# Smt. Nirmala Devi and others v. Upper Commissioner Nagar Nigam, Allahabad and others

- **Citation:** (2011) 2 ILRA 924
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2011-08-03
- **Case number:** Civil Misc. Writ Petition No.27360 of 2008
- **Bench:** Ashok Bhushan, Bharati Sapru
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/smt-nirmala-devi-and-others-v-upper-commissioner-nagar-nigam-allahabad-and-41325
- **Pages:** 11

## Headnote

Sri R.C. Shukla
Sri P.C. Shukla
Sri Rajesh Kumar Pandey
C.S.C.

Municipal
Corporation
Act
1959Section-472-Power
of
Review-order
passed in mutation proceeding under
Section
213
(3)-appealble
under
Section 472-in absence of statutory
provision
of
review-order
without
jurisdiction

Held: Para 21

In
mutation
proceedings
when
an
order is passed by the authority which
is without jurisdiction this Court can
interfere with such an order in exercise
of writ jurisdiction. Present is the case
of a nature where the Up Nagar
Adhikari having already decided the
matter on merit has reviewed the same
without there being any jurisdiction to
review the judgment on merits.
Case Law discussed:
AIR 1987 SC 2186; (1997) 2 CRC 266; 2009
(108) RD 551; 2005(98) RD 720; 1991 RD
72; 1993 (35) ALR page 332; 2002 (93) RD
6; 1956 A.L.J. 807

## Text

924 INDIAN LAW REPORTS ALLAHABAD SERIES [2011

ORIGINAL JURISDICTION
CIVIL SIDE
DATD: ALLAHABAD 03.08.2011

BEFORE
THE HON'BLE ASHOK BHUSHAN, J.
THE HON'BLE BHARATI SAPRU, J.

Civil Misc. Writ Petition No.27360 of 2008

Smt. Nirmala Devi and others

 ...Petitioners
Versus
Upper
Commissioner
Nagar
Nigam,
Allahabad and others
 ...Respondents

Counsel for the Petitioner:
Sri A.B.Singh

Counsel for the Respondents:
Sri R.C. Shukla
Sri P.C. Shukla
Sri Rajesh Kumar Pandey
C.S.C.

Municipal
Corporation
Act
1959Section-472-Power
of
Review-order
passed in mutation proceeding under
Section
213
(3)-appealble
under
Section 472-in absence of statutory
provision
of
review-order
without
jurisdiction

Held: Para 21

In
mutation
proceedings
when
an
order is passed by the authority which
is without jurisdiction this Court can
interfere with such an order in exercise
of writ jurisdiction. Present is the case
of a nature where the Up Nagar
Adhikari having already decided the
matter on merit has reviewed the same
without there being any jurisdiction to
review the judgment on merits.
Case Law discussed:
AIR 1987 SC 2186; (1997) 2 CRC 266; 2009
(108) RD 551; 2005(98) RD 720; 1991 RD
72; 1993 (35) ALR page 332; 2002 (93) RD
6; 1956 A.L.J. 807

(Delivered by Hon'ble Ashok Bhushan, J.)

1. Heard Sri A.B.Singh, learned
counsel
for
the
petitioners,
Sri
R.C.Shukla
appears
for
respondent
Nos.5, 6 and 7 and Sri Rajesh Kumar
Pandey appears for respondent No.1.

Counter and rejoinder affidavits
have been exchanged.

2. With the consent of the learned
counsel for the parties the writ petition is
being finally decided.

3. By this writ petition the
petitioners have prayed for quashing the
order dated 19.5.2008, passed by Up
Nagar Ayukat by which earlier order
dated 11.6.2007 passed with regard to
House No.337/18, Shivkuti, Allahabad
has been recalled and a direction has
been issued to record the name of
respondent Nos.5, 6 and 7.

