# Sunita Mishra v. Board of Revenue, UP at Lucknow & Ors

- **Citation:** (2024) 2 ILRA 335
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2024-01-31
- **Case number:** Writ B No. 2 of 2022
- **Bench:** Jaspreet Singh
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/sunita-mishra-v-board-of-revenue-up-at-lucknow-ors-51422
- **Pages:** 18

## Headnote

A. Revenue Law - UP Zamindari Abolition
and Land Reform Act, 1950 - Section 143
- UP Revenue Code, 2006 - S. 80 -
Change in the nature of land as nonagricultural land - Consequences - How it
effect the mode of devolution - Held, for
such land, the devolution as provided in
the said Act of 1950 is not applicable and
the succession and devolution would be
governed by the personal law of such
bhumidhar. (Para 35)

B. Revenue law - UP Zamindari Abolition
and Land Reform Act, 1950 - 143 - UP
Revenue Code, 2006 - Ss. 80, 81 and 83 -
Declaration of land as non-agricultural
land - Effect on jurisdiction of Tehsildar -
Held, upon declaration of land as nonagricultural , the Tehsildar would not
loose
jurisdiction
to
entertain
an
application for mutation or record any
change in respect of such land. On the
contrary, any change either by transfer,
succession or change in the status of the
land is to be recorded in the record of
rights. The Collector is the custodian of all
revenue records and all such records are
to be kept updated from time to time.
(Para 47)

C. Revenue Law - National Highway Act,
1956 - Sections 3-A & 3-G (5) (6) -
Notification of acquisition was issued -
Consequence - How far it adversely effect
on the mutation power of Tehsildar -
Held, none of the provisions of the NH Act
1956 indicate that the power of the
Tehsildar or the Collector are in any
manner abridged or curtailed to deal with
mutation
proceedings
or
maintenance
of
revenue records. Both the NH Act of 1956 and
the Land Revenue Act, 1901 and now the U.P.
Revenue Code, 2006 operate in different spheres
and one does not overlap with the other or
create any conflict. Thus, to St. that upon
issuance of notification under Section 3-A of the
NH Act of 1956, the jurisdiction of Tehsildar or
the Revenue Court is curtailed is not correct.
(Para 51)

D.
Revenue
Law
-
Securitisation
and
Reconstruction
of
Financial
Assets
and
Enforcement of Securities Interest Act, 2002 - S.
13(2) - Mutation proceeding - Nature - Effect
on the rights of parties - Auction was held and
sale certificate was issued - Mutation order was
passed on the basis of sale-certificate, which has
not been set aside by the competent court -
Effect - How far mutation order affect the rights
of parties - Held, core issue before this Court is
to test the validity of the mutation order passed
in summary proceedings, hence, keeping this in
mind, this Court will refrain from giving any
categoric finding lest it may affect the rights of
the parties as they are litigating in different
forums and courts - The mutation order is an
order in summary proceedings and would be
subject to the orders passed by the regular
Forum which would bind the parties. (Para 60,
61 and 69)

Writ petition dismissed. (E-1)

List of cases cited :-

## Text

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2 All. Sunita Mishra Vs. Board of Revenue, UP at Lucknow & Ors.
335
records the mistake had crept in. That
process would also have had to involve
participation of the appellant, which would
have been compatible with the principles of
natural justice."

22. The added reason, which would
persuade this Court to think that the respondents'
action in altering the petitioner's date of birth
recorded at the time of her entry into service is
utterly bad in law, is the fact that the decision is
based on the Chief Medical Officer's certificate
dated 18.01.1983, which proceeds to opine the
petitioner as 27 years old on the basis of her
general appearance. The certification by the
Chief Medical Officer is not founded on any
scientific test like ossification. It is merely an
opinion. Matters get worse for the respondents
here, because this certificate was before them in
the year 1983, shortly after the petitioner entered
into service, and yet, they chose to enter the
petitioner's date birth as 18.01.1963, contrary to
the Chief Medical Officer's estimation. What
made them to rethink their decision after 12
years, quite apart from the embargo in Rule 2 of
the Rules of 1974, is itself a fact, which might
have required more explanation to be carried in
the impugned order than just a conversation
between the Regional Additional Director and
the Chief Medical Superintendent, Government
Women Hospital, Varanasi, that is mentioned
there.

23. The petitioner's case, based on the
medical certificate of 1998 is more of an illfound apprehension that her date of birth was
changed, which she calls an interpolation,
because she was put up for fresh medical test on
17.06.1998 and a certificate of that date issued,
certifying her to be 35 years old by the Medical
Superintendent. The said certificate is irrelevant,
because it does not figure as the basis of the
respondents' decision even in the impugned
order dated 15.09.2014. The order dated
15.09.2014 also refers to the age determination
certificate issued by the Chief Medical Officer,
Varanasi, which is the same certificate dated
18.01.1983, that was issued when the petitioner
entered service. The other order impugned dated
07.07.1995, as a direct consequence of which the
petitioner's date of birth was altered in her
service-book, cannot possibly be based on a
subsequent medical certificate dated 17.06.1998
issued by the Medical Superintendent.

