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2014 DIGILAW 3648 (ALL)

Vishnu Bansal v. State of U. P.

2014-12-05

RAM SURAT RAM (MAURYA)

body2014
JUDGMENT Ram Surat Ram (Maurya), J. 1. Heard Sri Lal Chandra Yadav, for the petitioner and Sri J.S. Pandey, for respondent-5. This writ petition has been filed against the orders of Deputy Collector dated 30.6.2011, allowing the appeal and directing to record the name of Devendra Nath Lahri (respondent-5) over the land in dispute and Additional Commissioner dated 28.1.2014, dismissing the revision of the petitioner against the aforesaid order, in mutation proceeding under section 34 of U.P. Land Revenue Act, 1901 (hereinafter referred to as the Act). 2. The dispute relates to plot 12-Ka (area 15.631 hectare), 12-M (area 0.230 hectare), 131-Ka (area 0.371 hectare) and 275 (area 0.035 hectare) of village Sofipur, tahsil and district Firozabad, which were recorded in the name of Jagannath Prasad son of Sobha Ram Lahri, Manager Goshala, resident of mohalla Duli, Firozabad. On the death of Jagannath Prasad on 27.12.1989, Devendra Nath Lahri (respondent-5) filed an application on 10.9.2009, for mutation of his name as an heir of Jagannath Prasad, being his son. Vishnu Agrawal (the petitioner) as Manager, Shri Gaushala, Firozabad also filed an application on 5.12.2009, for mutation of his name. Tahsildar, by order dated 27.4.2011, found that the land in dispute was land of Shri Gaushala, Firozabad, on which name of Jagannath Prasad was recorded as its Manager. His son will not inherit the property of Shri Gaushala, Firozabad. On these findings he dismissed the application of respondent-5 and allowed the application of the petitioner and directed for recording the name of Shri Gaushala, Firozabad over the land in dispute. 3. Respondent-5 filed an appeal (registered as Appeal No. 33 of 2010-11) from the aforesaid order. The appeal was heard by Deputy Collector, who by dated 30.6.2011, held that in CH Form-41 and 45, a separate khata of different plots were recorded in the name of Shri Gaushala, Firozabad while the land in dispute was recorded in the name of Jagannath Prasad son of Shobha Ram Lahri, Manager Gaushala, which is definitely his private property. From statement of Lekhpal although it is proved that the entire land was used for Gaushala even on today but Jagannath Prasad through out remained as Manager of Gaushala. The land in dispute was recorded in the name of Jagannath Prasad as such after his death, the name of his son was liable to be mutated. From statement of Lekhpal although it is proved that the entire land was used for Gaushala even on today but Jagannath Prasad through out remained as Manager of Gaushala. The land in dispute was recorded in the name of Jagannath Prasad as such after his death, the name of his son was liable to be mutated. On these findings the appeal was allowed and the name of Devendra Nath Lahri (respondent-5) was directed to be mutated over the land in dispute. 4. The petitioner filed a revision (registered as Revision No. 123 of 2011) against the aforesaid order. The revision was heard by Additional Commissioner, who by order dated 28.1.2014 held that it was proved from CH Forms-41 and 45, that a separate khata of Shri Gaushala, Firozabad was recorded of different plots while the land in dispute was recorded in the name of Jagannath Prasad son of Shobha Ram Lahri, Manager Gaushala. During consolidation no objection was filed on behalf of Gaushala for recording its name over the land in dispute. As the land in dispute was recorded in the name of Jagannath as such after his death name of his son was rightly directed to be recorded. On these findings the revision was dismissed on 28.1.2014. Hence this writ petition has been filed. 5. The Counsel for the petitioner submits that admittedly Jagannath Prasad was Manager of Shri Gaushala Firozabad through out his life. Shri Gaushala Firozabad is a society registered under Societies Registration Act, 1860 in the year 1956, having its registration No. 262/1956-57. Ceiling proceedings were initiated against Shri Gaushala Firozabad as well as Jagannath Prasad both. Land in dispute was included in the holding of Shri Gaushala Firozabad, in the ceiling proceeding. During consolidation, it came to be inadvertently recorded in the name of Jagannath Prasad as Manager of Shri Gaushala Firozabad. Lekhpal in his statement clearly stated that Shri Gaushala Firozabad was through out in possession of the land in dispute. Shri Gaushala Firozabad is also paying land revenue. In view of section 40 of the Act, in the mutation proceeding, possession is relevant consideration. Lekhpal in his statement clearly stated that Shri Gaushala Firozabad was through out in possession of the land in dispute. Shri Gaushala Firozabad is also paying land revenue. In view of section 40 of the Act, in the mutation proceeding, possession is relevant consideration. Although Deputy Collector found that land in dispute was in use and occupation of Shri Gaushala Firozabad but he mechanically directed for mutation of the name of respondent-5 only for the reason that land in dispute was recorded in the name of Jagannath Prasad as such after his death name of his son was liable to be mutated. Judgments of the Courts below are illegal and liable to be set aside. 