Research › Search › Judgment

Allahabad High Court · body

2020 DIGILAW 412 (ALL)

Binni Infrastructure Pvt. Ltd. v. State of U. P.

2020-02-06

SANGEETA CHANDRA

body2020
ORDER : Sangeeta Chandra, J. 1. Heard learned counsel for the petitioner, Sri Sandeep Dixit, learned Senior Advocate assisted by Sri Komal Prasad Tiwari for respondent no. 4 and the learned Standing Counsel for the State respondents. 2. Writ Petition No. 3139 (MS) of 2020 has been filed challenging the order dated 13.1.2020 passed by the Tehsildar, Sadar, Lucknow and praying for a mandamus to be issued to respondent nos. 1 and 2 to enquire into the conduct of respondent no. 3 in not only passing the impugned order in respect of the village, which is not under his jurisdiction but also for keeping the application for certified copy of the impugned order pending before him without any rhyme and reason, and also for a direction to the respondents to take necessary steps so that the nature and status of the land of the petitioner being Gata No. 4Sa, area 0.5675 hectare situated in Village Muzaffarnagar Ghuswal, Pargana Bijnore, Tehsil Sarojini Nagar, District Lucknow is protected and preserved from illegal and forceful occupation of respondent no. 4. 3. Writ Petition No. 3140 (MS) of 2020 has been filed by the petitioner challenging the orders dated 14.1.2020 and 31.8.2019 passed by the Sub Divisional Officer, Sarojini Nagar, Lucknow (for short 'SDO') in demarcation application moved by the petitioner and also prays for a mandamus to be issued to respondent no. 3 to ensure that boundary marks already affixed on the land of the petitioner being Gata no. 4Sa as aforesaid on the orders dated 4.4.2019/11.4.2019 passed by the SDO in Case no. RST/2319/2015 under Section 41 of the U.P. Land Revenue Act be not dismantled by any of the parties. 4. The facts as are relevant for the controversy raised in these two writ petitions are being given herein below: It has been alleged by the learned counsel for the petitioner that the petitioner-company was incorporated in 2012 and it purchased land of Gata no. 4Sa ad-measuring 0.565 hectare situated in village Muzaffarnagar Ghuswal, as aforesaid. The said land is adjacent to Amar Shaheed Path and at present falls within the jurisdiction of Sarojini Nagar. The land was purchased by the petitioner-company from its recorded owner in possession M/s. Arawali Buildtech on the basis of Sale Deed dated 27.9.2012 and the mutation orders were passed by the Tehsildar, Sadar on 12.11.2012. The said land is adjacent to Amar Shaheed Path and at present falls within the jurisdiction of Sarojini Nagar. The land was purchased by the petitioner-company from its recorded owner in possession M/s. Arawali Buildtech on the basis of Sale Deed dated 27.9.2012 and the mutation orders were passed by the Tehsildar, Sadar on 12.11.2012. The petitioner thereafter filed an application on 19.2.2015 under Section 143 of U.P.Z.A. and L.R. Act and got the land in question declared as Abadi land. There was a boundary dispute and, therefore, a demarcation application under Section 41 of the U.P. Land Revenue Act was moved. Initially, a report was called for, from the revenue officials, but they reported their inability to demarcate the land in the absence of fixed points. The Irrigation Department was requested to conduct a survey and submit a report. A separate and independent report was prepared by the revenue officials thereafter, on the basis whereof, demarcation proceedings were concluded on 11.4.2019. The respondent no. 4 Vijay Kumar Singh Yadav, son of Late Balram Singh Yadav, filed a recall application for recall of demarcation order on 26.7.2019. No notice was served upon the petitioner-company and by an order dated 31.8.2019, the order dated 26.7.2019 was set aside and the matter was reopened for fresh consideration. In the meantime, against the mutation order dated 12.11.2012 also, respondent no. 4 filed a recall application, which recall application having been filed after five years of the original order, was entertained by the orders impugned. The petitioner was not served any notice of the application dated 16.9.2019 and the Process Server of the Tehsil had reported that despite repeated efforts, no one could be found in the office at the recorded address. The respondent no. 3 by the order impugned dated 13.1.2020, has recalled the order passed by him on 12.11.2012 and fixed the date for further consideration on fling