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2023 DIGILAW 901 (ALL)

Chandra Bhan Singh v. State of U. P.

2023-04-04

KSHITIJ SHAILENDRA

body2023
JUDGMENT Kshitij Shailendra, J. Heard Sri Chandra Bhan Singh, the petitioner, who has appeared in person and the learned Standing Counsel representing the State-respondents. 2. The petitioner, who is a practising lawyer of this Court, has filed present writ petition challenging the orders dated 03.10.2022 and 28.06.2022, respectively, passed by the Commissioner, Chitrakoot Dham, Division, Banda (respondent no.) and Tehsildar, Banda (respondent no.3) in Case No.1751 of 2018 (Computerized Case No. T201807110101751). 3. Writ in the nature of mandamus has been sought to direct the respondent no.2 i.e. the Commissioner, Chitrakoot Dham Division, Banda to decide the application/complaint dated 03.10.2022 within stipulated time in accordance with established procedure of law and also direct the respondent no.3 to correct the revenue records deleting P.A 11 entries in pursuance of Section 33-A L.R. Act read with Land Records Manuals. 4. Further prayer has been made to issue a writ in the nature of contempt of Hon'ble High Court orders and judgments being court of record under Article 215 of the Constitution of India. Another writ in the nature of mandamus has been sought to direct the respondents to restore and recover possession of land Khata No.1116 plot nos. 1804/1, 1804, 1809, 1805, 1853/2, 1856, 1865, 2056, 2058, 2065/1, 2084/1, 2085, 2086/1, 2089, 2091, 2259/1, 2264, 2265 following the procedure prescribed under the law. 5. The contention of petitioner is that the right of possession of the petitioner as well as three brothers is being adversely affected on account of P.A. 11 entries in the revenue records. It is contended that the petitioner's father executed will dated 02.07.2001 in favour of the petitioner and his 3 brothers, namely, Bachcha Singh, Ramesh Singh and Veerendra Singh @ Pappu Singh all sons of Late Sharda Singh excluding elder son (Indrajeet Singh) who was residing with his cousin brother Late Sri Sadashiv Singh. It is further contended that the mutation case no. 1087 (Bachcha Singh @ Sharda Singh) was filed under Section 33/34 of U.P. Z.A. & L.R. Act in the court of Tehsildar Sadar, Banda in which notices were issued and served upon the legal heirs but the matter is pending for the last 20 years. It is further contended that the mutation case no. 1087 (Bachcha Singh @ Sharda Singh) was filed under Section 33/34 of U.P. Z.A. & L.R. Act in the court of Tehsildar Sadar, Banda in which notices were issued and served upon the legal heirs but the matter is pending for the last 20 years. It is further contended that a conspiracy has been hatched up by revenue officials, particularly Halka Lekhpal and Revenue Inspector, who reported on 23.08.2001 P.A. 11 entries in the revenue records to frustrate purpose of "will" executed in favour of petitioner, along with three brothers. Resultantly, name of excluded person Indrajeet Singh @ Natthu Singh entered in the revenue records and he, under the garb of P.A. 11 entries, in case of testamentary property, captured the land with support of erring revenue officials along with local police, as such created a dispute that is pending for the last 30 years. It is further contended that the mother as well as elder brother (Indrajeet Singh) of the petitioner had also submitted their no objection affidavits before the Court concerned/respondent no. 3 on 08.11.2007 stating therein that they have no objection, either with the "will" (Vasiyatnama) or mutation proceeding. As such, entire proceedings have already been concluded and completed after submission of no objection affidavits but, till date, neither final decision has been taken nor have P.A. 11 entries been deleted by the respondent no. 3, in order to provide undue advantage to the unscrupulous persons. Moreover, illegally and unnecessarily the matter is being lingered on with connivance of some persons inimical to the petitioner. 6. In sum and substance, the grievance of the petitioner is that on the basis of the aforesaid Will, the petitioner and other beneficiaries have right in the holdings described in prayer no.4 of the writ petition and, therefore, the orders impugned are liable to be set aside and the reliefs claimed in the writ petition are entitled to be granted. 7. I have heard Sri Chandra Bhan Singh, the petitioner in person as well as learned Standing Counsel and perused the record. 8. 7. I have heard Sri Chandra Bhan Singh, the petitioner in person as well as learned Standing Counsel and perused the record. 