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1982 DIGILAW 292 (ALL)

Suryabhan Singh v. Ram Adhar Singh

1982-02-24

B.K.MISRA, G.S.TEWARI, I.B.SINGH, MAHESHWAR PRASAD, S.K.SAHGAL

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JUDGMENT Maheshwar Prasad, Member - A question has been referred to this Bench by Sri Maheshwar Prasad, Member, in respect of the decision by a Full, Bench of the Board in Ram Yagya v. Brihaspati Nath and others, 1978 R.D. 157; that Full Bench had gone into the question of non-compliance of Section 197 U.P. Land Revenue Act and of paras A-374 to 377 in Chapter A-XXXVII of the Revenue Court Manual. The decision was that the proceedings in an uncontested mutation case in breach of the provisions of Section 197 U.P. Land Revenue Act and, Paras A-374 to A-377 of the Revenue Court Manual are ab initio void, and the order passed is a nullity. The learned member has observed that this pronouncement has to be considered in the context where all the interested parties had knowledge of mutation proceedings and had opportunity to contest them, even though the proclamation was defective. In such cases, a rehearing of the same parties would not be in public interest and not even in the interest of the parties themselves. The question to be answered by this Bench may, therefore, be framed as follows: - "Whether a defective proclamation - which, does not comply fully with all or any of the provisions of Section 197 U.P. Land Revenue Act and of paras A-374 to A-377 of the Revenue Court Manual would vitiate the proceedings even though all the interested parties had knowledge of the mutation proceedings and had opportunity to contest." 2. The learned counsel for the revisionist referred to Sections 197 and 198 of the U.P. Land Revenue Act. According to him, Section 198 was in the nature of an explanation to the provisions of Section 197. These provisions along with the provisions of paras A-374 to A-377 of the Revenue Court Manual are to ensure that information regarding the mutation proceedings; was disseminated in a manner to enable all the interested parties to be able to contest. It further contended that as the Lekhpal and the Pradhan had been examined as witnesses in the instant Revision it could not be argued that the Chairman of the L.M.C. was denied opportunity to do so. According to the learned counsel, when the object had been achieved there was no need to stand on a technicality on this issue. It further contended that as the Lekhpal and the Pradhan had been examined as witnesses in the instant Revision it could not be argued that the Chairman of the L.M.C. was denied opportunity to do so. According to the learned counsel, when the object had been achieved there was no need to stand on a technicality on this issue. He referred to the decision in Shyam Behari v. Buddhi Nath, 1974 R.D. 32 wherein it has been held that a mere technical breach of the provision specified in the Revenue Court Manual should not vitiate the proceedings where the parties concerned can be presumed to have adequate notice by their conduct during the proceedings. The learned counsel also referred to the observations of their Lordships of the Supreme Court in Pratap Singh v. Shri Krishna Gupta and others, A.I.R. 1956 S.C. 140 that 'We do not think that is right and we deprecate this tendency towards technicality, it is the substance that counts and must take precedence over mere form. 3. The learned D.G.C.(R) argued that notice of the Chairman of the L.M.C. was a mandatory provision. He contended that it was all the more necessary in the revisions out of which this reference has arisen because the recorded tenure holder had died heirless. The learned counsel for the O.P. argued that a contesting party cannot rely on the non-observance of the provisions of Section 197 of the U.P. Land Revenue Act and of paras A-374 to A-377 of the Revenue Court Manual. According to him, the Board had held that observance of rules is mandatory. He relied upon Khairunissa v. Tajaddin, 1952 R.D. 121 and Tulsi v. Dalan, 1975 L.L.J. 254. It may be mentioned here that as far as question of compliance of provisions of Section 197 U.P. Land Revenue Act and of Paras A-374 to A-377 is concerned, the Full Bench decision referred to at the beginning of this order has settled matter in respect of uncontested proceedings. The nature of the reference before this Bench is different. The learned counsel for the O.P. also referred to the decision reported in A.I.R. 1936 (P.C.) 253 and State of U.P. v. Singhara Singh and others, AIR 1964 SC 358 . These two are criminal cases and the pronouncements are on inadmissibility of evidence in certain circumstances. For obvious reasons, they need not be discussed in the instant reference. The learned counsel for the O.P. also referred to the decision reported in A.I.R. 1936 (P.C.) 253 and State of U.P. v. Singhara Singh and others, AIR 1964 SC 358 . These two are criminal cases and the pronouncements are on inadmissibility of evidence in certain circumstances. For obvious reasons, they need not be discussed in the instant reference. The learned counsel also referred to the decision reported in Bhugga Bibi v. Subedar Khan and others, 1976 R.D. 319 wherein, it was held that non-compliance of the provisions of paras A-376 and A-377 of the Revenue Court Manual would invalidate the proclamation issued under Section 197 U.P. Land Revenue Act and the mutation order passed in such a proceeding would be a nullity. 