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2024 DIGILAW 474 (ALL)

Pavitra Devi v. State of U. P.

2024-02-13

RAJEEV MISRA

body2024
JUDGMENT Rajeev Misra, J. Heard Mr. Vinod Kumar Upadhyay, the learned counsel for petitioner, the learned Standing Counsel for respondents-1,2,3,4 and Mr. Ram Chandra Kushwaha, the leaned counsel for respondent-5. 2. Perused the record. 3. Challenge in this writ petition is to the order dated 24.10.2016, passed by respondetn-3- Tehsildar, Tehsil Rampur Maniharan, District- Saharanpur (Annexure-5 to the writ petition), the order dated 28.10.2016, passed by respondent-4- Nayab Tehsildar, Tehsil Rampur, Maniharan, District Saharanpur (Annexure-4 to the writ petition), the order dated 26.3.2018, passed by respondent-4 Naib Tehsildar, Tehsil Rampur, Maniharan, District Saharanpur (Annexure-3 to the writ petition), the order dated 13.8.2020, passed by respondent 2,- Additional Commissioner (Admin)-II, Saharanpur (Annexure-2 to the writ petition) and the order dated 4.10.2023, passed by respondent-2,- Additional Commissioner (Admin)-II, Saharanpur (Annexure-1 to the writ petition). 4. Record shows that a registered sale deed 2.1.2014 was executed by petitioner in favour of respondent-5, Sandeep Kumar. On the basis of aforesaid sale deed, respondent-5 claimed mutation. He accordingly filed mutation case in terms of section 34 U.P. Land Revenue Act. The same was registered as Mutation Case No. 598 of 2014 (Sandeep Kumar v. Smt. Pavitra Devi). However, the aforesaid mutation case came to be dismissed vide order dated 17.2.2014 passed by respondent-3 Tehsildar, Tehsil Rampur Maniharan, District- Saharanpur (Annexure-7 to the writ petition). 5. Feeling aggrieved by above order dated 17.2.2014, the contesting respondent no. 5 filed a restoration application dated 24.10.2016, seeking recall of order dated 17.2.2014 and restoration of the mutation case aforementioned to its original number and status. This restoration application came to be allowed by respondent-4 Naib Tehsildar, Tehsil Rampur, Maniharan, District Saharanpur on the same day i.e. vide order dated 24.10.2016. Ultimately the mutation case filed by the respondent 5 i.e. Mutation Case No. T201409600598 of 2014 was allowed by respondent-3 Tehsildar, Tehsil Rampur Maniharan, District- Saharanpur vide order dated 28.10.2016. 6. Feeling aggrieved by the order dated 28.10.2016 referred to above, petitioner filed a time barred restoration application dated 27.4.2017 seeking recall of the order dated 28.10.2016 and restoration of the mutation case in which, order dated 28.10.2016 was passed to its original number and status. Even though aforementioned restoration application was barred by time, no separate application under Section 5 of the Limitation Act duly supported by an affidavit was filed. Even though aforementioned restoration application was barred by time, no separate application under Section 5 of the Limitation Act duly supported by an affidavit was filed. Ultimately, the restoration application filed by petitioner came to be dismissed vide order dated 26.3.2018, passed by respondent-4 Naib Tehsildar, Tehsil Rampur, Maniharan, District Saharanpur. 7. Order dated 26.3.2018 was challenged by petitioner. He, accordingly filed a revision before the revisional authority i.e Commissioner, Saharanpur and same was registered as Revision No. 00532 of 2022 (Smt. Pavitra v. Sandeep Kumar). However, the said revision came to be dismissed by a detailed order dated 13.8.2020 passed by respondent 2, Additional Commissioner (Administration)-II, District-Saharanpur. Subsequent to above, petitioner filed a restoration application dated 21.08.2020 seeking recall of order dated 13.8.2020. The restoration application filed by petitioner also came to be rejected vide subsequent order dated 4.10.2023, passed by respondent-2 Additional Commissioner (Admin)-II, Saharanpur. 8. Thus feeling aggrieved by aforesaid orders, petitioner has now approached this court by means of present petition under Article 226 of the Constitution of India. 9. Learned counsel for petitioner has invited the attention of Court to the order dated 17.2.2014 passed by respondent-4 Naib Tehsildar, Tehsil Rampur, Maniharan, District Saharanpur, copy of which is on record at page 64 of the paper book. On the basis of above, it is urged by learned counsel for petitioner that mutation case filed by respondent 5 was dismissed on merits. Against this order dated 17.2.2014, a hopelessly time barred restoration application dated 24.10.2016 was filed. The said restoration application is on record at page 66-A of the paper book. With reference to above it is urged by learned counsel for petitioner that though the restoration application filed by respondent-5 was hopelessly barred by limitation but no separate delay condonation application in terms of section 5 of limitation act was filed seeking condonation of delay in filing restoration application. However, in ignorance of above, respondent-4 Naib Tehsildar, Tehsil Rampur, Maniharan, District Saharanpur allowed the restoration application vide order dated 24.10.2016. Thereafter, the mutation claimed by respondent-5 was accepted. Accordingly, the mutation case was allowed vide order dated 28.10.2016 passed by respondent-4 Naib Tehsildar, Tehsil Rampur, Maniharan, District Saharanpur. Aforesaid orders were passed ex-parte against petitioner inasmuch as, no notice or opportunity of hearing was given to petitioner before passing aforementioned orders. 