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2010 DIGILAW 3420 (PNJ)

Kashmir Singh v. State of Haryana

2010-12-24

RAJIVE BHALLA

body2010
JUDGMENT RAJIVE BHALLA, J. (ORAL) - The petitioner prays for issuance of a writ in the nature of mandamus directing respondents to consider his application for sanction of a mutation on the basis of sale deed no.253 dated 23.05.1990. 2. Counsel for the petitioner submits that paragraph 7.32 of the Punjab Land Record Manual (hereinafter referred to as the Manual) provides that a Sub Registrar/Registrar, exercising powers under the Registration Act, shall after registration of deeds of transfer of agricultural land, forward such deeds to the concerned Tehsildar, in a memorandum prescribed by paragraph 7.32 of the Manual. The Tehsildar is thereafter required to forward the registration memoranda to the concerned Patwaris for entry in their mutation registers. A vendee therefore, is not required to approach a Tehsildar or a Patwari for sanction of a mutation except where some dispute arises. Para 7.32 read with Sections 34, 35 and 37 of the Punjab Land Revenue Act, 1887, places a statutory obligation on revenue officers to sanction a mutation particularly when a registered sale deed is forwarded to them. 3. Counsel for the State of Haryana submits that after sale of the land to the petitioner, his vendee mortgaged the land with the Oriental Bank of Commerce and raised a loan. On account of default in payment of the loan, the land has been attached in execution proceedings. A mutation therefore, could not be entered in the name of the petitioner. 4. I have heard counsel for the parties and perused the pleadings and the statutory provisions. Para 7.32 of the Manual reads as follows: “7.32. Procedure as regards registered deeds of transfer:-Registrars and sub-registrars send [on 15th and last day of each month] to tahsildars particulars of all registered deeds which purport to transfer agricultural land. The office kanungo forwards these slips [within three days of their receipt in Tahsil office] to the field kanungo of the circle who distributes them to the patwaris concerned. The form of notice is as follows:- 1 2 3 4 5 6 7 8 Sr. The office kanungo forwards these slips [within three days of their receipt in Tahsil office] to the field kanungo of the circle who distributes them to the patwaris concerned. The form of notice is as follows:- 1 2 3 4 5 6 7 8 Sr. Name Nature of Amount of Name Name No. Remarks No. of the alienation and consideration and and and of village the area, field money R/O R/O the where No. and entered in of of the registration the land jamabandi the deed person person of the is holding No. exe- to deed situated of the land cuting whom alienated and in the the the case of deed land is buildings situated alienated with the limits of a municipal committee, small town committee or notified area committee details of property according to Section 21 (2) of the Registration Act. 1 2 3 4 5 Serial No. Number of deed Name of village Date of field Remarks Kanungo's report returning the Registration memo to the tahsil office Where a deed is not to take effect immediately but after a specified period, this fact should be noted in the column for remarks. (i) A file should be kept of all invoices received during the year and a fly index will be attached to it in the form usually adopted for miscellaneous files. (ii) The registration memoranda should then be sent to the field kanungo, who will distribute them to the various patwaris for entry in their mutation registers in the usual way. The information in the memoranda is sufficient to enable the patwari to enter up the transfer in his register of mutations as soon as he receives them without reference to the transferee. (iii) When the field kanungo hands over the memoranda to a patwari, the latter should make a note of the fact in his diary recording the serial number of the sheet received by him. The entry should be signed by the field kanungo. The patwari will then enter up in his register the mutations detailed in the memoranda [before the next inspection of the field kanungo], and endorse the fact of entry on the memoranda giving the serial number of each mutation and the date of entry. The entry should be signed by the field kanungo. The patwari will then enter up in his register the mutations detailed in the memoranda [before the next inspection of the field kanungo], and endorse the fact of entry on the memoranda giving the serial number of each mutation and the date of entry. On his next inspection the field kanungo will see that this has been done and after comparing the entries in the mutation registers with the memoranda, will sign both and himself forward the latter to the office kanungo [within 15 days of their receipt]. If a memoranda contains land situated in more than one patwari circle, the field kanungo will take similar action as regards all the circles concerned before forwarding the memorandum to the office kanungo. (iv) On receipt of the memoranda from the field kanungo the office kanungo will place them on the file together with the invoice covering them. In the “remarks” column of this he will note the date of receipt. Thus he will be able to detect any delay in the return of the memoranda and bring it home to the responsible official. (v) When all the memoranda appertaining to an annual file have been returned by the patwaris, a note of the date on which the last memorandum is received should be entered on the fly index. The annual file which will then be complete should be kept in the tahsil and destroyed on the expiry of one year from such date.” Para 7.32 of the Manual requires all Registrars and Sub Registrars to forward on the 15th and last day of each month to Tehsildars particulars of all registered deeds which pertain to transfer of agricultural land for the purpose of recording a mutation. Para 7.32 of the Manual prescribes a detailed procedure to be followed by the Kanungos and the Patwaris. It appears that this procedure is followed more in breach than in compliance. 5. Mr. Mahesh Swami, Under Secretary, office of the Financial Commissioner and Principal Secretary to Government, Haryana, Revenue and Disaster Management, Department, has filed an affidavit which reads as follows: - “That I the above named deponent posted as Under Secretary Revenue (ER) in the office of Financial Commissioner and Principal Secretary to Government, Haryana, Revenue and Disaster Management Department, Haryana has been authorized to file the affidavit before this Hon'ble Court. That provisions of Para no.7.32 of Punjab Land Records Manual as applicable to the State of Haryana is being followed by the concerned officials/officers of the department. Except in the present CWP no other instance of non-compliance of the para has been received in the office. However, for strict compliance of para 7.32 of the Punjab Land Records Manual instructions have been issued. In case any instance for non-compliance of para 7.32 in future would come into the notice of the department action against the defaulting officer/official would be taken as per law.” 6. The Principal Secretary to Government of Haryana, is directed to ensure that para 7.32 of the Manual is complied with in letter and spirit by seeking monthly reports from Registrars, Sub Registrars and Tehsildars, whether they have forwarded or received registered sale deeds and whether mutations have been recorded. This order however, shall not be construed as a direction to revenue officers to enter mutations, where the mutation is contested. A contested mutation has to be decided in accordance with the procedure prescribed under Sections, 34, 35 and 37 of the Punjab Land Revenue Act, 1887. 7. As regards the present case, it appears that after purchase of the land by the petitioner, the Registrar/Sub Registrar did not follow the procedure prescribed by Rule 7.32 of the Manual. The land therefore, continued in the name of his vendor. The petitioner's vendor mortgaged the land with the Oriental Bank of Commerce. The land was attached by the Civil Judge, Senior Division, Jind, in execution of a decree passed against the petitioner's vendor on 22.05.1997. The petitioner's rights have been jeopardized by failure of the Registrar/Sub-Registrar to forward the sale deed to the Naib Tehsildar, Safidon, In view of what has been stated hereinabove, the writ petition is allowed and the Naib Tehsildar, Safidon, is directed to consider the petitioner's application for recording a mutation in accordance with law and pass appropriate orders after serving a notice on all concerned, including the concerned bank.