Kunj Behari Vs. Board of Revenue, U.P. Lucknow and Others - Court Judgment

Excerpt:
civil - maintainability of writ - article 226 of constitution of india and section 34 of u.p. land revenue act, 1901 - order under section 34 - such fiscal order affects neither title nor right of parties - no cause of action arise from such orders - held, no writ petition from such order maintainable. - - ahmad khan, 1962 rd 172, that if the entries have been made in the revenue record as a result of consolidation proceedings, then the jurisdiction of civil as well as revenue courts to question their correctness is barred.ordershitla pd. srivastava, j.1. this writ petition has been filed by the petitioner for quashing the order dated 23.8.2000, passed by respondent no. 1, which has been filed as annexure-12 to the present writ petition, and further prayer has been made to issue a direction that alleged claim of respondent nos. 5 and 6 in respect of property in question based on mortgage deed dated 2.2.1974 is not maintainable being barred by section 49 of the u. p. consolidation of holdings act. the other prayer has been made for issueof ad interim mandamus staying the operation of the impugned order of the respondent no. 1 dated 23.8.2000 including dispossession of the petitioner from the property in question.2. sri n. b. tewari, learned counsel for the respondent has raised a preliminary objection that the present writ petition is not maintainable as it has arisen out of the proceedings under section 34 of the land revenue act. his submission is that this court has taken a view in a case in smt. rani devi v. board of revenue, 1999 rd 633, that the writ petition against order passed in the proceedings arising out of mutation case is not maintainable. he has further submitted that mutation proceedings is summary in nature and it does not decide the right of the parties, therefore, that judgment and order passed in the mutation will not bound the parties nor the regular court is bound by the said order and can take its own decision, therefore, the writ petition under article 226 of the constitution of india is not maintainable. for that purpose he has placed reliance on a number of decisions.3. the first decision cited by him for this purpose is in lekhraj and another v. board of revenue, 1981 rd 18, delivered in w.p. no. 4785 of 1979 dated 4.8.1980, where this court has upheld the preliminary objection raised on behalf of the opp. party and dismissed the writ petition on the ground of the existence of an equally efficacious alternative remedy by way of filing a regular suit to establish title. the second decision relied upon by sri tewari is a decision in state of u. p. through the collector, agra v. board of revenue at lucknow and others, 1993 rd 206, delivered in writ petition no. 30386 of 1991, where this court has held that under section 34 of the act the right of parties are not decided rather mutation proceedings are fiscal in nature and remedy before competent court is by filing a regular suit or initiating some other proceedings. third decision relied upon by sri tewari is in narain singhand another v. additional commissioner, meerut and another, 1999 rd 416, given in the writ petition no. 10128 of 1999, wherein this court has held that section 34, proceedings is summary in nature and right and title of the parties are not decided and orders passed are not binding upon the courts in regular suits or proceedings, therefore, the writ petition is not maintainable. fourth decision relied upon by sri tewari is in jaipal v. board of revenue, air 1957 all 205, where the division bench of this court has held that section 63 of the land revenue act expressly reserve the right of the party to establish his right and title in a regular suit, therefore, the writ petition against the proceedings under section 34 of the land revenue act is not maintainable. sri tewari has also placed reliance on a case in 1993 rd 206, wherein this court has held that reference proceedings in mutation cases are only to facilitate payment of revenue rights of the parties are not decided. it is fiscal in nature and the writ petition is not maintainable.4. sri n. b. tewari has placed reliance on a division bench decision of this court delivered in w.p. no. 1746 of 1984, ram bharose lal v. state of u. p. and others, dated 23.5.1990, where the division bench of this court held that the proceedings under section 34 of the land revenue act do not decide the title of the parties and the proceedings are just fiscal in nature and high court need not interfere under article 226 of the constitution of india.5. sri p. k. besaria, learned standing counsel has also supported sri tewari and has submitted that order under