24. In the result, this petition succeeds and
is allowed with costs. The impugned orders
dated 07.07.1995 and 15.09.2014, both passed
by
the
Chief
Medical
Superintendent,
Government Women Hospital, Varanasi, are
hereby
quashed.
The
petitioner,
having
superannuated, will not be reinstated in service,
but shall be entitled to all consequential benefits,
including the payment of arrears of her salary
and the revision of post retiral benefits, which the
respondents shall determine and pay within six
weeks of the date of receipt of a copy of this
judgment.

25. Let the original service-book of the
petitioner be returned to Mr. Girijesh Kumar
Tripathi, learned Additional Chief Standing
Counsel for its onward and safe transmission to
the respondents.
----------
(2024) 2 ILRA 335
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 31.01.2024

BEFORE

THE HON'BLE JASPREET SINGH, J.

Writ B No. 2 of 2022

Sunita Mishra ...Petitioner
Versus
Board of Revenue, UP at Lucknow & Ors.
 ...Respondents

Counsel for the Petitioner:
336 INDIAN LAW REPORTS ALLAHABAD SERIES
Ashish Chaturvedi, Manish Mani Sharma

Counsel for the Respondents:
C.S.C., Alok Saxena, Amit Srivastava,
C.S.C., Dr. V.K.

A. Revenue Law - UP Zamindari Abolition
and Land Reform Act, 1950 - Section 143
- UP Revenue Code, 2006 - S. 80 -
Change in the nature of land as nonagricultural land - Consequences - How it
effect the mode of devolution - Held, for
such land, the devolution as provided in
the said Act of 1950 is not applicable and
the succession and devolution would be
governed by the personal law of such
bhumidhar. (Para 35)

B. Revenue law - UP Zamindari Abolition
and Land Reform Act, 1950 - 143 - UP
Revenue Code, 2006 - Ss. 80, 81 and 83 -
Declaration of land as non-agricultural
land - Effect on jurisdiction of Tehsildar -
Held, upon declaration of land as nonagricultural , the Tehsildar would not
loose
jurisdiction
to
entertain
an
application for mutation or record any
change in respect of such land. On the
contrary, any change either by transfer,
succession or change in the status of the
land is to be recorded in the record of
rights. The Collector is the custodian of all
revenue records and all such records are
to be kept updated from time to time.
(Para 47)

C. Revenue Law - National Highway Act,
1956 - Sections 3-A & 3-G (5) (6) -
Notification of acquisition was issued -
Consequence - How far it adversely effect
on the mutation power of Tehsildar -
Held, none of the provisions of the NH Act
1956 indicate that the power of the
Tehsildar or the Collector are in any
manner abridged or curtailed to deal with
mutation
proceedings
or
maintenance
of
revenue records. Both the NH Act of 1956 and
the Land Revenue Act, 1901 and now the U.P.
Revenue Code, 2006 operate in different spheres
and one does not overlap with the other or
create any conflict. Thus, to St. that upon
issuance of notification under Section 3-A of the
NH Act of 1956, the jurisdiction of Tehsildar or
the Revenue Court is curtailed is not correct.
(Para 51)

D.
Revenue
Law
-
Securitisation
and
Reconstruction
of
Financial
Assets
and
Enforcement of Securities Interest Act, 2002 - S.
13(2) - Mutation proceeding - Nature - Effect
on the rights of parties - Auction was held and
sale certificate was issued - Mutation order was
passed on the basis of sale-certificate, which has
not been set aside by the competent court -
Effect - How far mutation order affect the rights
of parties - Held, core issue before this Court is
to test the validity of the mutation order passed
in summary proceedings, hence, keeping this in
mind, this Court will refrain from giving any
categoric finding lest it may affect the rights of
the parties as they are litigating in different
forums and courts - The mutation order is an
order in summary proceedings and would be
subject to the orders passed by the regular
Forum which would bind the parties. (Para 60,
61 and 69)

Writ petition dismissed. (E-1)

List of cases cited :-

1. Writ C No. 12986 of 2018; Shiv Chander Devi &
anr.Vs Commissioner, Varanasi Division & ors. decided
on 10.04.2018

2. Ram Bhajan & ors.Vs Deputy Director of
Consolidation, Allahabad & anr.; 2001 (19) LCD 906

3. Shiv Kumar Vs U.O.I.; AIR 2019 SC 5374

4. Ajay Kumar Srivastava Vs U.O.I. & ors.; 2020:AHCLKO:87642-DB

5. Rana Sheo Ambar Singh Vs The Allahabad
Bank Ltd., Allahabad; AIR 1961 SC 1790

6. Shakeena & ors.Vs Bank of India & ors.; 2020
(144) ALR 288

7.
Smt.
Fatma
Kubra
Vs
Additional
Commissioner (Administration, Ayodhya Mandal,
Ayodhya & ors.; 2022 (6) ADJ 68 (LB)

8. Jitendra Singh Vs St. of M. P. & ors.; 2021
SCC Online SC 802
2 All. Sunita Mishra Vs. Board of Revenue, UP at Lucknow & Ors.
337
9. Writ B No. 295 of 2022; Smt. Kalawati Vs
Board of Revenue & ors. decided on 05.04.2022

10. Writ C No. 10958 of 2018; Vipin Agrawal Vs
U.O.I.decided on 27.03.2018

(Delivered by Hon'ble Jaspreet Singh, J.)