8. By impugned order dated 28.06.2022, an application filed by the petitioner on 20.12.2021 has been rejected and both the parties to Case No.1751 of 2018 (Computerized Case No. T201807110101751) (Bachcha Singh v. Sharda), under Section 35 of the U.P. Revenue Code, 2006, have been restrained from alienating or mortgaging the property till disposal of the said case. Further direction has been issued to the petitioner to complete his evidence pursuant to the order dated 20.11.2021 passed by this Court (correct date being 30.11.2021). In so far as the second order impugned dated 03.10.2022 is concerned, the same is endorsed in the margin of an application dated 03.10.2022 submitted by the petitioner before the Commissioner concerned, which is an endorsement made to the Tehsildar, Banda to examine the matter at priority level and dispose of the same. 9. The contention of the petitioner is that the aforesaid entries being fraudulent in nature and the rights of the petitioner and other beneficiaries being existent on the basis of aforesaid Will, they should be delivered possession and the entries may be directed to be expunged. He has further argued that P.A.11 entries are merely administrative in nature and title cannot be decided by such administrative action. In support of his submission, the petitioner has relied upon following authorities. (i) Baldev and others v. Deputy Director of Consolidation and others: 2015 Supreme (All) 2493, equivalent to 2015 (127) RD 584 ; (ii) Devendra Dutt Shukla and others v. Additional Commissioner Lko. and others: 2019 Supreme (All) 1446, equivalent to 2019 (6) ADJ 419 ; and (iii) Ganeshiya v. State of U.P. and others: 2019 Supreme (All) 1390, equivalent to 2019 (6) ADJ 164 . 10. Per contra, learned Standing Counsel submits that the impugned order dated 28.06.2022 has been passed in between Bachcha Singh v. Sharda, however none of the said private parties is a party to the proceedings. He further submits that on an earlier occasion, this Court had entertained and disposed of Writ-C No.31776 of 2021, vide order dated 30.11.2021, directing the respondent no.4 of the said writ petition to decide the matter pursuant to order dated 07.05.2014 passed by Commissioner in relation to P.A.11 entries. He further submits that on an earlier occasion, this Court had entertained and disposed of Writ-C No.31776 of 2021, vide order dated 30.11.2021, directing the respondent no.4 of the said writ petition to decide the matter pursuant to order dated 07.05.2014 passed by Commissioner in relation to P.A.11 entries. He further submits that the petitioner cannot be said to be aggrieved by the orders impugned as by the order impugned dated 28.06.2022, he has been directed to complete his evidence in compliance of the order dated 20.11.2021 (the correct date being 30.11.2021). He further submits that by the second order impugned even the Commissioner has directed the Tehsildar to give priority to the case and decide the matter agitated by means of application dated 03.10.2022 moved by the petitioner himself. 11. Having heard the petitioner and the learned Standing Counsel, this Court finds that the Tehsildar in the order impugned dated 28.06.2022 has observed that the petitioner has moved an application dated 20.12.2021 just to delay disposal of the proceedings after a period of 20 years when the case was pending since 2001 and, therefore, it appears that the petitioner is not taking interest in disposal of the matter despite the order passed by this Court as well as the Commissioner. 12. This Court finds that the petitioner himself moved an application dated 20.12.2021 on administrative side before the Tehsildar concerned with a grievance that the private parties are trying to surreptitiously alienate the agricultural land on the basis of illegal P.A. 11 entries and they should be restrained from alienating the same and taking unlawful possession. A prayer was also made in the application that PA-11 entries be cancelled in view of the order dated 30.11.2021 passed by this Court and the possession of the petitioner and other beneficiaries of the Will should be restored over the property in dispute. 13. The petitioner submits that in so far as the allegation made against him in the order impugned regarding causing delay is concerned, the same is wholly unfounded and in so far as the evidence part is concerned, no direction should have been issued as the petitioner has already led his evidence in the matter. 14. 13. The petitioner submits that in so far as the allegation made against him in the order impugned regarding causing delay is concerned, the same is wholly unfounded and in so far as the evidence part is concerned, no direction should have been issued as the petitioner has already led his evidence in the matter. 