# Sandeep & Ors v. State of U.P. & Ors

- **Citation:** (2023) 6 ILRA 926
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2023-06-07
- **Case number:** Writ C No. 4913 of 2023
- **Bench:** Subhash Vidyarthi
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/sandeep-ors-v-state-of-u-p-ors-50475
- **Pages:** 6

## Headnote

Civil Law - the Land Revenue Act,1901 -
Section 210/211 -impugned order-order
passed in appeal - appeal filed against the
order passed under Section 34 of the Land
Revenue Act-mutation proceedings are
summary in nature-question of title not
decided-impugned orders not amenable to
writ jurisdiction- exception circumstances
wherein writ court can entertain writ
petition
arising
out
of
mutation
proceedings-Hadisul
Nisha
reiteratedimpugned order not ex parte in naturehence appeal not barred under Section
201 of the Land Revenue Act-impugned
orders neither decide title of the partiesnor they are without jurisdiction-writ
petition against remand order not to be
entertained ordinarily-Petition dismissed.
(Paras 11, 14, 15,17, 18 and 19)

HELD:
A perusal of the mutation
order dated
12.07.2001 indicates that it was decided on the
basis of a compromise between Hari Shyam and
the opposite party no. 5, when the application
was lying dismissed in default. It merely records
that on the basis of material available on record,
it would be proper to enter the plaintiff's name
in respect of the property in question. Nothing
has been St.d in the order regarding title of the
parties. While setting aside the aforesaid order,
the appellant authority has merely remanded
the matter for being decided afresh on its merit
after giving an opportunity of hearing to the
opposite party no. 5 and the appellate authority
has also not recorded any finding or satisfaction
about title of the parties. The revisional
authority has refused to interfere against the
appellate order holding that it was merely an
order of remand and the parties will have the
opportunity to present their case. The revisional
authority has also not recorded any finding
which may affect the title of the parties.
6 All. Sandeep & Ors. Vs. State of U.P. & Ors.
927
Therefore,
I
am
unable
to
accept
the
submissions made by the learned counsel for
the parties that the title has been decided in the
present case while deciding the mutation
application. (Para 11)

It is not the case of the petitioner that the
authorities deciding the mutation application,
the appeal and the revision did not have
jurisdiction to do so or that any other
exceptional circumstance exists in the present
case which may warrant interference by this
Court in exercise of its extraordinary Writ
jurisdiction. (Para 15)

In view of the aforesaid discussion, I am of the
view that the orders under challenge do not
decide title of the parties and the orders are not
without jurisdiction. (Para 18)

 There is one more reason for declining to
entertain the Writ Petition and that by means of
the order under challenge, the appellate
authority has merely remanded the matter for
being decided afresh after giving an opportunity
of hearing to the opposite party no. 5. It is
settled law that a Writ Petition against a remand
order should not be entertained unless there are
compelling reasons warranting exercise of
extraordinary Writ jurisdiction of this Court. No
compelling reasons have been are shown in the
present case as to why the remand order
passed by the opposite party no. 3 and affirmed
by respondent No. 2 should be interfered in
extraordinary jurisdiction under Article 226 of
the Constitution of India. (Para 19)

Petition dismissed. (E-14)

List of Cases cited:

## Text

926 INDIAN LAW REPORTS ALLAHABAD SERIES
pursuant to the dictum of the Apex Court in
Common Cause vs. Union of India and
others (supra) and Laxmi Narain Modi
Vs. Union of India (supra), for running
the modernized slaughterhouse. Therefore,
the U.P. Pollution Control Board has rightly
refused to grant 'consent to operate' by
means of the impugned orders.

CONCLUSION

(42) For the aforesaid reason, we are
of the view that there is no error in the
impugned orders which may warrant any
interference under Article 226 of the
Constitution of India by this Court.

(43) The writ petition is, accordingly,
dismissed.

