# Brahmanand Pandey v. State of U.P. & Ors

- **Citation:** (2023) 5 ILRA 1141
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2023-04-18
- **Case number:** Writ-C No. 143 of 2021
- **Bench:** Kshitij Shailendra
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/brahmanand-pandey-v-state-of-u-p-ors-50154
- **Pages:** 15

## Headnote

A. Constitution of India - Article 226 -
Writ
-
Maintainability
-
Mutation
proceeding - Scope of interference - Held,
orders of mutation are passed on the basis
of possession and since no substantive
rights of the parties are decided, ordinarily
a writ petition would not be entertainable
against such orders unless the same are
found to be wholly without jurisdiction or
have the effect of rendering findings
which are contrary to title already decided
by a competent court. (Para 35)

B. Revenue Law - UP Land Revenue Act,
1901 - Sections 33, 39 & 225 - Mutation -
Nature and Scope - Held, mutation
proceedings is summary in nature - It
does not have the effect of creating or
extinguishing
the
title
nor
has
any
presumptive value on title and it only
enables the person concerned to pay land
revenue - Mutation orders would not
debar institution of any suit by any person
having right in the holding in a competent
court. (Para 36, 41 and 46)

C. Interpretation of Statute - General Clauses
Act, 1897 - Section 2(42) - Word 'Person' -
Whether St. include in it or not - Held, The
definition of "person" is not exclusive but
inclusive and considering the language used in
the Statute with reference to the proceedings
giving rise to the present case, in the opinion
of the Court, the 'St.' would fall in the
definition of 'person'. (Para 46 and 47)

D. Constitution of India,1950 - Article 226 -
Writ - Locus standi - Main party to be
aggrieved by the impugned orders or by the
nature of relief claimed in the original
proceedings u/s 33/39 of the Act, 1901 is
the 'St. of U.P' - However, the challenge
was made by a stranger (petitioner) -
Permissibility - Held, the petitioner have no
locus in the matter. (Para 47, 48 and 49)

Writ petition dismissed of. (E-1)

List of Cases cited:

## Text

_Characters 0–39,961 of 49,423. This is a partial read: ask again with offset=39961 for what follows._

5 All. Brahmanand Pandey Vs. State of U.P. & Ors.
1141
to the litigation preferably within a period
of six months from the date of production
of certified copy of this order, if there is no
other legal impediment in this regard.
While conducting the proceedings, the
Authority concerned is directed to avoid
unnecessary adjournments to either party.

20. The writ petition is allowed in
above terms.
----------
(2023) 5 ILRA 1141
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 18.04.2023

BEFORE

THE HON'BLE KSHITIJ SHAILENDRA, J.

Writ-C No. 143 of 2021

Brahmanand Pandey ...Petitioner
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Sri Brahmanand Pandey (In Person)

Counsel for the Respondents:
C.S.C., Sri Anand Prakash Srivastava

A. Constitution of India - Article 226 -
Writ
-
Maintainability
-
Mutation
proceeding - Scope of interference - Held,
orders of mutation are passed on the basis
of possession and since no substantive
rights of the parties are decided, ordinarily
a writ petition would not be entertainable
against such orders unless the same are
found to be wholly without jurisdiction or
have the effect of rendering findings
which are contrary to title already decided
by a competent court. (Para 35)

B. Revenue Law - UP Land Revenue Act,
1901 - Sections 33, 39 & 225 - Mutation -
Nature and Scope - Held, mutation
proceedings is summary in nature - It
does not have the effect of creating or
extinguishing
the
title
nor
has
any
presumptive value on title and it only
enables the person concerned to pay land
revenue - Mutation orders would not
debar institution of any suit by any person
having right in the holding in a competent
court. (Para 36, 41 and 46)

C. Interpretation of Statute - General Clauses
Act, 1897 - Section 2(42) - Word 'Person' -
Whether St. include in it or not - Held, The
definition of "person" is not exclusive but
inclusive and considering the language used in
the Statute with reference to the proceedings
giving rise to the present case, in the opinion
of the Court, the 'St.' would fall in the
definition of 'person'. (Para 46 and 47)

D. Constitution of India,1950 - Article 226 -
Writ - Locus standi - Main party to be
aggrieved by the impugned orders or by the
nature of relief claimed in the original
proceedings u/s 33/39 of the Act, 1901 is
the 'St. of U.P' - However, the challenge
was made by a stranger (petitioner) -
Permissibility - Held, the petitioner have no
locus in the matter. (Para 47, 48 and 49)

Writ petition dismissed of. (E-1)

List of Cases cited:

1. Rukmini Amma Saradamma Vs Kallyani
Sulochana & ors.; (1993) 1 SCC 499

2. Hiya Associates & ors. Vs Nakshatra
Properties Pvt. Ltd.; (2018) 18 SCC 358

3. Jaipal Vs Board of Revenue, U.P., Allahabad &
ors.; AIR 1957 All 205

4. Sri Lal Bachan Vs Board of Revenue, U.P.,
Lucknow & ors.; 2002 (93) RD 6

5. Bindeshwari Vs Board of Revenue & ors.;
2002 (1) AWC 498

6. Vinod Kumar Rajbhar Vs St. of U.P. & ors.;
2021 (1) ADJ 792.

7. Buddh Pal Singh Vs St. of U.P. & ors.; 2012
(5) ADJ 266,
1142 INDIAN LAW REPORTS ALLAHABAD SERIES
8. Bhimabai Mahadeo Kambekar Vs Arthur
Import and Export Company & ors.; (2019) 3
SCC 191

