Allahabad High Court
Rakesh Kumar Kohali vs State Of U.P. And 5 Others on 25 August, 2023
HIGH COURT OF JUDICATURE AT ALLAHABAD ?Neutral Citation No. - 2023:AHC:172075 Court No. - 49 Case :- WRIT - C No. - 26370 of 2023 Petitioner :- Rakesh Kumar Kohali Respondent :- State Of U.P. And 5 Others Counsel for Petitioner :- Ashok Kumar Singh,Anoop Singh Counsel for Respondent :- C.S.C Hon'ble Syed Qamar Hasan Rizvi,J.
1. Heard Shri Ashok Kumar Singh, learned counsel for the petitioner and Shri Awadhesh Kumar Patel, learned Standing Counsel for State-respondents No. 1 to 3.
2. By means of the present writ petition, the petitioner has prayed for following relief:-
"A writ of certiorari to quash order dated 6.8.2019 passed in revision No. 93/2011-12 (Rakesh Kumar Kohali versus Suresh Kumar and others) Computer Case No.C2011120000815 and order dated 6.5.2023 rejecting restoration in same revision passed by respondent No. 2 and order dated 5.2.2003 passed by respondent No. 3 in mutation case No. 1336/01-02 (Rakesh Kumar Kohali versus Rajendra Pal Kohali) and order dated 23.8.2011 rejecting restoration application in same case arising under section 34 U.P. Land Revenue Act 1901."
3. The factual matrix of the case in brief is that the petitioner is claiming mutation on the basis of an unregistered will dated 30.1.2002, which is said to have been executed by Rajendra Pal Kohli, who was the father of the petitioner.
4. The contention of learned counsel for the petitioner is that on the basis of the aforesaid will deed dated 30.1.2002, the petitioner has a right to be mutated in place of his father. The petitioner moved an application on 29.8.2002 under Section 34 of the Land Revenue Act, 1901 for mutation in the revenue record. The Tehsildar vide order dated 5.2.2003, rejected the case of the petitioner holding therein that the petitioner has failed to produce the Will Deed in original.
5. It is the submission of the learned counsel for the petitioner that some reconciliation took place between the petitioner and respondent nos. 4, 5 and 6. However, due to some subsequent developments, petitioner preferred a restoration application on 4.1.2010 against the aforesaid Order dated 5.2.2003. The Tehsildar vide order dated 23.08.2011, rejected the said restoration application on the ground that the petitioner failed to submit the original will deed dated 30.1.2002 despite several opportunities. Moreover, no plausible explanation could be given for the non-production of the original will deed. The Tehsildar-respondent No. 3 found contradictions in the pleadings of restoration application and no convincing explanation for the delay of six years in filing the same.
6. The petitioner challenged the aforesaid orders dated 5.2.2003 as well as the order dated 23.8.2011 by way of revision before respondent No. 2. The Revisional Court vide order dated 6.8.2019 dismissed the said revision holding therein that the order sheet reflects that the petitioner-revisionist is not interested in pursuing the said revision. Further, the petitioner has not taken the required steps for the service upon the opposite parties that goes to show that he has not taken interest in pursuing the said revision. The petitioner again filed a restoration application against the order dated 6.8.2019, which was also dismissed by respondent No. 2 by a detailed order dated 6.5.2023.
7. Being aggrieved against the aforesaid orders, the petitioner has filed the present writ petition.
8. The contention of learned counsel for the petitioner is that the court below while passing the impugned orders have failed to appreciate the reasons of delay in filing the restoration application. The revenue authorities should have taken a liberal view in dealing with issue of condonation of delay.
9. Learned counsel for the State-respondents has raised objections that firstly, there is no infirmity and illegality in the order passed by the courts below in rejecting the case of the petitioner by relying upon the case of Munna Singh Raghav versus State of U.P. & Ors. passed in WRIT-C No. 13465 of 2023, wherein this Court has dealt with almost an identical situation and held that the inordinate delay in filing the restoration application by the son of the testator is the abuse of the process of law. Secondly, regarding the entertainability of the writ petition against the summary proceedings by relying upon the judgment passed by this Court in the cases of Madhav Pandey and others versus Board of Revenue and others, reported in 2002(2) AWC 1311; in which this Court has held that mutation proceeding is summary in nature and writ petition against the summary proceedings is not entertainable under Article 226 of the Constitution of India. In paragraph No. 26 of the said judgement, it has been categorically held as under:-
"26. The last submission of the counsel for the Petitioner is that the revenue court cannot interfere with the finding of fact and the revisional court i.e., the Board of Revenue has wrongly exercised the jurisdiction, hence this court may set aside the order of the board of revenue. As noticed above, there is difference between lack of jurisdiction and erroneous exercise of jurisdiction in a case. The present proceedings arising out of the mutation proceedings which is summary proceeding and the writ petitions against the summary proceedings are not entertained under Article 226 of Constitution of India. 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."
10. Recently, this Court in the case of Amritansh Pandey vs. State of U.P. and others bearing Writ-C No. 2620 of 2023 decided on 2.8.2023 (2023:AHC:167189), has held that no substantive rights of the parties are decided or are likely to be decided in the mutation proceedings. Paragraph No. 19 of the said judgment is reproduced herein below:-
"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. 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. Mutation in revenue records neither creates nor extinguishes title of the person nor it has any presumptive value on title. Such entries are relevant only for the purpose of collecting land revenue. In view thereof, this Court has consistently held that such writ petitions are not to be entertained in exercise of discretionary power conferred under Article 226 of the Constitution of India."
11. It would not be out of place to mention here that the power to issue prerogative writs under Article 226 is plenary in nature. It does not, in terms, impose any limitation or restraint on the exercise of the power to issue writs. It is the discretion of the Writ Court whether to entertain writ petition or not depending upon the facts and circumstances of each particular case. One of the self imposed restrictions on the exercise of the power under Article 226 of the Constitution that has evolved through judicial precedents is that the High Court should normally not entertain a writ petition, where an effective and efficacious alternative remedy is available.
12. The reluctance of this Court to interfere with the orders under challenge in the instant petition, is primarily that the same are the outcome of the mutation proceedings and it is a settled legal position that entry in the revenue records does not confer title to a person whose name appears in the records-of-rights, which is maintained for revenue purpose and an entry therein has reference only to possession.
13. In view of the above, as no substantive rights of the parties have been decided or are likely to be decided in the mutation proceedings, no case for exercise of extra-ordinary writ jurisdiction under Article 226 of the Constitution of India is made out. Needless to say, it is always open to the petitioner to get his rights/title in respect of the land in question be crystallized by competent Civil Court.
14. Accordingly, without interfering with the merits of the impugned orders passed by the Revenue Courts, this writ petition is disposed of with liberty to the parties to get their rights/title in respect of the land in question, if necessary, adjudicated or declared by the competent court of jurisdiction. The order passed in the mutation proceedings would abide by the decision of the competent court, if any, and the said court would not, in any manner, be influenced by any finding or observation made in the mutation orders or during mutation proceedings.
Order Date :- 25.8.2023 Sumaira