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2010 DIGILAW 415 (UTT)

Kehar Singh v. State of U. P.

2010-06-30

B.S.VERMA

body2010
JUDGMENT Hon'ble B.S. Verma, J. : By means of this writ petition, the petitioner has sought the following relief :- (a) Issue a writ, order or direction in the nature of certiorari quashing the order dated 11-12-1996 passed by Additional Collector Dehradun in Appeal No. 50 of 1993-94. (b) Issue any writ. order or direction which this Hon 'ble Court may deem fit and proper in the circumstances of the case. (C) Award cost of the petition to the petitioner. 2. Relevant facts giving rise to the present writ petition, according to the petitioner, are that the respondent No.2 moved an application before the Assistant Record Officer Dehradun under Section 154 of the U.P. Zamindari Abolition and Land Reforms Act 1950 read with Section 34 of the Land Revenue Act alleging there therein that the respondent no. 2 had purchased the disputed property bearing plot No. 40/1. measuring 0-18 Acre through different sale deeds in the year 1981 from Pawan Indra Singh and Jogi Arul1 Singh. both sons of Ravindra Singh. The disputed property consisted of one house and two shops. The respondent no. 2 prayed for mutation of his name on the basis of sale deed in the revenue records. 3. Notices were issued. Some persons including the petitioner Kehar Singh and Bagel Singh, sons of Atma Singh and Daya Singh son of Dayal Singh filed separate objections. In their objection, the petitioner and his brother alleged that the land sought to be mutated in the name of respondent no.2 had already been sold by the father of Pawan Indra Singh namely late Ravindra Singh in his life time on 274-1974 in favour of their father. late Atma Singh and they had been in possession of the land from the date of sale till August 1979. It is also alleged that over the disputed land, there exists house of the objectors, which was constructed by their father after purchase of the land. It is also alleged that the respondent no. 2 Manohar Singh possessed more than 12.5 Acres of land, therefore, legally the name of respondent no.2 cannot be mutated in the revenl1e record. 4. The respondent no. 2 filed his reply before the Assistant Record Officer alleging that the mother of the applicant, Ratan Kaur had executed ct will in favour of Jasbeer Singh and Indrajeet Singh and on the strength of the will. 4. The respondent no. 2 filed his reply before the Assistant Record Officer alleging that the mother of the applicant, Ratan Kaur had executed ct will in favour of Jasbeer Singh and Indrajeet Singh and on the strength of the will. the said land devolved on Jasbeer Singh and Indrajeet Singh and their names have already been mutated in the revenue records. It was also alleged that the total land including the purchased land of 0-18 acre in possession of the applicant comes to 11-91 acre. 5. Before the Assistant Record Officer (ARO.), all the parties filed documentary evidence including registered sale deeds and extract of Khatauni. The ARO. recorded the evidence of the parties. After hearing the learned counsel for the parties and after perusal of the evidence, the A.R.O. came to the conclusion that the applicantrespondentno.2 was having land more than 12-50 acres and there is violation of provisions of Section 154 of the U.P. Zamindari Abolition and Land Reforms Act The objection of the petitioner was rejected on the ground that no application for mutation has been made. The A.R.O. has by order dated 2-12-1993 directed that the disputed land of plot No. 40/1 area 0-18 acre of village Deswala. Pargana' Parwadoon be vested in the State Government under Sections 1661167 of the U.P.Z.A. and L.R Act. 6. Aggrieved by the said order of the A.R.O., the respondent no.2 preferred an appeal before the Record Officer Dehradun, which was registered as Appeal No. 50/93-94, Manohar Singh Vs. State of U.P. and others. 7. Before the Record Officer the petitioner moved an application dated 22-31995 for his impleadment (Annexure-3 to the petition) alleging therein that the applicant-petitioner is a necessary party to the proceeding but the appellant has not arrayed the petitioner as party to the appeal. He therefore prayed that the petitioner be impleaded as party to the appeal and opportunity of hearing may be given to him. 8. It appears that the Record Officer found favour with the appellant and by his order dated 11-12-1996 directed that the name of the appellant be mutated over the disputed land. He therefore prayed that the petitioner be impleaded as party to the appeal and opportunity of hearing may be given to him. 8. It appears that the Record Officer found favour with the appellant and by his order dated 11-12-1996 directed that the name of the appellant be mutated over the disputed land. The Record Officer however directed the Sub Divisional Officer Dehradun to make spot inspection of the disputed land of plot No. 40/1 area 0-18 Acre and if the land is found in agricultural use, then to take action under Section 154, 166/167 of the U.P. Z.A. and L.R. Act, which gave rise to the present writ petition. 9. The grievance of the petitioner is that the petitioner is a necessary party to the proceedings and he had filed objections before the Assistant Record Officer against the mutation application of the respondent no.2. The respondent no. 2 has not made the petitioner as a party to the appeal. 10. The respondent no. 2 has filed counter affidavit, wherein the averments made in the memo of writ petition have been controverted. 11. The petitioner has filed rejoinder affidavit and has reiterated the facts as narrated in the memo of writ petition. 12. I have heard learned counsel for the parties and perused the material placed before this Court. 