9. Balwant Singh Vs Daulat Singh; (1997) 7 SCC
137

10. Narasamma Vs St. of Karn.; (209) 5 SCC 591

11. Faqruddin Vs Tajuddin; (2008) 8 SCC 12

12. Narain Prasad Aggarwal Vs St. of M. P.;
(2007) 11 SCC 736

13. U.O.I.& ors. Vs Vasavi Cooperative Housing
Society Ltd. & ors.; (2014) 2 SCC 269

14. Corpn. Of the City of Banglore Vs M.
Papaiah; (1989) 3 SCC 612

15. Guru Amarjit Singh Vs Rattan Chand (1993)
4 SCC 349

16. H.P. v. Keshav Ram; (1996) 11SCC 257

17. Sawarni (Smt.) Vs Inder Kaur (Smt.) & ors.;
(1996) 6 SCC 223

18. Suraj Bhan & ors. Vs Financial Commissioner
& ors.; (2007) 6 SCC 186

19. Harish Chandra Vs U.O.I.& ors.; 2019 (5)
ADJ 212 (DB)

20. Mahesh Kumar Juneja & anr.Vs Additional
Commissioner Judicial Moradabad Division &
ors., 2020 (3) ADJ 104

21. Jitendra Singh Vs St. of M. P. & ors.; 2021
SCC OnLine SC 802

22. Suraj Bhan Vs Financial Commissioner;
(2007) 6 SCC 186

23. Suman Verma Vs U.O.I.; (2004) 12 SCC 58

24. Faqruddin Vs Tajuddin; (2008) 8 SCC 12

25. Rajinder Singh Vs St. of J & K; (2008) 9 SCC
368

26. Municipal Corporation, Aurangabad Vs St. of
Mah.; (2015) 16 SCC 689
27. T Ravi Vs B. Chinna Narasimha; (2017) 7
SCC 342

28. Bhimabai Mahadeo Kambekar Vs Arthur
Import & Export Co.; (2019) 3 SCC 191

29. Prahlad Pradhar Vs Sonu Kumhar; (2019) 10
SCC 259

30. Ajit Kaur Vs Darshan Singh; (2019) 13 SCC
70

31. Smt. Kalawati Vs Board of Revenue & ors.;
2022 (4) ADJ 578

32. Alladin Vs St. of U.P. & ors.; 2023 (3) ADJ 41

(Delivered by Hon'ble Kshitij Shailendra, J.)

1. Heard Shri Brahmanand Pandey,
the petitioner who has appeared in-person,
learned Standing Counsel for the Staterespondents and Shri Anand Prakash
Srivastava,
learned
counsel
for
the
respondent no.5-private respondent.

2. This writ petition has been filed by
one Brahmanand Pandey S/o Rajmani
Pandey, R/o Village-Sasna Vishwanathpur,
Police
Station-Maharajganj,
Pargana
Gopalpur,
Tehsil-Sagadi,
DistrictAzamgarh who has appeared in-person
before this Court.

3 The reliefs claimed in the present
writ petition are for quashing of the order
dated
25.10.2017
passed
by
the
Collector/District Magistrate-Azamgarh as
well as the order dated 21.10.2020 passed
by the Commissioner, Azamgarh, DivisionAzamgarh.

4. The Collector/District Magistrate,
Azamgarh has rejected the case filed by the
petitioner under Sections 33/39/225 of U.P.
Land
Revenue
Act-1901
(hereinafter
referred to as ''the Act-1901') (Brahmanand
5 All. Brahmanand Pandey Vs. State of U.P. & Ors.
1143
Pandey v. State of U.P.) vide impugned
order dated 25.10.2017 whereas vide
impugned order dated 21.10.2020, the
Commissioner,
Azamgarh,
Division
Azamgarh has dismissed the revisions filed
under Section 219 of the Act-1901.

5. A perusal of record shows that the
petitioner filed a case under Sections
33/39/225 of the Act-1901 against the State
of
U.P.
before
the
Collector/District
Magistrate-Azamgarh alleging therein that
certain land covered by Gata No.1149
(renumbered as Gata Nos.329 and 330) is
recorded in the names of Ram Prakash,
Rajpat Pandey and Hari Mohan as their
''bhumidhari' land. The allegations made in
the memo of the said application/case are to
the effect that various private persons
(including the aforesaid) were obtructing
the public passage and have succeeded to
get wrongful entries made in their names
contrary
to
the
revenue/consolidation
records. Three prayers were made in the
said application/case:-

(1). The Gata Nos.329 and 330 be
declared as "parti/Government land";

(2). Any other relief which may be
found
appropriate
in
favour
of
the
petitioner be passed;

(3). The cost of litigation be awarded
to the petitioner from the opposite party
(State).

6. The order of Collector dated 25.10.2017
shows that for the purposes of disposal of
the case, reports from Sub Divisional
Officer-Sagadi and Settlement Officer of
Consolidation were called for and that the
Settlement Officer of Consolidation, in his
report dated 26.11.2015, has mentioned that
land covered by Gata No.330 area 0.030
Kari has been recorded in the names of
Rajpati and Radhika, heirs of Sadanand
vide order dated 12.11.1971 passed by the
Consolidation Officer in Case No.10459
whereas in respect of Gata No.329
measuring 0.015, the aforesaid two names
were continuing in the Khatauni since
before. The order further indicates that the
State and opposite parties were heard
whereas nobody was present to argue the
matter on behalf of the petitioner and,
therefore, the allegations levelled by the
petitioner were not proved and there were
contrary reports in favour of the opposite
parties,
consequently,
the
case
was
dismissed.

