildar shall decide the mutation proceedings uninfluenced by any observation made hereinabove as far as merits of the case is concerned. All pleas are open for consideration by him.

 

 
Order Date :- 9.2.2017
 
Vijay                                                                 (Rajan Roy, J)

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Allahabad High Court