(44) Needless to mention that while
refusing to grant 'consent to operate' by means
of the impugned orders, liberty was granted by
the Chief Environmental Officer to the
petitioner to comply with the mandatory
provisions of law. That being the position, we
hope and trust that in case the petitioner
complies with the mandatory provisions of law
and applies afresh for 'consent to operate'
complying with the provision of Government
Order
dated
07.07.2017,
the
authorities
concerned shall consider the claim of the
petitioner in accordance with law expeditiously.
----------
(2023) 6 ILRA 926
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 07.06.2023

BEFORE

THE HON'BLE SUBHASH VIDYARTHI, J.

Writ C No. 4913 of 2023

Sandeep & Ors. ...Petitioners
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioners:
Vipin Kumar Mishra

Counsel for the Respondents:
C.S.C.

Civil Law - the Land Revenue Act,1901 -
Section 210/211 -impugned order-order
passed in appeal - appeal filed against the
order passed under Section 34 of the Land
Revenue Act-mutation proceedings are
summary in nature-question of title not
decided-impugned orders not amenable to
writ jurisdiction- exception circumstances
wherein writ court can entertain writ
petition
arising
out
of
mutation
proceedings-Hadisul
Nisha
reiteratedimpugned order not ex parte in naturehence appeal not barred under Section
201 of the Land Revenue Act-impugned
orders neither decide title of the partiesnor they are without jurisdiction-writ
petition against remand order not to be
entertained ordinarily-Petition dismissed.
(Paras 11, 14, 15,17, 18 and 19)

HELD:
A perusal of the mutation
order dated
12.07.2001 indicates that it was decided on the
basis of a compromise between Hari Shyam and
the opposite party no. 5, when the application
was lying dismissed in default. It merely records
that on the basis of material available on record,
it would be proper to enter the plaintiff's name
in respect of the property in question. Nothing
has been St.d in the order regarding title of the
parties. While setting aside the aforesaid order,
the appellant authority has merely remanded
the matter for being decided afresh on its merit
after giving an opportunity of hearing to the
opposite party no. 5 and the appellate authority
has also not recorded any finding or satisfaction
about title of the parties. The revisional
authority has refused to interfere against the
appellate order holding that it was merely an
order of remand and the parties will have the
opportunity to present their case. The revisional
authority has also not recorded any finding
which may affect the title of the parties.
6 All. Sandeep & Ors. Vs. State of U.P. & Ors.
927
Therefore,
I
am
unable
to
accept
the
submissions made by the learned counsel for
the parties that the title has been decided in the
present case while deciding the mutation
application. (Para 11)

It is not the case of the petitioner that the
authorities deciding the mutation application,
the appeal and the revision did not have
jurisdiction to do so or that any other
exceptional circumstance exists in the present
case which may warrant interference by this
Court in exercise of its extraordinary Writ
jurisdiction. (Para 15)

In view of the aforesaid discussion, I am of the
view that the orders under challenge do not
decide title of the parties and the orders are not
without jurisdiction. (Para 18)

 There is one more reason for declining to
entertain the Writ Petition and that by means of
the order under challenge, the appellate
authority has merely remanded the matter for
being decided afresh after giving an opportunity
of hearing to the opposite party no. 5. It is
settled law that a Writ Petition against a remand
order should not be entertained unless there are
compelling reasons warranting exercise of
extraordinary Writ jurisdiction of this Court. No
compelling reasons have been are shown in the
present case as to why the remand order
passed by the opposite party no. 3 and affirmed
by respondent No. 2 should be interfered in
extraordinary jurisdiction under Article 226 of
the Constitution of India. (Para 19)

Petition dismissed. (E-14)

List of Cases cited:

1. Lal Bachan Vs Board of Revenue, UP, 2002
(93) RD 6

2. Hadisul Nisha Vs Additional Commissioner
(Judicial) Faizabad & ors. 2021 (6) ADJ 176

(Delivered by Hon'ble Subhash Vidyarthi, J.)

1. Sri Vipin Kumar Mishra, learned
counsel for the petitioners and Sri Uttam
Kumar Srivastava, the learned Standing
Counsel.

2. By means of the instant writ
petition, the petitioner has challenged the
validity of the orders dated 03.10.2006
passed by the Sub Divisional Officer,
Kadipur in an appeal filed under Section
210/211 of the Land Revenue Act against
an order dated 12.07.2001 passed by the
Naib Tehsildar, Dostpur, Sultanpur in Case
No. 724, under Section 34 of the Land
Revenue Act.