4. Brief facts of the case which are
necessary to be noted for deciding the
writ petition are- that with regard to
House No.337/18 situate at Shivkuti,
Allahabad an order for mutation dated
11.6.2007 was passed for mutating the
name of the writ petitioners which was
made subject to decision of the Civil
Court, in pending Civil Suit No.613 of
1989. After the said order was passed
after hearing both the parties, the
proceedings were reopened on the
application submitted by the respondent
Nos.5, 6 and 7 before Mayor. The
petitioners as well as respondent Nos.5, 6
and 7 submitted application for mutating
their names on the basis of respective
sale deeds. Both the parties resisted
claim
of
other
side.
The
dispute
regarding title between vendors of both
2 All] Smt. Nirmala Devi and others V. Upper Commissioner Nagar Nigam, Allahabad and others

925
the parties is pending consideration
before the Civil Court in Suit No.613 of
1989. After the order dated 11.6.2007
mutating the name of petitioners and
rejecting the objection of respondent
Nos.5, 6 and 7 an application was
submitted to the Mayor of the Nagar
Nigam by respondent Nos.5, 6 and 7 in
which certain directions were issued. It
appears that on the aforesaid directions
again notices were issued to the parties
and after hearing the parties a fresh order
dated 19.5.2008 has been passed by
which earlier order dated 11.6.2007 has
been set aside and a direction was issued
for mutating the name of respondent
Nos.5, 6 and 7. The petitioners aggrieved
by the said decision has come up in the
writ petition.

5.

Learned
counsel
for
the
petitioners
challenging
the
order
contended that the said order passed on
19.5.2008 being review of the earlier
order
dated
11.6.2007
is
without
jurisdiction. He submits that when earlier
authority after hearing the parties passed
the order dated 11.6.2007 mutating the
name of the petitioners, the remedy if
any available to the respondents was to
file an appeal under Section 513 of the
U.P. Municipal Corporation Act, 1959
(hereinafter
referred
to
'Act')
and
recourse
of
review
was
without
jurisdiction. He further submits that there
was no jurisdiction in the Mayor to direct
to rehear the matter. In support of his
submission he placed reliance on the
judgment of the Apex Court in the case
of Dr. Smt. Kuntesh Gupta vs.
Management
of
Hindu
Kanya
Mahavidyalaya, Sitapur (U.P.) and
others, AIR 1987 SC 2186 and the Full
Bench decision of this Court in Shivraj
and others vs. Deputy Director of
Consolidation,
Allahabad
and
others,(1997)2 CRC 266.

6. Learned counsel appearing for
the
Nagar
Nigam
refuting
the
submissions of the learned counsel for
the
petitioners
contended
that
the
proceedings were reopened on the
directions issued by the Mayor, hence,
there is no error in the proceedings. He
submits that after the order dated
11.6.2007 an application was given by
the respondents to the Mayor on which
he directed for fresh hearing.

7. Sri R.C.Shukla, learned counsel
appearing for respondent Nos.5, 6 and 7
refuting the submission of the petitioners'
counsel contended that there is an
inherent jurisdiction in the authority who
has passed the order dated 11.6.2007 to
correct any error. He submits that under
Section 213 of the Act there is a power to
alter or amend the assessment list which
power includes for correcting the order
as and when required. He further submits
that every Court or authority has
jurisdiction to correct any error. He has
placed reliance on judgment of the Apex
Court reported in 1990 RD 47, Sri Dadu
Dayal Mahasabha vs. Sukhdev Arya
and another and 2009(108) RD 551
S.Satnam
Jsingh
and
others
vs.
Surender Kaur and another.

We have considered the submissions
of learned counsel for the parties and
have perused the record.

