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2023 DIGILAW 1843 (ALL)

Amritansh Pandey v. State of Uttar Pradesh

2023-08-02

SYED QAMAR HASAN RIZVI

body2023
JUDGMENT : SYED QAMAR HASAN RIZVI, J. 1. Heard Shri Sudhanshu Pandey, learned counsel for the petitioner, Shri Sudhir Bharti, learned counsel for respondent No. 5, Shri Pankaj Kumar, learned Standing Counsel for respondents No. 1 to 4 and Shri R.C. Singh, learned Senior Advocate assisted by Shri Arvind Kumar Shukla, learned counsel for respondent No. 6. 2. The present writ petition has been filed seeking the following reliefs: “(A) Issue a writ, order or direction in the nature of certiorari quashing the impugned orders dated 30.06.2023 passed by the Board of Revenue Uttar Pradesh at Lucknow in Revision No. 1063 of 2021, Order dated 12.04.2021 passed by Sub-Divisional Officer, Tahsil Kasya District Kushinagar in Case No. 00006 of 2021 and order dated 07.02.2020 passed b the Nayab Tehsildar Padrauna District Kushinagar in Case No. 3772 of 2017 (Amritansh Pandey vs. Upendra Mani) under section 35 of Uttar Pradesh Revenue Code 2006. (B) Issue a writ, order or direction in the nature of Mandamus commanding the Respondent No. 4, Nayab Tehsildar Padrauna District Kushinagar to mutate/record the name of the petitioner on the basis of a registered Will dated 24.06.2010 in place of Sri Upendra Mani. (C) Issue any writ, order or direction which this Hon’ble Court may deem fit and proper in the present circumstances of the case, (D) Award the cost of the petition.” 3. The factual matrix of the case in brief is that one Shri Upendra Mani executed a Will deed dated 24.06.2010 which was registered on 23.07.2010 in favour of the Petitioner. 4. After the death of the aforesaid testator on 11.07.2017, the petitioner filed a mutation application dated 13/18.07.2017, which was registered as Case No. 3772/2017 under section 35 of the Uttar Pradesh Revenue Code, 2006. It is contended by the petitioner that while the aforesaid mutation proceeding was pending, the name of respondent No. 6, on the basis of succession, was recorded/mutated in the revenue records of the property vide order dated 17.08.2017. Thereafter, the petitioner filed a recall application before the Nayab Tehsildar, who vide order dated 30.12.2019 stayed the aforesaid Order dated 17.08.2017. 5. In the aforesaid case of mutation, being Case No. 3772/2017, respondent No. 6 filed objections and raised serious objections against the genuineness of the above mentioned registered Will. Thereafter, the petitioner filed a recall application before the Nayab Tehsildar, who vide order dated 30.12.2019 stayed the aforesaid Order dated 17.08.2017. 5. In the aforesaid case of mutation, being Case No. 3772/2017, respondent No. 6 filed objections and raised serious objections against the genuineness of the above mentioned registered Will. The Nayab Tehsildar, Padrauna, District Kushinagar vide order dated 07.02.2020, found the aforesaid Will deed to be unacceptable and thereby affirmed the earlier order dated 17.08.2017 in favour of respondent No. 6. 6. Aggrieved by the aforesaid order dated 07.02.2020 passed by the Nayab Tehsildar-respondent No. 4, the petitioner filed an appeal before the Sub-Divisional Officer, Kasya District, Kushinagar-respondent No. 3, who by a detailed order 12.04.2021 dismissed the said Appeal. Thereafter, the petitioner preferred a Revision bearing REV/1063/2021/Kushinagar under Section 210 of the Uttar Pradesh Revenue Code, 2006 before the Board of Revenue, Uttar Pradesh The Board of Revenue dismissed the said Revision by passing a detailed order dated 30.06.2023. 7. Being aggrieved by the orders dated 30.6.2023, 12.4.2021 and 7.2.2020, the petitioner has preferred the present writ petition invoking the extra-ordinary jurisdiction of the Writ Court under Article 226 of the Constitution of India. 