Allahabad High Court
Rammilan vs State Of ... on 18 July, 2022
Author: Abdul Moin
Bench: Abdul Moin
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH Court No. - 7 Case :- WRIT - B No. - 428 of 2022 Petitioner :- Rammilan Respondent :- State Of U.P.Thru.Collector.Ambedkar Nagar & Ors Counsel for Petitioner :- Yogesh Singh Counsel for Respondent :- C.S.C.,Mohan Singh,Rakesh Pathak,Sarvesh Tripathi Hon'ble Abdul Moin,J.
1. Heard learned counsel for the petitioner, Sri Hemant Kumar Pandey, learned Standing counsel appearing for the State-respondents, Sri Rakesh Pathak, learned counsel appearing for the respondents no. 4 & 7 and Sri Ramesh Singh, Advocate holding brief of Sri Mohan Singh, learned counsel appearing for the Gaon Sabha.
2. Instant petition has been filed praying for quashing of the orders dated 01.07.2022, a copy of which is annexure 1 to the writ petition as well as order dated 24.08.2021 passed by the Additional Commissioner (Administration), a copy of which is annexure 2 to the writ petition.
3. The case set forth by the petitioner is that he is the bhumidhar of Gata No. 261 area 0.3890 hectare situated in Village- Saidapur, Pargana & Tehsil- Akbarpur District- Ambedkar Nagar. Adjacent to the plots of the petitioner is plot no. 262 which belongs to the private respondents no. 4 to 9. It is contended that in the year 1995, the private respondents filed an application under Section 41 of the Uttar Pradesh Land Revenue Act, 1901 (hereinafter referred to as "Act, 1901") for the purpose of demarcation. A report was submitted and after consideration of the report, the competent authority had passed certain orders which upon appeals being filed by the concerned authorities, the matter was again remanded back and finally the order dated 29.05.2014, a copy of which is annexure 7 to the writ petition was passed whereby demarcation application filed by the private respondents was rejected.
4. Being aggrieved, the private respondents filed an appeal under Section 210 of the Act, 1901 which was allowed vide order dated 24.08.2021, a copy of which is annexure 2 to the writ petition. This time, the petitioner being aggrieved with the said order filed a revision under Section 219 of the Act, 1901 which has been rejected vide order dated 01.07.2022, a copy of which is annexure 1 to the writ petition. Being aggrieved with the orders dated 24.08.2021 & 01.07.2022, the instant petition has been filed.
5. A preliminary objection has been taken by Sri Hemant Kumar Pandey, learned Standing counsel as well as Sri Rakesh Pathak, learned counsel appearing for the respondents no. 4 & 7 that as the proceedings have arisen on account of the application being filed under Section 41 of the Act, 1901 and the said proceedings being summary in nature, the instant petition would not be maintainable inasmuch as it would always be open for the parties aggrieved to file a regular suit.
6. In this regard, reliance has been placed on the judgment of this Court in the case of Bhagwan Das and Ors Vs. Collector, Jalaun & 4 Ors decided on 24.08.2021 as well as the judgment in the case of Ramesh Pal Singh and Ors Vs Board of Revenue and Ors reported in 2002 (2) AWC 948.
7. Placing reliance on Section 40 (A) of the Act, 1901, Sri Hemant Kumar Pandey, learned Standing counsel argues that irrespective of the order dated 29.05.2014 passed by the authority concerned and the subsequent orders dated 24.08.2021 & 01.07.2022 there shall not be any bar for filing of a suit in a competent Court for relief on the basis of a right & holding. It is thus argued that it is always open for the petitioners to file a suit in a competent Court of law as has also been observed by the Board of Revenue while passing the order dated 01.07.2022.
8. Controverting the same, Sri Yogesh Singh, learned counsel appearing for the petitioner submits that the aforesaid judgment in the case of Bhagwan Das (supra) and Ramesh Pal Singh (supra) are not the final authority inasmuch as this Court in the case of Smt. Hadisul Nisha Vs. Additional Commissioner (Judicial) Faizabad and Ors reported in 2021 (6) ADJ 176 has carved out certain exceptions per which a 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.
9. Elaborating the same, learned counsel for the petitioner submits that this Court in the case of Hadisul Nisha (supra) has categorically laid down in paragraph 19 that if an order is palpably without jurisdiction then the writ Court can interfere with the orders despite they having been passed in summary proceedings.
