Back
2010 Supreme(UK) 382
2010 (2) UAD 685
UTTARAKHAND HIGH COURT
Hon’ble Mr. Justice B.S. Verma
Writ Petition (M/S) No. 2643 of 2001
KEHAR SINGH – Petitioner
Versus
STATE OF U.P. & ANR. – Respondents
Decided on : 31.06.2010
For the Petitioner:Mr. Arvind Vashist, Advocate
For the Respondent No. 1: Mr. K.P. Upadhyay, Addl. C.S.C.
For the Respondent No. 2:Mr. Rajendra Dobhal, Sr. Adv., with Mr. Manoj Sah, Advocate
Headnote:(A) U.P. Land Revenue Act, 1901, Secs. 34, 35 — Application for mutation by one party on the basis of the sale deed of the year 1981 — Objections by other party against such application claiming right and title by him in respect of the same land on the ground that such land had been purchased by his father by way of a registered sale in the year 1974 — Such objections of the other party are to be treated as appication for mutation in his favour and no separate application would be required for the purpose — It is the duty of the Revenue Court to maintain correct revenue record — Previous sale-deed is to prevail upon the subsequent sale-deed. (Para 23)
(B) U.P. Zamindari Abolition and Land Reform Act, 1950, Secs. 143(2), 166, 167 — Use of agricultural land for purposes other than agricultural purposes, e.g. for abadi purposes without obtaining a declaration under Section 143(2) — Provisions of Sections 166/167 would continue to apply to such land — Till such time as a Bhumidhar does not get the requisite declaration under Section 143 of U.P. Z.A. & L.R. Act, he continues to be governed by the provisions of U.P. Z.A. and L.R. Act irrespective of the fact whether he uses his land for purpose connected with agriculture, horiticulture etc. or not. (Paras 21, 22)
(C) U.P. Zamindari Abolition and Land Reform Act, 1950, Secs. 154, 166/167 — Transfer of agricultural land by way of sale deed in favour of a person who alongwith members of his family hold land if any in excess of prescribed limit of 12.5 acres in violation of provisions of Section 154 — Provisions of Sectiosn 166/167 will come into operation. (Para 5)
(D) Constitution of India, 1950, Arts. 226, 227 and Land Revenue Act, 1901, Secs. 34/35 — Mutation proceedings under Section 34 of U.P. Land Revenue Act — Order passed in — Writ petition against — Maintainability of — Such proceedings having been decided without giving opportunity of hearing to a necessary party — Writ petition would be maintainable. (Para 24)
¼v½ m-iz- Hkw&jktLo vf/kfu;e] 1901] /kkjk 34] 35 & ,d i{k }kjk lu~ 1981 ds fod; i= ds vk/kkj ij nkf[ky [kkfjt gsrq izkFkZuk i= izLrqr fd;k & mlh Hkwfe ds 1974 ds fod; i= ds vk/kkj ij bl dkj.k mDr nkf[ky [kkfjt ds izkFkZuk i= ds fo#) vkifRr izLrqr dh fd mDr Hkwfe dks nwljs i{k ds firk us lu~ 1974 esa d; dj fy;k Fkk vr% 1981 dk fod; i= 'kwU; gS & nwljs i{k }kjk vkifRr dks gh mlds 1974 ds fod; i= ds nkf[ky [kkfjt gsrq izkFkZuk i= ekuk tk,xk vkSj mls vyx ls mDr gsrq izkFkZuk i= izLrqr djus dh vko';drk ugha gS & iwoZ ds fod; i= dks ckn ds fod; i= ds lkeus ekU;rk nh tk,xhA ¼izLrj 23½
¼c½ mRrj izns'k tehankjh mUewyu ,oa Hkw- O;oLFkk vf/kfu;e] 1950] /kkjk 143¼2½] 166] 167 & df"k Hkwfe dks df"k mi;ksx ds vfrfjDr vU; mi;ksx tSls vkcknh ds fy;s] fcuk /kkjk 143¼2½ dh ?kks"k.kk izkIr fd;s iz'uxr Hkwfe ds fo"k; esa /kkjk 166 o 167 ds izko/kku ykxw jgsaxsA ¼izLrj 21] 22½
¼l½ mRrj izns'k tehankjh mUewyu ,oa Hkw- O;oLFkk vf/kfu;e] 1950] /kkjk 154] 166] 167 & df"k Hkwfe dk fod; i= }kjk ,sls O;fDr ds i{k esa gLrkUrj.k ftlds ikl vius ifjokj ds lnL;ksa okyh Hkwfe] ;fn dksbZ gks dks feykdj 12-5 ,dM+ ls vf/kd gks tk,xh & /kkjk 154 ds izko/kku dk mYya?ku gksxk & ,sls esa /kkjk 166 o 167 ds izko/kku ykxw gks tk;saxsA ¼izLrj 5½
¼n½ Hkkjr dk lafo/kku] 1950] vuqPNsn 226] 227 ,oa Hkw- jktLo vf/kfu;e] 1901] /kkjk 34] 35 & m-iz- Hkw- jktLo vf/kfu;e dh /kkjk 34 dh dk;Zokgh esa ikfjr vkns'k ds fo#) lafo/kku ds vuqPNsn 226] 227 ds vUrxZr fjV ;kfpdk rHkh iks"k.kh; gksxh tc ,slk vkns'k vko';d i{kdkj dks lqus fcuk ikfjr fd;k x;k gksA ¼izLrj 24½
By means of this writ petition, the petitioner has sought the following relief:-
(a) Issue a writ, order or direction in the nature of certiorari quashing the order dated 11.12.1996 passed by Additional Collector Dehradun in Appeal No. 50 of 1993-93.
