1. Heard Sri K.S.Rastogi for the petitioner, learned Standing Counsel for respondent No.1, Sri Ram Prakash Shukla (respondent No.2), who is appearing in person and Ms. Savita Jain appearing for rest of the private respondents. As requested and agreed by learned counsel for the parties, this writ petition is being heard and decided under the Rules of the Court at this stage.
2. Basically, the orders impugned in the writ petition arising out of the mutation proceedings, this Court would have declined to exercise its extra ordinary equitable jurisdiction under Article 226 of the Constitution of India but considering submission that the impugned revisional order is wholly without jurisdiction, which is a well established exception in such matter, as referred above, I am inclined to proceed further decide the matter accordingly.
3. The short question up for consideration is whether after amendment made in 1997, second revision would lie or not.
4. The petitioner initiated mutation proceedings before Tehsildar Mohammadi, District Khiri relying on a registered Will-deed dated 13.12.1990 alleged to be executed by Shiv Narain Lal with regard to the land situated in village Bhoora Pipri, Pargana and Tehsil Mohammadi. Respondents No.2 to 6 preferred their objection challenging the Will. The execution as well as registration of Will deed, both was challenged. The application was ultimately allowed on 21.11.1995 and Addl. Tehsildar, Mohammadi (Kheri) directed to record the name of petitioner and his brother Ram Lal in place of Shiv Narayan Lal. Respondents No.2 to 6 filed an appeal before the Sub-Divisional Magistrate Mohammadi (Kheri). The appeal was dismissed on 03.09.1996 whereagainst a revision was filed, which was rejected by the Addl. Commissioner on 6th May, 2000. The second revision preferred before the Board of Revenue has been allowed by the impugned order dated 29th August, 2001.
5. Learned counsel for the petitioner submits that in view of U.P. Land Laws (Amendment) Act, 1997 (U.P. Act 20 of 1997) (hereinafter referred to as "Amendment Act of 1997"), which came into force on 18th August, 1997, Section 218 was omitted and 219 was substituted in the Act conferring power upon Board of Revenue or the Commissioner or the Addl. Commissioner or the Collector etc. to decide revisions. Hence second revision was not maintainable, after the amendment, before the Board of Revenue and in this regard placed reliance on a single judge decision in Shri Ram Vs. Board of Revenue, U.P. and others 1999 (90) RD 467.
6. On the contrary, Ms Savita Jain firstly contended that a notification under Section 4 of U.P. Consolidation of Holdings Act, 1953 (hereinafter referred to as '1953 Act') has been published on 9th August, 2008 which included the land in question and therefore, in view of Section 5(2) of 1953 Act, the writ petition shall stand abated due to consolidation operation going on in Village Bhoora Pipari, Post Office Sisora Nikoompur, District Lakhimpur. She as well as Sri Ram Prakash Shukla (respondent No.2) (in person), contended that the order of mutation was obtained by the petitioner relying on a forged and fictitious Will and therefore, the impugned order passed by the Board of Revenue resulted in substantial justice, hence it is a fit case whereunder Article 226 of the Constitution of India this Court may not exercise its equitable jurisdiction and even if the second revision was not maintainable, the order impugned may not be interferred.
7. It is further contended that it is not a case of second revision. Prior to Amendment Act of 1997, the respondents No. 2 to 6 had preferred an appeal before the Addl. Commissioner under Section 218 but after the amendment of the statute, the same was treated to be revision and has been decided accordingly. Therefore, what they say is that it is not a case of second revision, and Board of Revenue has rightly relied on the decision of this Court in Kali Shankar Dwivedi Vs. Board of Revenue & Anr. 2000 (18) LCD 1401.
8. Coming to the first question about the abatement of the proceedings of writ petition, taking recourse to Section 5(2)(a) of 1953 Act, I find that this issue has been decided by a Full Bench of this Court in Udai Bhan Singh Vs. Board of Revenue, U.P. at Allahabad & Ors. 1974 ALJ (72) 295 and the Court answered this issue in para 16 of the judgment as under:
"By the Court.- The answer to the question referred is that Sec.5(2)(a) of the U.P. Consolidation of Holdings Act has no impact on writ petitions or special appeals arising out of them in which judgments or orders passed in suits or proceedings relating to declaration of rights in land covered by Notification under Sec. 4 of the said Act are in challenge."