sections 34, 39 and 40 of the land revenue act are passed merely on the basis of possession and as such it does not affect the rights of any party, therefore, the writ petition is not maintainable. he has placed reliance on a case in chandra pal singh v. board of revenue, 1996 rd 87, delivered in civil misc. writ petition no. 6842 of 1996.6. sri b. b. paul learned counsel appearing for the petitioner in reply has submitted that if there had been litigation between the parties in civil court and consolidation court and final orders have been passed in those proceedings, then the revenue court has no jurisdiction to overlook those orders in the proceedings under section 34 or in any other summary proceedings and they must decide the proceedings on the basis of earlier judgments of the competent court and if they do not do so, the order passed by the mutation court are without jurisdiction and the writ petition is maintainable. his submission is that even if in ordinary circumstances, the writ petition is not maintainable but in the special circumstances, the writ petition under article 226 of the constitution of india is maintainable against the orders passed in the proceedings under section 34 of the land revenue act. for that purpose, he has placed reliance on a judgment delivered by this court on 5.4.1983 in c.m.w.p. no. 1983 of 1993, vijay prakash v. board of revenue. the relevant portion of the said judgment is quoted below :'having heard learned counsel for the petitioner and gone through the impugned order, it appears that it is a fit case in which notices be issued and the matter be heard finally, 1956 alj 807 (supra) does not say that in no circumstances, a writ petition in the matter of correction of mutation of the names is maintainable. the observations are only to the limited extent and in appropriate case, where proper remedy is available, a regular suit can be filed and in such circumstances, this court should refrain itself from exercising its extraordinary jurisdiction under article 226 of the constitution. but, when there is a class of cases, where expunging the name of a person without a notice to him may cause irreparable injury this court may always exercise the power under article 226 of the constitution.'7. sri paul further submitted that the order without jurisdiction can be challenged under writ jurisdiction. he has further submitted that under the u. p. consolidation of holdings act when the right has been decided earlier, then no one can start fresh proceedings in respect of the same property and fresh proceedings are barred under section 49 of the u. p. consolidation of holdings act. in this connection he has placed reliance on a decision in rakesh kumar minor v. board of revenue, 1972 alj 769.8. he has also placed reliance on a decision in ram sanehi lal v. board of revenue, 1974 rd 241. in this case reliance was placed on rakesh kumar case (supra) and rudra pratap and another v. board of revenue. air 1975 all 125 and submitted that the high court should interfere where they restricted to question of possession and also decide the question of title. he has further placed reliance on calcutta gas company (proprietary) ltd. v. state of west bengal and others, air 1962 sc 1044. his submissions are that as the petitioner is aggrieved by the order passed in section 34 proceedings and his legal right has been prejudiced, he can file writ petition under article 226 of the constitution of india.9. he has further placed reliance on a decision in whirlpool corporation v. registrar of trade marks, mumbai and others, jt 1998 (7) sc 243, wherein it has been held that power to issue prerogative writs under article 226 of constitution is plenary in nature and is not limited by any other provision of the constitution. this power can be exercised by high court not only for issuing writs in the nature of quo waranto and certiorari for the enforcement of any of the fundamental rights contained in part-iii of the constitution but also for 'any other purpose'. sri paul has also submitted that in view of the provisions laid down in the revenue court manual in the proceedings under section 34, only question of possession should be decided in summary manner and title should not be decided, therefore, if the title hasbeen decided, the writ petition is maintainable. in this connection, he has also cited a case smt. dulari devi v. janardan singh and others, 1990 rd 193, which deals with the provisions of section 49 of the u. p. consolidation of holdings act. he has also placed reliance on an unreported case delivered in c.m.w.p. no. 3 of 1970, decided on 23.7.1971, yadram v. board of revenue, where it was held that for the purpose if an objection is filed even under