6. In reply to the aforesaid arguments, Counsel for respondent-5 submitted that in view of section 40-A of the Act, the petitioner has an alternative remedy of suit and the writ petition against the mutation order is not maintainable as held by this Court in Lal Bachan v. Board of Revenue, U.P. 2002 (93) RD 6 , and Sheeshpal v. Additional Commissioner 2013 (119) RD 414 . He submitted that the village had under gone into consolidation operation. The name of Jagannath Prasad son of Shobha Ram Lahri was recorded over the land in dispute but no objection was filed for recording the name of Shri Gaushala Firozabad over it. If the objection was not filed for recording the name of Gaushala during consolidation, then subsequent application is barred under section 49 of U.P. Consolidation of Holdings Act, 1953. He relied upon the judgment of Supreme Court in Suba Singh v. Mahendra Singh 1974, S.C. 1657 and Narendra Singh v. Jai Bhagwan AIR 2005 SC 582 , in which it has been held that if no attempt was made to establish right during consolidation, then subsequent claim is barred under section 49 of U.P. Consolidation of Holdings Act, 1953. He further submitted that merely for the reason that Lekhpal also recorded capacity of Jagannath Prasad as Manager of Gaushala, the land in dispute cannot be treated as the land of Shri Gaushala Firozabad. Deputy Collector and Additional Commissioner did not commit any illegality in recording the name of respondent-5 who is son of Jagannath Prasad over the land in dispute. Title dispute cannot be raised in mutation proceeding. The writ petition has no merit and is liable to be dismissed. 7. Deputy Collector and Additional Commissioner did not commit any illegality in recording the name of respondent-5 who is son of Jagannath Prasad over the land in dispute. Title dispute cannot be raised in mutation proceeding. The writ petition has no merit and is liable to be dismissed. 7. I have considered the arguments of the Counsel for the parties and examined the record. Counter-Affidavit and Rejoinder Affidavit have been exchanged between the parties. The writ petition involved a legal issue as such in spite of an alternative remedy of suit in view of section 40-A of the Act, the writ petition is not liable to be dismissed as held by Supreme Court in Durga Enterprises Pvt. Ltd. v. Principal Secretary (2004) 13 SCC 665 , and Division Bench of this Court in Roshan Lal v. State of U.P. 2009 (77) All LR 582 (DB), as alternative remedy is not an absolute bar. 8. In view of section 40 of the Act, mutation proceeding has to be decided on the basis of actual possession on the spot Lekhpal in his statement has stated that the land in dispute was through out in possession of Shri Gausala Firozabad. The petitioner also filed papers relating ceiling cases and land revenue receipts to show that the land in dispute was the property of Shri Gausala Firozabad. Deputy Collector found that land in dispute was in possession of Shri Gaushala Firozabad but he directed for mutation of the name of respondent-5 only for the reason that land in dispute was recorded in the name of Jagannath Prasad as such after his death name of his son was liable to be mutated. He did not consider that name of Jagannath Prasad was recorded over the land in dispute in the capacity of Manager, Gausala. If in the light of actual possession, the entry is examined then there was no reason to set aside the order of Tahsildar. 9. So far as the arguments of the Counsel for the respondent that in mutation proceeding, issue relating to title cannot be examined, is not liable to be accepted. The khatauni is a record of right. Therefore in order to make correction/alteration in the khatauni right as well as possession both has to be examined. The revenue authorities are not debarred from examining the right of the parties for deciding mutation cases. The khatauni is a record of right. Therefore in order to make correction/alteration in the khatauni right as well as possession both has to be examined. The revenue authorities are not debarred from examining the right of the parties for deciding mutation cases. Mutation proceeding is a summary proceeding and the orders are passed for fiscal purposes. Being a summary determination it will not operate as res-judicata as the Act itself provides for suit under section 40-A. Admittedly Jagannath Prasad was the Manager of Shri Gausala Firozabad, through out his life and the land in dispute was recorded in his name, as the Manager of Gausala. 10. In this case admittedly Jagannath Prasad was President of the society of Sri Gaushala, Ghaziabad. He was duty bound to watch the interest of the society. If Jagannath Prasad has committed negligence or fraud in getting his name mutated over the land of society, then his heirs will not get any benefit of it and bar contained under section 49 of UP Consolidation of Holdings Act, 1953 will not apply as held by Supreme Court in Asharfi Lal v. Smt. Koily AIR, 1995, S.C. 1440. The case law relied upon by the Counsel for the respondent has not application in this case. In view of the aforesaid discussion, the writ petition succeeds and is allowed. The orders of Deputy Collector dated 30.6.2011 and Additional Commissioner dated 28.1.2014 are set aside. The matter is remanded to Deputy Collector to decide the appeal of respondent-5 afresh in accordance with law.