3. The brief facts of the case are that
the recorded tenure holder Kamal Nayan
had executed a Will in favour of the
opposite party no. 5 and thereafter the
opposite party no. 5 had executed a sale
deed in favour of Chhote Lal - the
predecessor-in-interest of the petitioners.
Chhote Lal and the opposite party no. 5
both filed separate application for mutation,
which were clubbed together. One Hari
Shyam, brother of Opposite party no. 5 had
filed objections against the application
disputing the Will and claiming ownership
in respect of half share on the basis of
succession.

4. The application filed by Chhote Lal
was dismissed in default on 18.06.2001. He
filed an application for restoration on the
same date, but the same was allowed on
09.07.2001.
Although
the
application
remained dismissed for default between
18.06.2001 and 09.07.2001, a compromise
purportedly signed by Hari Shyam and
Chhote Lal was filed on 27.06.2001,
statements of Chhote Lal and an attesting
witness of the Will were recorded on the
same day.

5. The order dated 18.06.2001 was
recalled on 09.07.2001 and on 12.07.2001,
928 INDIAN LAW REPORTS ALLAHABAD SERIES
the Nayab Tahsildar passed an order
allowing
mutation
in
terms
of
the
compromise between Hari Shyam and
Chhote Lal. The compromise was filed and
statements
were
recorded
while
the
application was lying dismissed for default.

6. The opposite party no. 5 Ram Shyam
filed an Appeal against the order dated
12.07.2001, stating that he did not get any
notice of the application for restoration and
the order has been obtained in furtherance of
a conspiracy between the witnesses.

7. The Sub-Divisional Officer allowed
the appeal by means of an order dated
03.10.2006, whereby he set aside the order
dated 12.07.2001 and remanded the matter
for being decided afresh after giving an
opportunity of hearing to the opposite party
no. 5.

8. Chhote Lal challenged the appellate
order by filing the revision before the
Additional Commissioner (Judicial), which
has been dismissed by means of an order
dated 18.05.2023 on the ground that while
allowing the appeal, the matter has been
remanded to the Naib Tehsildar for passing a
fresh order on merits of the case. As the
parties will have an opportunity to present
their case, there is no need for interference in
the remand order.

9. The learned Standing Counsel has
raised
a
preliminary
objection
against
maintainability of the Writ petition on the
ground
that
mutation
proceedings
are
summary in nature and the question of title is
not
decided
in
mutation
proceedings.
Therefore, the aforesaid order is not
amenable to writ jurisdiction of this Court.

10.
Replying
to
the
aforesaid
submission, the learned counsel for the
petitioner has submitted that title has been
decided in the name of mutation in the
present case.

11. A perusal of the mutation order
dated 12.07.2001 indicates that it was
decided on the basis of a compromise
between Hari Shyam and the opposite party
no. 5, when the application was lying
dismissed in default. It merely records that
on the basis of material available on record,
it would be proper to enter the plaintiff's
name in respect of the property in question.
Nothing has been stated in the order
regarding title of the parties. While setting
aside the aforesaid order, the appellant
authority has merely remanded the matter
for being decided afresh on its merit after
giving an opportunity of hearing to the
opposite party no. 5 and the appellate
authority has also not recorded any finding
or satisfaction about title of the parties. The
revisional authority has refused to interfere
against the appellate order holding that it
was merely an order of remand and the
parties will have the opportunity to present
their case. The revisional authority has also
not recorded any finding which may affect
the title of the parties. Therefore, I am
unable to accept the submissions made by
the learned counsel for the parties that the
title has been decided in the present case
while deciding the mutation application.