section 12 of u. p. consolidation of holdings act regarding title, it has to be determined. his submissions are that the title had already been determined in an earlier consolidation proceedings, therefore, any proceeding under section 34 of the land revenue act, no adverse finding should have been given contrary to the findings given in consolidation proceedings. he has also placed reliance on another case decided on 16.4.1969 in writ petition no. 1459 of 1968, mangal singh v. board of revenue, on the point that sections 12 and 49 of the u. p. consolidation of holdings act. he has further placed reliance on a decision in raghu nath v. ram khelawan, 1969 rd 344, to the effect that if the court has no jurisdiction to entertain the matter then decision given by him is not same as decision by the court competent to decide the question of law and further that the proceedings taken finally in the court without jurisdiction can be challenged under article 226 of the constitution of india. sri paul further placed reliance on a decision in kushar v. ahmad khan, 1962 rd 172, that if the entries have been made in the revenue record as a result of consolidation proceedings, then the jurisdiction of civil as well as revenue courts to question their correctness is barred. he has submitted that after the consolidation judgment, the proceedings under section 34 of the land revenue act should not have been entertained. the word entertain, according to him, has been interpreted by the supreme court in lala ram v. hart ram, air 1970 sc 1093, wherein it has been held that entertain means file or received bythe court. his submission is that the proceedings should not have been entertained. he further placed reliance on malkhan singh v. sohan singh and others, air 1986 sc 500, on the point of bar of section 49 of the u. p. consolidation of holdings act. he has also placed reliance on a decision in dalel v. baroo, 1963 rd 67, on section 49 of u. p. consolidation of holdings act. his submission is that it is true that the high court has no jurisdiction under article 226 of the constitution of india but while deciding the appeal, the government has not given opportunity to make the representation to the parties, then it will amount non-compliance of the rules of natural justice and the high court may ask for rehearing by the government. for that purpose he has placed reliance on p. kasilingam v. p.s.g. college of technology, 1981 (i) scc 405 and state of haryana and others v. ram atri and others, jt 1998 (4) sc 362, which deal with the practice and procedure under article 136 of the constitution of india.10. sri n. b. tewari, learned counsel for the respondent in reply to the arguments of sri b. b. paul, learned counsel for the petitioner submitted that the writ petition is not maintainable. this court will not see what was decision of the consolidation authorities and what was the decision of the revenue court under section 34 of the land revenue act. his submission is that this point can be seen only when the writ petition is entertained and decided on merits. on the bar of section 49 of the u. p. consolidation of holdings act, he has submitted that if after lapse of five years of the order passed by the consolidation authorities, a cause of action arose to any party, he can choose forum through which he is to get relief. if the relief is not under section 34 of the act, then section 49 will not come into play and such proceedings even under the u. p. consolidation of holdings act are subject to the final decision by the regular suit. for that purpose he has placed reliance on bala din v. smt. baura, 1970 rd 465. he has further submitted that the proceedings undersection 34 does not confer any right or title to the parties, therefore, the writ is not maintainable. for that purpose he has cited decisions in majid and others v. munafait and others, 1980 rd 148 and dabbali alias soney lal v. ram sewak etc., 1969 rd 312. regarding bar under section 49 of the act, he has placed reliance on the decisions in om prakash and others v. jai prakash, 1993 rd 414 and rajeshwar and another v. board of revenue, 1991 rd 364. his submission is that the court may not see the merits of the case when the writ petition is not maintainable.11. after hearing the learned counsel for the parties at length and seeing various decisions, i am of the view that in a number of decisions, this court has held that the proceedings under section 34 of the act is fiscal in nature and does not decide the title or right of the parties, therefore, no writ lies. i also affirm the view taken in the decision in 1999 rd 633, therefore, i am of the view that the present writ petition is not maintainable, as such, it is dismissed.