1. The petitioner has approached this
Court assailing the order dated 27.09.2021
passed by the Board of Revenue in
Revision No. 229 of 2020 whereby the
revision of the private respondent no. 2 was
allowed and the order dated 23.12.2019
passed by the Additional Commissioner
was set aside, as a consequence, the
mutation order passed in favour of the
private respondents no. 2 dated 20.06.2018
has been affirmed.

2. The matter at hand has a chequered
history, accordingly, it will be appropriate
to take a glance at the facts giving rise to
the instant petition first:-

3. The dispute in question relates to
Plot No. 470M measuring 0.0693 hectares
situate in Balia Shahbadi, Pargana Haweli
Awadh, Tehsil-Sadar, District Faizabad.

4. It is the case of the petitioner that
the said property was purchased in part by
means of a registered sale deed dated
10.08.2000 and later the petitioner again
purchased some more part of Plot No.
470M measuring 0.0438 hectares on
01.07.2006. The petitioner also got the said
land declared as non-agricultural by means
of order dated 27.11.2012.

5. The petitioner thereafter for the
purposes of expanding her business under
the name and style of M/s S.P. Foods, took
a loan from Allahabad Bank, Naharbagh
Branch, Faizabad. A cash credit limit was
granted to the tune of Rs. 20,42,000/-, a
term loan was granted for Rs. 5,00,000/-
and a vehicle loan was also granted for a
sum of Rs. 1,42,000/-

6. The petitioner being the proprietor
of a firm M/s S.P. Foods, could not service
the loan, accordingly, the Bank who had
granted the credit facilities issued a notice
under Section 13(2) of The Securitisation
and Reconstruction of Financial Assets and
Enforcement of Securities Interest Act,
2002 (hereinafter referred to as "the Act of
2002) requiring the petitioner to deposit a
sum of Rs. 32,96,535/- along with interest
and other expenses.

7. At this stage, the petitioner assailed
the said notice by filing a writ petition
before a Division Bench of this Court
bearing W.P. No. 6925 (MB) of 2014 which
was disposed of by means of order dated
01.08.2014. The Division Bench of this
Court at the admission stage itself disposed
of the petition
directing
the
Bankauthorities to look into the matter regarding
the value which was disputed by the
petitioner and take appropriate decision in
accordance with law.

8. In the aforesaid backdrop, while a
one time settlement scheme was prevalent
in the Bank, hence, the Bank informed the
petitioner that in case if the petitioner
wishes, she can take the benefit of the OTS
scheme.

9. The record indicates that in a
National Lok Adalat held on 02.12.2015, a
settlement was arrived at in between the
petitioner and the Bank and in terms
whereof all the accounts of the petitioner
was compromised for a total sum of Rs.
29,50,000/- out of which Rs. 4,00,000/-
deposited by the petitioner in 'No Lien
338 INDIAN LAW REPORTS ALLAHABAD SERIES
Account' was to adjusted and the balance
sum of Rs. 25,50,000/- was to be paid by
the petitioner in one lump-sum by 31st
March, 2016 to the Bank.

10. It is also the case of the petitioner
that the remaining sum of Rs. 25,50,000/-
could not be paid by 31st March, 2016,
however, the petitioner further alleges that
there was a further settlement in terms
whereof the petitioner was required to
deposit the outstanding sum uptil 30th
September, 2016.

11. It is the case of the petitioner that
the
said
subsequent
proceedings/negotiations which had taken
place with the Bank was through one Sri
Rahul Rai who was a representative of
Asset Recovery Management Branch of the
said Bank. As per the said arrangement, Sri
Rahul Rai was to arrange for a purchaser
and the property would be sold for a sum of
Rs. 55,00,000/- and after adjusting the
outstanding sum of the Bank, the remaining
would be paid to the petitioner, however,
this alleged arrangement did not materialize
and being aggrieved the petitioner preferred
a suit before the Civil Judge, Senior
Division, Faizabad bearing Regular Suit
No. 217 of 2017 wherein a decree of
declaration and injunction was sought.

12. It is also alleged by the petitioner
that there was a collusion and conspiracy
between private respondent no. 2 and the
Bank-officials. In the meantime, the
account of the petitioner continued to be
treated as a non-performing asset and the
Bank proceeded to sell the property in
question, which was a secured asset,
through public auction.

13. The petitioner uptil this stage did
not challenge the auction proceedings nor
the sale deed executed by the Bank in
favour of the private respondent no. 2. In
the
aforesaid
backdrop,
the
private
respondent no. 2 on the strength of the sale
deed executed by the Bank in respect of the
disputed property sought his mutation
which came to be allowed on 20th June,
2018.

