# Mahanth Chaturbhuj Das @ Chanda v. State of U.P. & Ors

- **Citation:** (2021) 7 ILRA 97
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2021-07-15
- **Case number:** Misc. Single No. 14768 of 2021
- **Bench:** Mrs. Sangeeta Chandra
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/mahanth-chaturbhuj-das-chanda-v-state-of-u-p-ors-47152
- **Pages:** 6

## Headnote

Order rejecting mutation challenged-Remedy is
under Rule 5A (4) of Nazul rules-civil or
revenuecourt
have
jurisdiction-Writ
not
maintainable being a summary proceeding.

W.P. dismissed. (E-7)

List of Cases cited:

## Text

7 All. Mahanth Chaturbhuj Das @ Chanda Vs. State of U.P. & Ors.
97

20. The writ petition stands allowed.
Consequences to follow.
----------
(2021)07ILR A97
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 15.07.2021

BEFORE

THE HON'BLE MRS. SANGEETA CHANDRA, J.

Misc. Single No. 14768 of 2021

Mahanth Chaturbhuj Das @ Chanda
 ...Petitioner
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Rajeev Narayan Pandey

Counsel for the Respondents:
C.S.C.

Order rejecting mutation challenged-Remedy is
under Rule 5A (4) of Nazul rules-civil or
revenuecourt
have
jurisdiction-Writ
not
maintainable being a summary proceeding.

W.P. dismissed. (E-7)

List of Cases cited:

1.
Naveen
Chandra
Seth
&
ors.
Vs
Commissioner, Allahabad & ors., 1999 (3) A.W.C.
2444

2.Writ Petition No.5147 (M/S) of 2015:Smt.
Hadisul Nisha Vs Additional Commissioner
(Judicial) Faizabad& ors.

(Delivered by Hon'ble Mrs. Sangeeta
Chandra, J.)

1. Heard learned counsel for the
petitioner and Sri V.P. Nag, learned
standing counsel appearing for the State
Respondent.

2. The petitioner is aggrieved by the
order dated 03.03.2021 passed by the
Commissioner,
Ayodhya
Division,
Ayodhya,
and
also
the
order dated
22.05.2017 passed by the Additional
District Magistrate (Finance & Revenue)/
Nazul Officer, Faizabad (now Ayodhya)
and prays for a mandamus directing the
respondent to allow mutation application
dated 10.12.2013 filed under Rule 5A of
the Nazul Manual in respect of Khasra
No.51 ad-measuring 3 Bigha 10 Biswa 12
Biswansi 12 Kachwansi situated in Mohalla
Guptarghat, Pargana Haveli Avadh, Tehsil
Sadar, District Faizabad.

3. It is the case of the petitioner that
he is the successor of Mahant Gopal Das,
who was spiritual brother/ Gurubhai of
Mahant Maha Tyagi Mohan Das Mauni
Baba chela Mahanth Ram Bharosey Das. A
nazul lease deed for 90 years with renewal
due after every 30 years had been executed
between the Secretary of State of Indian
Dominion and Baba Janki Das Maharaj
Phalahari Chela Sri Ram Sevak Das Ji with
respect to the aforesaid Khasra No.51 on
26.07.1927. The same was registered
before the Registrar, Faizabad. The lease
agreement was renewed by the Competent
Authority on an application made by the
Mahanth Baba Ram Prasad Das chela Baba
Janki
Das
Maharaj
on
04.06.1958.
Thereafter,
the
lease
agreement
was
renewed on an application of Mahanth
Mohan Das Mauni Baba on 30.07.1997
with effect from 1987, which was also a
registered agreement. Mahanth Mohan Das
executed a Will in favour of Mahanth
Gopal Das and after death of Mahanth
98 INDIAN LAW REPORTS ALLAHABAD SERIES
Mohan Das, Mahanth Gopal Das filed a
mutation application and his name was
noted in the revenue record and he
remained in possession over the said
Khasra No.51 till his death.

4. Mahanth Gopal Das appointed the
petitioner Mahanth Chaturbhuj Das as the
Mahanth of the Temple after his death. On
the death of Mahanth Gopal Das, a
Bhandara was organized on 18.10.2008,
wherein all other Mahanths executed
Mohajjarnama in favour of the petitioner in
respect of the Temple/ Yagyashala situated
in Khasra No.51 at Guptarghat. The
petitioner moved an application under Rule
5A of the Nazul Rule before the Additional
District Magistrate Faizabad/ Ayodhya for
mutation of his name. The application was
registered as Mutation Case No.639 of
2013. A report of the Naib Tehsildar was
sought which was submitted. The petitioner
filed the evidence
in the form of
Mohajjarnama executed on 18.10.2008.
The respondent no.3 rejected the mutation
application on 11.07.2014.