Judgment:
ORDER

Shitla Pd. Srivastava, J.

1. This writ petition has been filed by the petitioner for quashing the order dated 23.8.2000, passed by respondent No. 1, which has been filed as Annexure-12 to the present writ petition, and further prayer has been made to issue a direction that alleged claim of respondent Nos. 5 and 6 in respect of property in question based on mortgage deed dated 2.2.1974 is not maintainable being barred by Section 49 of the U. P. Consolidation of Holdings Act. The other prayer has been made for issueof ad interim mandamus staying the operation of the impugned order of the respondent No. 1 dated 23.8.2000 including dispossession of the petitioner from the property in question.

2. Sri N. B. Tewari, learned counsel for the respondent has raised a preliminary objection that the present writ petition is not maintainable as it has arisen out of the proceedings under Section 34 of the Land Revenue Act. His submission is that this Court has taken a view in a case in Smt. Rani Devi v. Board of Revenue, 1999 RD 633, that the writ petition against order passed in the proceedings arising out of mutation case is not maintainable. He has further submitted that mutation proceedings is summary in nature and it does not decide the right of the parties, therefore, that judgment and order passed in the mutation will not bound the parties nor the regular court is bound by the said order and can take its own decision, therefore, the writ petition under Article 226 of the Constitution of India is not maintainable. For that purpose he has placed reliance on a number of decisions.

3. The first decision cited by him for this purpose is in Lekhraj and another v. Board of Revenue, 1981 RD 18, delivered in W.P. No. 4785 of 1979 dated 4.8.1980, where this Court has upheld the preliminary objection raised on behalf of the opp. party and dismissed the writ petition on the ground of the existence of an equally efficacious alternative remedy by way of filing a regular suit to establish title. The second decision relied upon by Sri Tewari is a decision in State of U. P. through the Collector, Agra v. Board of Revenue at Lucknow and others, 1993 RD 206, delivered in Writ Petition No. 30386 of 1991, where this Court has held that under Section 34 of the Act the right of parties are not decided rather mutation proceedings are fiscal in nature and remedy before competent court is by filing a regular suit or initiating some other proceedings. Third decision relied upon by Sri Tewari is in Narain Singhand another v. Additional Commissioner, Meerut and another, 1999 RD 416, given in the Writ Petition No. 10128 of 1999, wherein this Court has held that Section 34, proceedings is summary in nature and right and title of the parties are not decided and orders passed are not binding upon the Courts in regular suits or proceedings, therefore, the writ petition is not maintainable. Fourth decision relied upon by Sri Tewari is in Jaipal v. Board of Revenue, AIR 1957 All 205, where the Division Bench of this Court has held that Section 63 of the Land Revenue Act expressly reserve the right of the party to establish his right and title in a regular suit, therefore, the writ petition against the proceedings under Section 34 of the Land Revenue Act is not maintainable. Sri Tewari has also placed reliance on a case in 1993 RD 206, wherein this Court has held that reference proceedings in mutation cases are only to facilitate payment of Revenue rights of the parties are not decided. It is fiscal in nature and the writ petition is not maintainable.

4. Sri N. B. Tewari has placed reliance on a Division Bench decision of this Court delivered in W.P. No. 1746 of 1984, Ram Bharose Lal v. State of U. P. and others, dated 23.5.1990, where the Division Bench of this Court held that the proceedings under Section 34 of the Land Revenue Act do not decide the title of the parties and the proceedings are just fiscal in nature and High Court need not interfere under Article 226 of the Constitution of India.

5. Sri P. K. Besaria, learned standing counsel has also supported Sri Tewari and has submitted that order under Sections 34, 39 and 40 of the Land Revenue Act are passed merely on the basis of possession and as such it does not affect the rights of any party, therefore, the writ petition is not maintainable. He has placed reliance on a case in Chandra Pal Singh v. Board of Revenue, 1996 RD 87, delivered in Civil Misc. Writ Petition No. 6842 of 1996.