14. Simultaneously, while these
proceedings were going on, the National
Highway Authority of India also issued a
notification under Section 3-A of the
National Highway Act, 1956 (hereinafter
referred to as the act of 1956) on
11.08.2017 and the notification under
Section 3-D of the Act of 1956 was issued
on 03.08.2018.

15. It is at this stage that the petitioner
assailed the mutation order by filing a
revision. The revision of the petitioner was
allowed by the Additional Commissioner
(Administration) Ayodhya by means of
order dated 23.12.2019 and it set aside the
order dated 20th June, 2018 and 26th June,
2018 and remanded the matter to the Court
of Tehsildar to decide the matter afresh.
This order of remand was assailed by the
private respondent no. 2 in a revision
before the Board of Revenue which has
been allowed against which the petitioner
has approached this Court.

16. From the perusal of the aforesaid
narration, it would be clear that the
disputed land in question was recorded in
the name of the petitioner and as she had
taken a loan which she could not repay, as a
result, the Bank had initiated proceedings
under the Act of 2002 and in pursuance
thereof the property in question came to be
sold in an auction, under the Act of 2002, in
favour of the private respondent no. 2who
2 All. Sunita Mishra Vs. Board of Revenue, UP at Lucknow & Ors.
339
also got his name mutated in the revenue
records.

17. In the aforesaid context, since the
name of the private respondent no. 2 was
recorded in the revenue records, the
petitioner assailed the mutation order also
for the reason that the National Highway
Authority had acquired the land for
widening of the Highway and as the name
of the private respondent no. 2 continued to
be recorded in the revenue records, he
would be entitled to take the compensation.
For the aforesaid reasons, the petitioner
assailed the order for mutation and at this
stage also filed an application under
Section 17 of the Act of 2002 along with an
application
under
Section
5
of
the
Limitation
Act,
1963
assailing
the
proceedings under the Act of 2002, which
culminated in the sale deed in favour of the
private respondent no. 2.

18. Sri Manish Mani Sharma, learned
counsel for the petitioner while attacking
the impugned order has structured his
submissions as under:-

(i) He submits that once the
notification under Section 3-A was issued
under the National Highway Act, 1956, the
Tehsildar in such circumstances had no
power or jurisdiction to continue or
entertain any mutation request in respect of
such land which stood acquired under the
Act of 1956;

(ii) It is also submitted that once
the aforesaid land in question had been
declared as non-agricultural in the year
2012, accordingly, the Tehsildar would lose
jurisdiction over the property as the said
property becomes Abadi and there can be
no mutation proceedings in respect thereto,
thus, the mutation of the private respondent
no. 2 was wholly without jurisdiction.

(iii) It was also urged that the
Lower Revisional Court i.e. the court of
Additional
Commissioner
had
merely
allowed the revision and remanded the
matter to be considered afresh by the
Tehsildar and this being an interlocutory
order, as well as, an order by which no
rights of either of the parties were decided,
consequently,
there
was
neither
any
jurisdictional error nor any error of law on
account of which the Board of Revenue
could have entertained the revision of the
private respondent no. 2 and as such the
impugned order passed by the Board of
Revenue also falls foul for the aforesaid
reason.

(iv) It is also urged that in terms
of the provisions contained in the National
Highway Act, 1956, once the land of the
petitioner was acquired, then the property
vested with the State and the Bank was not
justified in holding the auction. The only
option available with the Bank was to have
waited
for
the
disbursal
of
the
compensation and out of the compensation
so awarded the outstanding sum of the
Bank could have been appropriated and the
remaining could have been paid to the
petitioner but in no case the auction could
take place and thus the proceedings are
bad. The Authorities have not taken note of
the aforesaid submissions, hence, the
mutation order for the aforesaid reasons is
without jurisdiction, accordingly, it is liable
to be set aside after allowing the petition.

19. Sri Sharma, learned counsel for
the petitioner has relied upon a decision of
a coordinate Bench of this Court in Writ- C
No. 12986 of 2018 (Shiv Chander Devi
and Another Vs. Commissioner, Varanasi
Division and three others) decided on
10.04.2018; Ram Bhajan and Others Vs.
Deputy
Director
of
Consolidation,
Allahabad and Another 2001 (19) LCD
340 INDIAN LAW REPORTS ALLAHABAD SERIES
906; Shiv Kumar Vs. Union of India AIR
2019 SC 5374, Ajay Kumar Srivastava Vs.
Union
of
India
and
three
others
2020:AHC-LKO:87642-DB, Rana Sheo
Ambar Singh Vs. The Allahabad Bank
Ltd., Allahabad: AIR 1961 SC 1790.

20. The learned Standing Counsel for
the State-respondents has submitted that a
mutation order does not decide any right,
title or interest of any party finally and thus
an order of mutation being an outcome of
summary proceedings is not liable to be
assailed in a writ petition and for the said
reason, it would be open for the parties to
get their rights adjudicated before the
regular Court or the Debts Recovery
Tribunal, as the case may be, or in terms of
the provisions contained in the National
Highway Act but the instant petition is not
maintainable.