of evidence by both the parties. On 14.1.2020, the respondent no. 4 submitted an application along with a copy of the order dated 13.1.2020 passed in mutation case before the SDO, who rejected the demarcation proceedings on the ground that the name of the petitioner was not now recorded in the revenue records and, therefore, the application for demarcation by it was also not maintainable. On 14.1.2020, the respondent no. 4 submitted an application along with a copy of the order dated 13.1.2020 passed in mutation case before the SDO, who rejected the demarcation proceedings on the ground that the name of the petitioner was not now recorded in the revenue records and, therefore, the application for demarcation by it was also not maintainable. After the petitioner came to know of the order passed on 13.1.2020, it filed an application for certified copy of the order having Folio no. 201, but till date of fling of the petition, certified copy of the said order was not given to the petitioner. The respondent no. 4 taking undue advantage of the order dated 13.1.2020 passed by the Tehsildar, Sadar and the order dated 14.1.2020 passed by the SDO, started dismantling the boundary marks and pillars. Hence the need arose to file these writ petitions. 5. A preliminary objection has been raised by Sri Sandeep Dixit, learned Senior Advocate, appearing for respondent no. 4 that the writ petition filed against the orders passed in mutation proceedings, are not entertained by this Court as no right, title or interest is created while passing the mutation order. Moreover, the petitioner has a statuary remedy against the order in demarcation proceedings also. Therefore, this Court should dismiss both the petitions on the ground of availability of statutory remedy. 6. Sri Sandeep Dixit has raised a plea that the petitioner has resorted to deliberate misrepresentation and concealment of fact and equity jurisdiction under Article 226 of the Constitution of India should not be exercised in favour of such an unscrupulous litigant. 7. Learned counsel for respondent no. 4 has placed reliance upon the two judgments rendered by this Court in Awadhesh Singh Vs. 7. Learned counsel for respondent no. 4 has placed reliance upon the two judgments rendered by this Court in Awadhesh Singh Vs. Additional Commissioner and others, 2017 (9) ADJ 378 , and a judgment rendered on 7.2.2019 in Writ Petition No. 347 (MS) of 2012 (Abdul Hameed and another vs. Nagar Palika Parishad, Bela, Pratapgarh and others) to say that this Court has considered all the law on the subject of entertaining writ petitions in cases arising out of mutation proceedings and has held that the Writ Court should not interfere with the orders passed in summary proceedings of mutation of names by Revenue Courts unless the order impugned is completely without jurisdiction or creates rights in favour of a person or liability against such person against the very provisions of the Statute. The Court can also entertain writ petitions in cases arising out of mutation proceedings where the order impugned has been obtained by fraud. None of the three conditions are satisfied and, therefore, this Court should not interfere in the order impugned. 8. It has also been submitted by Sri Sandeep Dixit that against the order passed in mutation proceedings, the petitioner has a statutory remedy of fling a revision, which he has not availed of and directly come before this Court in writ jurisdiction. It has been submitted that there are two different situations; one where there is alternative remedy available and the other where there is statutory remedy available. In case there is a statutory remedy available, the Writ Court should not entertain petitions under Article 226 of the Constitution of India, which is an extraordinary jurisdiction. 9. Learned counsel for respondent no. 4 has read out the order impugned filed as Annexure-1 to the petition to say that only the mutation order dated 12.11.2012 has been set aside/recalled by the Tehsildar, Sadar, the same authority, who has passed the order and a date has been fixed for consideration of evidence of both the parties concerned, which would only mean that the mutation application filed by the petitioner in 2012 stood revived and all evidence, which the petitioner wishes to produce before this Court against respondent no. 4 can also be considered by respondent no. 3 in the proceedings which are yet to be concluded by him. 4 can also be considered by respondent no. 3 in the proceedings which are yet to be concluded by him. Similarly, in the case of demarcation proceedings also, statutory remedy is available, which has not been availed of, by the learned counsel for the petitioner and he has rushed to this Court unnecessarily. 