8. The present case is a case where
the competent authority has exercised
jurisdiction under Section 213 of the Act.
Sub sections (1) and (3) of Section 213
of the Act are as follows:
926 INDIAN LAW REPORTS ALLAHABAD SERIES [2011

"213. Amendment and alteration of
list.- (1) The Executive Committee or a
sub-committee thereof appointed in this
behalf may at any time alter or amend
the assessment list,-

(a) by entering therein the name of
any person or any property which ought
to have been entered or any property
which has become liable to taxation after
the authentication of the assessment list;
or

(b) by substituting therein for the
name of the owner or occupier of any
property the name of any other person
who has succeeded by transfer or
otherwise to the ownership or occupation
of the property; or

(c) by enhancing the valuation of, or
assessment on, any property which [has
become incorrectly valued or assessed or
which,
by
reason
of
fraud,
misrepresentation or mistake, has been
incorrectly valued or assessed]; or

(d) by revaluing or re-assessing any
property the value of which has been
increased by additions or alterations to
buildings; or

(e) where the percentage on the
annual value at which any tax is to be
levied
has
been
altered
by
the
Corporation under the provisions [of this
Act]
by
making
a
corresponding
alteration in the amount of the tax
payable in each case; or

(f) by reducing upon the application
of the owner or on satisfactory evidence
that the owner is untraceable and the
need for reduction established, upon its
own initiative, the valuation of any
building which has been wholly or partly
demolished or destroyed; or

(g) by correcting any clerical,
arithmetical or other apparent error;

Provided
that
the
Executive
committee or the sub-committee, as the
case may be, shall give at least one
month's notice to any person interested
in any alteration [or amendment] which
the
Executive
Committee
or
subcommittee proposes to make under
clauses (a), (b), (c) or (d) of sub-section
(1) and of the date on which the
alteration [or amendment] will be made.

[(1-A) For the removal of doubts it
is hereby declared that it shall not be
necessary to follow the procedure laid
down in Sections 199 to 203 or in
Sections 207 to 210 in respect of any
alteration made under clause (e) of subsection (1) as a result of a determination
of the rate of tax under Section 148.].

(2).......

(3) Every alteration [or amendment]
made under sub-section (1) shall be
authenticated
by
the
signature
or
signatures of the person authorised by
Section 210 and, subject to the result of
an appeal under Section 472, shall take
effect from the date on which the next
instalment falls due.

Sub-section (3) of Section 213
clearly contemplates filing of an appeal
under Section 472.

Sub-sections (1) and (2) of Section
472 are relevant in the present case
which are as follows:
2 All] Smt. Nirmala Devi and others V. Upper Commissioner Nagar Nigam, Allahabad and others

927

"472. Appeals when and to whom
to lie.- (1) Subject to the provisions
hereinafter contained, appeals against
any annual value or tax fixed or charged
under this Act shall be heard and
determined by the Judge:

[Provided that any such appeal
pending at any stage before the Judge
may be transferred by the District Judge
for hearing and disposal, to any
Additional Judge of the Court of Small
Causes or Civil Judge or Additional
Civil Judge having jurisdiction in the
City.]

(2) No such appeal shall be heard
unless-

(a) it is brought within fifteen days
after the accrual of the cause of
complaint;

(b) in the case of an appeal against
an annual value an objection has
previously been made [and has been
disposed of under Section 209];

(c) in the case of an appeal against
any tax in respect of which provisions
exists under this Act for an objection to
be
made
to
the
[Municipal
Commissioner] against the demand; such
objection has previously been made and
disposed of;

[(d) in the case of an appeal against
any amendment or alteration made in the
assessment list for property taxes under
sub-section (1) of Section 213, an
objection has been made in pursuance of
a notice issued under the proviso to the
said sub-section and such objection has
been disposed of;]

(e) in the case of an appeal against
a tax, or in the case of an appeal made
against an annual value after a bill for
any property tax assessed upon such
value
has
been
presented
to
the
appellant, the amount claimed from the
appellant has been deposited by him with
the [Municipal Commissioner]."

9. The submission which has been
pressed by counsel for the petitioners is
that the order passed under Section 213,
dated 11.6.2007, could not have been
reviewed by the authority since the said
order was subject to result of an appeal
under sub-section (3) of Section 213 of
the Act and there is no specific provision
for review under the statute. Whereas Sri
Shukla
refuting
the
submissions
contended that under Section 213,
Assessment List, can be altered and
amended at any time and the authority
who
has
passed
the
order
dated
11.6.2007 was fully competent to review
that order.

