Ram Prasad and 4 Others v. State of Up and 7 Others

Allahabad HC4 Mar 2025WRIC/22126/2024

Case brief

AI extract

What is this about?

Allahabad High Court, WRIT - C No. 22126 of 2024, Ram Prasad v. State of U.P. (decided 5.3.2025, Syed Qamar Hasan Rizvi, J.). Entertainability of writ petition under Article 226 against mutation orders; summary nature of mutation proceedings; revenue records neither create nor extinguish title; Section 34 and Section 39, U.P. Revenue Code, 2006; disputed unregistered Will; Appeal No.1423 of 2011 pending before Settlement Officer Consolidation, Basti; Amritansh Pandey, 2023(9) ADJ 457 relied on; Godrej Sara Lee, AIR 2023 SC 781 referred; writ disposed of with liberty to seek declaration before competent civil court.

What did the court decide?

Writ petition disposed of without entering into the merits of the claim; petitioners at liberty to get their rights adjudicated or declared by the competent court of jurisdiction. ¶¶23

Ram Prasad and 4 Others Vs State of Up and 7 Others — Writ and Judicial Review | Allahabad HC (2025)

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Neutral Citation No. - 2025:AHC:31819

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Court No. - 37

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Case :- WRIT - C No. - 22126 of 2024

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Petitioner :- Ram Prasad And 4 Others Respondent :- State Of Up And 7 Others Counsel for Petitioner :- Ashutosh Ojha,Ram Mani Upadhyay Counsel for Respondent :- C.S.C.

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Hon'ble Syed Qamar Hasan Rizvi,J.

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Heard Sri Ram Mani Upadhyay, learned counsel for the petitioners and Sri Awadhesh Kumar Patel, learned Standing Counsel for the State-respondents.

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By means of the present writ petition, the petitioners have assailed the order dated 13.10.2023 passed by the Tehsildar, Tehsil- Rudhauli, District- Basti (respondent no.4) allowing the application of the respondent no.5 filed under Section 34 of the U.P. Revenue Code, 2006, against which the petitioners preferred an appeal which was dismissed vide order dated 15.01.2024 by the Sub Divisional Officer, Tehsil- Rudhauli, District- Basti (respondent no.3). The petitioners, thereafter, filed a revision before the Commissioner, Basti Division, Basti (respondent no.2) challenging the aforesaid orders dated 13.10.2023 and 15.01.2024. The Commissioner (respondent no.2) by a detailed order dismissed the said revision at the admission stage itself holding the revision to be not maintainable.

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Sri Awadhesh Kumar Patel, learned Standing Counsel appearing on behalf of the State has raised a preliminary objection regarding the entertainability of the writ petition under Article 226 of the Constitution of India. He submits that the instant writ petition being arising out of the mutation proceeding which is admittedly of summary nature, is not entertainable under the extraordinary jurisdiction of this Court conferred under Article 226 of the Constitution of India. He further submitted that the petitioners are claiming their rights on the basis of a disputed unregistered Will, legality of which is under consideration before the court of law. The said

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matter is sub-judiced before the learned Settlement Officer Consolidation, Basti in an Appeal No.1423 of 2011, which is still pending adjudication. In support of his contention, the learned Standing Counsel has relied upon the judgment passed by this Court in the case of Amritansh Pandey versus State of U.P. and others ; reported in 2023(9) ADJ 457 .

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For convenience, the relevant portion of the judgment passed in the Case of Amritansh Pandey (supra) is reproduced as under:

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"19. It is settled law that the revenue records do not confer title and even if the entries in the revenue record of rights carry value that by itself would not confer any title upon the person claiming on the basis of the same. The mutation proceedings being of a summary nature drawn on the basis of possession do not decide any question of title and the orders passed in such proceedings do not come in the way of a person in getting his rights adjudicated in a regular suit. Mutation in revenue records neither creates nor extinguishes title of the person nor it has any presumptive value on title. Such entries are relevant only for the purpose of collecting land revenue. In view thereof, this Court has consistently held that such writ petitions are not to be entertained in exercise of discretionary power conferred under Article 226 of the Constitution of India.

