WPMS/1326/2009 of HRIDESH MEHRA Vs COMMISSIONER KUMAON DIVISION NAINITAL and OTHERS

IN THE HIGH COURT OF UTTARAKHAND AT NAINITALWrit Petition (M/S) No. 1326 of 2009

…Petitioner

Hridesh Mehra

Versus

Commissioner, Kumaon Division, Nainital and others ……Respondents

Present: Mr. K.S. Mehta, Advocate for the petitioner.

Mr. Pankaj Purohit, Deputy Advocate General for the State/ respondent no. 1.

Hon’ble Sharad Kumar Sharma, J. (Oral)

The petitioner in this writ petition has challenge

the order dated 03.06.2009 passed by the Commissioner, Kumaon Division, Nainital while exercising his powers under Section 219 of the Land Revenue Act by virtue of which, the restoration application filed by the petitioner was rejected. Be that as it may, the fact of the case remains that the proceedings, which has culminated upto the stage of the filing of the writ petition is consequence of the inception of the proceedings by way of Correction Application No. 01 of 2003 dated 07.01.2003, which was preferred by Mr. Hirdesh Mehra invoking Section 33/39 of the Land Revenue Act.

2. With the inception of the aforesaid proceedings, the same has been decided on the basis of the report of the Patwari by the Sub Divisional Magistrate on 28.01.2005. Against the said order, revision was preferred before the respondent no. 1, which has been decided by the revisional Court on 02.06.2006.

3. As the basis of the proceedings happens to be by invocation of Section 33/39 of the Land Revenue Act, the present writ petition by invoking Article 226 of the Constitution of India would not be maintainable before this Court, as the petitioner has got an efficacious remedy under Section 40(A) of the Land Revenue Act.

4. It is an established law that the alterations in the revenue entries by invoking Section 33/39 of the Land Revenue Act are nothing; but, correction of an annual registers and mistakes in the annual register. These proceedings under Section 33/39 of the Act they don’t determine right of party. All these proceedings are only fiscal in nature and any order passed on the same since being in the shape of summary proceedings, they will not affect the title and that is why the Land Revenue Act under Section 40(A) has provided that all the orders passed under Section 33/35/39 & 40 shall be subject to regular suit to be decided by competent Court on the basis of which right in relation to holding is to be determined. In that view of the matter, various judgments of the Hon’ble Apex Court as well as our High Court has held that no writ petition would be maintainable against the mutation order, as an order correcting revenue records as they are fiscal in nature, as it is only determining the person who would be responsible for remitting the land revenue payable towards the property.

5. Hon’ble High Court of Allahabad in judgment reported in 1993 R.D. 206, “State of U.P. through Collector, Agra vs. Board of Revenue at Lucknow and others”in its paragraph nos. 5 & 6 held as under:

“5. Having heard the learned counsel for the parties. It is well settled law that mutation proceedings do not decide the rights of the parties, they are rather fiscal in nature. In the present case, application by the respondents Nos. 5 to 7 was to mutate their name and the application was allowed. Against that order revision was filed under Sec. 218 of the Act. By the petitioner, reference was made to the Board of Revenue, and the same was rejected by the Board of Revenue. Consequently, I am of the opinion that these proceedings do not decide the rights and title of the parties and the decision has got no legal effect on the rights of the parties rather only in place of A, name of has been entered in the relevant revenue papers just to facilitate payment of revenue from the correct person.

6. In Ram Bharose Lal v. State of U. P. and others, Division Bench of this court (to which I was party) had held that mutation proceedings are fiscal in nature as they do not decide the right of the parties. Consequently, petitioner may seek remedy in the appropriate court. Similarly, in Jaipal Minor v. The Board of Revenue, U. P. Allahabad and others, it was held that mutation proceedings do not decide rights of parties.”

