(Oral)
1. Heard Sri G.C. Sinha, who appears for the petitioner and Ms. Vishwa Mohini for respondent no.1.
2. The petitioner is aggrieved by the order dated 8.9.2014 passed by the District Magistrate, Pratapgarh, rejecting the appeal of the petitioner and also by the order dated 16.8.2012 passed by the President, Nagar Palika Parishad, Bela, Pratapgarh.
3. It has been submitted by the learned counsel for the petitioner that House nos.9 and 10, Mohalla Hadiganj at Kafaitulla Road in the town of Pratapgarh was the property of one Prakash Chandra Srivastava and his brothers and sisters, who had inherited the same from his forefathers. The erstwhile owner sold out House nos.9 and 10 in 1981 to S/Sri Om Prakash, Harish Chandra and Jagdish Prasad Matanhelia to the share of 1/3rd each. All three owners got their names mutated in the Nagar Palika Parishad, Bela, Pratapgarh records thereafter. The erstwhile owner sold the property to the Grandmother of the petitionerSmt. Kamla Devi and her name was also mutated in the municipal records by an order of the Municipal Board dated 5.9.1981. The Grandmother of the petitioner under a family settlement passed over the ownership of the house in question, which was an old and dilapidated property to the petitioner's father and to the petitioner himself after getting constructed thereon a commercial complex. The new number of the property is House no.367 situated at Kafaitulla Road, District Pratapgarh. The name of the father of the petitioner and thereafter that of the petitioner continued to be recorded in the municipal records thereafter upto 2013 as demand for house tax was made by the Nagar Palika Parishad, Bela, Pratapgarh on 1.2.2013 and the petitioner also deposited the house tax thereafter. A copy of the Receipt no.3063 with regard to house tax for House no.367 has been filed as Annexure-9 to the writ petition.
4. It has been submitted by the learned counsel for the petitioner that the respondent no.1 had somehow got a Sale Deed executed in his favour on 12.10.2011 regarding House no.367, showing that a part of Plot no.866 has been sold out by the erstwhile Raja Abhay Pratap Singh in favour of respondent no.1. The boundaries mentioned in the Sale Deed with regard to part of Plot no.866 are the same as that of the house of the petitioner already recorded in the municipal records in his name. Moreover, the Sale Deed shows that the market value of the plot in question is more than one crore, three lacs and odd and it measured about 229 square meter with built up area of the house standing thereon being 172.5 square meter. The details of the constructions standing at Plot No.866 have been also given in the registered Sale Deed, which shows that it was a huge property. The Sale Deed in fact was executed for a consideration of Rs.2,11,000/- only. The respondent no.1 filed a mutation application thereafter on which, notices were issued and the petitioner filed his objections.
5. Without adjudicating the controversy involved in the matter, on the basis of legal opinion given by the Standing Counsel of Nagar Palika Parishad on 27.4.2012, a noting was put up by the concerned Clerk on the basis of which, the order impugned has been passed on 28.4.2012. The respondent no.2 only refers to the report submitted and the proposal made thereafter and says in the impugned order that he agrees with the same. There is no adjudication at all with regard to the objections already filed and on the record of the respondent no.2.
6. It has been further submitted by the learned counsel for the petitioner that the petitioner in fact had filed 26 documents before the Municipal authorities with his objection dated 2.3.2013. None of them were considered. Against the non speaking order passed by respondent no.2, the petitioner preferred an appeal but the said appeal has been dismissed by the respondent no.3 by observing that it is much beyond the limitation prescribed under the Act and there is no application for condonation of delay supported by an affidavit filed along with the appeal.
7. It has been submitted by the learned counsel for the petitioner that even if a mutation order does not confer any title and for establishment of title, regular Civil Suit before the competent Court of law is maintainable, nonetheless the order impugned being non speaking, should be set aside as it unnecessarily creates problems for the petitioner as being frivolous and fictitious, it puts the title of the petitioner under a cloud and leads to undue harassment of the petitioner in getting the said order set aside and establishing a clear title by moving the Civil Court thereafter.
8. Ms. Vishwa Mohini appearing for respondent no.1 has referred to the objections filed by the petitioner before respondent no.2, a copy of which, has been filed by the petitioner himself as Annexure-8 to the writ petition as also the documents filed along with his objections, a list of which, has been filed a Annexure-8A to the writ petition. It has been submitted that after the petitioner was heard, the impugned order has been passed. Moreover, the petitioner had already filed a Regular Suit No.319 of 2014 for cancellation of Sale Deed dated 12.10.2011, which is pending before the Civil Judge, Senior Division, Pratapgarh and this Court should not interfere in writ jurisdiction as it is settled law that in matters relating to mutation, either of agricultural land or of residential plots or houses, writ petitions are not maintainable.
9. Learned counsel for respondent no.1 has placed reliance upon the case of Puran Singh vs. Board of Revenue and others, 2004 All. CJ. 65 and the case of Sneh Gupta vs. Devi Sarup and others (2009) 6 SCC 194 has also been relied upon by the respondent to argue that unless the appeal is accompanied by an application for condonation of delay duly supported by an affidavit, it cannot be entertained. Reference has been made to Para-70 of the said judgment wherein it has been observed that in the absence of any application for condonation of delay, the Court had no jurisdiction in terms of Section 3 of the Limitation Act to entertain an application for setting aside the decree.
10. Sri G.C. Sinha, in rejoinder, has submitted that it is not always that writ petitions are dismissed when filed against mutation orders. He has referred to a judgment rendered by this Court in Brijpal Das vs. Banaras Municipal Board and others, AIR 1958 All. 211. It has been submitted that even assessment orders are amenable to writ jurisdiction where such assessment orders are whimsical and arbitrary.
11. This Court has perused the judgment cited by the learned counsel for the petitioner i.e. Brijpal Das (supra). It finds from the same that it refers to an assessment order being an order passed in quasi judicial capacity and not in an administrative capacity and this Court observed that an assessment order being an order passed in quasi judicial capacity should be reasoned and speaking and not whimsical. The High Court in exercise of writ jurisdiction can set aside such a whimsical order.
12. This Court has considered the law that has been well settled in Awdhesh Singh vs. Additional Commissioner and others, 2017 (9) ADJ 378, wherein it has been observed that there are two exceptions carved out for interfering in the order passed in mutation proceedings, in writ jurisdiction.
13. The two exceptions as mentioned by this Court are where the mutation orders confer a title against the statutory provisions or against a judgment already rendered by a competent Court and also where the orders are clearly without jurisdiction. The two exceptions carved out by this Court on the basis of several judgments and binding precedents, are not met in the case at hand.
14. The petitioner has already filed a Regular Suit No.319 of 2014 challenging the Sale Deed out of which, the alleged right of the respondent no.1 has arisen for filing mutation proceedings.
15. This Court, therefore, does not wish to interfere in the orders impugned.
16. It is, however, clarified that the orders impugned shall not create any right in favour of respondent no.1, except for the purpose of depositing tax.
17. The title to the property in question shall be determined by the competent Civil Court.
18. The writ petition stands disposed of.
Order Date :- 26.8.2019 Sachin