10. Sri Rajeiu Kumar Tripathi, appearing for the petitioner, has pointed out this Court that where alternative or statutory remedy is available, exercise of writ jurisdiction no doubt is completely discretionary, but at the same time, the Supreme Court has carved out several exceptions to the Rules; one such exception is violation of principles of natural justice and the other is the order being without jurisdiction. In this case, it is admitted that notice of the recall application moved by respondent no. 4 was never served upon the petitioner. Also, the order passed by the Tehsildar, Sadar is without jurisdiction as under notification issued by the State of U.P. on 18.8.2015, village Muzaffarnagar Ghuswal where the land is situated has been notified to come under a new Tehsil of Sarojini Nagar, created by the said notification. 11. The notification dated 18.8.2015 has been produced before this Court, where the village Muzaffarnagar Ghuswal is mentioned at Serial no. 51 of the list of 132 villages where jurisdiction has not been vested in Tehsil Sarojini Nagar. 12. It has been submitted by the learned counsel for the petitioner that the Tehsildar was exercising power without jurisdiction. Also, it has been submitted by the learned counsel for the petitioner that after Section 143 declaration was given by the competent authority under the U.P.Z.A. and L.R. Act, there was no question of exercise of jurisdiction by the Revenue Courts as in this case, the Court of Tehsildar, Sadar, as has been held by a coordinate Bench of this Court in Shiv Chander Devi and another vs. Commissioner, Varanasi Division and others, 2018 (139) RD 365 . 13. 13. Learned counsel for the petitioner for buttressing his argument regarding entertaining of writ jurisdiction even where alternative or statutory remedy is available, has placed reliance upon the two judgments of the Supreme Court in Commissioner of Income Tax and others vs. Chhabil Dass Agarwal (2014) 1 SCC 603 and has read out Para 11 thereof, and another judgment of the Supreme Court in Maharashtra Chess Association vs. Union of India and others, 2019 SCC Online SC 932. Learned counsel for the petitioner has read out Para 22 thereof. 14. Learned counsel for the petitioner has also argued at length on the merits of the case and referred to highhandedness of the Tehsil authorities out-rightly favouring the respondent no. 4, who happens to be the son of the Ex-Cabinet Minister having close ties with the present Government also. 15. In response to the arguments raised with regard to the order passed by the Tehsildar, Sadar being without jurisdiction, learned Standing Counsel Sri Upendra Singh has placed reliance upon the judgment rendered by a coordinate Bench of this Court in Ram Deen vs. Commissioner, Gorakhpur and others, 2014 (122) RD 441 , where a similar argument was advanced with regard to an application for recall filed under Section 201 of the U.P. Land Revenue Act. This Court had observed that the recall application had to be entertained by the same Presiding Officer, who had passed the earlier order. The observation made in Para 11 of the judgment has been read out by the learned Standing Counsel. Moreover, in Para 12 of the said judgment, reference has been made to the observation that a revision can be filed against an order, which has been passed without jurisdiction or with a material irregularity, more so when the jurisdiction of the officer to entertain the application is questioned. 16. In this case, it has been argued that the statutory remedy of fling a revision is available and in case the Tehsildar concerned had no jurisdiction, the petitioner was free to approach the revisional authority against such an order. 17. Sri Sandeep Dixit, on the other hand, has placed reliance upon the language of the notification dated 18.8.2015. 16. In this case, it has been argued that the statutory remedy of fling a revision is available and in case the Tehsildar concerned had no jurisdiction, the petitioner was free to approach the revisional authority against such an order. 