6. Further, the Hon’ble High Court of Allahabad in judgment reported in 1999 (3) A.W.C. 1931, “Narain Singh and Charan Singh vs. Additional Commissioner, Meerut and others”in its paragraph no. 9 held as under:

“9. Present petition arises out of proceedings under Section 34 of the U. P. Land Revenue Act. The said proceedings are summary in nature. In these proceedings, rights and titles of parties to the property in dispute are not decided. The orders passed in the said proceedings are not binding upon the parties or upon the Courts in regular suits or proceedings. The said orders are subject to the decision by the Courts on the regular side. The party aggrieved by the said order may file regular suit before Court of the competent jurisdiction for declaration of his title, therefore, writ petition, under Article 226 of the Constitution of India challenging the validity of the orders passed in the said proceedings, is legally not maintainable. reference in this regard may be made to the decision of Division Bench of this Court in Ram Bharose Lal v. State of U. P. and others, 1991 RD 72. wherein it was ruled by this Court as under :

"By now, it is well-settled that where the dispute is in mutation proceedings which do not adjudicate upon rights or title of the parties, this Court need not interfere under Article 226 of the Constitution. In such matters, person aggrieved shall have rider to seek remedy in the appropriate court."

7. The said issue has been laid, raised by various judgments rendered by the High Courts as well as by the Hon’ble Apex Court, particularly, the judgment rendered by this Court, as reported in 2004 (2) R.D. 696, “Smt. Manorma Devi and others vs. Board of Revenue U.P. Lucknow and others”, which has held that the writ petition arising out of the proceeding under Section 33/39 of the Land Revenue Act would not be maintainable by way of writ petition. However, the recourse to the petitioner would be to redress his grievance by invoking Section 40

(A) of the Land Revenue Act. Paragraph nos. 8, 9, 13 and 18 of the aforesaid judgment are reproduced hereinbelow:

“8. The main contention of the petitioners is that the proceedings under sections 33/39 of the Land Revenue Act are summary in nature, therefore, the correction of entries in the said proceedings was not legally maintainable and that the long standing entries should not have been corrected. In support of their contention, regarding maintainability of the writ petition, the petitioners have relied on the Ruling of the Allahabad High Court in the case of “Tauzi-Ul-Haq and others v. Board of Revenue and others”.In the present case, as already narrated above, it has been found by the Board of Revenue that the name of the applicant-respondent No. 3 Smt. Kunwari Devi was found to have been left by slip of pen and without order of the Competent Court. In para No. 19 of the case-law, the High Court of Allahabad has observed that “But from the facts in the present case it would be evident that the application for correction of entries is not legally maintainable and attracts the abuse of process of the Court, referred to in Appendix X of the U.P. Revenue Court Manual. The error in the revenue entries of which correction can be sought should be obvious one and particularly of clerical nature.” In the instant case, the correction ordered by the Assistant Collector vide his order dated 22.09.1990 was purely of clerical nature, especially because the entries in the name of applicant-respondent No. 3 in the disputed Khatas were existing from before and her name has been left in the subsequent Khataunis without the order of the Competent Court, therefore, the Board of Revenue has rightly observed that the mistake had occurred by slip of pen and the Assistant Collector has passed legal order. I am unable to take different view in the matter. The case law referred to by the learned Counsel for the petitioners is of no avail to the petitioners, rather the same supports the case of the respondent No. 3, Smt. Kunwari Devi.

9. The learned Counsel for the petitioners has also relied on the ruling in the case of M/s

Mahalakshmi Land and Finance Company Pvt. Ltd. V. Board of Revenue, U.P. Lucknow and others, in which similar view has been taken by the Allahabad High Court and it has been observed that section 33 of the Land Revenue Act stipulates correction of errors and not declaration of title. The learned Judge has held in para 8 of the said judgment that the Member, Board of Revenue, ignoring the earlier orders passed on regular side by Ceiling Authorities and the Board of Revenue has passed an order which not only sets naught those orders but also decides title without giving an opportunity of hearing. The learned Member could not have gone beyond the jurisdiction that sections 33/39 of the U.P. Land Revenue Act provides. It is only to correct clerical errors and that too after giving an opportunity of hearing. It has also been observed by the learned Judge that “Here specifically it is so called correction in the record of rights. In the instant case also, the Assistant Collector, Ist Class, Kotdwar has corrected the Annual Register on the basis of previous Khatuani. The learned Judge further held in para 11 that “there is no real dispute between the parties and the only question is whether any accidental or clerical error was made in the previously prepared register. In the present case, the name of respondent No. 3 Kunwari Devi was recorded in the Khatuani of the previous years; but due to clerical or accidental error, her name could not find place in Patwari Khatuanis, therefore, correction of clerical error alone has been ordered by the Assistant Collector Kotdwar. By the impugned order, the Assistant Collector Kotdwar has not decided any title of the petitioners or of the respondent No. 3. Therefore, this ruling too is of no avail to the petitioners because the learned Single Judge has held that the High Court would interfere, where they are not restricted to question of possession but also decide the question of title. The case of “Rudrapratap and another v. Board of revenue, U.P. and others”, relied on by the learned Counsel for the petitioner sis also of no avail to the petitioners. In that case, reference was made to the case of Jaipal Minor v. The Board of Revenue, U.P. Allahabad, and it has been held

