Court No. - 32
Case :- WRIT - C No. - 23254 of 2021 Petitioner :- Gulabi Devi And Another Respondent :- State Of U.P. And 3 Others Counsel for Petitioner :- Shashi Bhushan Rai Counsel for Respondent :- C.S.C.,Ashok Kumar Singh
Hon'ble Rohit Ranjan Agarwal,J.
1. Heard Sri Shashi Bhushan Rai, learned counsel for the petitioners and learned Standing Counsel for the respondents-State.
2. This writ petition has been filed assailing the order dated 19.08.2021 passed by Naib Tehsildar, respondent No.3 in proceedings under Section 35 of U.P. Revenue Code, 2006 (hereinafter called as "the Code").
3. Learned counsel for the petitioners contended that the order passed by Naib Tehsildar is without jurisdiction and proceedings under Section 35 of the Code had already stood concluded in the year 1989. He also contended that finding was recorded in Civil Suit no.1 of 1997 (Ghoore Ram vs. Ram Sumer and others) filed under Section 92 C.P.C. wherein it has been held that the land in question is not property of 'Muth'. He further contended that another suit was preferred by one Kabir Panthi Firka, which was registered as Civil Suit No.317 of 1980, which was decreed against which an appeal was preferred and was decided on 24.2.2004 in which it was held that the land does not belong to 'Muth'.
4. Learned Standing Counsel while opposing the writ petition submitted that writ petition against summary proceedings is not maintainable and further the petitioner has an alternative remedy of filing statutory appeal under Section 35(2) of the Code.
5. I have heard learned counsel for the parties and perused the material on record.
6. It is not in dispute that the writ petition arises out of order of Naib Tehsildar passed under Section 35 of the Code, against which a statutory remedy is available to the petitioner under Section 35(2) of the Code. In addition to, the Apex Court in Civil Appeal No.5121 of 2021 (The Assistant Commissioner of State Tax and others vs. M/s Commercial Steel Limited vide judgment dated 03.09.2021 has held that where there is an alternative remedy, the Court should not interfere under Article 226 of the Constitution of India. Relevant paras 11 and 12 of the judgment are extracted hereasunder :
“11. The respondent had a statutory remedy under section 107. Instead of availing of the remedy, the respondent instituted a petition under Article 226. The existence of an alternate remedy is not an absolute bar to the maintainability of a writ petition under Article 226 of the Constitution. But a writ petition can be entertained in exceptional circumstances where there is :
(I) a breach of fundamental rights;
(ii) a violation of the principles of natural justice;
(iii) an excess of jurisdiction; or
(iv) a challenge to the vires of the statute or delegated legislation.
12. In the present case, none of the above exceptions was established. There was, in fact, no violation of the principles of natural justice since a notice was served on the person in charge of the conveyance. In this backdrop, it was not appropriate for the High Court to entertain a writ petition. The assessment of facts would have to be carried out by the appellate authority. As a matter of fact, the High Court has while doing this exercise proceeded on the basis of surmises. However, since we are inclined to regulate the respondent to the pursuit of the alternate statutory remedy under Section 107, this Court makes no observation on the merits of the case of the respondent.”
7. Moreover, in a recent judgment in the case of Jitendra Singh vs. The State of Madhya Pradesh & Ors., Special Leave Petition (C) No.13146 of 2021 decided on 6th September, 2021, Apex court has held that mutation proceedings are summary in nature and no writ petition is maintainable against an order passed in summary proceedings.
8. As the petitioner has alternative remedy of appeal under Section 35(2) of the Code, 2006, the writ petition is not maintainable and is hereby dismissed.
9. However, if the petitioner approaches the appellate authority within 30 days from today by filing an appeal, the appellate authority shall not go into the question of limitation and shall decide the same strictly in accordance with law.
Order Date :- 20.9.2021 Kushal