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IN THE HIGH COURT OF ALLAHABAD (LUCKNOW BENCH)
Sangeeta Chandra, J.
Binni Infrastructure Pvt. Ltd. - Appellant
Vs.
State of U.P. and Ors. - Respondent
Misc. Single Nos. 3139 and 3140 of 2020
Decided On: 06-02-2020
U.P.Z.A. and L.R. Act – Section 143 – U.P. Land Revenue Act – Section 41 – Constitution of India, 1950 – Article 226 – Mandamus – Conduct of respondent – Writ Petition has been filed challenging the order passed by Tehsildar, Sadar, Lucknow and praying for a mandamus to be issued to respondent nos. 1 and 2 to enquire into the conduct of respondent no. 3 in not only passing the impugned order in respect of the village, which is not under his jurisdiction but also for keeping the application for certified copy of the impugned order pending before him without any rhyme and reason, and also for a direction to the respondents to take necessary steps so that the nature and status of the land of the petitioner being Gata is protected and preserved from illegal and forceful occupation of respondent no. 4. – Held, In the case of writ seeking certiorari for quashing of orders, the power exercised are purely discretionary and though there are no limits upon the discretion, that must be exercised along recognized lines and not arbitrarily; and one of the limitations imposed by the courts on themselves is that they will not exercise jurisdiction in this class of case unless substantial injustice has ensued, or is likely to ensue. – They will not allow themselves to be turned into courts of appeal or revision to set right mere errors of law which do not occasion injustice in a broad and general sense. – The intention behind this self-imposed rule is clear. – If the High Courts were to exercise their writ jurisdiction so widely as to regularly override statutory appellate procedures, they would themselves become inundated with a vast number of cases to the detriment of the litigants in those cases. – This would also defeat the legislature's intention in enacting statutory appeal mechanisms to ensure the speedy disposal of cases. – Although, the Supreme Court held that the existence of an alternate remedy, whether adequate or not, does not alter the fundamentally discretionary nature of the High Court's writ jurisdiction and therefore, does not create an absolute legal bar on the exercise of the writ jurisdiction by a High Court, the decision whether or not to entertain an action under its writ jurisdiction remains a decision to be taken by the High Court on an examination of the facts and circumstances of a particular case. – It is found that a declaration under Section 143 of the U.P.Z.A. and L.R. Act has already been made by the competent authority with regard to the land in dispute – There cannot therefore, be any question with regard to any right, title or interest being created by the orders passed in mutation proceedings by Revenue Courts. – Division Benches of this Court have already held that mutation proceedings are summary in nature where the title of the parties over the land in dispute is not decided and mutation orders are relevant only for the purpose of revenue entries i.e. for fiscal purposes to enable the State to collect revenue from the person recorded in the khatauni. – They neither extinguish nor create a title. – Such orders or entries not being documents of title and being subject to decision of competent court, writ jurisdiction should not ordinarily be exercised. – Writ Petitions Dismissed
ORDER :
Sangeeta Chandra, J.
1. Heard learned counsel for the petitioner, Sri Sandeep Dixit, learned Senior Advocate assisted by Sri Komal Prasad Tiwari for respondent no. 4 and the learned Standing Counsel for the State respondents.
2. Writ Petition No. 3139 (MS) of 2020 has been filed challenging the order dated 13.1.2020 passed by the Tehsildar, Sadar, Lucknow and praying for a mandamus to be issued to respondent nos. 1 and 2 to enquire into the conduct of respondent no. 3 in not only passing the impugned order in respect of the village, which is not under his jurisdiction but also for keeping the application for certified copy of the impugned order pending before him without any rhyme and reason, and also for a direction to the respondents to take necessary steps so that the nature and status of the land of the petitioner being Gata No. 4Sa, area 0.5675 hectare situated in Village Muzaffarnagar Ghuswal, Pargana Bijnore, Tehsil Sarojini Nagar, District Lucknow is protected and preserved from illegal and forceful occupation of respondent no. 4.
3. Writ Petition No. 3140 (MS) of 2020 has been filed by the petitioner challenging the orders dated 14.1.2020 and 31.8.2019 passed by the Sub Divisional Officer, Sarojini Nagar, Lucknow (for short 'SDO') in demarcation application moved by the petitioner and also prays for a mandamus to be issued to respondent no. 3 to ensure that boundary marks already affixed on the land of the petitioner being Gata no. 4Sa as aforesaid on the orders dated 4.4.2019/11.4.2019 passed by the SDO in Case no. RST/2319/2015 under Section 41 of the U.P. Land Revenue Act be not dismantled by any of the parties.
4. The facts as are relevant for the controversy raised in these two writ petitions are being given herein below:
It has been alleged by the learned counsel for the petitioner that the petitioner-company was incorporated in 2012 and it purchased land of Gata no. 4Sa ad-measuring 0.565 hectare situated in village Muzaffarnagar Ghuswal, as aforesaid. The said land is adjacent to Amar Shaheed Path and at present falls within the jurisdiction of Sarojini Nagar. The land was purchased by the petitioner-company from its recorded owner in possession M/s. Arawali Buildtech on the basis of Sale Deed dated 27.9.2012 and the mutation orders were passed by the Tehsildar, Sadar on 12.11.2012. The petitioner thereafter filed an application on 19.2.2015 under Section 143 of U.P.Z.A. and L.R. Act and got the land in question declared as Abadi land. There was a boundary dispute and, therefore, a demarcation application under Section 41 of the U.P. Land Revenue Act was moved. Initially, a report was called for, from the revenue officials, but they reported their inability to demarcate the land in the absence of fixed points. The Irrigation Department was requested to conduct a survey and submit a report. A separate and independent report was prepared by the revenue officials thereafter, on the basis whereof, demarcation proceedings were concluded on 11.4.2019. The respondent no. 4 Vijay Kumar Singh Yadav, son of Late Balram Singh Yadav, filed a recall application for recall of demarcation order on 26.7.2019. No notice was served upon the petitioner-company and by an order dated 31.8.2019, the order dated 26.7.2019 was set aside and the matter was reopened for fresh consideration. In the meantime, against the mutation order dated 12.11.2012 also, respondent no. 4 filed a recall application, which recall application having been filed after five years of the original order, was entertained by the orders impugned. The petitioner was not served any notice of the application dated 16.9.2019 and the Process Server of the Tehsil had reported that despite repeated efforts, no one could be found in the office at the recorded address. The respondent no. 3 by the order impugned dated 13.1.2020, has recalled the order passed by him on 12.11.2012 and fixed the date for further consideration on fling of evidence by both the parties. On 1
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