21. Sri Alok Saxena, learned counsel
for the Bank has submitted that the
petitioner had taken a loan which she could
not repay and the Bank had already
initiated proceedings by issuing notice
under Section 13(2) of the Act of 2002. The
Bank had also taken possession in terms of
notice under Section 13 (4) of the Act of
2002 and since the petitioner despite
approaching the court did not make any
effort to pay and hence the auction was
held on 24.08.2017 and a sale certificate
was also issued in favour of the highest
bidder and later the sale deed came to be
executed on 16.03.2018.

22. It is also submitted that the
petitioner has not approached the Court
with clean hands, inasmuch as, she has not
indicated the status of the proceedings of
the civil suit filed by the petitioner herself
nor filing of two other proceedings before
this Court. It is also urged that the
petitioner did not assail the proceeding
under the Act of 2002 by moving any
application under Section 17 of the Act of
2002 and had been dragging the Bank into
litigation before one court to another only
to delay the proceedings.

23. In the aforesaid circumstances,
once the auction had taken place and the
sale certificate was issued, rights had
accrued in favour of the private respondent
no. 2 who had acquired title and as he
applied for mutation before the Competent
Court which was allowed and now it cannot
be said that the Tehsildar does not have the
authority to pass the mutation order.

24. It is further submitted that though
the petitioner in the petition has levelled
allegations against certain officials of the
Bank but from the perusal of the averments
made in the writ petition and the
corresponding annexures, it would indicate
that the said documents were signed by the
husband of the petitioner and even though
she filed the civil suit but she did not
implead her husband as a party. This only
indicates the malafides since the cause of
action of the alleged fraud as indicated in
the suit could only be unravelled, if the
husband of the petitioner was a party since
he was a signatory to the alleged
compromise, which is now being assailed
by the petitioner.

25. Sri Saxena further urges that
the provisions of Act of 2002 have an
overriding
effect
and
since
the
petitioner had not repaid the loan and
proceedings had been initiated which
were taken to its logical conclusion by
the auction and issuance of sale
certificate, accordingly, the order of
mutation on the basis of same cannot be
held to be bad.
2 All. Sunita Mishra Vs. Board of Revenue, UP at Lucknow & Ors.
341

26. Sri Saxena, learned counsel for
the Bank in support of his submissions has
relied upon a decision of the Apex Court in
Shakeena and Others Vs. Bank of India
and Others 2020 (144) ALR 288.

27. Sri Amit Srivastava, learned
counsel for the private respondent no. 2
submits that the private respondent no. 2 is
a bona fide purchaser for value having
purchased the disputed property in a public
auction and the said property has vested
with the private respondent no. 2.

28. The property vested with the
private respondent no. 2 only when the
auction
became
final
and
the
Sale
Certificate was issued to the respondent no.
2. It is urged that the notification under
Section 3-D of the NH Act, 1956 was
issued on 03.08.2018 while the Sale
Certificate was already issued and the
rights of the private respondent no. 2 had
been crystalized by then. In the aforesaid
backdrop, the petitioner got his name
mutated on the basis of Sale Certificate/sale
deed and thus the order of mutation cannot
be held to be bad and the writ petition
deserves to be dismissed.

29. Sri Sarvesh Dubey, learned
counsel for the NHAI has submitted that
the Act of 1956 envisages a complete
scheme in terms whereof the land is
notified and then acquired. It also provides
for redressal of grievance regarding the
compensation as well as who is entitled to
obtain the same.

30. It is also urged that in so far as the
compensation is concerned, that is the
subject matter to be considered by the
Competent Authority under the NHAI Act,
however, the order of mutation per se does
not decide the rights of any party,
accordingly, the ground upon which the
Additional Commissioner (Administration)
had allowed the revision of the petitioner
was not in consonance with law which has
been set aside by the Board of Revenue and
such such the same does not require any
interference and the writ petition deserves
to be dismissed.

31. Now, the stage is set to examine
the arguments of the respective parties.
This Court first proposes to deal with the
submissions of learned counsel for the
petitioner
regarding
the
effect
of
declaration of the land as non-agricultural
under Section 143 of the U.P.Z.A. & L.R.
Act, 1950 and in such circumstances
whether the Tehsildar will have jurisdiction
to entertain a mutation application in
respect of such non-agricultural land and
also by mere declaration, the land becomes
an abadi land so as to exempt such land
from mutation.

32. In this regard, it will be relevant to
notice certain statutory provisions. Section
143 of the U.P.Z.A. & L.R. Act, 1950
which reads as under:-

"143.
Use
of
holding
for
industrial or residential purposes. - [(1)
Where a [bhumidhar with transferable
rights] uses his holding or part thereof for
a purpose not connected with agriculture,
horticulture or animal husbandry which
includes pisciculture and poultry farming,
the Assistant Collector-in-charge of the
sub-division may, suo motu or on an
application, after making such enquiry as
may be prescribed, make a declaration to
that effect.