5. The petitioner being aggrieved filed
an Appeal before the Commissioner,
Ayodhya Division, registered as Appeal/
Revision
No.62
of
2014.
Learned
Commissioner set aside the order dated
11.07.2014 and remanded the matter to the
respondent no.3 to consider afresh.

6. The mutation application was
revived and registered as Case No.171 of
2016. The Naib Tehsildar Nazul again
submitted a report in favour of the
petitioner but the respondent no.3 rejected
the mutation application on 22.05.2017 on
the ground that the tenure of lease had
expired on 22.03.2017 therefore there was
no need of mutation of the name of the
petitioner. The petitioner being aggrieved
filed an Appeal on 22.05.2017 before the
Commissioner,
Ayodhya
Division,
Ayodhya, which has been rejected on
03.03.2021
on
the
ground
that
the
Commissioner had no jurisdiction to hear
the matter under Rule 5A of the Nazul
Rules.

7. It has been submitted by learned
counsel for the petitioner that the order
passed by respondent no.3 is arbitrary in
nature and therefore the petitioner had filed
the Appeal. The Appeal has been rejected
on a misconceived ground of being not
maintainable under Rule 5A of Nazul land.

It has been submitted by learned
counsel for the petitioner that after the
matter was remanded by the Commissioner
on 01.12.2016, a report was submitted by
the Tehsildar, Nazul on 31.12.2016 and had
the mutation application be taken up with
expedition by the Additional District
Magistrate (Finance & Revenue), and
orders passed thereon, at that time alone the
right of the petitioner for mutation of his
name would not have been prejudiced as
the lease expired only in March, 2017.

8. Learned counsel for the petitioner
has placed reliance upon a Co-ordinate
Bench judgement rendered in Naveen
Chandra
Seth
and
others
Vs.
Commissioner, Allahabad and others, 1999
(3) A.W.C. 2444, wherein this Court has
held that the Commissioner being a
superior officer had power under the Nazul
Rules to correct the error of Collector on
the administrative side.

9. This Court has carefully perused
the judgement cited by learned counsel for
the petitioner and finds that it was rendered
in respect of a subsisting lease of Nazul
land situated in George Town, Allahabad,
7 All. Mahanth Chaturbhuj Das @ Chanda Vs. State of U.P. & Ors.
99
ad-measuring 1007 sq.yards. The original
lease
agreement
was
executed
on
23.10.1914 to be effective from 01.01.1910
for the period of 90 years subject to
renewal after every 30 years in favour of
one Rai Keshri Narain Chaddha. The
original lessee built a bungalow over the
said plot of land and on his death, his son
Triyugi Narain Chaddha inherited the lease
hold rights to the property. On death of Sri
Triyugi Narain Chaddha, his two sons,
namely, Satyugi Narain Chaddha and
Triloki Narain Chaddha, inherited the lease
hold rights and lease hold rights renewed in
their names. Sri Satyugi Narain Chaddha
had only one daughter Smt. Raj Kumari
Seth who was not bequeathed the said
property by Satyugi Narain Chaddha.
Satyugi Narain Chaddha executed a Will on
19.04.1967 which was witnessed by Two
Judges of the Allahabad High Court as well
as two Advocates as Satyugi Narain
Chaddha was a renowned Advocate of the
Allahabad High Court. Satyugi Narain
Chaddha in his Will specifically mentioned
that he wanted the property to remain in the
maleline and therefore had Willed it to his
nephew-
the
son of Triloki
Narain
Chaddha.

After the death of Satyugi Narain
Chaddha, the land in question was mutated
in the name of his nephew- Dev Narain
Chaddha and Smt. Raj Kumari Seth had
endorsed
a
''no
objection'
in
her
handwriting on the application of mutation
moved by the sons of Triloki Narain
Chaddha. The order of mutation was passed
on 20.06.1963. The house built over the
Nazul land had been Willed by Satyugi
Narain Chaddha to Raj Kumari Seth and
house was therefore mutated in the name of
Smt. Raj Kumari Seth. Sri Triloki Narain
Chaddha executed a Will in respect of lease
hold rights of Nazul land in favour of his
grand-son Deepak Narain Chaddha, who
moved an application for mutation on the
basis of the said Will dated 03.07.1983.
During the course of mutation, an objection
was filed by Smt. Raj Kumari Seth. It was
alleged
that
the
Additional
District
Magistrate (Nazul) rejected the objection of
Raj Kumari Seth arbitrarily and mutation
was done in favour of Deepak Narain
Chaddha on 19.03.1997. The mutation
proceedings having become final, no
Appeal was filed by Raj Kumari Seth,
instead she filed a representation to the
District Magistrate/ Collector who by an
order
dated
17.08.1998
rejected
the
mutation of the name of Deepak Narain
Chaddha. The order passed by the Collector
was carried out. It was this order which was
challenged by Deepak Narain Chaddha
before the Divisional Commissioner. He
also filed a writ petition before the Court
saying that the Appeal was pending before
the Divisional Commissioner and he was
not deciding the same. This Court had
disposed of the writ petition on 15.01.1999
with a direction to the Commissioner to
decide the representation. The Divisional
Commissioner allowed the representation
by an order dated 09.03.1999.