13. Learned counsel for the petitioner has vehemently contended that the Assistant Record Officer found that the sale deed in favour of the respondent no. 2 was in contravention of the provisions of Section 154 of the U.P. Zamindari Abolition and Land Reforms Act. Learned counsel for the petitioner also argued that the land was purchased by the father of the petitioner" as far back as 27-4-1974, while the respondent no. 2 has purchased the land through sale deed dated 13-10-1981, therefore, the former sale deed in favour of the father of the petitioner shall prevail over the subsequent sale deed. Learned counsel for the petitioner has urged that although the petitioner has not filed separate application for mutation, but the objections filed against the mutation application of the respondent no.2 itself would be sufficient for that purpose. 14. Learned counsel for the respondent no.2 has contended that the impugned orders have been passed in mutation proceeding, which are summary in nature and against the order passed in mutation proceeding, writ petition is not maintainable. 14. Learned counsel for the respondent no.2 has contended that the impugned orders have been passed in mutation proceeding, which are summary in nature and against the order passed in mutation proceeding, writ petition is not maintainable. In support of his contention, the learned counsel for the respondent no.2 has relied upon the following judgments ;- 1. Ram Bharose Lal Vs. State of UP. and others [1990, R.D., Page 72] 2. Jai Narain Ojha Vs. Gauri Shankar [ 1999, R.D., Page 616] 3. Narain Singh and another Vs. Additional Commissioner, Meerut and others [1999, R.D., Page 416] 4. Smt. Rani Devi Vs. Board of Revenue and others [1999, R.D. Page, 633]. 5. Ishu Vs. State of U.P. and others [2003, R.D., Page 217]. 6. Ram Kumar Vs. Board of Revenue [2003(1) AWC, 505] 15. Learned counsel for the petitioner has in reply contended that since the opportunity of hearing was not given to the petitioner by the appellate court and the impugned order has not been passed finally after hearing all the parties, therefore, the case-law relied upon by the learned counsel for the respondent no.2 are of no avail. Learned counsel has urged the writ court can examine the perversity of the order if the impugned order is likely to cause grave injustice to a party, who is aggrieved by the order'. 16. At the outset, it may be mentioned that in the case at hand, the mutation application filed by the respondent no. 2 was resisted by the petitioner by filing objection. Along with the counter affidavit, the respondent no. 2 has annexed copy of the objection filed by the petitioner as Annexure CA-4 to the counter affidavit. I have perused the objection filed by the petitioner. In paragraph no. 4 of the objection, it has been specifically stated by the petitioner that the boundaries of the property sought to be mutated by the respondent no. 2 belong to the objectors and the vendors had no right to transfer the said property. The Assistant Record Officer by his order dated 30-12-1993 has rejected the mutation application of the respondent no.2. Aggrieved by the order of Assistant Record Officer, the respondent no. 2 preferred an appeal before the Record Officer. The respondent no. 2 has not made the petitioner as party to the appeal. The Assistant Record Officer by his order dated 30-12-1993 has rejected the mutation application of the respondent no.2. Aggrieved by the order of Assistant Record Officer, the respondent no. 2 preferred an appeal before the Record Officer. The respondent no. 2 has not made the petitioner as party to the appeal. However, the petitioner has moved an application for impleadment before the Record Officer on 22-3-1995 as a party to the proceeding. 17. It is pertinent to mention that in the counter affidavit, the respondent no. 2 has admitted that the petitioner filed an application for his impleadment in the appeal, which was never allowed by the appellate court. 18. Learned counsel for the petitioner/ objector has contended that the objection of the petitioner was rejected by the A.R.O. on the ground that no separate application for mutation had been made. The ARO. has also rejected the application for mutation moved by the respondent no.2-applicant on the ground that there is violation of provisions of Section 154 of the U.P. ZA and L.R Act and has ordered that the land be vested in the State Government under Sections 166/167 of the said Act. 19. Since the application of the respondent no.2 was rejected by the A.R.O. by order dated 2-12-1993, therefore, he filed an appeal before the Record Officer. The learned Record Officer has held that the land was not being used for agricultural purposes at the time of execution of sale-deed in favour of the respondent no. 2, therefore, in view of the decision rendered by the Board of Revenue in Revision No. 52(Z) of 1986-87, M/s Hindustan Cables Vs. State of U.P. and another [1990, R.D. Page, 78J holding that .if the sale deed of Abadi portion of agricultural land, the provision of Section 167 of the Z.A and L.R. Act would not be applicable. The Record Officer set aside the order of the ARO. on the ground that the land was not being used for agricultural purposes at the time of execution of sale-deed. 20. Learned counsel for the petitioner further contended that the petitioner had filed objections before the ARO. The Record Officer set aside the order of the ARO. on the ground that the land was not being used for agricultural purposes at the time of execution of sale-deed. 20. Learned counsel for the petitioner further contended that the petitioner had filed objections before the ARO. on the ground that prior to the execution of sale deed in favour of the respondent no.2, the land in question was purchased by the father of the' petitioner and the sale deed was executed in his favour on 27-4-1974, therefore, the subsequent sale deed in favour of the respondent no. 2 is without competence and void ab initio. Learned counsel also contended that the