Court No. - 6
Reserved on 30 July 2019 Delivered on 22 August 2019
Case :- WRIT - C No. - 43061 of 2007 Petitioner :- Islam Khan Shekh Respondent :- Addl. Commissioner Admin.-2nd Jhansi Division And Others Counsel for Petitioner :- Satyendra Kumar Singh,Suresh Chandra Varma Counsel for Respondent :- C.S.C.,Ranvir Singh
Hon'ble Yashwant Varma, J.
Heard Sri S.C. Verma, learned counsel for the petitioner, Sri Gulab Chandra for the private respondents and the learned Standing Counsel for the State.
This writ petition is directed against the orders dated 27 December 2000, 7 November 2001 and 4 June 2007. The orders have been passed in proceedings of mutation initiated by the respondents under the provisions of the U.P. Land Revenue Act, 1901 [which for the sake of brevity shall be referred to as the “1901 Act” hereinafter]. The principal order of 27 December 2000 has been affirmed in appeal and revision.
The petitioner purchased Plot No. 86 from the respondent No. 5 by way of a sale deed executed on 2 May 1986. Admittedly proceedings under the U.P. Consolidation of Holdings Act, 1953 [hereinafter referred to as the “1953 Act”] were pending in the area in question at the time when the sale deed was executed. Pursuant to the sale so made, the name of the petitioner is stated to have been entered in the relevant records. On 27 June 1986 against the aforesaid recordal of name, one Atma Ram filed objections before the Consolidation Officer for recall. The aforesaid application which was thereafter pursued by Jaideep Narayan, son of Atma Ram, came to be dismissed on 3 August 1992. During the pendency of that application, Jaideep Narayan is stated to have sold a part of the holding in dispute to the respondent No. 4 by way of sale deed on 2 April 1992. It is significant to note that the order of 3 August 1992 was never assailed by Jaideep Narayan and consequently attained finality. The fourth respondent is thereafter stated to have made an application under Section 34 of the 1901 Act seeking mutation of his name in light of the sale deed of 2 April 1992 executed in his favour by Jaideep Narayan. On that application, the Tehsildar has proceeded to expunge the name of the petitioner and passed consequential orders for recordal of the name of the fourth respondent. It is this principal order of 27 December 2000 which has been affirmed by the Appellate Authority in terms of its judgment of 7 November 2001 as well as the Revisional Authority by its judgment of 4 June 2007.
The principal ground taken by the Tehsildar was that the sale deed executed in favour of the petitioner during the pendency of consolidation proceedings was hit by Section 5(1)(c)(ii) of the 1953 Act as it then existed. That provision restrained transfers being made once consolidation operations had commenced except with the permission in writing of the Settlement Officer, Consolidation. The respondents have held the sale deed executed in favour of the petitioners to be void being in violation of the provision aforementioned. The principal legal issue which has been addressed before the Court was whether the Tehsildar was empowered to record and return such a declaration bearing in mind the nature of enquiry contemplated and the powers conferred on him under the provisions of the 1901 Act. Section 33 of the 1901 Act enjoins the Collector to maintain the record of rights annually or at such intervals as the State Government may prescribe. Sub-section (2) which would be relevant for our purpose reads thus:
“The Collector shall cause to be recorded in the annual registers:
(a) all successions and transfers in accordance with the provisions of section 35; or
(b) other charges that may take place in respect of any land;
and shall also correct all error and omissions in accordance with the provisions of section 39:
Provided that the power to record a change under Clause (b) shall not be construed to include the power to decide a dispute involving any question of title.”
Section 40 of the 1901 Act is extracted herein below:
“40. Settlement of disputes as to entries in annual register.- (1) All disputes regarding entries in the annual registers shall be decided on the basis of possession.
(2) If in the course of inquiry into a dispute under this section the Collector or the Tahsildar is unable to satisfy himself as to which party is in possession, he shall ascertain by summary inquiry who is the person best entitled to the property, and shall put such person in possession.”