10.

For
appreciating
the
submissions of the learned counsel for
the parties it is necessary to look into the
ambit and scope of Section 213(1) of the
Act. Sub-section (1) of Section 213
provides that the Executive Committee
or a sub-committee thereof appointed in
this behalf may at any time alter or
amend the assessment list. The power
under Section 213(1) can be exercised
undoubtedly from time to time as
occasion arises but the question which is
to be considered is as to when an order
was passed after hearing both the parties,
whether that can be reviewed by the
same authority or not. The present is a
case where the mutation was sought
under Section 213(1)(b) of the Act which
was allowed on 11.6.2007, when specific
928 INDIAN LAW REPORTS ALLAHABAD SERIES [2011

provision for appeal is mentioned under
sub-section(3) of Section 213 of the Act,
the Legislature clearly contemplated
challenge of such order by way of an
appeal. Clause (g) of sub-section (1)
Section 213 contemplates correction of
any
clerical,
arithmetical
or
other
apparent error in the assessment list. The
present is not case of correction of
clerical, arithmetical or other apparent
error rather it was a case of deciding the
claim of two set of persons who were
claiming their mutation on the basis of
the respective sale deeds.

11. The Apex Court in the case of
Dr. Smt. Kuntesh Gupta (supra) held as
under:

"It is now well established that a
quasi judicial authority cannot review its
own order, unless the power of review is
expressly conferred on it by the statute
under which it derives its jurisdiction.
The Vice-Chancellor in considering the
question of approval of an order of
dismissal of the Principal, acts as a
quasi judicial authority. It is not disputed
that the provisions of the U.P. State
Universities Act, 1973 or of the Statutes
of the University do not confer any
power of review on the Vice-Chancellor.
In the circumstances, it must be held that
the
Vice-Chancellor
acted
wholly
without jurisdiction in reviewing her
order dated January 24, 1987 by her
order dated March 7, 1987. The said
order of the Vice Chancellor dated
March 7, 1987 was a nullity."

12. The Full Bench judgment of
this Court in the case of Sivraj (supra)
considered the power of the Deputy
Director of Consolidation to review the
judgment given under Section 48 of the
U.P. Consolidation of Holdings Act.
After considering the provisions the Full
Bench held that unless the the power of
review is specifically conferred by the
statute the consolidation authorities has
no power to review or revise their
judgment. The Full Bench of this Court
held as under:

"The aforementioned decisions of
this Court, as we read them, do not
support the proposition of law that any
Tribunal exercising judicial or quasijudicial power, which is not vested with
power of review under the statute
expressly or by necessary implication,
has an inherent power of review of its
previous order in any circumstances. In
our view the decisions only lay down the
proposition that a Tribunal exercising
judicial or quasi-judicial power has the
inherent power to correct a clerical
mistake or arithmetical error in its order
and has the power to review an order
which has been obtained by practising
fraud on the court, provided that
injustice has been perpetrated on a party
by such order. Therefore, these decisions
should not be construed as laying down
any proposition of law contrary to the
well settled principle of law that any
order delivered and signed by a judicial
or
quasi-judicial
authority
attains
finality subject to appeal or revision as
provided under the Act and if the
authority passing the order is not
specifically vested with power of review
under the statute, it cannot reopen the
proceeding
and
review/revise
its
previous order.

Coming to the provisions of the U.P.
Consolidation of Holdings Act, it is our
considered view that the consolidation
authorities,
particularly
the
Deputy
2 All] Smt. Nirmala Devi and others V. Upper Commissioner Nagar Nigam, Allahabad and others

929
Director of Consolidation while deciding
a revision petition exercises judicial or
quasi judicial power and, therefore his
order is final subject to any power of
appeal or revision vested in superior
authority
under
the
Act.
The
consolidation authorities, particularly
the Deputy Director of Consolidation, is
not vested with any power of review of
his order and, therefore, cannot reopen
any proceeding and cannot review or
revise his earlier order. However, as a
judicial or quasi-judicial authority he
has the power to correct any clerical
mistake/arithmetical error manifest error
in his order in exercise of his inherent
power as a tribunal."