7.

Challenging
the
order
of
Collector/District
Magistrate-Azamgarh
dated 25.10.2017, the petitioner filed
revision
before
the
Commissioner,
Azamgarh, Division-Azamgarh which was
also dismissed vide order dated 20.10.2020.

8. The contention of the petitioner is to
the effect that the aforesaid land continued to
be recorded in the consolidation record as
"Government land", however, the respondent
no.5 and various other persons succeeded to
get their names recorded in the revenue
records and, therefore, the said fraudulent
entries are liable to the expugned and the land
should be declared as belonging to the
''Government'. The petitioner has referred to
various revenue records and has tried to
impress the Court that the private persons have
usurped the Government land.

9. Per contra, learned Standing
Counsel submits that the orders impugned
are perfectly in accordance with law, based
upon documentary evidence available with
the courts below and, therefore, they do not
require any interference.

10. Shri A.P. Srivastava, who has put in
appearance on behalf of respondent no.5,
1144 INDIAN LAW REPORTS ALLAHABAD SERIES
has argued that the writ petition arising out
of
the
proceedings
under
Sections
33/39/225
of
the
Act-1901
is
not
maintainable as the same are ''summary in
nature' and even otherwise, it has come on
record that the names of the private persons
including
the
respondent
no.5
were
recorded in the consolidation as well as
revenue records on the basis of order dated
12.11.1971 passed by the Consolidation
Officer in Case No.10459. Shri Srivastava
has further argued that the petitioner has no
locus in the matter as neither in his case under
Sections 33/39/225 of the Act-1901 nor in the
writ petition he has disclosed as to how he is
affected by conferring of "Bhumidhari" rights
on the contesting respondents and other
persons. He further submits that this is not a
writ petition in the nature of public interest
where anybody can agitate any issue nor is
there involvement of element of any public
interest. Shri Srivastava further submits that
pure findings of fact have been recorded by
the revisional court in its order and, in any
case, if the petitioner or other person is
aggrieved by the entries in the revenue
records which are based upon the decision by
the competent court of law in statutory
proceedings, he has a right to get his
grievance
redressed
in
appropriate
proceedings of declaration of rights and
Sections 33/39 of the Act -1901 is a provision
which is meant only for correction of records,
in which, the entries have been recorded by
clerical mistake or omissions, which is not
the case here. He further submits that the
beneficiaries including the respondent no.5
continue in actual and physical possession
over the land in dispute and the petitioner is
trying to harrass the "bhumidhars" and,
hence, this writ petition is nothing but an
abuse of the process of law.

11. Before this Court proceeds to
examine this case either on the ground of
maintainability or on merits, it would be
appropriate to reproduce Sections 33, 39
and 225 of the Act-1901, which are
extracted as under :-

"33. The annual registers. - (1) The
Collector shall maintain the record-ofrights, and for that purpose shall annually,
or at such longer intervals as the [State
Government] may prescribe, cause to be
prepared an amended [register mentioned
in Section 32.]

The [register] so prepared shall be
called the annual register.

[(2) The Collector shall cause to be
recorded in the annual register -

(a) all successions and transfers in
accordance with the provisions of Section
35; or

(b) other changes that may take place
in respect of any land ; and shall also
correct all errors and omissions in
accordance with the provisions of Section
39 :

Provided that the power to record a
change under clause (b) shall not be
construed to include the power to decide a
dispute involving any question of title.]

(3) [No such change or transaction
shall be recorded without the order of the
Collector or as hereinafter provided, of the
Tahsildar or [the Kanungo].]

[(4) The Collector shall cause to be
prepared and supplied to every person
recorded as bhumidhar, whether with or
without transferable rights, assami or
Government Lessee a Kisan Bahi (Pass
book) which shall contain -

(a) such extract from the annual
register prepared under sub-section (1)
relating to all holdings of which he is so
recorded (either solely or jointly with
others);

(b) details of grants sanctioned to him;
and
5 All. Brahmanand Pandey Vs. State of U.P. & Ors.
1145

(c) such other particulars as may be
prescribed :

Provided that in the case of joint
holdings it shall be sufficient for the
purpose of this sub-section of Kisan Bahi
(Pass book) is supplied to such one or more
of the recorded co-sharers as may be
prescribed.

(4-A) The Kisan Bahi (Pass book)
referred to in sub-section (4) shall be
prepared in such manner and on payment
of such fee, which shall be realisable as
arrears of land revenue, as may be
prescribed.

(5) Every such person shall be
entitled, without payment of any extra fee,
to get any amendment made in the annual
register under sub-section (2) incorporated
in his Kisan bahi (Pass book.)]

(6) The State Government may make
rules to carry out the purposes of this
section, including, in particular, rules,
prescribing the mode of reception in
evidence,
and
of
proof
in
judicial
proceedings, of entries in the [Kisan Bahi
(Pass Book)], and the mode of its revision
and authentication up-to-date and for issue
of duplicate copies thereof, and the fees, if
any, to be charged for any of the said
purposes.