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20. It would not be out of place to mention here that the power to issue prerogative writs under Article 226 is plenary in nature. It does not, in terms, impose any limitation or restraint on the exercise of the power to issue writs. It is the discretion of the Writ Court whether to entertain writ petition or not depending upon the facts and circumstances of each particular case. One of the self imposed restrictions on the exercise of the power under Article 226 of the Constitution that has evolved through judicial precedents is that the High Court should normally not entertain a writ petition, where an effective and efficacious alternative remedy is available. At the same time, it must be remembered that mere availability of an alternative remedy of appeal or revision, which the party invoking the jurisdiction of the High Court under Article 226 of the Constitution has not pursued would not oust the jurisdiction of the High Court and render a writ petition 'not maintainable'.

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21. The Hon'ble Supreme Court in the case of M/s. Godrej Sara Lee Ltd. versus Excise and Taxation Officer-cum-Assessing Authority and others ; reported in AIR 2023 Supreme Court 781 , has been pleased to explain the distinction between the 'entertainability' and 'maintainability' of a writ petition. The extract from paragraph 4 of the said judgment is quoted below:

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"......Though elementary, it needs to be restated that "entertainability" and "maintainability" of a writ petition are distinct concepts. The fine but real distinction between the two ought not to be lost sight of. The

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objection as to "maintainability" goes to the root of the matter and if such objection were found to be of substance, the courts would be rendered incapable of even receiving the lis for adjudication. On the other hand, the question of "entertainability" is entirely within the realm of discretion of the high courts, writ remedy being discretionary. A writ petition despite being maintainable may not be entertained by a high court for very many reasons or relief could even be refused to the petitioner, despite setting up a sound legal point, if grant of the claimed relief would not further public interest..........."

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22. The reluctance of this Court to interfere with the orders under challenge in the instant petition, is primarily that the same are the outcome of the mutation proceedings and it is a settled legal position that entry in the revenue records does not confer title to a person whose name appears in the records-of-rights, which is maintained for revenue purpose and an entry therein has reference only to possession. Further, the provision of Section 39 of the U.P. Revenue Code, 2006 makes it more clear that orders passed under the provisions relating to mutation of revenue records would not act as a bar against any person from establishing his rights in the property by way of suit for declaration. For ready reference the provision of Section 39 of the U.P. Revenue Code, 2006 is quoted below:-

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"39-Certain orders of revenue officers not to debar a suit. -No order passed by a Revenue Inspector under section 33, or by a Tahsildar under sub-section (1) of section 35 or by a Sub-Divisional Officer under subsection (3) of section 38 or by a Commissioner under sub-section (4) of section 38 shall debar any person from establishing his rights to the land by means of a suit under section 144."

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23. Normally, the High Court in exercise of its plenary power does not entertain writ petition under Article 226 of the Constitution of India, against the orders passed by the Revenue Courts in mutation proceedings, except under the conditions as formulated by this Court in cases as mentioned above.

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24. The fact of the present case does not attract the above mentioned exceptions as carved out by this Court under which this Court in exercise of its power under Article 226 of the Constitution may entertain a writ petition against the order passed in mutation proceedings that are admittedly summary in nature.

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25. It is well settled that the orders for mutation are passed on the basis of the possession of the parties and since no substantive rights of the parties are decided in mutation proceedings, ordinarily the Writ Courts decline to entertain the writ petition as not entertainable in respect of orders passed in mutation proceedings, unless found to be totally without jurisdiction or contrary to the title already decided by the competent court.

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26. In view of the above, as no substantive rights of the parties have been decided or are likely to be decided in the mutation proceedings, no case for exercise of extra-

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ordinary writ jurisdiction under Article 226 of the Constitution of India is made out. Needless to say, it is always open to the petitioner to get his rights/title in respect of the land in question be crystallised by competent Civil Court."

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Taking into consideration the aforesaid settled legal preposition that ordinarily the writ petitions are not entertainable against the orders passed by the Revenue Court in the mutation proceedings, this Court is of the view that the present writ petition is not entertainable under Article 226 of the Constitution of India. However, in the interest of justice, without entering into the merits of the claim of the petitioners, the writ petition is disposed of with the observation that the petitioners are at liberty to get their rights adjudicated or declared by the competent court of jurisdiction.

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Needless to say that the order passed in the mutation proceedings would abide by the decision of the competent court and the said court while deciding the case before it, would not, in any manner, be influenced by any findings or observations made by the Revenue Court in the mutation proceedings.

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Order Date :- 5.3.2025 Abhishek Gupta

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Digitally signed by :- ABHISHEK GUPTA High Court of Judicature at Allahabad

Ram Prasad and 4 Others v. State of Up and 7 Others

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