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2013 DIGILAW 538 (UTT)

GAYASUDDIN v. STATE OF UTTARAKHAND

2013-08-20

B.S.VERMA

body2013
JUDGMENT Hon’ble B.S. Verma, J. (Oral) By means of this writ petition, the petitioner has sought a writ in the nature of certiorari quashing the judgment and order dated 31.10.2007 passed in Mutation Case No. 43 of 2007, whereby the mutation application of the petitioner/applicant, has been rejected and it was further ordered that the property in question shall vest in the State. 2. Aggrieved by said order dated 31.10.2007, passed by the Collector, successors in interest of Late Sri Iqram Sabri, preferred appeal No. 7 of 2007-08, before Additional Commissioner, Garhwal Mandal Pauri. During the pendency of the appeal, the petitioner filed an impleadment application under Order 1 Rule 10 of C.P.C., which was allowed. Additional Commissioner, has affirmed the order passed by the Collector, vide order dated 16.01.2009, and did not find favour to the petitioner. Further aggrieved by said order dated 16.01.2009, revision, was preferred before Additional Chief Revenue Commissioner, Dehradun, which was also dismissed. 3. Despite of several opportunities given to the respondent/State, no counter affidavit has been filed. 4. Mr. Sudhir Kumar, learned counsel for respondents No. 4,5 and 6, has contended that the facts of the case are that Late Sri Iqram Sabri, filed mutation application before Tehsildar on the basis of the alleged Will dated 20.04.1960. Tehsildar, Dehradun, on 7.06.2003, allowed the mutation application. Order of mutation was later modified vide order dated 22.09.2003. 5. After the mutation was granted in favour of Late Sri Iqram Sabri, respondent no. 6, moved an application under Section 201 of U.P. Land Revenue Act, to recall the order passed by the Tehsildar. Said application was allowed vide order dated 13.02.2004. Aggrieved by said order, the petitioner preferred revision before the Commissioner. Learned Commissioner, vide order dated 20.01.2005, partly allowed the revision and so far the restoration part is concerned, the same was dismissed. Thereafter, learned Tehsildar sent the file of mutation to the Collector, for its disposal on the ground that non-Z.A. mutation cases are being decided by the Collector. Learned Collector, rejected the mutation application of Late Sri Iqram Sabri and ordered to vest the land in the State Government and appointed Chief Executive Officer, Nagar Nigam, Dehradun, as a receiver. Aggrieved further by this order, an appeal was preferred before the Commissioner, by the legal representatives of Late Sri Iqram Sabri, who had died, which was also dismissed. Learned Collector, rejected the mutation application of Late Sri Iqram Sabri and ordered to vest the land in the State Government and appointed Chief Executive Officer, Nagar Nigam, Dehradun, as a receiver. Aggrieved further by this order, an appeal was preferred before the Commissioner, by the legal representatives of Late Sri Iqram Sabri, who had died, which was also dismissed. Aggrieved by the order passed by the Commissioner, Second Appeal was preferred (although the same was not maintainable), which was treated as revision in view of Section 219 of Revenue Act. Thereafter, Chief Revenue Commissioner, treating the appeals as revisions, decided the same, therefore, this writ petition. 6. I have heard learned counsel for the parties and perused the material placed on record. 7. Section 40-A of U.P. Land Revenue Act, reads as under:- “40-A. Saving 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.” 8. After perusal of the Section, quoted above, this Court is of the view that since all the impugned orders have been passed in summary proceeding under Section 35 of Land Revenue Act and in view of Section 40-A of U.P. Land Revenue Act, the petitioner has an alternate remedy to file a regular suit that will not create a bar in filing the suit. It is well settled that order passed in summary proceedings does not decide the right and title finally, therefore, the order of the Collector passed in summary proceedings to vest the land with the State Government, is apparently bad in law at that stage, therefore, part of the order regarding vesting of land cannot be given effect to till the rights of the parties are finally decided in regular suit. 9. Having heard learned counsel for the parties, I am not inclined to entertain the writ petition in view of Section 40-A of U.P. Land Revenue Act, which states that no order passed under Section 33, Section 35, Section 39, Section 40 and Section 41 or Section 54 shall bar any suit in a competent court for relief on the basis of a right in a holding. Therefore, the order to vest the land with State cannot be given effect prior to final order in a regular suit is passed. 10. For the reasons, as discussed above, the writ petition is dismissed. However, petitioner is given liberty to file a regular suit within a period of six months in a competent court of jurisdiction, if so advised. The order of Collector regarding vesting of land in dispute, with the State Government, shall be kept in abeyance till the final decision of the regular suit. In case the suit is not filed, the order of the Collector shall attain finality. Interim order passed by this Court dated 21.07.2010, is vacated.