17. Sri Sandeep Dixit, on the other hand, has placed reliance upon the language of the notification dated 18.8.2015. It has been submitted on the basis of Para 2 of the said notification that in case jurisdiction has been exercised by the Revenue Court in passing an order relating to the areas mentioned in the notification earlier or the same is pending before such an officer, the proceedings would continue irrespective of the issuance of the said notification. It has been submitted that against the original order dated 12.11.2012 passed by the Tehsildar, recall application could have been moved only before him and was rightly entertained by him. 18. With regard to the argument of misrepresentation and concealment of fact, Sri Sandeep Dixit has also placed before this Court an interim injunction granted on 29.5.2015 by the Civil Judge (Senior Division), Lucknow in Original Suit no. 1353 of 2015 (Vijay Singh Yadav vs. M/s. Arawali Buildtech Pvt. Ltd. and others). It has been submitted that the petitioner-company is the defendant no. 2 in the said suit where the learned trial court has passed an order that the property in dispute i.e. Plot No. 637, area 1.182 hectares of which, some area had been bought by the plaintiff from its owner Smt. Gudda be not disturbed and the plaintiff's peaceful possession and enjoyment of the property in question should not be interfered with. 19. It has further been submitted by the counsel for the respondent no. 4 that an FIR has also been filed by the Avas Evam Vikas Parishad against Jagmohan Yadav, the former DGP, who is behind the petitioner-company with regard to obstruction in raising construction by Avas Evam Vikas Parishad in Awadh Vihar Yojana adjoining Amar Shaheed Path. A copy of the said FIR has also been produced before this Court. It has further been submitted that Avas Evam Vikas Parishad has drawn a map of the area in question where Plot nos. 636, 637 and 638 in village Hariharpur and Plot no. 4Sa in Village Muzaffarnagar Ghuswal are situated and the map that the petitioner has placed as Annexure to the petition is misleading. 20. It has further been submitted that Avas Evam Vikas Parishad has drawn a map of the area in question where Plot nos. 636, 637 and 638 in village Hariharpur and Plot no. 4Sa in Village Muzaffarnagar Ghuswal are situated and the map that the petitioner has placed as Annexure to the petition is misleading. 20. This Court having considered the rival submissions has also perused the two judgments cited by the leaned counsel for the petitioner. 21. In Commission of Income Tax (supra), the Supreme Court in Para-11 observed as under: "11. Before discussing the fact proposition, we would notice the principle of law as laid down by this Court. It is settled law that non-entertainment of petitions under writ jurisdiction by the High Court when an efficacious alternative remedy is available is a rule of self-imposed limitation. It is essentially a rule of policy, convenience and discretion rather than a rule of law. Undoubtedly, it is within the discretion of the High Court to grant relief under Article 226 despite the existence of an alternative remedy. However, the High Court must not interfere if there is an adequate efficacious alternative remedy available to the petitioner and he has approached the High Court without availing the same unless he has made out an exceptional case warranting such interference or there exist sufficient grounds to invoke the extraordinary jurisdiction under Article 226. (See State of U.P. v. Mohd. Nooh [ AIR 1958 SC 86 ], Titaghur Paper Mills Co. Ltd. v. State of Orissa [Titaghur Paper Mills Co. Ltd. v. State of Orissa, (1983) 2 SCC 433 : 1983 SCC (Tax) 131], Harbanslal Sahnia v. Indian Oil Corpn. Ltd. [ (2003) 2 SCC 107 ] and State of H.P. v. Gujarat Ambuja Cement Ltd. [ (2005) 6 SCC 499 ] )" 22. Ltd. v. State of Orissa [Titaghur Paper Mills Co. Ltd. v. State of Orissa, (1983) 2 SCC 433 : 1983 SCC (Tax) 131], Harbanslal Sahnia v. Indian Oil Corpn. Ltd. [ (2003) 2 SCC 107 ] and State of H.P. v. Gujarat Ambuja Cement Ltd. [ (2005) 6 SCC 499 ] )" 22. The Supreme Court in Paras 12, 13, 14 and 15 of the said judgment goes on to observe that the settled position in law is that there are some exceptions to the Rule of alternative remedy i.e. where the statutory authority has not acted in accordance with the provisions of the enactment in question, or in defiance of the fundamental principles of judicial procedure, or has resorted to invoke the provisions which are repealed, or when an order has been passed in total violation of the principles of natural justice, writ jurisdiction can be exercised, even if an effective alternative remedy is available to the aggrieved person or the statute under which the action complained of has been taken itself contains a mechanism for redressal of grievance still holds the field. Therefore, when a statutory forum is created by law for redressal of grievances, a writ petition should not be entertained ignoring the statutory dispensation. 