(7) In this section, 'prescribed' means
prescribed by rules made by the State
Government.

(8) Nothing in sub-sections (4) to (7)
shall apply in relation to any area which is
either under consolidation operations or
under record operations."

39. Correction of mistakes in the
annual register. - (1) An application for
correction of any error or omission in the
annual register shall be made to the
Tahsildar.

(2) On receiving an application under
sub-section (1) or any error or omission in
the
annual
register
coming
to
his
knowledge otherwise, the Tahsildar shall
make such inquiry as appears necessary
and then refer the case to the Collector,
who shall dispose it of, after deciding the
dispute in accordance with the provisions
of Section 40.

[Provided that nothing in this subsection shall be construed to empower the
Collector to decide a dispute involving any
question of title.]

(3) The provisions of sub-sections (1)
and (2) shall prevail, notwithstanding
anything contained in the U.P. Panchayat
Raj Act, 1947.

225. Collector to have all powers of
an Assistant Collector. - The Collector may
exercise all or any of the powers of an
Assistant Collector under this or any other
Act for tire time being in force."

12. A bare perusal of aforesaid
Sections makes it clear that under Section
33 of the Act-1901, entries on the basis of
succession and transfer in accordance with
Section 35 can be made and also correction
of all errors and omissions can be made by
the Collector. Section 39 is a provision for
correction of mistakes in the actual register
whereas Section 225 has nothing to do with
the controversy involved in the present
case, rather, it only speaks that "Collector
may exercise all or any of the powers of an
Assistant Collector under the Act".

13. Keeping in view the aforesaid
provisions, averments made in the original
case under Sections 33/39/225 of the Act1901 would show that a declaration was
sought from the Collector to the effect that
land covered by Gata Nos.329 and 330 be
declared
as
''parti/Government
land",
therefore, from the bare perusal of the
memo of the case, it is found that it was not
a case for correction of records rather the
1146 INDIAN LAW REPORTS ALLAHABAD SERIES
petitioner had sought a declaration in
favour of State Government and that is why
he arrayed only ''State Government' as a
''party', though allegations upon private
persons
including
the
predcessors-ininterest of the private respondent no.5 were
also levelled.

14. I find from the perusal of the
record that during the pendency of the
aforesaid case, the Collector-Azamgarh
passed an order dated 19.10.2015 after
taking into consideration the reports of Sub
Divisional Officer and Settlement Officer
of Consolidation concerned that in the
revenue records, the names of Radhika,
Ram Prakash, Santosh Kumar and Jhinka
were
recorded
as
"bhumidhar
with
transferable rights" and, therefore, the said
persons shall be "affected parties" and
hence,
their
impleadment
in
the
proceedings is necessary. Accordingly, the
Collector directed impleadment of the
aforesaid persons and issued notices to
them.

15. The Court finds that two revisions
bearing nos.47/A C-205015000000037 of
2019-20 (Brahmanand Pandey v. District
Magistrate, Azamgarh & Anr.) and Revision
No.50/A C-201715001297 of 2017-20 (State
of U.P. through District Magistrate-Azamgarh
v. Ram Prakash & Ors.) were filed against the
order dated 25.10.2017 passed by the
Collector/District
Magistrate-Azamgarh.
From perusal of the aforesaid, it is clear that
even the ''State of U.P.' was aggrieved by the
order dated 25.10.2017 passed by the
Collector/District Magistrate-Azamgarh.

16. The petitioner has drawn attention
of the Court to the order passed by this
Court in Writ C No.18613 of 2019
(Brahmanand Pandey v. State of U.P. & 4
Ors.) which was filed and decided at the
stage when, vide order dated 23.01.2019,
the Commissioner had decided the revision
filed by the petitioner but did not decide the
revision filed by the State, though both the
revisions were filed against the order
25.10.2017. Under the said circumstances,
the writ petition was allowed by this Court
vide order dated 02.07.2019 with the
following directions:-

"Accordingly, the petition is allowed,
the impugned order dated 23.01.2019, is
set-aside
to
the
extent
it
dismisses
petitioners revision as, not maintainable. It
is directed that petitioners revision be
connected with, and be decided along with
Revision No.306/A, State of U.P. Vs. Ram
Prakash & others."

17. In pursuance of the aforesaid
order of this Court dated 02.07.2019, both
the revisions were clubbed and decided
together
by
the
Commissioner
vide
impugned order dated 21.10.2020.

18. During the course of arguments, a
query was raised by the Court from the
petitioner, Shri Srivastava and learned
Standing Counsel as to whether against the
impugned order dated 25.10.2020 passed
by the Commissioner, the State has filed
any writ petition or not. Answer to the said
query was that nobody was aware about the
filing of the writ petition by the State.

19. Under such circumstances, the
Court has examined the counter affidavit
27.08.2021 filed by the State, the deponent
whereof is one Vasudev Ji, the then
Consolidation Officer, Azamgarh. Certain
relevant paragraphs of the said counter
affidavit are reproduced hereinbelow:-

"11. That the contents of paragraph 4
of the writ petition are not admitted as
5 All. Brahmanand Pandey Vs. State of U.P. & Ors.
1147
stated, hence denied. In reply thereto it is
submitted that the Respondent No. 1,
Commissioner,
Azamgarh
Division,
Azamgarh after affording due opportunity
of hearing to the parties as well as after
scrutinizing entire material available on
record
has
passed
the
order
dated
21.10.2020, which is perfectly just, legal
and valid order and there is no illegality in
it.