13. Learned counsel for the
respondents has relied on the judgment
of the Apex Court in Sri Dadu Dayal
Mahasabha (supra) where the Court was
considering the inherent power of the
Court under Section 151 C.P.C. The
Apex Court in the said judgment laid
down that the Court has inherent power
under Section 151 to correct its own
proceedings, if it was misled by one of
the parties, that was a case where order
of withdrawal of the suit was obtained
which was sought to be cancelled. The
Court held that if the same was obtained
by misleading the Court, the same can
very well be recalled. There cannot be
any disputed to the proposition as laid
down
in
the
aforesaid
judgment.
However,
the
court
has
inherent
jurisdiction to recall its order which was
obtained by misleading the Court. If
fraud is played on the Court, it is the
Court who has power to correct the said
earlier order. Present is not a case where
any fraud has been played. Earlier order
was passed mutating the name of the
petitioners after hearing the contesting
respondents. The second case relied by
learned counsel for the petitioner is
Indian Charge Chrome, Ltd. and
another vs. Union of India and others,
2005(98)RD 720 where the review was
sought of a judgment of the Apex Court.
The Apex Court admitted the review
against its own judgment. The Court as
noted above has power to review its own
judgment. But, in the present case, the
question for consideration is the power
of a statutory authority who have been
conferred certain limited jurisdiction
under the statue. The above decision also
does not help the respondent in the
present case.

14. The last judgment which is
relied is S. Satnam Singh (supra) which
case had arisen out of the suit in the Civil
Court.
The
Court
laid
down
the
proposition that the Court is always
empowered to rectify the mistake the
Court has committed. Present is not a
case where any court is correcting its
own mistake rather present is a case
where after decision is taken by the
statutory authority under Section 213, the
same authority again re-hear the matter
on the direction of the Mayor and review
its judgment. No provision has been
shown to the Court which empowers the
Mayor to issue any direction to reopen
the matter which has been decided by a
statutory authority.

15. In the present case we are of the
view that the petition has substance and
the order dated 11.6.2007 could not have
been reviewed by the Up Nagar Ayukt
and
the
remedy
available
to
the
respondents was to file an appeal under
Section
472
of
the
Municipal
Corporation Act, 1959.
930 INDIAN LAW REPORTS ALLAHABAD SERIES [2011

16. Learned counsel for the
respondents have submitted that the
petitioners having challenged the order
passed by the municipal authorities in
mutation
proceedings,
the
remedy
available to the petitioners is to institute
a suit in the competent court and the writ
petition be not entertained.

17. Learned counsel for the
respondents has placed reliance on a
Division Bench Judgment of this Court
reported in 1991 RD 72 , Ram Bharose
Lal vs. State of U.P. and others. In the
case of Ram Bharosey Lal the petitioner
has filed a writ petition for a mandamus
directing the District Magistrate to effect
a change in the relevant village record
scoring out the name of individuals. The
writ petition was dismissed by a Division
Bench against which a Special Leave
Petition was filed, which was permitted
to be withdrawn and therefore, thereafter
a review application was filed by the
petitioner before the Division Bench.
Following was laid down by the Division
Bench:-

"The main relief sought by the
petitioner is to direct the District
Magistrate to effect change or mutation
in the relevant record or rights by
expunging the name of the vendors and
entering the names of vendees, actually
seeking direction to the Collector to
make mutation of the name of the
petitioner similar to an application
under Sec.34 of U.P. Land Revenue Act
1901. Even though relief sought by the
petitioners may be under different Act
but legal effect of the order of mutation
in that event also remains the same. As a
matter of fact, the mutation proceedings
may be under Sec.34 of U.P. Land
Revenue Act or under some other similar
Act, but the legal effect in both the events
remains the same. These proceedings do
not decide the right or title of the parties
rather these proceedings are just fiscal
in nature. They have just got legal effect
of entering name of vendee in place of
the vendor or the name of lessee in place
of lessor or donee in place of doner.
These mutation proceedings are to
enable the State to receive revenue from
vendee.