10. Thereafter, the mutation claimed by respondent-5 was accepted. Accordingly, the mutation case was allowed vide order dated 28.10.2016 passed by respondent-4 Naib Tehsildar, Tehsil Rampur, Maniharan, District Saharanpur. Aforesaid orders were passed ex-parte against petitioner inasmuch as, no notice or opportunity of hearing was given to petitioner before passing aforementioned orders. 10. Thus feeling aggrieved by the order dated 28.10.2016, petitioner filed a time barred restoration application dated 24.04.2017 seeking recall of order dated 28.10.2016. The said restoration application is on record at page 72 of the paper book. Since aforementioned restoration application was time barred, therefore, an application under Section 5 of the Limitation Act was also filed. It is however, apposite to mention here that no affidavit was filed in support of the restoration application explaining the cause for the delay in filing the restoration application. However, respondent-4 Naib Tehsildar, Tehsil Rampur, Maniharan, District Saharanpur by means of the order dated 26.3.2018 (Annexure 1 to the petition) dismissed the restoration application filed by petitioner as time barred. 11. Against order dated 28.10.2016, petitioner filed a revision before the revisional authority i.e Commissioner, Saharanpur Division Saharanpur, which was registered as Revision No. 00532 of 2022. However the said revision was dismissed vide order dated 13.8.2020 passed by respondent 2, Additional Commissioner (Admin)-II, Saharanpur. According to the learned counsel for petitioner, the revision filed by petitioner was dismissed without considering the grounds raised in the memo of revision and pressed before the revisional authority i.e. respondent 2, Additional Commissioner (Admin)-II, Saharanpur. 12. Feeling aggrieved by order dated 13.8.2020, petitioner filed a restoration application. The same came to be registered as Case No. RST/00531 of 2020 (Smt. Pavitra v. Sandeep Kumar). The restoration application was also rejected vide order dated 4.10.2023, passed by respondent-2, Additional Commissioner (Admin)-II, Saharanpur (Annexure-1 to the writ petition), on the finding that the counsel for the revisionist was heard before passing the order dated 13.08.2020. The order dated 13.08.2020 was passed on merits. There is nothing on record to show that there is any patient error in the order dated 13.08.2020. 13. Learned counsel for petitioner submits that orders impugned in present writ petition are manifestly illegal and therefore liable to be quashed by this Court. Admittedly, the mutation claimed by respondent 5, Sandeep Kumar was dismissed on merits vide order dated 17.2.2014. There is nothing on record to show that there is any patient error in the order dated 13.08.2020. 13. Learned counsel for petitioner submits that orders impugned in present writ petition are manifestly illegal and therefore liable to be quashed by this Court. Admittedly, the mutation claimed by respondent 5, Sandeep Kumar was dismissed on merits vide order dated 17.2.2014. Against order dated 17.2.2014, restoration application was filed on 24.10.2016 and the same was allowed on the same date. He further submits that no delay condonation application in terms of section 5 of Limitation Act duly supported by an affidavit was filed, seeking condonation of delay in filing the restoration application. As such, there was nothing on oath to explain the delay in filing the restoration application. Consequently, the sufficiently of the cause or the truthfulness of the cause, which occurred in filing the restoration application with delay could not be considered. As such, the order dated 24.10.2016 is in excess of jurisdiction and therefore liable to be quashed by this court. Subsequent to above mutation was allowed vide order dated 28.10.2016 exparte inasmuch as no notice or opportunity of hearing was given to petitioner before passing the order dated 28.10.2016. Since petitioner was a contesting respondent and also a necessary party in the mutation proceedings, he, therefore, contents that order dated 28.10.2016, could not have been passed without issuing notice to the petitioner as is required under the mandatory provision of Section 201 of U.P. Land Revenue Act. Consequently, the order dated 28.10. 2016 being inviolation of the principles of natural justice is unsustainable in law and fact and therefore, liable to be quashed by this Court. 14. He further submits that against order dated 28.10.2016, petitioner filed a restoration application which was time barred, inasmuch as, the same was filed on 24.4.2017. However, a separate delay condonation application was filed seeking condonation of delay in filing the restoration application. Irrespective of above, the restoration application filed by petitioner was rejected on the finding that the same was hopelessly barred by laches. The said conclusion has been drawn without considering the delay condonation application filed by petitioner and further without recording any finding that cause shown for explaining the delay in filing the restoration application is truthful and sufficient or not. Feeling aggrieved by aforesaid, petitioner filed revision before revisional authority. The said conclusion has been drawn without considering the delay