14. In so far as the judgment in the case of Baldev (supra) is concerned, the same deals with the aspect of proof of Will in the light of the provisions contained under Section 68 of the Evidence Act. In so far as the judgment in the case of Devendra Dutt Shuka (supra) is concerned, the same deals with the duty cast upon the Collector to correct records in exercise of power under Sections 33 and 39 of U.P. Land Revenue Act, 1901. In so far as the judgment in the case of Ganeshiya (supra) is concerned, it has been held by this Court that scope of mutation proceedings cannot be enlarged to confer power upon the revenue authorities to examine the genuinity of the Will and, therefore, to that extent, such orders passed in summary proceedings are illegal. 15. There is no dispute about the propositions laid down in the aforesaid authorities. However the petitioner, at this stage, does not get any advantage out of the same keeping in view the nature of the orders impugned as I find that the petitioner is aggrieved by some entries in P.A.11 record and because of that either he is out of possession or his possession is being disturbed. Therefore, I find that if the Tehsildar, in the proceedings under Section 35 of the Code, 2006, has directed that the petitioner should complete his evidence pursuant to the order passed by this Court, the petitioner cannot be said to be aggrieved despite his submission that evidence is already over. In case the evidence is over, naturally the proceedings under Section 35 of the Code, 2006 shall be decided. In so far as the injunction part is concerned, no argument has been advanced to this aspect and, even otherwise, the petitioner who is not recorded in P.A.11 records, cannot be said to be aggrieved by the injunction restraining alienation as directed under the order impugned dated 28.06.2022. In so far as the injunction part is concerned, no argument has been advanced to this aspect and, even otherwise, the petitioner who is not recorded in P.A.11 records, cannot be said to be aggrieved by the injunction restraining alienation as directed under the order impugned dated 28.06.2022. In so far as the rejection of petitioner's application dated 20.12.2021 is concerned, I find that even in the said application, entries made in P.A. 11 record have been sought to be expunged with other reliefs. 16. This Court is of the considered view that once proceedings under Section 35 of the Code, 2006 are still pending in which the petitioner is participating even as per the orders impugned, and the said provision takes care of testamentary succession on the basis of Will, the petitioner has full opportunity of hearing before the court concerned and, hence, the result of the said proceedings cannot be prejudged at the instance of petitioner who has challenged the interlocutory order dated 28.06.2022 whereby no rights of the parties have been decided. 17. In so far as the second order impugned is concerned, it is just an endorsement made by the Commissioner to the Tehsildar for giving priority to the case. This Court is surprised as to how the petitioner can be aggrieved by the order dated 03.10.2022. 18. Considering the above noted facts and circumstances of the case, I do not find any good ground to quash any of the impugned orders. 19. In so far as the second prayer regarding decision on petitioner's application dated 03.10.2022 is concerned, once the proceedings under Section 35 of the Code, 2006 are already pending on quasi judicial side, it would not be appropriate to direct the Commissioner to entertain the application dated 03.10.2022 on administrative side in which also identical prayers have been made regarding alleged wrongful entries in P.A. 11 record. 20. In so far as the third relief is concerned, the same relates to launching of contempt proceedings. However I do not find any good ground to issue any such direction in the present matter. 21. In so far as the fourth relief is concerned, direction for restoration/recovery of possession cannot be issued, at this stage, particularly, when the proceedings under Section 35 of the Code, 2006 are still pending. 22. However I do not find any good ground to issue any such direction in the present matter. 21. In so far as the fourth relief is concerned, direction for restoration/recovery of possession cannot be issued, at this stage, particularly, when the proceedings under Section 35 of the Code, 2006 are still pending. 22. In so far as the fifth relief i.e. "any other writ or direction" is concerned, interest of justice would be served if the writ petition is disposed of by directing the Tehsildar, Tehsil Sadar, District Banda (respondent no.3) to conclude the proceedings under Section 35 of the U.P. Revenue Code, 2006 covered by Case No.1751 of 2018 (Computerized Case No. T201807110101751) (Bachcha Singh v. Sharda) very expeditiously, preferably, within a period of three months from the date a certified copy of this order is produced before him after giving full opportunity of hearing to all the concerned parties. 23. With the aforesaid direction, the writ petition is disposed of.