(b) Issue any writ, order or direction which this Hon’ble Court may deem fit and proper in the circumstances of the case.
(c) Award cost of the petition to the petitioner.
2. Relevant facts giving rise to the present writ petition, according to the petitioner, are that the respondent No. 2 moved an application before the Assistant Record Officer Dehradun under Section 154 of the U.P. Zamindari Abolition and Land Reforms Act 1950 read with Section 34 of the Land Revenue Act alleging there therein that the respondent no. 2 had purchased the disputed property bearing plot No. 40/1, measuring 0-18 Acre through different sale deeds in the year 1981 from Pawan Indra Singh and Jogi Arun Singh, both sons of Ravindra Singh. The disputed property consisted of one house and two shops. The respondent no. 2 prayed for mutation of his name on the basis of sale-deed in the revenue record.
3. Notices were issued. Some persons including the petitioner Kehar Singh and Bagel Singh, sons of Atma Singh and Daya Singh son of Dayal Singh filed separate objections. In their objection, the petitioner and his brother alleged that the land sought to be mutated in the name of respondent no.2 had already been sold by the father of Pawan Indra Singh namely late Ravindra Singh in his life time on 27.4.1974 in favour of their father, late Atma Singh and they had been in possession of the land from the date of sale till August 1979. It is also alleged that over the disputed land, there exists house of the objectors, which was constructed by their father after purchase of the land. It is also alleged that the respondent no. 2 Manohar Singh possessed more than 12.5 Acres of land, therefore, legally the name of respondent no.2 cannot be mutated in the revenue record.
4. The respondent no.2 filed his reply before the Assistant Record Officer alleging that the mother of the appellant, Ratan Kaur had executed a will in favour of Jasbeer Singh and Indrajeet Singh and on the strength of the will, the said land devolved on Jasbeer Singh and Indrajeet Singh and their names have already been mutated in the revenue records. It was also alleged that the total land including the purchased land of 0-18 acre in possession of the applicant comes to 11-91 acre.
5. Before the Assistant Record Officer (A.R.O.), all the parties filed documentary evidence including registered sale deeds and extract of Khatauni. The A.R.O. recorded the evidence of the parties. After hearing the learned counsel for the parties and after perusal of the evidence, the A.R.O. came to the conclusion that the applicant-respondent no.2 was having land more than 12-50 acres and there is violation of provisions of Section 154 of the U.P. Zamindari Abolition and Land Reforms Act. The objection of the petitioner was rejected on the ground that no application for mutation has been made. The A.R.O. has by order dated 2.12.1993 directed that the disputed land of plot No. 40/1 area 0-18 acre of village Deswala, Pargana Parwadoon be vested in the State Government under Sections 166/167 of the U.P.Z.A. and L.R. Act.
6. Aggrieved by the said order of the A.R.O., the respondent no. 2 preferred an appeal before the Record Officer Dehradun, which was registered as Appeal No. 50/93-94, Manohar Singh Vs. State of U.P. and others.
7. Before the Record Officer the petitioner moved an application dated 22.3.1995 for his impleadment (Annexure-3 to the petition) alleging therein that the applicant-petitioner is a necessary party to the proceeding but the appellant has not arrayed the petitioner as party to the appeal. He therefore prayed that the petitioner be impleaded as party to the appeal and opportunity of hearing may be given to him.
8. It appears that the Record O