4. Sarvasri R.A. Upadhyaya and L.P. Dixit appeared before the Bench amicus curiae. 5. The learned counsel argued that compliance of paras A-376 and A-377 of the Revenue Court Manual is a prerequisite to start mutation proceedings. He mentioned that the Land Revenue Act and the Revenue Court Manual are silent about the compliance of non-service of the proclamation on the Chairman of the L.M.C. Accordingly, it was argued that non-observance per se amounts to proceeding ex parte against the person on whom the proclamation was not served. 6. As mutation proceedings are summary in nature and start on the basis of a proclamation after the Tahsildar has received a report, they are not in the nature of a suit under the C.P.C. There is no array of parties in the shape of plaintiffs and defendants. Section 198 U.P. Land Revenue Act provide that no notice or proclamation shall be deemed to be void on account of any error in the name or designation of any person or in the description of any Land referred to therein, unless such error had produced substantial injustice. In keeping with the general spirit of the proceedings, all that the court is expected to ensure is that all the interested parties had knowledge of the proceedings. The provisions of paras A-374 to A-377 of the Revenue Court Manual have the same object in view. A proclamation under Section 197 does not envisage personal service. The primary object is that knowledge of the proceeding irrespective of the source from which it had been acquired should enable any person interested to come before the Tahsildar and the his statement of claim. A proclamation under Section 197 does not envisage personal service. The primary object is that knowledge of the proceeding irrespective of the source from which it had been acquired should enable any person interested to come before the Tahsildar and the his statement of claim. In the same way, if the Chairman of the L.M.C. comes to know of the proceedings from any other source, he too, had the right to intervene. Therefore, if knowledge of proceedings is established, the object of a proclamation under Section 197 of the U.P. Land Revenue Act read with the provisions of paras A-374 to A-377 would have been achieved. It is worthwhile to quote here para 10 of the judgment of the full Bench of the Board in Ram Yagya v. Brihaspati Nath and others: - "10. In view of what is said above, our decision in respect of question No. 1 referred to us is that while no restoration application under Section 201 of the U.P. Land Revenue Act would lie in an uncontested mutation case in which a perfectly valid proclamation is issued, such a restoration application by a person convincing the trial court of his ample interest in the land would lie, and shall be entertain able, in an uncontested case in which an invalid and void proclamation was issued." In accordance with this decision, any party which was deprived of the opportunity to contest, including the L.M.C. can ask for restoration of the proceedings, if a defective proclamation was shown to have been issued. This is a salutary proposition with which we concur. 7. The facts of the instant case are that on the death of the recorded tenure holder Smt. Chandrayan Kunwar, Suiya Bhan and Shiv Baran claimed to be heirs on, the basis of a will dated June 15, 1974; Ram Adhar claimed it on the basis of the will dated May 2, 1974; Jagannath claimed the property under Section 175 of the U.P. Z.A. L.R. Act as the recorded co-tenure holder while Smt. Kusum Singh claimed mutation on the basis of a sale deed. Since Lekhpal and the Pradhan have appeared end giver, evidence in this case, it appears that all the interested parties had knowledge of these proceedings and have led evidence. Since Lekhpal and the Pradhan have appeared end giver, evidence in this case, it appears that all the interested parties had knowledge of these proceedings and have led evidence. We agree with the learned Member that in such a case to remand the proceeding for issue of fresh proclamation and rehearing in the trial court would only mean unnecessary delay in deciding the matter of mutation. The principle enunciated in the case of Pratap Singh v. Shri Krishna Gupta and others, A.I.R. 1956 S.C. 140 which has already been referred to earlier should be taken as a proper guide in this matter. As such, the question referred to this Bench answered thus: - "Compliance of provisions Section 197 U.P. Land Revenue Act and paras A-374 to A-377 of the Revenue Court Manual has to be examined on the basis of substantial compliance. If all the interested parties had information of the proceedings and put forward their claims, then mere formal non-compliance of these provisions will not vitiate the proceedings."