8. The main ground raised by the petitioner in the present writ petition is that the revenue authorities have exceeded their jurisdiction by disbelieving the genuineness of the registered Will deed. The contention of the learned counsel for the petitioner is that when the competent court has not cancelled the Will, the revenue authorities ought to have believed in the genuineness of the Will deed. 9. To establish the genuineness of the aforesaid Will deed, the learned counsel for the petitioner drew the attention of this Court to the copy of the plaint bearing Case No. 435/2011 as contained in Annexure No. 2 to the writ petition, said to have been jointly filed by one, Upendra Nath and Smt. Geeta Devi against the son of respondent No. 6 and some other relatives, seeking the relief of permanent prohibitory injunction. In paragraphs No. 7 and 8 of the aforesaid plaint there is a mention of the aforesaid Will dated 24.10.2010. In paragraphs No. 7 and 8 of the aforesaid plaint there is a mention of the aforesaid Will dated 24.10.2010. The learned counsel for the petitioner has vehemently argued that the said suit for permanent prohibitory injunction is still pending wherein the testator of the Will, namely, Shri Upendra Mani, himself has stated that he executed the said Will, and as such, the genuineness of the Will cannot be doubted. He further submits that the wishes of the testator should be given weightage over other parameters. 10. Per contra, the Shri R.C. Singh, learned Senior Advocate appearing on behalf of Respondent No. 6 contended that mere filing of a suit, that too, for the relief of permanent prohibitory injunction against his relatives does not establish the genuineness of the Will in question. He further submitted that on the face of it, the said suit appears to be a collusive suit filed at the instance of the mother of the petitioner, namely, Smt. Geeta Devi, who is the Plaintiff No. 2 in the said suit and has verified the contents of the plaint as is evident from the verification clause mentioned at the bottom of the plaint. 11. Shri Pankaj Kumar, learned Standing Counsel appearing for State-Respondents No. 1 to 4 has raised an objection regarding the maintainability of the writ petition. He submits that the proceedings arising out of mutation are summary in nature and the writ petition against the same is not maintainable under Article 226 of the Constitution of India, since the orders under challenge in the instant writ petition, have arisen out of proceedings under Section 35 of the Uttar Pradesh Revenue Code, 2006, which are admittedly summary proceeding. 12. In the case of Madhav Pandey and Others vs. Board of Revenue and Others, 2002 (2) AWC 1311 this Court has held that the mutation proceeding is summary in nature and writ petition against the summary proceedings is not entertainable under Article 226 of the Constitution of India. In paragraph No. 26 of the said judgement, it has been categorically held as under: “26. The last submission of the counsel for the Petitioner is that the revenue court cannot interfere with the finding of fact and the revisional court i.e. the Board of Revenue has wrongly exercised the jurisdiction , hence this court may set aside the order of the board of revenue. The last submission of the counsel for the Petitioner is that the revenue court cannot interfere with the finding of fact and the revisional court i.e. the Board of Revenue has wrongly exercised the jurisdiction , hence this court may set aside the order of the board of revenue. As noticed above, there is difference between lack of jurisdiction and erroneous exercise of jurisdiction in a case. The present proceedings arising out of the mutation proceedings which is summary proceeding and the writ petitions against the summary proceedings are not entertained under Article 226 of Constitution of India. There is no need to consider the question as to whether the revisional court has committed any error in exercise of jurisdiction. Assuming for argument sake that there is some error in exercise of jurisdiction by the Board of Revenue, the said error will not make the order without jurisdiction. As held above, the writ petition arising out of the summary proceedings, can be entertained only when there is lack of jurisdiction. It being not a case of lack of jurisdiction, no interference is called for in the impugned order on the basis of the above submission of the counsel for the petitioners.” 13. This Court in the case of Smt. Kalawati vs. The Board of Revenue and Others, 2022 (4) ADJ 578 has carved out certain exceptions under which this Court in exercise of its power under Article 226 of the Constitution may entertain a writ petition against the orders passed in mutation proceedings. For a ready reference paragraph No. 40 of the said judgment is reproduced below: “40. Having regard to the foregoing discussion the exceptions under which a writ petition may be entertained against orders passed in mutation proceedings would arise where: (i) the order or proceedings are wholly without jurisdiction. (ii) rights and title of the parties have already been decided by a competent court, and