12. That the contents of paragraph 5
of the writ petition are not admitted as
stated, hence denied. In reply thereto it is
submitted that, in the enquiry report
submitted before the District Magistrate,
Azamgarh it has been mentioned that Gata
No.329 Area 0.015 hectares had been
registered in the name of Rajapati and
Radhika sons Sadanand from the previous
year Khatauni and on the basis of the same
the District Magistrate and Commissioner
Azamgarh Division, Azamgarh has also
mentioned the same in their orders.

13. That the contents of paragraph 6
of the writ petition are not admitted as
stated, hence denied. In reply thereto it is
submitted that, in CH Form 41 Gata No.
329 area 0.015 hectare was carved out
from Old Gata No. 1149/2 area 0.015
hectare. The names of Rajpati and Radhika
sons of Sadanand were recorded in Khata
No.78 of CH Form 45 which was excluded
from
the
Consolidation
proceedings,
therefore, on that basis the same was
recorded as "Parti/Rakba" in the Special
Column. In view of above it is clear that,
the aforesaid land belongs to tenure holder
and is not the land of Gram Samaj or Parti
account.

14. That the contents of paragraphs 7
and 8 of the writ petition are not admitted
as stated, hence denied. In reply thereto it
is submitted that, by means of order dated
12.11.1971 passed in the Case No. 10459
passed by the Consolidation Officer the
name
of
Sabhapati
Panchanan
was
expunged and the name of Radhika and
Rajpati sons of Sadanand were recorded
over New Gata No. 330 area 0.030 Kari of
Old Gata No. 1149/3 which is evident from
the
enquiry/inspection
report
dated
26.11.2015.

15. That the contents of paragraph 9
of the writ petition are not admitted as
stated, hence denied. In reply thereto it is
submitted that the orders passed by the
authority concerned is perfectly just, legal
and valid order and there is no illegality in
it.

16. That the contents of paragraphs 10
and 11 of the writ petition are not admitted
as stated, hence denied. In reply thereto it
is submitted that the order passed by
District Magistrate dated 25.10.2017 as
well as by Commissioner, Azamgarh
Division, Azamgarh
dated
21.10.2020
perfectly, just, legal and valid order and
there is no illegality or infirmity in it.

18. That the contents of paragraphs 17
to 19 of the writ petition need no comments
being related to passing of the order in
Civil Appeal No. 9996/2018 and passing of
the
orders
by
District
Magistrate,
Azamgarh as well as Commissioner,
Azamgarh Division, Azamgarh which are
perfectly just, legal and valid orders and
requires no interference by this Hon'ble
Court.
20. That the grounds taken in paragraph 21
of the writ petition are not sustainable in
the eyes of law as such the writ petition as
framed and filed by the petitioner being
devoid of merit is liable to be dismissed."

20. Therefore, in view of the clear
stand taken by the State in the counter
affidavit which was filed on behalf of
respondent nos.1 ot 4 to the effect that the
orders impugned have been passed on the
basis of record of Arazis validly settled in
1148 INDIAN LAW REPORTS ALLAHABAD SERIES
favour of the private respondents and other
persons and that the impugned orders are
perfectly in accordance with law, not
calling for any interference, necessary
inference can be drawn to the effect that the
"State" is not aggreived by the dismissal of
its revision by the Commissioner vide order
dated 21.10.2020. The consequence of such
stand taken before this Court on oath is that
the State, Commissioner, the Collector, the
Settlement Officer of Consolidation as well
as the Sub Divisional Officer consider the
entire records in favour of the private
persons who have been arrayed in a very
strange capacity in the writ petition as
''Hari Mohan Pandey (beneficiary and
representatives
of
many
other
beneficiaries)'.

21. In view of the above, once the
original
relief
claimed
in
the
proceedings under Sections 33/39/225 of
the Act-1901 was to make a declaration
of the land covered by Gata Nos.329 and
330 as "Government Land" and the
Government has acquised to the merits
of the impugned orders passed by the
Commissioner, on the one hand by not
challenging the same despite dismissal
of its revision and, on the other hand, by
taking a clear stand in the counter
affidavit that the orders impugned are
perfectly in accordance with law which
do not call for any interference and that
the rights in the aforesaid land have been
settled in favour of the private persons
on
the
basis
of
judicial/statutory
proceedings, the Court does not find any
good ground to entertain the claim made
by stranger (petitioner), particularly,
when absolutely no disclosure about the
petitioner's personal grievance has been
made either in the entire writ petition or
in the pleadings exchanged between the
parties.