10. Learned counsel for the petitioner contends that the impugned orders are patently without jurisdiction inasmuch as the appellate Court vide order dated 24.08.2021 has held that res judicata would be applicable as the parties before it had entered into a dispute previously which had attained finality as both the parties have not challenged the said orders. He contends that there cannot be any question of res judicata being applicable to the summary proceedings and thus it is apparent that the order passed by the appellate Court is beyond jurisdiction. On the same analogy, the order of the appellate Court having been affirmed by the Board of Revenue in the revision is also rendered without jurisdiction and hence the instant petition would be maintainable.
11. Learned counsel for the petitioner also argues that paragraph 5.10 of the order passed by the Board of Revenue would indicate that the Board of Revenue has itself indicated that it is always open for the parties concerned to file regular suit which observation could not have been made by the Board of Revenue and which thus renders the order passed by the Board of Revenue also beyond jurisdiction and consequently, the instant petition would be maintainable.
12. On the other hand, Sri Hemant Kumar Pandey, learned Standing counsel as well as Sri Rakesh Pathak, learned counsel appearing for the respondents no. 4 & 7 argue that merely because the appellate Court while passing the impugned order has not appreciated the law correctly would not render the order passed by the appellate Court as being without jurisdiction inasmuch as jurisdiction is an issue which goes to the root of the matter and either the authority would have the jurisdiction to entertain and decide the case or not. Mere wrong appreciation of facts or mere wrong appreciation of law would not render the order passed by the authority as being without jurisdiction.
13. Heard learned counsel appearing for the contesting parties and perused the records.
14. From a perusal of records it is apparent that initially an order dated 29.05.2014 was passed by the competent authority whereby the demarcation application filed by the private respondents was rejected. Private respondents had filed an appeal under Section 210 of the Act, 1901 which was allowed by the appellate Court vide order dated 24.08.2021 and the revision filed by the petitioner against the same has also been rejected vide order dated 01.07.2022. Being aggrieved, the instant petition has been filed.
15. This Court in the case of Bhagwan Das (supra) and Ramesh Pal Singh (supra) have categorically held that a writ petition in an order arising out of summary proceedings would not be maintainable. For the sake of convenience, the relevant paragraphs of Bhagwan Das (supra) are reproduced below:-
"The law in this regard has already been settled by this Court as well as Apex Court in catena of judgments wherein it has been held that proceedings of mutation, correction of revenue entries and settlement of dispute as to entries in annual register are all summary proceedings subject to determination of rights of the parties in the holding by a competent court of jurisdiction.
This Court in case of Mathura Vs. State of U.P. and others, 2012 (4) AWC 3825 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."
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."
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..."
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."
In a recent judgment in case of Bhimabai Mahadeo Kambekar (D) through L.R. Vs. Arthur Import and Export Company & Ors. MANU/SC/0112/2019, decided on 31.01.2019, Apex Court held that mutation of a land in revenue records does not create or extinguish the title over the land nor it has any presumptive value on the title. Relevant paragraph nos. 8 and 9 are extracted here as under;
"8. 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 it has 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 (Smt.) vs. Inder Kaur, (1996) 6 SCC 223, Balwant Singh & Anr. Vs. Daulat Singh(dead) by L.Rs. & Ors., (1997) 7 SCC 137 and Narasamma & Ors. vs. State of Karnataka & Ors., (2009) 5 SCC 591).
9. The High Court while dismissing the writ petition placed reliance on the aforementioned law laid down by this Court and we find no good ground to differ with the reasoning and the conclusion arrived at by the High Court. It is just and proper calling for no interference."
In view of the above, as the proceedings under Section 41 of the U.P. Land Revenue Act, which is para materia to Section 24 of the U.P. Revenue Code, 2006, are summary in nature and once the parties had availed the statutory remedy of appeal/revision before the revenue authorities, no writ petition lies before this Court as the entries in revenue records do not confer any title and it is only the competent court to declare the rights of the aggrieved party in a regular suit filed for declaration.