that has been varied in mutation proceedings. (iii) mutation has been directed not on the basis of possession or on the basis of some title deed, but after entering into questions relating to entitlement to succeed the property, touching the merits of the rival claims. (iv) rights have been created which are against provisions of any statute, or the entry itself confers a title by virtue of some statutory provision. (iv) rights have been created which are against provisions of any statute, or the entry itself confers a title by virtue of some statutory provision. (v) the orders have been obtained on the basis of fraud or misrepresentation of facts, or by fabricating documents. (vi) the order suffers from some patent jurisdictional error i.e. in cases where there is a lack of jurisdiction, excess of jurisdiction or abuse of jurisdiction. (vii) there has been a violation of principles of natural justice.” 14. Almost the similar situation has been dealt with by this Court in the case of Hadisul Nisha vs. Additional Commissioner (Judicial) Faizabad and Others, 2021 (6) ADJ 176 , wherein the Court has laid down the exceptions, per which a writ petition would be maintainable even against the orders passed in summary proceedings despite the said order having been affirmed/set aside by the appellate or revisional court. For the sake of convenience, paragraph No. 19 of the same is indicated below: “19. The Courts in the aforecited decisions have laid down a few parametres for entertaining writs arising out of mutation proceedings. The exceptions that have been carved out being very few, for example: (i) If the order is without jurisdiction. (ii) If the rights and title of the parties have already been decided by the competent court, and that has been varied by the mutation courts. (iii) If the mutation has been directed not on the basis of possession or simply on the basis of some title deed, but after entering into a debate of entitlement to succeed the property, touching into the merits of the rival claims. (iv) If rights have been created which are against statutory provisions of any Statute, and the entry itself confers a title on the petitioner by virtue of the provisions of the Uttar Pradesh Zamindari Abolition and Land Reforms Act. (v) Where the orders impugned in the writ petition have been passed on the basis of fraud or misrepresentation of facts, or by fabricating the documents by anyone of the litigants. (vi) Where the courts have not considered the matter on merits for example the courts have passed orders on restoration applications etc. [Vijay Shankar vs. Addl. Commissioner, 2015 (33) LCD 1073 ].” 15. (vi) Where the courts have not considered the matter on merits for example the courts have passed orders on restoration applications etc. [Vijay Shankar vs. Addl. Commissioner, 2015 (33) LCD 1073 ].” 15. In the case of Jitendra Singh vs. State of Madhya Pradesh and Others, 2021 (6) Supreme 185 , the Hon’ble Supreme Court of India has been pleased to hold as under, “5....Be that as it may, as per the settled proposition of law, mutation entry does not confer any right, title or interest in favour of the person and the mutation entry in the revenue record is only for the fiscal purpose. As per the settled proposition of law, if there is any dispute with respect to the title and more particularly when the mutation entry is sought to be made on the basis of the will, the party who is claiming title/right on the basis of the will has to approach the appropriate civil court/court and get his rights crystalised and only thereafter on the basis of the decision before the civil court necessary mutation entry can be made.” 16. The Hon’ble Supreme Court in the case of Faqruddin vs. Tajuddin, (2008) 8 SCC 12 has held that the revenue authorities of the State are concerned with revenue. Mutation takes place only for certain purposes. It is well settled that an entry in revenue record is not a document of title. Revenue authorities cannot decide the question of title. 17. The Hon’ble Apex Court in the case of Suraj Bhan vs. Financial Commissioner, (2007) 6 SCC 186 , has been pleased to hold that an entry in Revenue Records does not confer title on a person whose name appears in Record of Rights. It is the settled law that entries in the Revenue Records or Jamabandi have only ‘fiscal purpose’ i.e. payment of land-revenue, and no ownership is conferred on the basis of such entries. So far as the title to the property is concerned, it can only be decided by a competent Civil Court. 