22. The petitioner has tried to refer
to the objections filed by the private
respondents
in
the
court
of
Commissioner and has submitted that
''what
was
not
stated
before
the
Collector was not open to be stated
before the Commissioner'. He has also
argued that Commissioner was not
competent to reappreciate the evidence.
He has further argued that the documents
filed by the private respondents were not
sufficient for holding their rights as
valid. In support of his submissions, the
petitioner has placed reliance upon the
judgement of Supreme Court in the case
of
Rukmini
Amma
Saradamma
v.
Kallyani Sulochana & Ors. reported in
(1993) 1 S.C.C. 499 with special
reference to ''paragraph 20' which is
quoted hereinbelow:-

"20. We are afraid this approach of the
High Court is wrong. Even the wider
language of Section 20 of the Act cannot
enable the High Court to act as a first or a
second court of appeal. Otherwise the
distinction between appellate and revisional
jurisdiction will get obliterated. Hence, the
High Court was not right in re-appreciating
the
entire
evidence
both
oral
or
documentary
in
the
light
of
the
Commissioner's report (Exts. C-1 and C-2
mahazar). In our considered view, the High
Court had travelled far beyond the revisional
jurisdiction. Even by the presence of the word
"propriety" it cannot mean that there could be
a re-appreciation of evidence. Of course, the
revisional court can come to a different
conclusion but not on a re-appreciation of
evidence; on the contrary, by confining itself to
legality, regularity and propriety of the order
impugned before it. Therefore, we are unable
to agree with the reasoning of the High Court
with reference to the exercise of revisional
jurisdiction. "
5 All. Brahmanand Pandey Vs. State of U.P. & Ors.
1149

23. He has also placed reliance upon
another judgment of Supreme Court in the
case of Hiya Associates & Ors. v.
Nakshatra Properties Private Limited
reported in (2018) 18 S.C.C. 358 with
special reference to ''paragraph 19' which is
quoted as below:-

"19. In our opinion, the documents
sought to be filed by the defendants
(revision petitioners) were neither relevant
nor material for deciding the legality and
correctness of the order impugned in the
revision could be decided one way or the
other without the aid of any additional
document but on the basis of material
already on record keeping in view the law
laid down by this Court in several decided
cases on the issue in question. Indeed, if the
executing court could decide the issue
finally at its level, the Revisional Court too
could do the same at it level"

24. This Court is not inclined to give
any benefit of the aforesaid decisions to the
petitioner as the judgment in the case of
Rukmini (supra) had been delivered in a
case arising out of Kerala Buildings (Lease
and Rent Control) Act -1965 where the
Supreme Court was examining the scope of
interference by the High Court in exercise
of revisional jurisdiction with reference to
"re-appreciation of evidence". Similarily in
the case of Hiya Associates & Ors. (supra),
the Supreme Court was dealing with an
issue as to whether a revisional court can
decide the matter by taking additional
evidence.

25. In the present case, a perusal of
the impugned order dated 25.10.2017
passed by the Collector/District MagistrateAzamgarh shows that the report dated
26.11.2015 submitted by the Settlement
Officer of Consolidation was relied upon
by the Collector before deciding the matter.
Similarily, the Commissioner has also
placed reliance upon the same report. The
findings recorded by the Collector in the
impugned order dated 25.10.2017 to the
aforesaid effect are as follows:-

"प्रकरण के न्यायसुंगि स्िथिारण हेिु उप स्जलास्धकारी
सगडी एवुं बन्दोबथि अस्धकारी चकबन्दी से आख्या प्राप्त की
गयी। बन्दोबथि अस्धकारी चकबन्दी की आख्या स्दिाुंक
26.11.2015 में यह उल्लेख स्कया गया है स्क गाटा सुं०
330 क्षे० 0.030 कडी चकबन्दी अस्धकारी के मु०ि०
10459 आदेश स्दिाुंक 12.11.1971 द्वारा सभापस्ि,
पुंचािन्द का िाम खाररज करके राजपस्ि, रास्धका पुत्रगण
सदािन्द का िाम आया है व गाटा सुं० 329 क्षे० 0.015
पूवष में राजपस्ि, रास्धका पुत्रगण सदािन्द का िाम पूवष खिौिी
के आधार पर ही चला आ रहा है। "

26. The findings recorded by the
Commissioner in its impugned order dated
21.10.2020 are as follows:-

"8- अवि न्यायालय की पत्रावली पि उपलब्ध बन्दोबस्त
अजधकािी िकबन्दी की आख्या जदनांक 26.11.2015 के
अवलोकन से स्पष्ट है जक आकाि पत्र-11 के खाता सं० 154
सभापजत, पंिानन्द पुत्रगण गजाधि के नाम अन्य गाटों के साथ
1149/3 िकब/ 0.030 अंजकत है। खाते पि िकबन्दी
अजधकािी के मु०नं० 10459 जनणशय जदनांक 12.11.1971
द्वािा गाटा सं0 1149/3 िकबा 0.030 से सभापजत, पंिानन्द
का नाम खारिज किके िाजपजत, िाजधका पुत्रगण सदानन्द का
नाम दजश होने का आदेश अंजकत है। गाटा सं०- 1149/3
िकबा 0.030 का नया नम्बि 330/0.030 हे० बन्दोबस्त
बनाते समय कायम जकया गया है एवं आकाि पत्र-11 के खाता
सं०-129 िाजपजत, िाजधका पुत्रगण सदानन्द के नाम अन्य गाटों
के साथ 1149/2 िकबा 0.020 हे० अंजकत है बन्दोबस्त
बनाते समय 1149/2 िकबा 0.020 का नया नम्बि
329/0.015 कायम जकया गया है। इस प्रकाि गाटा सं०-
330/0.030 िकबन्दी अजधकािी के मु०नं०- 10459 जनणशय
जदनांक 12.11.1971 द्वािा सभापजत, पंिानन्द का नाम
खारिज किके िाजपजत, िाजधका पुत्रगण सदानन्द का नाम आया
है एवं गाटा सं० 329/0.015 में िाजपजत िाजधका पुत्रगण
1150 INDIAN LAW REPORTS ALLAHABAD SERIES
सदानन्द का नाम पूवश के आधाि वर्श खतौनी से ही िला आ
िहा है। यह भी उल्लेखनीय है जक उ०प्र० भू- िाजस्व अजधजनयम
की धािा 33/39 के अन्तगशत केवल जलजपकीय त्रुजट दुरूस्त
जकया जा सकता है। इस प्रकाि जवद्वान अवि न्यायालय ने
पत्रावली पि उपलब्ध अजभलेखों के जवजधवत अवलोकन व
पिीक्षणोपिान्त तथ्यात्मक जववेिना के आधाि पि जवजध सम्मत
आदेश पारित जकया है, जजसमें जकसी प्रकाि के हस्तक्षेप का
कोई औजित्य व आधाि नहीं पाया जाता है। दोनो जनगिाजनयां
जनिस्त होने योग्य है। "