Thus, no interference can be made by this Court in the order passed by the revenue authorities in summary proceedings and writ petition is dismissed, accordingly. However, it is open for the petitioners to file declaratory suit claiming their right over the land in dispute. "
16. Likewise, this Court in the case of Ramesh Pal Singh (supra) has held as under:-
"4. Learned counsel appearing for the respondent No. 3 raised a preliminary objection to the maintainability of the present petition on the ground of availability of the alternative remedy. In short, it was urged that the orders passed by the authorities below in the proceedings under Section 41 of the Act are summary in nature. They do not decide the title of the parties with respect to the land in dispute and have got no binding effect in a regular suit either upon the courts or upon the parties concerned. The party aggrieved can avail of alternative remedy and file a suit for appropriate relief after the orders are passed under Section 41 of the Act by the authorities concerned. The present petition was, therefore, liable to be dismissed on the ground of availability of statutory alternative remedy.
5. On the other land, learned counsel for the petitioners submitted that the present petition was filed by the petitioners against the orders passed by the authorities, which, according to him, were illegal and without jurisdiction. The writ petition was maintainable and was liable to be allowed.
6. 1 have considered the submissions made by the learned counsel for the parties.
7. Section 41 of the Act provides as under :
"41. Settlement of boundary disputes.--(1) All disputes regarding boundaries shall be decided as far as possible on the basis of existing survey maps ; but if this is not possible, the boundaries shall be fixed on the basts of actual possession.
(2) If, in the course of an inquiry into a dispute under this section, the Collector is unable to satisfy himself as to which party is in possession, or if it is shown that possession has been obtained by wrongful dispossession of the lawful occupants of the property within a period of three months previous to the commencement of the inquiry, the Collector :
(a) in the first case shall ascertain by summary inquiry who is the person best entitled to the property, and shall put such person in possession ; and
(b) in the second case. shall put the person so dispossessed in possession ; and shall then fix the boundary accordingly."
8. A reading of the aforesaid section reveals that the boundary disputes are decided on the basis of survey maps and if it is not possible, on the basis of actual possession. It further provides that if the Collector is unable to satisfy himself as to which parly is in possession, or if it is shown that the possession has been obtained by wrongful dispossession of the lawful occupants of the property within a period of three months previous to the commencement of the inquiry, the Collector in the first case shall ascertain by summary inquiry who is the person best entitled to the property and shall put such person in possession and in the second case, shall put the person so dispossessed in possession and shall then fix the boundary accordingly. The aforesaid section clearly provides that the proceedings under said section are summary in nature.
9. Section 40A of the Act also reads as under :
"40A. Savings as to title suits.--No order passed under Section 33, Section 35. Section 39. Section 40, Section 41 or Section 54 shall bar any suit in a competent court for relief on the basis of a right in a holding."
10. The aforesaid section clearly provides that any order passed by the revenue courts under Sections 33, 35. 39, 40, 41 or 54 shall be subject to the decision of a competent court on the regular side where the suit is filed on the basis of a right in a holding.
11. The orders passed in the said proceedings are subject to the decision in a regular suit as it is also apparent from Section 44 of the Act, which provides as under :
"44. Presumption as to entries in the annual register.--All entries in the annual register shall, until contrary is proved, be presumed to be true."
12. The presumption under the aforesaid section after the amendment in the year 1951 has been made rebultable. Before the amendment, the condition was totally different. The original section provided as under :
"44. Presumption as to entries and decision binding on Revenue Courts.--All entries in the annual register made under Sub-section (3) of Section 33 shall be presumed to be true until the contrary is proved, and, subject to the provisions of Sub-section (3) of Section 40. all decisions under Sections 40. 41 and 42 shall be binding on all Revenue Courts in respect of the subject-matter of the dispute, but no such entry or decision shall affect the right of any person to claim and establish in the civil court any interest in law which requires to be recorded in the registers prescribed by Clauses (a) to (d) of Section 32."
13. Thus, the orders passed in the proceedings under Section 41 of the Act. as stated above, have got no binding effect. They do not operate as resjudicata as they used to be before the amendment of Section 44. Same view was taken by this Court in the case of Smt. Ganga. Devi v. Board of Revenue. U.P. at Allahabad and Ors., 3974 RD 62, wherein it was held as under :
"Proceedings under Section 41 of L.R. Act are only summary proceedings and they are meant only to facilitate the work of the revenue courts. They are not conditions precedent for the maintainability of a suit under Section 209."
14. Aforesaid decision was also referred to and relied upon by the Board of Revenue in the case of Roop Narain v. Basdeo, 1996 (2) CRC 54 (BR), wherein it was held as under :
"A proceeding relating to demarcation of boundary is purely summary in nature. It does not lay any bar on a person to sue for ejectment of a trespasser encroaching upon the land of his holding. The law is that in such cases, boundaries are first demarcated and then the suit proceeds."