condonation application filed by petitioner and further without recording any finding that cause shown for explaining the delay in filing the restoration application is truthful and sufficient or not. Feeling aggrieved by aforesaid, petitioner filed revision before revisional authority. The Revisional Authority summarily dismissed the revision vide order dated 13.8.2010. In the submission of learned counsel for petitioner, the said order is ex-parte, inasmuch as the same was passed without hearing the learned counsel for petitioner before the revisional authority. On account of above, petitioner filed a restoration application, which has been dismissed on illegal grounds vide order dated 4.10.2023. On the aforesaid conspectus, it is thus urged that orders impugned in present writ petition cannot be sustained and are therefore liable to be quashed by this court. 15. Per contra, the learned Standing Counsel for respondents 1,2,3,4 and Mr. Ram Chandra Kushwaha, the leaned counsel representing caveator-respondent-5, have vehemently opposed the present writ petition. They submit that it is an undisputed fact that a registered sale deed dated 2.1.2014 was executed by petitioner in favour of contesting respondent-5. Admittedly, petitioner has already instituted a suit for cancellation of registered sale-deed in which no interim injunction has been granted in favour of petitioner. On the aforesaid premise, it is urged that since right, title and interest of respondent 5 in the land in dispute is on the basis of a registered document, therefore, respondent 5 shall continue to be the rightful owner of the land in dispute, till the said sale deed, which is the basis of title of respondent 5 is cancelled by a competent court of civil jurisdiction. The basis of title of respondent 5 regarding the land in dispute is the registered sale deed executed by petitioner herself in favour of respondent 5. As such, till the said sale deed subsists, it is the respondent 5 who shall be recognized as the rightful owner of the land in dispute with the execution of the sale deed, respondent 5 has lost her right, title and interest in the land in dispute. Furthermore, mutation proceedings are of a summary nature. The authorities while deciding the mutation application cannot hold a trial with regard to the genuineness of the document (sale deed) as the said jurisdiction is beyond the scope of proceedings under Section 34 of U.P. Land Revenue Act. Furthermore, mutation proceedings are of a summary nature. The authorities while deciding the mutation application cannot hold a trial with regard to the genuineness of the document (sale deed) as the said jurisdiction is beyond the scope of proceedings under Section 34 of U.P. Land Revenue Act. Mutation proceedings are not title proceedings but only decide as to whose name should be recorded in place of the recorded tenure holder. An aggrieved party has the remedy to get declaration of his right, title and interest in the land in dispute by initiating appropriate proceedings either under section 144 of U.P. Revenue Code, 2006 or by seeking cancellation of the document before the competent Court of Civil Jurisdiction. It is thus urged that present writ petition does not involve any substantial question of law and fact. The same is concluded by findings of fact and therefore, same is liable to be dismissed. 16. Having heard the the learned counsel for petitioner, the learned Standing Counsel for respondents-1,2,3,4 and Mr. Ram Chandra Kushwaha, the leaned counsel representing respondent-5 and upon perusal of record, this Court finds that petitioner herself has executed a registered sale deed dated 2.1.2014, in favour of respondent-5. Aforesaid sale-deed has been challenged by petitioner who is the vendor of the sale deed in question by way of Original Suit No. 497 of 2016 (Smt. Pavitra v. Sandeep Kumar) before the competent Court of Civil Jurisdiction. As per the statement made by the learned counsel for petitioner, no ad-interim injunction has been granted in favour of petitioner in aforementioned suit. Since the document of title relied upon by respondent 5 in respect of the land in dispute is the registered sale deed executed by petitioner in favour of respondent 5, therefore, the same shall continue to grant right and interest over the same till it is set aside by a competent court of civil jurisdiction. So long as the sale deed executed by petitioner in faovur of respondent 5 subsists respondent 5 shall continue to be the rightful owner of the land in dispute. Since mutation was claimed by respondent 5 on the basis of above, no illegality has been committed by the authorities below in allowing the claim of mutation raised by respondent 5. Present writ petition is thus concluded by findings of fact, which prima-facie cannot be said to be illegal, perverse or erroneous. Since mutation was claimed by respondent 5 on the basis of above, no illegality has been committed by the authorities below in allowing the claim of mutation raised by respondent 5. Present writ petition is thus concluded by findings of fact, which prima-facie cannot be said to be illegal, perverse or erroneous. In view of above, the orders impugned in present writ petition are not liable to be interfered with. 17. In view of the discussion made above, the present writ petition fails and is liable to be dismissed. 18. It is accordingly dismissed.