27. The aforesaid report dated
26.11.2015 has also been annexed at ''page
no.88' of the writ petition and reads as
follows:-

" कृपया न्यायालय/जजलाजधकािी आजमगढ के पत्र सं-
278(1) पेशकाि जदनाक 20.11.2015 का सन्दभश ग्रहण
किने का कष्ट किें जजसके द्वािा प्रजतजलजप आदेश जदनांक
19.10.2015 में पत्र सं० 238(1) िीडि डी०एम० जदनांक
23.10.2015 द्वािा ग्राम ससना जवश्वनाथपुि के वतशमान
खतौनी 1419 फसली से 1424 फसली में गाटा सं०
329/0.015 व 330/0.030 हे० िाजधका, सदानन्द,
िामप्रकाश, संतोर् कुमाि पुत्रगण िाजपजत व जझनका पत्नी
िाजपजत के नाम संक्रमणीय भूजमधि दजश है, जकन्तु यह जकस
आदेश दजश है अंकन सही अथवा गलत है जबन्दू पि आख्या
उपलब्ध किाये जाने की अपेक्षा की गयी है।

प्रश्नगत प्रकिण में िकबन्दी अजधकािी सगडी जनयम
109 से जांि किायी गयी। उन्होने अपनी जांि आख्या में
उल्लेख जकया है जक ग्राम के अजभलेख अजभलेखागाि में जमा
है जजसमें आधाि वर्श खतौनी व जो०ि०अ० आकाि पत्र
2(क) उपलब्ध नहीं है तथा आकाि पत्र 11 के खाता सं०
154 सभापजत, पंिानन्द पुत्रगण गजाधि के नाम अन्य गाटों के
साथ 1149/3 िकबा 0.030 अंजकत है। खाते पि िकबन्दी
अजधकािी मुकदमा नं० 10459 ता०फै० 12.11.1971 के
द्वािा गाटा सं० 1149/3 िकबा 0.030 से सभापजत, पंिानन्द
का नाम खारिज किके िाजपजत, िाजधका पुत्रगण सदानन्द का
नाम दजश होने का आदेश अंजकत है। गाटा सं० 1149/3 िकबा
0.030 का नया नम्बि 330/0.030 हे० बन्दोबस्त बनाते
समय कायम जकया गया है व आकाि पत्र 11 के खाता सं०
129 िाजपजत िाजधका पुत्रगण सदानन्द के नाम अन्य गाटों के
साथ 1149/2 िकबा 0.020 हे० अंजकत है। बन्दोबस्त बनाते
समय 1149/2 िकबा 0.020 का नया नम्बि 329/0.015
कायम जकया गया है। इस प्रकाि गाटा सं० 330/0.030
िकबन्दी
अजधकािी
के
मु०नं०
10459
ता०फै०
12.11.1971 द्वािा सभापजत, पंिानन्द का नाम खारिज
किके िाजपजत, िाजधका पुत्रगण सदानन्द का नाम आया है व
गाटा सं0 329/0.015 पूवश में िाजपजत, िाजधका पुत्रगण
सदानन्द का नाम पूवश के आधाि वर्श खतौनी से ही िला आ
िहा है।

आख्या सेवा में सादि प्रेजर्त।

बन्दोबस्त अजधकािी िकबन्दी

आजमगढ।"

28. Therefore, the Court finds that the
entire
record
conferring
"bhumidhari
rights" upon private persons including the
respondent no.5 is in their favour and,
merely, because the petitioner, having no
locus in the matter is trying to agitate the
issue, which even otherwise, does not fall
within the ''zone of consideration' under
Sections 33/39 of the Act-1901, the reliefs
claimed cannot be granted.

29. Before arriving at the conclusion,
it would be necessary to refer certain
provisions of law as well as the authorities
dealing with powers of the court in the
matters arising out of proceedings for
correction of revenue records.

30. Section 40-A of the Act-1901
provides for filing of suit in a competent
court for relief on the basis of a right in a
holding and the orders passed under
Sections 33, 35, 39, 40, 41 and 54 of the
Act-1901 would not create any bar in any
such suit. Section 40-A is extracted as
under:-

"[40A. Saving as to title suits. - No order
passed under Section 33, Section 35, Section
39, Section 40, Section 41 or Section 54 shall
bar any suit in a competent Court for relief on
the basis of a right in a holding.]"
5 All. Brahmanand Pandey Vs. State of U.P. & Ors.
1151

31. Since as of now, the provisions of
U.P. Revenue Code-2006 have also come
into operation, identical provision is found
under Section 39 of the Code-2006 reads as
follow:-

"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 subsection (1) of Section 35 or by a SubDivisional Officer under sub-section (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."