impleadment application was not disposed of by the Record Officer and the Impugned order dated 1112-1996 was passed without affording opportunity of hearing to him. 21. I have perused the impugned judgment and order passed by the Record Officer. The learned Record Officer in his judgment has relied upon the judgment of M/s Hindustan Cables (supra) rendered by the Board of Revenue. In that judgment. earlier judgment of the Allahabad High Court in the case of Alauddin alias Makki Vs. Hamid Khan [1971, RD.. Page 160] was not considered The Allahabad High Court, while considering the provision of Section 143 (2) of the U.P. ZA and L.R. Act has observed inter alia in paragraph 8 of the judgment as under :- "8. It would appear that till such time that a declaration is not granted under sub-cl.2 of the above section the results set out in this sub-section do not follow. The use of the words 'upon the grant of the declaration' are significant and no other construction is possible. The contention of counsel for the respondent that even though no declaration has been granted under Section 143 sub-cl.2 inasmuch as the land in dispute was not being used for a purpose connected with agriculture, horticulture etc. does not appear to be sound. In case the intention of the legislature was that as soon as land which had been previously held for the purposes connected with agriculture etc. ceased to be used for that purpose, the provisions of the U.P.ZA. and L.R. Act or Ch. VIII would not apply, it would not have been necessary for it to enact Section 143. In case the intention of the legislature was that as soon as land which had been previously held for the purposes connected with agriculture etc. ceased to be used for that purpose, the provisions of the U.P.ZA. and L.R. Act or Ch. VIII would not apply, it would not have been necessary for it to enact Section 143. In fact in case such an interpretation is put, the provisions of Section 143 of the Act become redundant. It is plain that till such time that a Bhumidhar does not get the requisite declaration he continues to be governed by the provisions of the U.P. Z.A. and L.R. Act irrespective of the fact as to whether he uses his land for purposes connected with agriculture. horticulture etc. or not." . 22. In view of the law laid down by the Allahabad High Court in the case of Alauddin alias Makki Vs. Hamid Khan (supra). the approach of the learned Record Officer is not sustainable in the eye of law be cause in the case at hand, there is no declaration of land under Section 143 of the ZA and L.R. Act. Therefore, the finding of the Record officer is also against law that the land, which 'was being used for a purpose other than agricultural purposes, i.e. Abadi purpose, the provisions of Section 166/167 of the Zamindari Abolition and Land Reforms Act would n6t be applicable. Since the petitioner was a party in the proceeding before the trial Court, the learned Record Officer has committed a manifest error of law in not impleading the petitioner as a party to the appeal and the appeal has been decided without affording opportunity of hearing to the petitioner. For these reasons the impugned order dated 11-12-1996 passed by the Record Officer is liable to be set aside. 23. So far as the finding of the Assistant Record Officer that the petitioner has not filed separate mutation application. hence the objection cannot be considered is concerned, it is pertinent to mention that under Section 34 of the U.P. Land Revenue Act, it is the duty of the Revenue Court to maintain correct revenue record. There is no such finding of the Assistant Record Officer that the sale deed in favour of the petitioner's father was in contravention of Section 154 of the U.P.ZA and L.R. Act. There is no such finding of the Assistant Record Officer that the sale deed in favour of the petitioner's father was in contravention of Section 154 of the U.P.ZA and L.R. Act. The A.R.O. has however held in his order dated 30-12-1993 that by the sale-deed in favour of the applicant-respondent no. 2 there is violation of Section 154 of the said Act. Accordingly. the previous sale-deed shall prevail upon the subsequent sole-deed. Moreover. when objection was filed by the petitioner in the mutation application filed by the respondent no. 2. the objection of the petitioner has to be treated to be mutation application for the purposes of realizing the land revenue and entering the name in the revenue record Such a coding recorded by the A.R.O. is not tenable in the eye of law and it is to he held perverse. 24. So far as the contention of the learned counsel for the respondent no.2 that the writ petition against an order passed in mutation proceeding is not maintainable and the petitioner has alternate remedy is concerned, the case-law relied upon the learned counsel for the petitioner, referred to above, would be applicable when the case of mutation proceeding had been decided finally after giving opportunity of hearing to all the parties. But the position is otherwise in the present writ petition, as detailed above. 25. For the reasons and discussion above, the impugned order dated 11-12-1996 passed by the Record Officer as well as the order dated 30-12-1993 passed by the Assistant Record Officer deserve to be set aside and are hereby set aside. 26. The writ petition is allowed. The matter is remanded to the Assistant Record Officer Tehsildar concerned (competent to decide the case as on today), who shall decide the mutation application of respondent no.2 afresh and objection of the petitioner on the basis of the sale-deed dated 27-7-1974 treating the same as application under Sections 34/35 of the Land Revenue Act. The petitioner shall file the affidavit before the Assistant Record Officer to the effect that on the date of transfer of land the father of the petitioner was not having the land to the maximum limit. i.e. not more them 12.5 acres