(1-A) Where a declaration under
sub-section (1) has to be made in respect of
a part of the holding the Assistant
Collector-in-charge of the sub-divisions
342 INDIAN LAW REPORTS ALLAHABAD SERIES
may in the manner prescribed demarcate
such part for the purposes of such
declaration.]

(2) Upon the grant of the
declaration mentioned in sub-section (1)
the provisions of this chapter (other than
this section) shall cease to apply to the
[bhumidhar with transferable rights] with
respect to such land and he shall thereupon
be governed in the matter of devolution of
the land by personal law to which he is
subject.

[(3) Where a bhumidhar with
transferable rights has been granted,
before or after the commencement of the
Uttar Pradesh Land Laws (Amendment)
Act, 1978, any loan by the Uttar Pradesh
Financial Corporation or by any other
Corporation owned or controlled by the
State Government, on the security of any
land
held
by
such
bhumidhar,
the
provisions of this Chapter (other than this
section) shall cease to apply to such
bhumidhar with respect to such land and he
shall thereupon be governed in the matter
of devolution of the land by personal law to
which he is subject.]"

33. From the bare perusal of the
aforesaid provision, it would reveal that the
consequence of the declaration is contained
in sub Section 2 of Section 143 of the Act
of 1950.

34. The import and consequence of
the declaration under Section 143 of the
Act of 1950 was considered by this Court
in Smt. Fatma Kubra Vs. Additional
Commissioner (Administration, Ayodhya
Mandal, Ayodhya and others; 2022 (6)
ADJ 68 (LB) and the relevant paras read as
under.

"20. From the perusal of the
aforesaid, it would be clear that it is only a
recorded bhumidhar, who can make the
said application. Moreover, from the
reading of sub-section (2) of Section 143 of
the U.P.Z.A. & L.R. Act it indicates the
consequence of the declaration as made in
sub-section (1) is that the provisions of the
Chapter-VIII of the U.P.Z.A. & L.R. Act
shall cease to apply to the bhumidhar with
transferable rights and in respect to such
land and he shall be governed in the matter
of devolution of interest in the land by
personal law to which he is subjected to.

21.
Thus,
it
is
clear
that
apparently the initiation of the provisions at
the behest of the petitioner was incorrect.
Moreover, she did not have a right to move
an application in the first place and what is
most strange that the Sub-Divisional
Officer in its order dated 31.03.2006
directed that the names of the recorded
tenure-holders to be deleted and the land
be recorded as 'abadi' under Category 6(2).
This kind of a direction in the order, in
proceedings under Section 143 of the
U.P.Z.A. & L.R. is not known in law. This
exercise of jurisdiction by the SubDivisional Officer was patently erroneous
and without jurisdiction."

35. Having taken a look at the
aforesaid provisions, it would be clear that
in so far as the consequence of declaration
of land as non-agricultural under Section
143 of the Act of 1950 is provided in Sub
Section (2) of Section 143 and the effect is
that the mode of devolution of interest is
changed and for such land, the devolution
as provided in the said Act of 1950 is not
applicable
and
the
succession
and
devolution would be governed by the
personal law of such bhumidhar.

36. At this very stage, it will be
apposite to notice that after the advent of
the Uttar Pradesh Revenue Code, 2006,
2 All. Sunita Mishra Vs. Board of Revenue, UP at Lucknow & Ors.
343
power to declare land as non-agricultural is
provided in Section 80 of the Code of 2006.
The effect of such declaration, cancellation
of declaration and recording of declaration
or cancellation, is contained in Section 81
to 83 of the Code of 2006. The said
Sections are being reproduced hereinafter:-

"80.
Use
of
holding
for
Industrial, Commercial or Residential
purpose. (1) Where a Bhumidhar with
transferable rights uses his holding or part
thereof, for Industrial, commercial or
residential purposes, the Sub-Divisional
Officer may, suo motu or on an application
moved by such Bhumidhar, after making
such enquiry as may be prescribed, either
make a declaration that the land is being
used for the purpose not connected with
agriculture or reject the application. The
Sub-Divisional Officer shall state the
reasons in writing of such declaration or
rejection and inform the applicant of this
decision within forty-five working days
from the date of receipt of the application:

Provided that no such declaration
under this section shall be made merely on
the ground that the holding or part thereof
is surrounded by boundary wall or is
"Parti" on the spot:

Provided
further
that
no
application for the declaration under this
sub-section moved by any co-Bhumidhar
having undivided interest in bhumidhart
land shall be maintainable, unless
application is moved by all the coBhumidhars of such bhumidhart land or
their interests therein are divided in
accordance with provisions of law.)

(2)
The
application
for
declaration under sub section (1) shall
contain such particulars and shall be
made in such manner as may be
prescribed.

(3) Where the application wider
sub-section (1) is made in respect of a part
of the holding, the Sub Divisional Officer
may, in the manner presented, demarcate
such part for purpose of such declaration.