18. In the case of Bhimabai Mahadeo Kambekar (D) through LRs. vs. Arthur Import and Export Company and Others, MANU/SC/0112/2019, decided on 31.01.2019, the Hon’ble Apex Court has been pleased to hold that mutation in revenue records does not create or extinguish the title over the land nor it has any presumptive value on the title. Relevant paragraph Nos. 18. In the case of Bhimabai Mahadeo Kambekar (D) through LRs. vs. Arthur Import and Export Company and Others, MANU/SC/0112/2019, decided on 31.01.2019, the Hon’ble Apex Court has been pleased to hold that mutation in revenue records does not create or extinguish the title over the land nor it has any presumptive value on the title. Relevant paragraph Nos. 8 and 9 are extracted here as under:- “8. This Court has consistently held that mutation of a land in the revenue records does not create or extinguish the title over such land nor it has any presumptive value on the title. It only enables the person in whose favour mutation is ordered to pay the land revenue in question. [See: Smt. Sawarni vs. Inder Kaur, (1996) 6 SCC 223 , Balwant Singh and Another vs. Daulat Singh (Dead) by LRs. and Others, (1997) 7 SCC 137 and Narasamma and Others vs. State of Karnataka and Others, (2009) 5 SCC 591 ]. 9. The High Court while dismissing the writ petition placed reliance on the aforementioned law laid down by this Court and we find no good ground to differ with the reasoning and the conclusion arrived at by the High Court. It is just and proper calling for no interference.” In view of the above, as the proceedings under Section 41 of the Uttar Pradesh Land Revenue Act, which is para materia to Section 24 of the Uttar Pradesh Revenue Code, 2006, are summary in nature and once the parties had availed the statutory remedy of appeal/revision before the revenue authorities, no writ petition lies before this Court as the entries in revenue records do not confer any title and it is only the competent court to declare the rights of the aggrieved party in a regular suit filed for declaration. Thus, no interference can be made by this Court in the order passed by the revenue authorities in summary proceedings and writ petition is dismissed, accordingly. However, it is open for the petitioners to file declaratory suit claiming their right over the land in dispute.” 19. It is settled law that the revenue records do not confer title and even if the entries in the revenue record of rights carry value that by itself would not confer any title upon the person claiming on the basis of the same. It is settled law that the revenue records do not confer title and even if the entries in the revenue record of rights carry value that by itself would not confer any title upon the person claiming on the basis of the same. The mutation proceedings being of a summary nature drawn on the basis of possession do not decide any question of title and the orders passed in such proceedings do not come in the way of a person in getting his rights adjudicated in a regular suit. Mutation in revenue records neither creates nor extinguishes title of the person nor it has any presumptive value on title. Such entries are relevant only for the purpose of collecting land revenue. In view thereof, this Court has consistently held that such writ petitions are not to be entertained in exercise of discretionary power conferred under Article 226 of the Constitution of India. 20. It would not be out of place to mention here that the power to issue prerogative writs under Article 226 is plenary in nature. It does not, in terms, impose any limitation or restraint on the exercise of the power to issue writs. It is the discretion of the Writ Court whether to entertain writ petition or not depending upon the facts and circumstances of each particular case. One of the self imposed restrictions on the exercise of the power under Article 226 of the Constitution that has evolved through judicial precedents is that the High Court should normally not entertain a writ petition, where an effective and efficacious alternative remedy is available. At the same time, it must be remembered that mere availability of an alternative remedy of appeal or revision, which the party invoking the jurisdiction of the High Court under Article 226 of the Constitution has not pursued would not oust the jurisdiction of the High Court and render a writ petition ‘not maintainable’. 