12. The learned counsel for the
petitioner has relied upon a decision of this
Court in the case of Lal Bachan v. Board
of Revenue, UP, 2002 (93) RD 6 wherein
this Hon'ble Court held as follows:

22. The cases in which writ
petition can also be entertained arising
out of the mutation proceedings may be
cases in which an authority not having
jurisdiction has passed an order or
6 All. Sandeep & Ors. Vs. State of U.P. & Ors.
929
interfered with an order passed in the
proceedings. The writ petition challenging
an order passed without jurisdiction can
be entertained by the Court despite
availability of an alternative remedy.
However, in that case also, the Court will
interfere only when it appears that
substantial injustice has been suffered by
a party. In view of the above discussion, it
is held that the writ petition arising out of
the mutatiion proceedings under Section 34
U.P.
Land
Revenue
Act
cannot
be
entertained by this Court subject to only
exception as laid down by the Division
Bench in Jaipal's case supra). The writ
petition may also be entertained where
authority passing the order had no
jurisdiction.

23. The third question which
arises in the writ petition is as to whether
in view of the facts of the present case, the
present writ petition can be entertained.
From the facts of the case as stated in the
writ petition, it is clear that the writ
petitioner is claiming his right on the basis
of succession on death of Smt. Chandra
Dei. The respondent No. 6 is claiming on
the basis of sale-deed from the said Smt.
Chandra Dei. The dispute was squarely
covered by Section 34 of the Act and was
simple cause of mutation as contemplated
in Section 34 of the Act. The orders passed
in mutation proceedings are only summary
in nature which does not entitle the
petitioner to invoke the jurisdiction of this
Court under Article 226 of the Constitution.
In view of what has been said above, the
present writ petition cannot be entertained.
It is however, observed that the impugned
order passed in mutation proceedings
being in summery proceedings, will not
come in the way of the petitioner in
seeking adjudication of his title before the
competent court. The orders passed in the
mutation proceedings are always subject
to decision by competent court entitled to
adjudicate the title"

(Emphasis supplied).

13. The learned counsel for the
petitioners has placed before this Court
another
judgment
dated
29.11.2019
rendered by co-ordinate Bench of this
Court in Writ Petition No. 32853 (M/S) of
2019, wherein the earlier decision in Lal
Bachan v. Board of Revenue has been
followed and it has been held that 'the writ
petition, challenging the orders passed in
mutation proceedings are not usually
entertained as the remedy of getting the
title adjudicated in Regular Suit is
available to the parties.'

14. The exceptional circumstances, in
which this Court can entertain a Writ
Petition arising out of mutation proceedings
have been succinctly stated by a coordinate Bench of this Court in Hadisul
Nisha
vs.
Additional
Commissioner
(Judicial) Faizabad and Ors. 2021 (6)
ADJ 176 as follows: -

"19. ...The exceptions that have
been carved out being very few, for
example:

(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
930 INDIAN LAW REPORTS ALLAHABAD SERIES
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."

15. It is not the case of the petitioner
that the authorities deciding the mutation
application, the appeal and the revision did
not have jurisdiction to do so or that any
other exceptional circumstance exists in the
present
case
which
may
warrant
interference by this Court in exercise of its
extraordinary Writ jurisdiction.

16. The learned counsel for the
petitioner has submitted that Section 201 of
the U.P. Land Revenue Act provides that no
appeal shall lie from an order passed under
Section 200 ex-parte or in default. He has
submitted that while deciding the appeal,
the learned Additional Commissioner has
recorded that the mutation application was
dismissed in default on 18.06.2001. Chhote
Lal had filed an application for restoration
which was allowed on 09.07.2001. The
statements of attesting witness of the will had
been recorded after dismissal of the
application in default and before it was
restored. After restoration of the case, no
notice of the restoration was sent to the
opposite party no.5. The admission of claim
filed by the opposite party no. 5 appears to be
suspicious and the opposite party no. 5 has
not put his signatures on the order sheet. For
the aforesaid reasons, the appellate authority
found that the order passed by the Naib
Tehsildar was not in accordance with the law.

17. The order dated 12.07.2021 does not
state that it was an ex-parte order and,
therefore, an appeal against the aforesaid
order is not barred by the provisions of
Section 201 of the Land Revenue Act. It
cannot be accepted that the Sub Divisional
Officer had no jurisdiction to entertain and
decide the appeal against an order passed on
the basis of a compromise, which was not
signed by all the parties and which was filed
while the suit was lying dismissed for default.
The aforesaid narration made by the appellate
authority in the appeal regarding the order
dated 12.07.2021 passed by the Naib
Tehsildar would not make the order ex-parte
so as to create a bar filing of appeal against
the aforesaid order under Section 201 of the
Land Revenue Act.