9. Therefore, the submission advanced by Ms Savita Jain referring to Section 4 notification is negatived.
10. Now coming to the question whether revision made before the Board of Revenue is maintainable in view of the amendment made in 1997, in my view, the revision filed before the Board of Revenue despite the aforesaid amendment would not be maintainable.
11. I quote hereat Section 10 of U.P. 20 of 1997 which is a transitory provision and has protected the pending revision and reads as under:
"Notwithstanding anything contained in this Act all cases referred to the Board under Section 218 of the U.P. Land Revenue Act, 1901, or under Section 333-A of Uttar Pradesh Zamindari Abolition and Land Reforms Act, 1950 as they stood immediately before the commencement of the Act and pending before the Board on the date of such commencement shall continue to be heard and decided by the Board as if this Act has not been enacted."
12. Thus what was been protected under Section 10 is the reference made under Section 218 of U.P.Land Revenue Act, 1901, which was pending before the Board on 18th August, 1997 i.e. the date of commencement of the said amendment. Such pending reference shall continue to be heard and decided by the Board as the Act has not been enacted. It is not the case of the parties before this Court, in the case in hand, that any such reference was pending before the Board and that has been answered after 18th August, 1997. The revision decided by the Addl. Commissioner obviously was pending before him since no reference was made to the Board. Atleast this is evident from the record. Hence the question of attracting Section 10 of U.P. Act 20 of 1997 would not arise. The said revision having been decided in 2001, no further revision was liable to be entertained under Section 219 by the Board as there was no other provision except 219 wherein a revision could have been decided by the Commissioner or the Board, as the case may be, but not one after the other as if the subsequent authority is deciding the second revision. In Shri Ram (supra) it appears that a reference was made under Section 218 to the Board before 18th August, 1997 and after the amendment of the Act, Board of Revenue remanded the matter to Addl. Commissioner for deciding the matter as a revision. This Court took the view that such reference could not have been remanded since it was not protected under Section 10 of the Amendment Act and ought to have been decided by the Board itself.
13. In Kali Shanker Dwivedi (supra) the detailed facts have not been given as to when the matter was filed and decided by the Commissioner and when the revision was filed before the Board of Revenue. The two authorities, in my view, as such may not help the parties before me in answering the issues specifically raised in this case. In my view, the Board of Revenue has also erred in law relying on the decision in Kali Shanker Dwivedi (supra) without looking into the fact that Section 10 of Amendment Act of 1997 which says otherwise, was confined to the reference already pending before the Board of Revenue under Section 218 of U.P. Land Revenue Act, 1901 or under Section 333-A of U.P.Z.A. & L.R. Act, 1950 and none else.
14. So far as the question of genuinity of Will-deed is concerned, tentatively it would not have been seen in summary proceedings. It is always open to the party aggrieved to take up the matter in regular suit since an order passed in mutation proceedings does not confer a title which otherwise is not vest. For such purpose, a regular suit is always a remedy open to the party concerned. This Court in Arjun Vs. Board of Revenue & others 1983 All. L.J. NOC 1, placing reliance on Jaipal Vs. Board of Revenue AIR 1957 All. 205 and Lekhraj & another Vs. Board of Revenue & others 1980 All. L.J. 904 dismissed the writ petition challenging the revisional order arising out of mutation proceedings, observing that the aggrieved party has efficacious alternative remedy of suit for seeking redressal of his grievance, hence petition is not maintainable.
15. Recently, an Hon'ble Single Judge of this Court in Writ Petition No. 25961 of 2008 (Smt. Anisa Khan Vs. State of U.P. and others) decided on 29.7.2010 placing reliance on Jaipal Vs. Board of Revenue (supra), Summer Lal Vs. Board of Revenue 1996 (87) RD 569, Sahed Jan @ Bonde Vs. Board of Revenue 2004 (96) RD 656 and Jagdish Narain Vs. Board of Revenue 2007 (102) RD 20, observed as under:
"All the three authorities have decided the mutation proceedings and as such being summary in nature cannot be the subject matter of interference in this writ petition since the said impugned orders do not confer any title on the respondents and are only made for the purpose of either realization of land revenue or to refer to possession at that time."
16. Therefore the question of genuity of Will deed cannot be decided in summary proceedings.
17. In view of the above, writ petition is allowed. The impugned order dated 29.08.2001 passed by the Board of Revenue (Annexure No.4 to the writ petition) is hereby set aside.
18. There shall be no order as to costs.
Dt.09.12.2010 KA