32.

The
question
of
the
maintainability of a writ petition against
orders passed in mutation proceedings has
come up before this Court earlier and it has
consistently been held that normally the
High Court in exercise of its discretionary
jurisdiction does not entertain writ petitions
against such orders which arise out of
summary proceedings. In the case of Jaipal
Vs. Board of Revenue, U.P., Allahabad &
Ors., Air 1957 ALL 205, notice was taken
of the consistent practice of this Court not
to interfere with the orders made by the
Board of Revenue in cases in which the
only question at issue was whether the
name of the petitioner should be entered in
the record of rights. The observations made
in the judgment in this regard are as
follows:-

"3.
...It
has however
been
the
consistent practice of this Court not to
interfere with orders made by the Board of
Revenue in cases in which the only question
at issue is whether the name of the
petitioner should be entered in the record of
rights.

That record is primarily maintained
for revenue purposes and an entry therein
has reference only to possession. Such an
entry does not ordinarily confer upon the
person in whose favour it is made any title
to the property in question..."

33. The question with regard to the
maintainability of a writ petition arising out
of
mutation
proceedings
fell
for
consideration in the case of Sri Lal Bachan
Vs. Board of Revenue, U.P., Lucknow &
Ors.2 2002 (93) RD 6 and it was held that
the High Court does not entertain a writ
petition
under
Article
226
of
the
Constitution of India for the reason that
mutation proceedings are only summarily
drawn on the basis of possession and the
parties have a right to get the title
adjudicated
by
regular
suit.
The
observations made in the judgment are
extracted below:-

"11. This Court has consistently taken
the view as is apparent from the decisions
of this Court referred above that writ
petition challenging the orders passed in
mutation proceedings are not to be
entertained. To my mind, apart from there
being
remedy
of
getting
the
title
adjudicated in regular suit, there is one
more reason for not entertaining such writ
petition. The orders passed under Section
34 of the Act are only based on possession
which do not determine the title of the
parties. Even if this Court entertains the
writ petition and decides the writ petition
on merits, the orders passed in mutation
proceedings will remain orders in summary
proceedings and the orders passed in the
proceedings will not finally determine the
title of the parties."

34. Reiterating a similar view in the
case of Bindeshwari Vs. Board of
1152 INDIAN LAW REPORTS ALLAHABAD SERIES
Revenue & Ors., 2002 (1) AWC 498, it
was stated that mutation proceedings do not
adjudicate the rights of parties and orders
passed in the said proceedings are always
subject to adjudication by the competent
Court and therefore a writ petition against
an order in mutation proceedings would not
be entertainable. It was observed as
follows:-

"11. ...The present writ petition arising
out of the summary proceeding of mutation
under Section 34 of U.P. Land Revenue Act,
cannot be entertained under Article 226 of
the Constitution of India. The mutation
proceedings do not adjudicate the rights of
the parties and orders passed in the
mutation are always subject to adjudication
by the competent Court."

35. The settled legal position that
orders of mutation are passed on the basis
of possession and since no substantive
rights of the parties are decided, ordinarily
a writ petition would not be entertainable
against such orders unless the same are
found to be wholly without jurisdiction or
have the effect of rendering findings which
are contrary to title already decided by a
competent court, was reiterated in the case
of Vinod Kumar Rajbhar Vs. State of
U.P. and others, 2021 (1) ADJ 792.

36. Taking note of the nature and
scope of mutation proceedings which are
summary in nature and also the fact that
orders in such proceedings are passed on
the basis of possession of the parties and no
substantive rights are decided, this Court in
Buddh Pal Singh Vs. State of U.P. & Ors.
reported in 2012 (5) ADJ 266, restated the
principle that ordinarily a writ petition in
respect of orders passed in mutation
proceedings is not maintainable. It was
observed as follows:-

"7. It is equally 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 a writ
petition is not maintainable 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. The
parties are always free to get their rights in
respect of the disputed land adjudicated by
competent Court."

37. The proposition that mutation
entries in revenue records do not create or
extinguish title over land nor such entries
have any presumptive value on title has
been restated in a recent decision in the
case of Bhimabai Mahadeo Kambekar
Vs. Arthur Import and Export Company
& Ors. (2019) 3 SCC 191, placing reliance
upon earlier decisions in Balwant Singh
Vs. Daulat Singh (1997) 7 SCC 137 and
Narasamma Vs. State of Karnataka
(209) 5 SCC 591 . The observations made
in the judgment are as follows:-

"6. This Court has consistently held
that mutation of a land in the revenue
records does not create or extinguish the
title over such land nor has it any
presumptive value on the title. It only
enables the person in whose favour
mutation is ordered to pay the land revenue
in question. (See Sawarni v. Inder Kaur,
Balwant Singh v. Daulat Singh and
Narasamma v. State of Karnataka)."

38. Reference may also be had to the
judgment in Faqruddin Vs. Tajuddin
(2008) 8 SCC 12, wherein it was held that
the revenue authorities cannot decide
questions of title and that mutation takes
place only for certain purposes. The
5 All. Brahmanand Pandey Vs. State of U.P.