18. In view of the aforesaid discussion, I
am of the view that the orders under
challenge do not decide title of the parties and
the orders are not without jurisdiction.

19. There is one more reason for
declining to entertain the Writ Petition and
that by means of the order under challenge,
the
appellate
authority
has
merely
remanded the matter for being decided
afresh after giving an opportunity of
hearing to the opposite party no. 5. It is
settled law that a Writ Petition against a
remand order should not be entertained
unless
there
are
compelling
reasons
warranting exercise of extraordinary Writ
jurisdiction of this Court. No compelling
reasons have been are shown in the present
case as to why the remand order passed by
the opposite party no. 3 and affirmed by
respondent No. 2 should be interfered in
extraordinary jurisdiction under Article 226
of the Constitution of India.

20. Therefore, the writ petition filed
by the petitioner against the orders passed
6 All. Md Sameer Rao Vs. State of U.P. & Ors.
931
in mutation proceedings is dismissed at the
admission stage without making any
observation which may affect the merits of
the case.

21. The dismissal of the writ petition
will not affect the right of the petitioners to
seek
redressal
of
his
grievance
in
accordance with law.
----------
(2023) 6 ILRA 931
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 25.05.2023

BEFORE

THE HON'BLE AJAY BHANOT, J.

Matter under Article 227 No. 3671 of 2022
with
Writ-C No. 14043 of 2023

Md Sameer Rao ...Petitioner
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
In Person, Sri Hritudhwaj Pratap Sahi

Counsel for the Respondents:
C.S.C., Sri Gaurav Mahajan, Sri Rajesh Tripathi

A. Civil Law- impugned order- Regional
Secretary, Madhyamik Shiksha Parishad,
Regional Office, Bareilly, U.P.- rejected the
application of the petitioner for change of
his
name
in
the
High
School
and
Intermediate certificates.

B. Fundamental right to a name-right to
keep a name of choice or change the name
according to personal preference-Article
19(1)(a)
of
the
Constitution--comes
within
the
ambit
of
right
to
lifeguaranteed
under
Article
21
of
the
Constitution of India-restrictions on the
fundamental right to a name- not an
absolute
right-subject
to
various
reasonable restrictions. (Paras 23,26, 27
and 32)
HELD:
The intimacy of human life and a person's name
is undeniable. The right to keep a name of
choice or change the name according to
personal preference comes within the mighty
sweep of the right to life guaranteed under
Article 21 of the Constitution of India. (Para 23)

Bhatia, J. in Rashmi Srivastava Vs St. of U.P. &
anr. reaffirmed the right to change the name as
a facet of the fundamental right guaranteed
under Article 19(1)(a) of the Constitution of
India. (Para 27)

Clearly the importance of a name is an universal
human value and a cherished right across
jurisdictions. Commonality of human values and
consensus of judicial authorities often becomes
the basis of universal human rights. (Para 32)

C.
Impugned
order-Regulation
7
of
Chapter
III
of
the
Uttar
Pradesh
Intermediate
Education
Act,
1921correction of clerical errors in the name or
the other particulars of a candidateRegulation 40 of Chapter XII of the Uttar
Pradesh
Intermediate
Education
Act,
1921- application seeking change of name
recorded in High School or Intermediate
certificates
issued
by
the
Boardapplication made after 7 years and 5
months-petitioner's
claim
rejected
on
ground of delay and bar of limitation-for
the purpose of change of name-students
appearing in different Boards-comprise
one class-Regulation 40(ग)-fails the test
of reasonable restriction under Article
19(1)(a)
and
Article
21-Doctrine
of
'reading down' invoked-. (Paras 38, 39,
40, 43, 48, 49, 51, 52, 53, 54, 55 and 59)

HELD:

For the purpose of change of name, the
students appearing in different Boards across
the country comprise one class. The CBSE byelaws do not contain any restrictions as are
imposed in the Regulations of the U.P.
Intermediate Education Act, 1921, discussed
above. The students who appear in the UP
Board
are
treated
deferentially
and
discriminated
against
the
candidates
who