21. The Hon’ble Supreme Court in the case of M/s. Godrej Sara Lee Ltd. vs. Excise and Taxation Officer-cum-Assessing Authority and Others, AIR 2023 SC 781 , has been pleased to explain the distinction between the ‘entertainability’ and ‘maintainability’ of a writ petition. The extract from paragraph 4 of the said judgment is quoted below: “......Though elementary, it needs to be restated that “entertainability” and “maintainability” of a writ petition are distinct concepts. The extract from paragraph 4 of the said judgment is quoted below: “......Though elementary, it needs to be restated that “entertainability” and “maintainability” of a writ petition are distinct concepts. The fine but real distinction between the two ought not to be lost sight of. The objection as to “maintainability” goes to the root of the matter and if such objection were found to be of substance, the courts would be rendered incapable of even receiving the lis for adjudication. On the other hand, the question of “entertainability” is entirely within the realm of discretion of the high courts, writ remedy being discretionary. A writ petition despite being maintainable may not be entertained by a high court for very many reasons or relief could even be refused to the petitioner, despite setting up a sound legal point, if grant of the claimed relief would not further public interest...........” 22. The reluctance of this Court to interfere with the orders under challenge in the instant petition, is primarily that the same are the outcome of the mutation proceedings and it is a settled legal position that entry in the revenue records does not confer title to a person whose name appears in the records-of-rights, which is maintained for revenue purpose and an entry therein has reference only to possession. Further, the provision of Section 39 of the Uttar Pradesh Revenue Code, 2006 makes it more clear that orders passed under the provisions relating to mutation of revenue records would not act as a bar against any person from establishing his rights in the property by way of suit for declaration. For ready reference the provision of Section 39 of the Uttar Pradesh Revenue Code, 2006 is quoted below: “39. Certain orders of revenue officers not to debar a suit - No order passed by a Revenue Inspector under section 33, or by a Tahsildar under sub-section (1) of section 35 or by a Sub-Divisional Officer under sub-section (3) of section 38 or by a Commissioner under sub-section (4) of section 38 shall debar any person from establishing his rights to the land by means of a suit under section 144.” 23. Normally, the High Court in exercise of its plenary power does not entertain writ petition under Article 226 of the Constitution of India, against the orders passed by the Revenue Courts in mutation proceedings, except under the conditions as formulated by this Court in cases as mentioned above. 24. The fact of the present case does not attract the above mentioned exceptions as carved out by this Court under which this Court in exercise of its power under Article 226 of the Constitution may entertain a writ petition against the order passed in mutation proceedings that are admittedly summary in nature. 25. It is well settled that the orders for mutation are passed on the basis of the possession of the parties and since no substantive rights of the parties are decided in mutation proceedings, ordinarily the Writ Courts decline to entertain the writ petition as not entertainable in respect of orders passed in mutation proceedings, unless found to be totally without jurisdiction or contrary to the title already decided by the competent court. 26. In view of the above, as no substantive rights of the parties have been decided or are likely to be decided in the mutation proceedings, no case for exercise of extra-ordinary writ jurisdiction under Article 226 of the Constitution of India is made out. Needless to say, it is always open to the petitioner to get his rights/title in respect of the land in question be crystallised by competent Civil Court. 27. Accordingly, without interfering with the merits of the impugned orders passed by the Revenue Courts, this writ petition is disposed of with liberty to the parties to get their rights/title in respect of the land in question, if necessary, adjudicated or declared by the competent court of jurisdiction. The order passed in the mutation proceedings would abide by the decision of the competent court, if any, and the said court would not, in any manner, be influenced by any finding or observation made in the mutation orders or during mutation proceedings.