By now it is well settled that where
the dispute is in mutation proceedings
which do not adjudicate upon rights or
title of the parties, this Court need not
interfere under Article 226 of the
Constitution. In such matters persons
aggrieved shall have rider to seek
remedy in the appropriate Court.

Even though the order of Division
Bench was not detained one, but in our
opinion it is absolutely correct. There is
no justification to review or recall the
order dated 5.2.1988 passed by Division
Bench. Review petition fails and is
dismissed. It shall, however, remain open
for the petitioner to seek remedy before
appropriate Court."

18. The above case was on entirely
different premise. The writ petition was
directly filed in this Court praying relief
akin to mutation of name, which petition
was dismissed by this Court. Although
observation was made that mutation
proceedings does not adjudicate upon
rights and titles of the parties and the
aggrieved persons shall have to seek
remedy in the appropriate court but the
said case did not lay any proposition that
even if the order passed by statutory
authority in mutation proceedings is
without jurisdiction this Court under
2 All] Smt. Nirmala Devi and others V. Upper Commissioner Nagar Nigam, Allahabad and others

931
Article 226 cannot interfere in such an
illegal order.

19. A learned Single Judge had
occasion
to
consider
mutation
proceedings under U.P. Municipalities
Act, 1916. In 1993(35)ALR page 332,
Hukmanand Sharma vs. The Chief
Judicial Magistrate, Dehradun and
others, it was observed by this Court that
in the said case that proceedings for
mutation in the Municipal record are
fiscal in nature. However, in the case an
illegal order is passed in the mutation
proceedings, the same can be expunged.
This Court observed that the fact that
either of the parties can approach to the
Civil Court does not mean that an illegal
order passed by the Nagar Palika can be
allowed to stand. Following was laid
down in the said judgment:

"Proceedings for mutation in the
municipal records are fiscal in nature
and are limited to the realisation of
municipal taxes. The Nagar Palika has
no authority to conc justice lusively
decide as to who is the rightful owner of
the property. This power is vested in a
Civil Court and the party, who is
aggrieved by mutation, can go to a civil
court for declaration of its rights and for
such relief, as the circumstances of the
case may warrant. The learned counsel
for the respondents, therefore, contended
that the petitioner's remedy lies in
approaching
a
Civil
Court
for
determination of its rights. It is true that
either of the parties can approach to the
Civil Court, but that does not mean that
an illegal order passed by the Nagar
Palika can be allowed to stand merely
because it is not conclusive. The
petitioner's name was already recorded
in the municipal records. The respondent
No.4 did not appeal to the appellate
authority. After the order, it applied in
1973 for mutation of its name and the
proceedings lingered on for several
years. The administrative authorities are
not at liberty to pass any order whatever
and when ever they like. The order
passed by the executive officer expunging
the name of the petitioner was, therefore,
illegal and deserves to be quashed.

The writ petition is, accordingly
allowed and the order dated 15th June,
1981 passed by the executive officer,
Nagar Palika, Rishikesh, a copy of which
is Annexure '2' to the writ petition, is
hereby quashed. In the circumstances of
the case, the parties will bear their own
costs."

20. This Court while considering
the provisions of Section 34 of the U.P.
Land Revenue Act, 1901 has examined
the ambit and scope of entertaining the
writ petition against the order passed in
mutation proceedings in 2002(93)RD 6,
Lal Bachan vs. Board of Revenue ,
U.P., Lucknow and others) referring to
the Division Bench judgment of this
Court in Jaipal, Minor vs. The Board
of Revenue, U.P., Allahabad and
others, 1956 A.L.J. 807 following was
laid down by this Court:

"12.
In
view
of
the
above
discussions, it is clear that although the
writ petition arising out of the mutation
proceedings cannot be held to be nonmaintainable but this Court do not
entertain the writ petition under Article
226 of the Constitution due to reason that
parties have right to get the title
adjudicated by regular suit and the orders
passed in mutation proceedings are
summary in nature.
932 INDIAN LAW REPORTS ALLAHABAD SERIES [2011

13. The second question which
needs to be considered is as to in what
circumstances the writ petition can be
entertained arising out of the mutation
proceedings. The Division Bench of this
Court in Jaipal's case (supra) has referred
to "exception" to the general rule in
following words:

"The only exception to this general
rule is in those cases in which the entry
itself confers a title on the petitioner by
virtue of the provisions of the U.P.
Zamindari Abolition and Land Reforms
Act. This petition does not fall in that
class and we think therefore this Court
should not entertain it. It is accordingly
dismissed with costs."

14.
Learned
Single
Judge
in
Sridhar's case (supra) also entertained the
writ petition. The learned Single Judge in
the aforesaid writ petition by entertaining
the writ petition had noted that the
aforesaid case was not simple mutation
case but in the said case mutation was
being claimed on the basis of the orders
passed by the consolidation authorities
on the basis of the sale deed. It was
claimed in that writ petition that the
name on the basis of the sale deed was
mutated by consolidation authorities and
name also came in C.H. Form No.45 but
the said entry was not corrected in the
revenue records hence the mutation was
filed. That was the distinguishing feature
which was found by the Court and due to
that reason the said writ petition was
entertained. The Court in the aforesaid
case also endorsed the view that had it
been the case of simple mutation the writ
petition could not have been entertained.
It was held in paragraph 9 of the
aforesaid case:

"9. In the present case, as already
mentioned, it was not a case of simple
mutation of the name of the respondent
No.3 on the basis of the sale deed. The
said deed is said to be dated 10.7.1967
allegedly executed by the petitioner in
favour of the respondent No.3. The fact
that the sale deed was executed by the
petitioner has been denied vehemently.
The said sale deed is claimed to have
been placed before the consolidation
authorities in 1968 and the name of the
respondent No.3 was recorded as owner
on the basis of the said sale-deed over
the plot in question. Had that been the
simple case based on that mutation of
names in consolidation proceedings was
made in 1968 soon after the execution of
the sale-deed and on the basis of the said
consolidation entries on C.H. Form
No.45, the name of the opposite party
No.3 continued to be recorded in the
revenue records thereafter denotification
of village under Section 52 of the Act
continuously, there was no difficulty in
refusing to entertain the writ petition
challenging the mutation entries under
Article 226 of the Constitution."

15. Another case in which this Court
had entertained the writ petition was
Rudra Pratap's case (supra) in which case
the Court interfered on the ground that
the Board of Revenue while deciding the
mutation case has also decided the
question of title. The learned Single
Judge observed in paragraph 2 in the said
judgment as under:

"In that case no doubt it was held
that mutation proceedings ordinarily
relate to the question of possession and
do not decide the question of title for
which there is a separate remedy by way
of a suit and as such the High Court
2 All] Smt. Nirmala Devi and others V. Upper Commissioner Nagar Nigam, Allahabad and others

933
should not interfere in the order passed
in mutation proceedings. But it was also
observed
in
that
case
that
this
consideration should not be applied in
cases where the question of title is also
decided in mutation proceedings. In my
opinion the present case belongs to that
category of cases in as much as the
Board of Revenue has proceeded to
decide the question of title. The Board of
Revenue has not ordered mutation in
favour of the third respondent merely on
the basis of her possession, but it has
ordered mutation in her favour on the
ground that she is entitled to succeed to
the
land
in
dispute
whereas
the
petitioners are not so entitled. The
finding even if not conclusive, does throw
a shadow on the clear title of the
petitioners.
The
petitioners, in
my
opinion,
are
entitled
to
seek
the
assistance of the Court to remove that
shadow and it is not necessary to drive
them to the remedy of a suit."

16. The cases in which the 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
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 mutation
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."