15. In respect of the mutation proceedings also, this Court and the Board of Revenue have been consistently taking the view that those proceedings are also summary and against the orders passed in the said proceedings, no petition under Section 226 of the Constitution of India is maintainable. A reference in this regard may be made to the decision of this Court in the case of Mohar Tewari v. Board of Revenue, U.P., Lucknow and others, 1990 RD (H) 20 and in the case of Chhedi Lal v. Board oj Revenue, 1982 RJ 201 (HC).
16. In view of the aforesaid discussions, the preliminary objection raised by respondent No. 3 has got force, the same is, therefore, upheld. The present petition fails and is hereby dismissed as not maintainable on the ground of availability of statutory alternative remedy."
17. Considering the aforesaid judgments it is apparent that proceedings under Section 41 of the Act, 1901 being summary in nature and as such, the writ petition filed against the orders arising of the proceeding there from would not be maintainable. This Court does not find any reason to make a departure from the aforesaid proposition of law as laid down in the aforesaid judgments. However, as learned counsel for the petitioner has placed reliance on the judgment of this Court in the case of Smt. Hadisul Nisha (supra) this Court may have to indicate as to the proposition of law as has been laid down in the instant case.
18. In the case of Smt. Hadisul Nisha (supra) this Court has categorically laid down the grounds on which writ petitions even arising out of summary proceedings can be entertained. For the sake of convenience, paragraph 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)"
19. From a perusal of the aforesaid more particularly when the learned counsel for the petitioner has argued that the order passed by the appellate Court is without jurisdiction, the Court may have to examine the order passed by the appellate authority.
20. At the outset, the Court may see the definition of "jurisdiction". For this, the definition of jurisdiction as given in Black's Law Dictionary is reproduced below:-
"the Court's power to decide a case or issue a decree".
21. From the aforesaid definition, it is apparent that it is the Court's power to decide the case or issue a decree which is to be seen for the purpose to ascertain whether the Court is having jurisdiction or not. Once the Court which has jurisdiction to decide a case, decides it,it would be open to challenge on the ground of their being factual error or an error of law but the same would not render the order passed by a Court to be beyond jurisdiction.
22. Being armed with the aforesaid definition of jurisdiction, the Court now proceeds to consider the argument raised by learned counsel for the petitioner that the order passed by the appellate Court is beyond jurisdiction.
23. The appellate Court has proceeded to hold that the principle of res judicata would be applicable. If the appellate Court has held that the principle of res judicata is applicable and if the same would not applicable, the same would not render the order passed by the appellate Court as being without jurisdiction rather the order of the appellate Court could be wrong in the eyes of law but again the same would not render the order to be beyond jurisdiction. Thus, merely because the appellate Court has held that the principle of res judicata would be applicable would, in the opinion of this Court, not render the said order as being without jurisdiction inasmuch as the same could only be an error of law. It goes without saying that an order can only be beyond jurisdiction where an authority is not vested with the power to pass any order but in the instant case it is not that the authority was not vested with the power to pass an order & see for itself the illegality of an order dated 29.05.2014 as was challenged before it. Thus, this Court does not find that the alleged error of jurisdiction has been committed by the appellate Court while passing the impugned order dated 24.08.2021. On the same analogy merely because the Court in revisional jurisdiction in paragraph 5.10 has left it open for the petitioner to pursue other remedies, the same would not render the order passed by the Board of Revenue beyond jurisdiction.
24. Considering the aforesaid discussion, it is apparent that the principles as laid down by this Court in the case of Smt. Hadisul Nisha (supra) would not be attracted in the facts of the instant case so as to persuade this Court to take a view that the order passed by the appellate Court is beyond jurisdiction. Even otherwise a perusal of paragraph 25 of the judgment would indicate that the Court has considered that the revisional Court had exceeded its jurisdiction in giving a finding on fact which affected the title of the petitioner, without give any finding with regard to the possession, which alone was necessary to decide the mutation case. It was in those circumstances that the Court in the case of Smt. Hadisul Nisha (supra) has interfered with the matter but the said proposition and analogy is not applicable in the facts of the instant case.
25. Considering the aforesaid discussion, no case for interference is made out. Accordingly, the writ petition is dismissed.
Order Date :- 18.7.2022 Pachhere/-
(Abdul Moin, J.)