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2019 DIGILAW 576 (MP)

Meena alias Munni (Smt. ) v. State of M. P.

2019-08-09

SANJAY YADAV, VIVEK AGARWAL

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JUDGMENT Agarwal, J. -- 1. This appeal under section 2 (1) of the Madhya Pradesh Uchcha Nyayalaya (Khand Nyayapeeth ko Appeal) Adhiniyam, 2005, has been filed by the appellants being aggrieved by order dated 12.8.2015 passed in Writ Petition No. 1301/2012 by learned Single Judge, whereby learned Single Judge has refused to show any indulgence in exercise of its authority under Article 226 of the Constitution of India, wherein a challenge was made to the order dated 17.1.2012 passed by Additional Commissioner, Municipal Corporation, Gwalior rejecting application of the petitioners for mutation in respect of the suit property in question. 2. Brief facts leading to writ petition are that one Mahadev Prasad Chaubey had purchased a house situated at Naya Bazar, Lashkar Gwalior. After death of Mahadev Prasad Chaubey, mutation was carried out in the name of wife of Shri Mahadev Prasad Chaubey, i.e., respondent No. 5 and in the name of his son, namely Manoj Chaubey. Thereafter, on death of Manoj Chaubey, mutation order was passed on 22.7.2009 in favour of the respondents, i.e., legal heirs of Manoj Chaubey and another son of Shri Mahadev Prasad Chaubey. Petitioners claiming themselves to be daughter of Mahadev Prasad filed the writ petition challenging the said order of mutation claiming that the property left by Mahadev Prasad Chaubey is to be appropriated amongst all the legal heirs as per the provisions contained in the Hindu Succession Act, and therefore, Additional Commissioner should have mutated names of all the person who are class 1 legal heirs of Mahadev Prasad Chaubey and not in the name of respondent No. 3 alone. 3. Learned Single Judge has noted that the authority below has found existence of dispute between the parties as regards title and rights of inheritance in respect of the suit property, and therefore, directed them to seek declaration of title from the Court of competent jurisdic-tion. Having taken note of such fact, learned Single Judge has held that writ Court cannot be reduced to a Court of facts for determination of title of the suit property, and petitioners, if so advised, are always free to take recourse to law for seeking declaration of title and also in respect of their entitlement for mutation of the property in their name by the Municipal Corporation. 4. 4. It is even otherwise settled principle of law that mutation is only for the purpose of collection of taxes and it does not create any right or title in the person in whose name mutation is carried out. 5. It is the settled principle of law, as laid down in case of Dhulabhai v. State of Madhya Pradesh and another, reported in AIR 1969 SC 78 , wherein in para 32, it is held as under : “32. Neither of the two cases of Firm of Illuri Subayya, 1964-1 SCR 752 = AIR 1964 SC 322 or Kamla Mills, 1966 1 SCR 64 = AIR 1965 SC 1942 can be said to run counter to the series of cases earlier noticed. The result of this inquiry into the diverse views expressed in this Court may be stated as follows: (1) Where the statute gives a finality to the orders of the special tribunals, the civil Court's jurisdiction must be held to be excluded if there is adequate remedy to do what the civil Courts would normally do in a suit. Such provision, however, does not exclude those cases where the provisions of the particular Act have not been complied with or the statutory tribunal has not acted in conformity with the fundamental principles of judicial procedure. (2) Where there is an express bar of the jurisdiction of the Court, an examination of the scheme of the particular Act to find the adequacy or the sufficiency of the remedies provided may be relevant but is not decisive to sustain the jurisdiction of the civil Court. Where there is no express exclusion, the examination of the remedies and the scheme of the particular Act to find out the intendment becomes necessary and the result of the inquiry may be decisive. In the latter case, it is necessary to see if the statute creates a special right or a liability and provides for the determination of the right or liability and further lays down that all questions about the said right and liability shall be determined by the tribunals so constituted, and whether remedies normally associated with actions in civil Courts are prescribed by the said statute or not. (3) Challenge to the provisions of the particular Act as ultra vires cannot be brought before Tribunals constituted under that Act. (3) Challenge to the provisions of the particular Act as ultra vires cannot be brought before Tribunals constituted under that Act. Even the High Court cannot go into that question on a revision or reference from the decision of the Tribunals. (4) When a provision is already declared unconstitutional or the constitutionality of any provision is to be challenged, a suit is open. A writ of certiorari may include a direction for refund if the claim is clearly within the time prescribed by the Limitation Act but it is not a compulsory remedy to replace a suit. (5) Where the particular Act contains no machinery for refund of tax collected in excess of Constituti-onal limits or illegally collected, a suit lies. (6) Questions of the correctness of the assessment apart from its constitutionality are for the decision of the authorities and a civil suit does not lie if the orders of the authorities are declared to be final or there is an express prohibition in the particular Act. In either case, the scheme of the particular Act must be examined because it is a relevant enquiry. (7) An exclusion of the jurisdic-tion of the civil Court is not readily to be inferred unless the conditions above set down apply.” 6. Thus, exclusion of the jurisdiction of the civil Court, as held by Hon'ble Surpeme Court, is not readily to be inferred. Therefore, as appellants having remedy before the civil Court and in view of such legal position when judgment of learned Single Judge is tested and in view of the fact that there exist disputed questions of facts, learned Single Judge has rightly observed that parties are free to get their rights determined before the competent Court of civil jurisdiction. 7. Thus, there is no illegality or perversity in the impugned order calling for any interference. Consequently, the appeal fails and is hereby dismissed.