10. It was this order which was
challenged by Naveen Chandra Seth before
this Court on the ground that the Additional
District Magistrate/ Nazul Officer had no
power of mutation under the Nazul Rules.
It was only the Collector who could do so.
This Court found that the Additional
District Magistrate/ Nazul Officer was
authorized to order mutation as in the Act
itself there was a provision that the word
"Collector" shall include the "Additional
District Magistrate" as well. The Court also
observed that after the competent authority
100 INDIAN LAW REPORTS ALLAHABAD SERIES
i.e. Additional District Magistrate/ Nazul
officer had made the order in favour of
respondent, it could not have been set aside
by the Collector on a representation, as the
power of the Collector had already been
exercised
by
the Additional
District
Magistrate. It was further observed by the
Court that the order of the Collector being
without jurisdiction, it could certainly be
corrected by the Commissioner of the
Division who was a higher Administrative
Officer. If the subordinate officer had
wrongly assumed jurisdiction, the superior
officer must certainly pass appropriate
orders to correct the error on the
administrative side. It was observed that
orders passed by the Additional District
Magistrate were passed in their capacity as
Collector and therefore such orders could
not be set aside by the District Magistrate
and if the District Magistrate had taken to
his head in an illegal manner to set aside
the orders passed by the Additional District
Magistrate, in that event, the officer
superior to the District Magistrate should
set aside the order passed by the District
Magistrate. The Court held the order passed
by the Commissioner to be equitable and
just. It moreover observed in paragraph 14
thus:-

"14. The mutation proceedings
are summary in nature. In clause (4) of
Rule 5A of the Nazul Manual, it has been
provided that no order passed under Rule
5A
shall
debar
any
person
from
establishing his right to the property in any
civil or revenue court having jurisdiction. If
the petitioners are really aggrieved of the
orders passed by the Commissioner of the
Division, or for that matter, the Additional
District Magistrates, exercising the power
of the Collector, in that event they can get
their rights established by filing a suit
before an appropriate Court to challenge
the execution, validity and effect of the
Wills, in question."

11. The observations made by the
Coordinate Bench in the case of Naveen
Chandra Seth (supra) were made in the
peculiar facts and circumstances of the case
where the Additional District Magistrate
having passed the order under Rule 5A of
the Nazul Rules, being the competent
authority, and acting in the capacity of the
District Magistrate, the District Magistrate
had stepped out of his jurisdiction and set
aside the order passed by the Additional
District
Magistrate.
Therefore,
Court
observed that if a subordinate officer
assumes the power which is not there and
has not vested in him, the superior officer
can undo the wrong committed by his
subordinate. It was only in this context that
the Court observed that Commissioner
could interfere in the order passed by the
Collector.

12. This Court having gone through
the orders impugned finds that the
Additional District Magistrate (Finance &
Revenue)/ Nazul Officer, Faizabad (now
Ayodhya) had rejected the mutation
application of the petitioner only on the
ground that the term of lease executed in
1917 had come to an end, therefore, there
was no reason for mutation of the name
of the petitioner on the basis of such lease
which had already expired. This order
was challenged by the petitioner by filing
Appeal/
Revision
before
the
Commissioner.
The
Commissioner
observed that under Rule 5A of the Nazul
Rules, the office of the Commissioner
had no role to play and had no
jurisdiction to consider the Appeal/
Revision. He thus rejected the said
Appeal/ Revision as not maintainable by
his order dated 03.03.2021.
7 All. Mahanth Chaturbhuj Das @ Chanda Vs. State of U.P. & Ors.
101

13. The order dated 03.03.2021
suffered from some typographical error
and therefore, it was corrected by the
order dated 19.03.2021.

14. This Court has perused Rule 5
and 5A of the Nazul Rules, which are
being quoted hereinbelow:-

"5. Change entries in Nazul
register.-Entries in the Nazul register
shall not be changed except under the
orders of the Collector. Where a local
authority
is
entrusted
with
the
management of nazul, it shall be the duty
of the local authority to maintain nazul
register up-to-date and where it proposes
to change any entry in the nazul register
as a result of succession, transfer or
assignment of any lease for building
purposes, or on the discovery of any
error or omission in such register, it shall
submit its proposal to the Collector, who,
if he is satisfied after such enquiry as he
considers necessary, that a succession,
transfer or assignment has taken place or
that an error or omission exists, shall
order the register to be corrected
accordingly.