6. Sri B. B. Paul learned counsel appearing for the petitioner in reply has submitted that if there had been litigation between the parties in civil court and consolidation court and final orders have been passed in those proceedings, then the revenue court has no jurisdiction to overlook those orders in the proceedings under Section 34 or in any other summary proceedings and they must decide the proceedings on the basis of earlier judgments of the competent court and if they do not do so, the order passed by the mutation court are without jurisdiction and the writ petition is maintainable. His submission is that even if in ordinary circumstances, the writ petition is not maintainable but in the special circumstances, the writ petition under Article 226 of the Constitution of India is maintainable against the orders passed in the proceedings under Section 34 of the Land Revenue Act. For that purpose, he has placed reliance on a judgment delivered by this Court on 5.4.1983 in C.M.W.P. No. 1983 of 1993, Vijay Prakash v. Board of Revenue. The relevant portion of the said judgment is quoted below :

'Having heard learned counsel for the petitioner and gone through the impugned order, it appears that it is a fit case in which notices be issued and the matter be heard finally, 1956 ALJ 807 (supra) does not say that in no circumstances, a writ petition in the matter of correction of mutation of the names is maintainable.

The observations are only to the limited extent and in appropriate case, where proper remedy is available, a regular suit can be filed and in such circumstances, this Court should refrain itself from exercising its extraordinary jurisdiction under Article 226 of the Constitution. But, when there is a class of cases, where expunging the name of a person without a notice to him may cause irreparable injury this Court may always exercise the power under Article 226 of the Constitution.'

7. Sri Paul further submitted that the order without jurisdiction can be challenged under writ jurisdiction. He has further submitted that under the U. P. Consolidation of Holdings Act when the right has been decided earlier, then no one can start fresh proceedings in respect of the same property and fresh proceedings are barred under Section 49 of the U. P. Consolidation of Holdings Act. In this connection he has placed reliance on a decision in Rakesh Kumar Minor v. Board of Revenue, 1972 ALJ 769.

8. He has also placed reliance on a decision in Ram Sanehi Lal v. Board of Revenue, 1974 RD 241. In this case reliance was placed on Rakesh Kumar case (supra) and Rudra Pratap and another v. Board of Revenue. AIR 1975 All 125 and submitted that the High Court should interfere where they restricted to question of possession and also decide the question of title. He has further placed reliance on Calcutta Gas Company (Proprietary) Ltd. v. State of West Bengal and others, AIR 1962 SC 1044. His submissions are that as the petitioner is aggrieved by the order passed in Section 34 proceedings and his legal right has been prejudiced, he can file writ petition under Article 226 of the Constitution of India.