23. In Maharashtra Chess Association (supra), a Division Bench of the Supreme Court has observed after considering binding precedent with regard to exercise of writ jurisdiction under Article 226 of the Constitution of India that powers of the High Court in exercise of its writ jurisdiction cannot be circumscribed by strict legal principles so as to hobble the High Court in fulfilling its mandate to uphold the rule of law. In the case of writ seeking certiorari for quashing of orders, the power exercised are purely discretionary and though there are no limits upon the discretion, that must be exercised along recognized lines and not arbitrarily; and one of the limitations imposed by the courts on themselves is that they will not exercise jurisdiction in this class of case unless substantial injustice has ensued, or is likely to ensue. They will not allow themselves to be turned into courts of appeal or revision to set right mere errors of law which do not occasion injustice in a broad and general sense. The intention behind this self-imposed rule is clear. They will not allow themselves to be turned into courts of appeal or revision to set right mere errors of law which do not occasion injustice in a broad and general sense. The intention behind this self-imposed rule is clear. If the High Courts were to exercise their writ jurisdiction so widely as to regularly override statutory appellate procedures, they would themselves become inundated with a vast number of cases to the detriment of the litigants in those cases. This would also defeat the legislature's intention in enacting statutory appeal mechanisms to ensure the speedy disposal of cases. Although, the Supreme Court held that the existence of an alternate remedy, whether adequate or not, does not alter the fundamentally discretionary nature of the High Court's writ jurisdiction and therefore, does not create an absolute legal bar on the exercise of the writ jurisdiction by a High Court, the decision whether or not to entertain an action under its writ jurisdiction remains a decision to be taken by the High Court on an examination of the facts and circumstances of a particular case. 24. In this case, when the facts and circumstances are considered, it is found that a declaration under Section 143 of the U.P.Z.A. and L.R. Act has already been made by the competent authority with regard to the land in dispute on 19.2.2015. There cannot therefore, be any question with regard to any right, title or interest being created by the orders passed in mutation proceedings by Revenue Courts. 25. The Division Benches of this Court have already held that mutation proceedings are summary in nature where the title of the parties over the land in dispute is not decided and mutation orders are relevant only for the purpose of revenue entries i.e. for fiscal purposes to enable the State to collect revenue from the person recorded in the khatauni. They neither extinguish nor create a title. Such orders or entries not being documents of title and being subject to decision of competent court, writ jurisdiction should not ordinarily be exercised. 26. Since in this matter, already a civil suit has been filed by the respondent no. 4 with regard to part of Plot no. 637 alleged to have been bought by it in village Hariharpur, which has a boundary dispute with Plot no. 26. Since in this matter, already a civil suit has been filed by the respondent no. 4 with regard to part of Plot no. 637 alleged to have been bought by it in village Hariharpur, which has a boundary dispute with Plot no. 4Sa, said to have been bought by the petitioner in village Muzaffarnagar Ghuswal, it would be in the fitness of things that writ jurisdiction is not exercised in such a case before this Court. 27. The petitioner has a statutory remedy against the orders passed in the mutation proceedings as also the orders passed in demarcation proceedings. It can avail the same. 28. The writ petitions stand dismissed. No order as to costs.