(4) No declaration under this
section shall be issued by the Sub
Divisional Officer, if he is satisfied that the
land is to be used for a purpos which is
likely to cause a public nuisance of to affect
adversely public prder, public health, safety
or convenience of against uses proposed in
the Master Plan.

(5) The State Government may fie
the seule of fees for declaratine under this
section and different fees may be fixed for
different purposes;

Provided that if the applicant
uses the holding or part thereof for his own
residential purpose, no fee shall be charged
for the declaration under this section.

81.Consequences of declaration.
Where a declaration has Leexi made under
Section 80 the following consequences
shall, in respect of such holding or part to
which it relates ensue:-

(a) all restrictions imposed by or
under this chapter XI in respect of transfer
of land shall cease to apply to the
Bhumidhar with transferable rights;

(b) (b) Notwithstanding anything
contained in chapter XI, the land shall, with
effect from the commencement of the
agricultural year following the date of
declaration, be exempted from payment of
land revenue;

(c) The bhumidhar shall, in the
matter of devolution be governed by the
personal

law to which he is subject.

82. Cancellation of declaration.-
(1) Whenever any holding or part thereof in
respect of which a declaration has been
made under section 80 is used for any
purpose connected with agriculture, the
344 INDIAN LAW REPORTS ALLAHABAD SERIES
Sub-Divisional Officer may, of his own
motion or on an application made in that
behalf and after making such inquiry as
may
be
prescribed,
cancel
such
declaration.

(2)
where
a
declaration
is
cancelled
under
sub-section
(1)
the
following consequences shall, in respect of
the holding or part to which it relates ensue
namely:

(a) the holding or part shall
become subject to all restrictions imposed
by or under

this chapter in matters of transfer
and devolution;

(b) the holding or part shall
become liable to payment of land revenue
with effect from the commencement of the
agriculture year in which the order for
cancellation of the declaration is made:

Provided that until any land
revenue is reassessed on such holding or
part in accordance

with the provisions of this Code,
the land revenue payable or deemed to be
payable in respect of such holding or part
before the grant of declaration under
section 80 shall be deemed to be the land
revenue payable in respect of such holding
or part.

(c)
where
the
land
is
in
possession of any person other than the
bhumidhar thereof on the basis of a
contract or lease, and the terms of such
contract or lease are inconsistent with the
provisions of this Code, such contract or
lease
shall,
to
the
extent
of
the
inconsistency, become void and the person
in possession shall be liable to ejectment on
the suit of the bhumidhar:

Provided that a mortgage with
possession existing on the date of the
cancellation of the declaration shall, to the
extent of the amount due and secured on
such land, be deemed to be substituted by a
simple mortgage carrying such rates of
interest as may be prescribed;

83. Recording of declaration or
cancellation-Every
declaration
under
section 80 or cancellation under section 82
shall be recorded in record of rights in the
manner as may be prescribed and even
after declaration under section 80, the
mutation order on the basis of transfer or
succession shall be passed in the manner
prescribed.

37. Apparently, there is no provision
by virtue of which the Tehsildar abdicates
his right to prepare a Khatauni i.e. records
of rights as provided in the Code of 2006.
Moreover, the provisions of the U.P.
Revenue Code, 2006 which is applicable to
the instant case, as mutation proceedings
were initiated under U.P. Revenue Code,
2006 and the consequences of Section 83 of
the Code of 2006 is that the declaration
made under Section 80 would be recorded
in the records of rights and even after
declaration, the mutation on the basis of
transfer and successions shall be made in
the record of rights in the manner
prescribed. This amplifies the fact that the
Revenue Authority, under the Code of
2006, maintains the record of rights even in
respect of property for which declaration
under Section 80 of the U.P. Revenue
Code, 2006 has been made.

38. At the time, when the land in
question was declared as non-agricultural,
it was in the year 2012 and the U.P.Z.A. &
L.R. Act, 1950 and the U.P. Land Revenue
Act, 1950 and the U.P. Land Revenue Act,
1901 were in operation. Mutation of
agricultural lands was governed by Section
34 of the Land Revenue Act, 1901.
Sections 31, 32, 33, 34 and 35 of the Land
Revenue Act, 1901 are being reproduced
hereinafter:-
2 All. Sunita Mishra Vs. Board of Revenue, UP at Lucknow & Ors.
345

"[31] Record of Rights.-(1) The
Collector shall maintain, in the form and
manner prescribed, a record of rights
(khatauni) for each village, which shall
contain the following particulars, namely

(a) the names of all tenure
holders together with survey numbers or
plot numbers held by them and their areas;

(b) the nature or extent of the
respective interests including shares of such
persons and the conditions or liabilities, if
any, attaching thereto;

(c) the rent or revenue, if any,
payable by or to any such person;

(d) particulars of all land (other
than holdings) belonging to or vested in the
State Government, Central Government,
Gram Panchayat or a local authority;

(e) such other particulars as may
be prescribed.