Proceedings of mutation are essentially concerned with identifying the individual who is found to be in possession. The enquiry contemplated under the 1901 Act is summary in nature and as is well settled, not concerned with determination of title at all. While the above position has been consistently maintained by numerous precedents rendered on the subject by this Court, it would be apposite to extract the following observations as entered by a learned Judge in Lal Bachan Versus Board of Revenue, U.P. And others1 “8 The above provision indicate that entry in the annual register has to be made on the basis of possession obtained by a person on land. Sub-section (2) of Section 40 although provides that in case Collector or Tahsildar is unable to satisfy himself as to which party is in possession, he shall ascertain by summary inquiry who is the person best entitled to the property, and shall put such person in possession. Thus even entitlement of a person has to be ascertained only by a summary inquiry. Section 35 which deals with the procedure also uses the words “if the succession or transfer appears to have taken place”. The use of word “appears” denote that a prima facie view has to be taken and the issue is not to be conclusively decided. Proviso to Section 33 sub-section (2) clarifies the nature of power in following words:
“provided that the power to record a change under clause (b) shall not be construed to include the power to decide a dispute involving any question of title.”
9. This proviso makes it clear that in proceedings under Section 33 which enjoins the Collector to record the succession and 1 2001 SCC onLine All 646 transfers has not to decide the dispute involving any question of title. Section 33 requires the Collector to cause change in accordance with the provisions of Section 35. Section 35 provides for procedure of receiving report of succession or transfer under Section 34 or upon facts otherwise coming to his knowledge. Thus the power under Section 33 and the power to be exercised under Section 35 on the basis of report under Section 34 is the same which does not include any power to decide any dispute involving any question of title. Sub-section
(3) of Section 40 of the Act as before its amendment by U.P. Land Laws Amendment Act X of 1961 was as under:
10. Section 40(3):
“No order as to possession passed under this section shall debar any person from establishing any right to the property in any civil or revenue court having jurisdiction.”
11. After deleting sub-section (3) of Section 40 another provision namely Section 40A was added by U.P. Land Laws Amendment Act X of 1961 which is as follows:
“Section 40-A, Savings as to title suits.- No order passed under Section 33, Section 35, Section 39, Section 40, Section 41, or Section 54 shall bar any suit in a competent court for relief on the basis of a right in a holding.”
12. The above provision of the U.P. Land Revenue Act clearly establishes that proceedings under Section 34 are only summary proceedings on the basis of possession which do not decide any question of title and the orders passed in mutation proceedings do not come in way of a person in getting his rights adjudicated in regular suit. The orders passed in mutation proceedings are subject to adjudication of title by competent court.”
It is in the above context that the Court is called upon to consider the validity of the orders impugned. Sri Verma learned counsel for the petitioner has rightly contended that the Tehsildar clearly committed a gross illegality and clearly transgressed the jurisdiction conferred on him while holding that the sale deed would violate the injunctions engrafted in Section 5 (1) (c)(ii) of the 1953 Act. Those findings would clearly be liable to be viewed as an adjudication of questions wholly unrelated to the issue of possession and clearly amounting to an adjudication of the title of parties.
While Sri Gulab Chand, learned counsel for the respondents has sought to defend the impugned orders by referring to the provisions made in Section 45-A of the 1953 Act, the Court finds itself unable to sustain the contention for reasons which follow.
Sub-section (2) of Section 45-A declares that a transfer made in contravention of the provisions of Section 5(1)(c)(ii) shall not be valid or recognised anything contained in any other law to the contrary notwithstanding. Section 5 (1)(c)(ii) was omitted by U.P. Act No. 30 of 1991 with effect from 19 February 1991. However, sub-section (2) of Section 45-A continues to exist in the statute. However, in the considered view of this Court, this cannot be viewed as a ground sufficient to uphold the impugned orders since proceedings under the 1901 Act did not contemplate nor did they clothe the respondents with the jurisdiction or authority to decide this issue. It is on this short ground alone that the impugned orders merit being set aside.
Accordingly and for the reasons aforenoted, the writ petition is allowed. The impugned orders dated 27 December 2000, 7 November 2001 and 4 June 2007 are hereby quashed and set aside. This order however, shall not preclude respective parties from establishing their right or title in respect of the property in question in appropriate proceedings.
Order Date: - 22.8.2019 LA/-