5-A. Mutation procedure.-(1)
On each transfer by succession, sale,
assignment or otherwise, the lessee and
the person to whom the lease rights are
so transferred, shall, within two months,
of the same, deliver a notice in writing to
the Collector or the Nazul Officer
appointed by the Collector, setting forth
the names and other particulars of the
persons from whom and to whom the
transfer take place and the nature and
description of the transfer.

(2) The Collector, on receiving
such report, or upon the facts coming
otherwise to his knowledge, shall decide
the matter on the basis of possession, and
shall order mutation in the name of the
transferee in the records accordingly.

(3) If in the course of enquiry into
a dispute under this rule, the Collector is
unable to satisfy himself as to which party
is in possession, he shall ascertain by
summary inquiry the person best entitled to
the property, and shall order the name of
such person to be entered in the records
accordingly.

(4) No order passed under this
rule
shall
debar
any
person
from
establishing his right to the property in any
Civil
or
Revenue
Court
having
jurisdiction."

15. Learned counsel for the petitioner
has submitted that if this Court finds that
the Commissioner had no role to play in the
matter of mutation of Nazul property then
the petitioner would be rendered remediless
and the only course open for him was to
file a writ petition before this Court.

16. This Court finds from sub-Rule 4
of Rule 5A that a remedy is provided in the
Nazul Rules itself as it says that no order
passed under the Rule shall debar any
person from establishing his right to the
property in any civil or revenue court
having jurisdiction.

17. It is settled law that mutation
proceedings are summary in nature and if
an order is passed in such proceedings or
any writ petition thereafter challenging
such
orders
passed
in
mutation
proceedings, in favour of a litigant, it
would not establish his right to the property
in question. The ultimate establishment of
right would only be through a competent
102 INDIAN LAW REPORTS ALLAHABAD SERIES
court by way of a declaration, therefore,
this Court ordinarily does not interfere in
orders passed in mutation proceedings.
There have been exceptions carved out
which have been mentioned in detail by
this Court in its order dated 25.06.2021 in
Writ Petition No.5147 (M/S) of 2015:Smt.
Hadisul Nisha Vs.Additional Commissioner
(Judicial) Faizabad And Ors., which
exceptions from the said judgment are
being quoted hereinbelow:-

"i) If the order is without
jurisdiction;

ii) If the rights and title of the
parties have already been decided by the
competent court, and that has been varied
by the mutation courts;

iii) If the mutation has been
directed not on the basis of possession or
simply on the basis of some title deed, but
after entering into a debate of entitlement
to succeed the property, touching into the
merits of the rival claims;

iv) If rights have been created
which are against statutory provisions of
any Statute, and the entry itself confers a
title on the petitioner by virtue of the
provisions of the U.P. Zamindari Abolition
and Land Reforms Act;

v) Where the orders impugned in
the writ petition have been passed on the
basis of fraud or misrepresentation of facts,
or by fabricating the documents by anyone
of the litigants.

vi) Where the courts have not
considered the matter on merits for
example the courts have passed orders on
restoration applications etc (Vijay Shankar
v Addl Commissioner; 2015 (33) LCD
1073)."

18. The case of the petitioner does not
fall in any of the exceptions that have been
carved out by this Court for showing
interference in an order passed in mutation
proceedings.

19. The writ petition is dismissed
leaving it open for the petitioner to
establish his right before the competent
Civil or Revenue Court with regard to the
property in question.
----------
(2021)07ILR A102
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 28.07.2021

BEFORE

THE HON'BLE MRS. SANGEETA CHANDRA, J.

C.M. Application No. 127734 of 2019
In re:
Misc. Single No. 5846 of 2008

Ashok Kumar Singh ...Petitioner
Versus
Presiding Officer Debt Recovery Tribunal
Lucknow ...Respondent

Counsel for the Petitioner:
Ravi Singh

Counsel for the Respondents:
Rakesh
Kumar
Singh,
Ashish
Sinha,
Nirankar Nath Jaiswal, Prashant Jaiswal,
Siya Ram Pandey

SERFAESI Act, 2002 - Section 13 92- Notice
under of to Petitioner-Petitioner submitted
representation u/s13 (3A)-not decided-auction
held- Securitization Application filed-rejected
being time barred-challenged-not maintainableremedy u/s18 of Act -Appeal before DRT.

W.P. dismissed. (E-7)

List of Cases cited:

1. Civil Appeal No.1281 of 2018: Authorized
Officer, State Bank of Travancore & anr. Vs
Mathew K.C.