(2) Shares of the co-tenure
holders shall be determined in the manner
prescribed.

32. Correction of records.-(1)
Subject to the control of the Collector, the
Sub-Divisional Officer, the Tahsildar, or the
Revenue Inspector shall record, in the
manner
hereinafter
provided
in
this
chapter, all changes in the record of rights
(Khatauni), the field book (Khasra) and the
map that may take place, and all
transactions that may affect any of the
rights or interests recorded, and correct
therein any error proved to have been made
in the records previously prepared 34[ : ]

[Provided
that
order
for
correction in map shall be passed by the
Collector.]

(2) No application for correction
of error under sub-section (1) where the
claim is based solely on possession as well
as involving intricate question of title shall
be maintainable.

33.
Mutation
in
cases
of
succession.-(1) Every person obtaining
possession of any land by succession shall
submit report of such succession to the
Revenue Inspector of the circle in which the
land is situate in such form as may be
prescribed.

(2) On receipt of a report under
sub-section (1) or on facts otherwise
coming to his knowledge, the Revenue
Inspector shall-

(a) if the case is not disputed,
record such succession in the record of
rights (Khatauni);

39. (b) in any other case, make
such inquiry as may appear to him to be
necessary and submit his report to the
Tehsildar.

40. (3)] Any person whose name
has not been recorded by Revenue
Inspector or who is aggrieved by the order
passed by the Revenue Inspector 37[under
clause (a) or (b) of sub-section (2)] may
move an application before Tehsildar

[(4)] The provisions of this
section shall mutatis mutandis apply to
every person admitted as a Bhumidhar with
non-transferable rights or as an asami by
the
Bhumi
Prabandhak
Samiti
in
accordance with the provisions of this Code
or any enactment repealed by it.

34. Duty to report in cases of
transfer.-(1)
Every
person
obtaining
possession of any land by transfer, other
than a transfer referred to in sub-section
(3) of section 33 shall report such transfer,
in the manner prescribed, to the Tahsildar
of the Tahsil in which the land is situate.

Explanation.- For the purposes of
this section, the word 'transfer' includes a
family settlement.

(2) State Government may fix a
scale of fees for getting entry recorded in
the record of rights on the basis of transfer.
A fee in respect of any such entry shall be
payable by the person in whose favour the
entry is to be made.
346 INDIAN LAW REPORTS ALLAHABAD SERIES

35.
Mutation
in
cases
of
succession or transfer.-(1) On the receipt
of a report under section 33 or section 34,
or upon facts otherwise coming to his
knowledge, the Tahsildar shall issue a
proclamation and make such inquiry as
appears to be necessary and-

(a) if the case is not disputed, he
shall direct the record of rights (Khatauni)
to be amended accordingly;

(b) (deleted)

(c) if the case is disputed, he shall
decide the dispute and direct, if necessary,
the record of rights (khatauni) to be
amended
accordingly.(2)
Any
person
aggrieved by an order of the Tahsildar
under sub-section (1) may prefer an appeal
to the Sub-Divisional Officer within a
period of thirty days from the date of such
order."

41. The provisions of A-157 of the
Land Record Manual is also relevant and it
reads as under:-

"A-157.
Conversion
of
agricultural land intonon-agricultural or
vice versa. If a bhumidhar's holding or part
thereof if declared by the Collector un- der
Section 143 of the U.P. Zamindari Abolition
and Land Reforms Act, 1950, to be nonagricultural land, an entry in respect of the
land so declared shall be re- corded in
columns 7, 8, 9, 10, 11 or 12 of the
khatauni against the relevant en- tries.
Such entries shall be continued to be
recorded from year to year. If at any time
the said declaration is revoked under
Section 144 of the U.P. Zamindari Abolition
and
Land
Reforms
Act,
1950,
the
particulars of the orders of revoca- tion
shall also be entered. In the case of such
revocation the entries shall be omit- ted
from the khatauni of next and subsequent
years)."

42. After the enactment of the U.P.
Revenue Code, 2006, the provisions
relating to mutation are provided in Section
34 of the Code of 2006 which reads as
under:-

34. Duty to report in cases of
transfer.-(1)
Every
person
obtaining
possession of any land by transfer, other
than a transfer referred to in sub-section
(3) of section 33 shall report such transfer,
in the manner prescribed, to the Tahsildar
of the Tahsil in which the land is situate.

Explanation.- For the purposes of
this section, the word 'transfer' includes a
family settlement.

(2) State Government may fix a
scale of fees for getting entry recorded in
the record of rights on the basis of transfer.
A fee in respect of any such entry shall be
payable by the person in whose favour the
entry is to be made.

While, Section 4 (1) of the U.P.
Revenue Code, 2006 defines 'Abadi' reads
as under:-

"abadi' or "village abadi" means
such area in a village which, on the date of
commencement of this Code, is being used
for the purposes of residence or its
inhabitants or for purposes ancillary
thereto such as Sahan and green trees,
wells etc. or which may have been or be
hereafter reserved for such use;"

43.