21. In mutation proceedings when
an order is passed by the authority which
is without jurisdiction this Court can
interfere with such an order in exercise
of writ jurisdiction. Present is the case of
a nature where the Up Nagar Adhikari
having already decided the matter on
merit has reviewed the same without
there being any jurisdiction to review the
judgment on merits.

22. In view of the foregoing
discussions, we are of the view that the
order impugned dated 19.5.2008 cannot
be sustained and deserves to be set aside.
However, in view of the fact that this
writ petition challenging the order dated
19.5.2008 was filed in this Court on
2.6.2008 and an interim order was passed
on 4.2.2008 staying the effect of order
dated 19.5.2008 which interim order has
been continuing in this writ petition, in
the ends of justice the respondent Nos.5,
6 and 7 may be given an opportunity to
file an appeal under U.P. Municipal
Corporation Act, 1959.

23. In the result the order dated
19.5.2008 is set aside. Respondent
Nos.5, 6 and 7 may file an appeal against
the order dated 19.5.2008 under Section
472 of the U.P. Municipal Corporation
Act, 1959 in accordance with law.

24. The writ petition is disposed of
accordingly.
---------
934 INDIAN LAW REPORTS ALLAHABAD SERIES [2011

ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 12.08.2011

BEFORE
THE HON'BLE SUNIL AMBWANI, J.
THE HON'BLE K. N. PANDEY, J.

Civil Misc. Writ Petition No.32101 of 2004

Dr. V.P. Singh and others ...Petitioners
Versus
Executive
Council
Banaras
Hindu
University, Varanasi and others

 ...Respondents

Counsel for the Petitioner:
Sri G.K.Singh
Sri V.K. Singh

Counsel for the Respondents:
Sri Rakesh Sinha
Sri K.C. Sinha
Sri Pankaj Naqvi
Sri P.N.Rai
Sri V.K.Upadhyay
Sri V.K. Srivastava
C.S.C.

Central University Retirement Benefit
Rules,
1967-Rule-3(iii)-Request
to
switch over from old pension benefits to
new Pension Scheme-who failed to give
option
within
prescribed
period-Vice
Chancellor
initially
accepted
but
subsequently
withdraw-central
Govt.
refused to accept the recommendation
for
switch
over-held-justified
no
recurring cause of action arose to put
claim after such long time.

Held: Para 17

We are of the opinion that the Vice
Chancellor on his own without there
being any approval of the Executive
Council, which is in turn bound in the
matters of financial discipline, by the
decisions taken by the University Grants
Commission,
which
fully
funds
the
University, did not have any authority to
extend the date for option.

(Delivered by Hon'ble Sunil Ambwani, J.)

1. We have heard Shri G.K. Singh
for the petitioners. Shri Rakesh Sinha for
the Central Government. Shri Pankaj
Naqvi for Banaras Hindu University and
Shri V.K. Upadhyay for the University
Grants Commission.

2. All the petitioners are teachers/
employees
of
the
Banaras
Hindu
University.
By
the
writ
petition
No.32101 of 2004 they have prayed for
quashing the decision of the Executive
Council of the University dated 19th20th July, 2002 as communicated by the
Registrar of the University on 5.9.2002
regretting to approve the orders of the
Vice Chancellor of the University dated
20.3.2001 and 18.1.2002 to grant another
opportunity to the university employees,
and to all those who have superannuated
after 1.1.1996, to opt for the pension
scheme. Consequently, the action taken
in compliance to the Vice Chancellor
order dated 18.1.2002 was withdrawn.
The petitioners have further prayed for
writ of mandamus commanding the
university to allow the petitioners to
switch back from Contributory Provident
Fund Scheme (CPF Scheme) to General
Provident
Fund-cum-Gratuity-cumPension Scheme (GPF-Gratuity-CumPension Scheme).

3. In Writ Petition No.28790 of
2004, the petitioner has challenged the
decision of the Executive Council dated
31st May, 2003 communicated to the
petitioner vide letter dated 24th July,
2003.