by the High Court that “mutation proceedings ordinarily relate to the question of possession and do not decide the question by way of suit and as such the High Court should not interfere in the order assessed in mutation proceedings. But it was also observed in that case that this consideration should not be applied in cases where the question of title is also decided in mutation proceedings.” As has been mentioned earlier, in the present case, in the correction proceedings only clerical error was ordered to be corrected and it was not case deciding title of the parties, therefore, this case law is also not helpful to the petitioners.”

13. The contention of the respondents are that the Assistant Collector has only directed to correct the revenue records and directed to record the name of respondent No. 3 in the proceeding under sections 33/39 of U.P.Z.A. and L.R. Act, which are summary in nature and against the judgment and order passed in the said proceedings, writ petition will not be maintainable. In support of their contention, reliance has been placed on the rulings in the case of “Kunj Behari v. Board of Revenue, U.P. Lucknow and others”, “Mohar Tiwari v. Board of Revenue, U.P. Lucknow, and others, “Chandrapal Singh v. Board of Revenue, Lucknow and others, Smt. Rani Devi v. Board of Revenue, U.P. at Lucknow and others” and “Bindeshwari v. Board of revenue and others” and “Ishu v. State of U.P. and others. In all these cases, the Allahabad High Court has held the writ petition against mutation/correction proceedings is not maintainable. All these rulings are fully applicable to the facts of the present case.18. perusal of the above provision in section 40-A would show that person aggrieved by the order passed in the correction proceedings under section 33/39 of the U.P. Land Revenue Act can challenge it on regular side and judgment of Court shall over-ride the order passed in correction proceedings. Moreover, in the case of “Jaipal v. Board of Revenue, U.P. Allahabad and others” Division Bench of the Allahabad High Court, in writ petitioner under Article 226 made

against the order of Board of Revenue entering name of certain person in record of rights has observed that “it has been the consistent practice of Allahabad High Court not interfere with orders made by the Board of revenue in cases in which the only question at issue is whether the name of the petitioner should be entered in the record of rights. That record is primarily maintained for revenue purposes and an entry therein has reference only to possession. Such an entry does not ordinarily confer upon the person in whose favour it is made any title to the property in question.” Ultimately, the writ petition has been dismissed. I am of the consistent view that an alternative efficacious remedy was available to the petitioners. Moreover, neither there is error manifest and apparent on face of record, and no grave injustice or gross failure of justice has been occasioned thereby to the petitioner and, therefore, the writ petition is not maintainable under Article 227 of the Constitution of India, as has been held by the Hon’ble Supreme Court in the case of “Surya Dev Rai v. Ram Chander Rai and others.”. It has been held by the Apex Court that the High Court is not to convert itself into Court of Appeal. It has further been observed that “Supervisory jurisdiction may be refused to be exercised when an alternative efficacious remedy by way of appeal or revision is available to the person aggrieved.” In the present case, undisputebly alternative remedy to bring suit in regular Court is available to the petitioners as provided by section 40-A of the U.P. Land Revenue Act.”

8. Thus, the writ petition is dismissed. No order as to costs. If the petitioner is so advised, he is left open to seek remedy, as provided under Section 40(A) of the Land Revenue Act.

(Sharad Kumar Sharma, J.)

05.10.2017