9. He has further placed reliance on a decision in Whirlpool Corporation v. Registrar of Trade Marks, Mumbai and others, JT 1998 (7) SC 243, wherein it has been held that power to issue prerogative writs under Article 226 of Constitution is plenary in nature and is not limited by any other provision of the Constitution. This power can be exercised by High Court not only for issuing writs in the nature of quo waranto and certiorari for the enforcement of any of the Fundamental Rights contained in Part-III of the Constitution but also for 'any other purpose'. Sri Paul has also submitted that in view of the provisions laid down in the Revenue Court Manual in the proceedings under Section 34, only question of possession should be decided in summary manner and title should not be decided, therefore, if the title hasbeen decided, the writ petition is maintainable. In this connection, he has also cited a case Smt. Dulari Devi v. Janardan Singh and others, 1990 RD 193, which deals with the provisions of Section 49 of the U. P. Consolidation of Holdings Act. He has also placed reliance on an unreported case delivered in C.M.W.P. No. 3 of 1970, decided on 23.7.1971, Yadram v. Board of Revenue, where it was held that for the purpose if an objection is filed even under Section 12 of U. P. Consolidation of Holdings Act regarding title, it has to be determined. His submissions are that the title had already been determined in an earlier consolidation proceedings, therefore, any proceeding under Section 34 of the Land Revenue Act, no adverse finding should have been given contrary to the findings given in consolidation proceedings. He has also placed reliance on another case decided on 16.4.1969 in Writ Petition No. 1459 of 1968, Mangal Singh v. Board of Revenue, on the point that Sections 12 and 49 of the U. P. Consolidation of Holdings Act. He has further placed reliance on a decision in Raghu Nath v. Ram Khelawan, 1969 RD 344, to the effect that if the Court has no jurisdiction to entertain the matter then decision given by him is not same as decision by the Court competent to decide the question of law and further that the proceedings taken finally in the Court without jurisdiction can be challenged under Article 226 of the Constitution of India. Sri Paul further placed reliance on a decision in Kushar v. Ahmad Khan, 1962 RD 172, that if the entries have been made in the revenue record as a result of consolidation proceedings, then the jurisdiction of civil as well as revenue courts to question their correctness is barred. He has submitted that after the consolidation judgment, the proceedings under Section 34 of the Land Revenue Act should not have been entertained. The word entertain, according to him, has been interpreted by the Supreme Court in Lala Ram v. Hart Ram, AIR 1970 SC 1093, wherein it has been held that entertain means file or received bythe Court. His submission is that the proceedings should not have been entertained. He further placed reliance on Malkhan Singh v. Sohan Singh and others, AIR 1986 SC 500, on the point of bar of Section 49 of the U. P. Consolidation of Holdings Act. He has also placed reliance on a decision in Dalel v. Baroo, 1963 RD 67, on Section 49 of U. P. Consolidation of Holdings Act. His submission is that it is true that the High Court has no jurisdiction under Article 226 of the Constitution of India but while deciding the appeal, the Government has not given opportunity to make the representation to the parties, then it will amount non-compliance of the Rules of natural justice and the High Court may ask for rehearing by the Government. For that purpose he has placed reliance on P. Kasilingam v. P.S.G. College of Technology, 1981 (I) SCC 405 and State of Haryana and others v. Ram Atri and others, JT 1998 (4) SC 362, which deal with the practice and procedure under Article 136 of the Constitution of India.

10. Sri N. B. Tewari, learned counsel for the respondent in reply to the arguments of Sri B. B. Paul, learned counsel for the petitioner submitted that the writ petition is not maintainable. This Court will not see what was decision of the consolidation authorities and what was the decision of the revenue court under Section 34 of the Land Revenue Act. His submission is that this point can be seen only when the writ petition is entertained and decided on merits. On the bar of Section 49 of the U. P. Consolidation of Holdings Act, he has submitted that if after lapse of five years of the order passed by the consolidation authorities, a cause of action arose to any party, he can choose forum through which he is to get relief. If the relief is not under Section 34 of the Act, then Section 49 will not come into play and such proceedings even under the U. P. Consolidation of Holdings Act are subject to the final decision by the regular suit. For that purpose he has placed reliance on Bala Din v. Smt. Baura, 1970 RD 465. He has further submitted that the proceedings underSection 34 does not confer any right or title to the parties, therefore, the writ is not maintainable. For that purpose he has cited decisions in Majid and others v. Munafait and others, 1980 RD 148 and Dabbali alias Soney Lal v. Ram Sewak etc., 1969 RD 312. Regarding bar under Section 49 of the Act, he has placed reliance on the decisions in Om Prakash and others v. Jai Prakash, 1993 RD 414 and Rajeshwar and another v. Board of Revenue, 1991 RD 364. His submission is that the Court may not see the merits of the case when the writ petition is not maintainable.

11. After hearing the learned counsel for the parties at length and seeing various decisions, I am of the view that in a number of decisions, this Court has held that the proceedings under Section 34 of the Act is fiscal in nature and does not decide the title or right of the parties, therefore, no writ lies. I also affirm the view taken in the decision in 1999 RD 633, therefore, I am of the view that the present writ petition is not maintainable, as such, it is dismissed.