# Zakir Hasan & Ors v. Board of Revenue, U.P. Lucknow & Ors

- **Citation:** (2024) 3 ILRA 830
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2024-02-01
- **Case number:** Writ B No. 67947 of 2006
- **Bench:** Chandra Kumar Rai
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/zakir-hasan-ors-v-board-of-revenue-u-p-lucknow-ors-51672
- **Pages:** 6

## Headnote

Civil Law - U.P. Land Revenue Act, 1901 -
Sections 210, 219 - Mutation Proceedings
- U.P. Tenancy Act, 1939 - U.P. Urban Area
Zamindari Abolition Act, 1956 - U.P.
Zamindari Abolition and Land Reforms
Act, 1950 - Civil Court Decree - Perpetual
Injunction - Petitioners' mutation order dated
27.8.1990 in their favor as legal heirs of
deceased tenure holder upheld, having attained
finality.
Subsequent
mutation
proceedings
initiated by Nagar Palika Parishad (now Nagar
Nigam Saharanpur) based on alleged sale deed
of
7.5.1963,
without
challenging
earlier
mutation order, unsustainable. Civil Court
decree in Suit No. 276 of 1993, affirmed up to
Supreme Court, rejected Nagar Palika's claim
under alleged sale deed, confirming petitioners'
title and possession. Substantial delay of 28
years in initiating mutation by Nagar Palika casts
doubt on validity of sale deed. Impugned orders
dated
30.10.2006
(Board
of
Revenue),
30.9.1993
(Additional
Commissioner),
and
7.7.1993 (Tehsildar) set aside as they ignored
prior final mutation order and civil court
findings. (Paras 10-14)

Writ Petition Allowed.

Case Law Cited:

## Text

830 INDIAN LAW REPORTS ALLAHABAD SERIES
(DB), this Court observed that co-option
under U.P.Z.A. and L.R. Act is not
permissible.

21. Considered the observations made
in the above referred judgments and the
compromise
on
record,
annexed
as
annexure no. 6, which does not bear
signature of members of Consolidation
Committee though the same is required as
per Rule 25A of the Rules of 1954 also that
a tenure holder/person could get his/her
rights settled by way of conciliation in case
his/her rights are recognized by a statute
and cannot get any right settled or declared
in conciliation proceedings under Rule 25A of the Rules of 1954, if his/her rights are
not recognized by statute and Section
171(2) of the Act of 1950.

22. Upon due consideration of
aforesaid, this Court finds no force in claim
of
the
petitioner
based
upon
the
compromise.

23. For the reasons aforesaid, this
Court is of the view that the present
petition
is
liable
to
be
dismissed.
Accordingly,
the
present
petition
is
dismissed. No order as to costs.
----------
(2024) 3 ILRA 830
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 01.02.2024

BEFORE

THE HON'BLE CHANDRA KUMAR RAI, J.

Writ B No. 67947 of 2006

Zakir Hasan & Ors. ...Petitioners
Versus
Board of Revenue, U.P. Lucknow & Ors.
 ...Respondents
Counsel for the Petitioners:
Dr. Madhu Tandon, Sri Ajit Kumar, Sri G.N.
Verma, Sri Neeraj Srivastava, Sri Mohit
Kumar

Counsel for the Respondents:
C.S.C. Sri C.K. Parekh, Sri C.S. Singh, Sri
Mukhtar Alam, Sri Vivek Mishra

Civil Law - U.P. Land Revenue Act, 1901 -
Sections 210, 219 - Mutation Proceedings
- U.P. Tenancy Act, 1939 - U.P. Urban Area
Zamindari Abolition Act, 1956 - U.P.
Zamindari Abolition and Land Reforms
Act, 1950 - Civil Court Decree - Perpetual
Injunction - Petitioners' mutation order dated
27.8.1990 in their favor as legal heirs of
deceased tenure holder upheld, having attained
finality.
Subsequent
mutation
proceedings
initiated by Nagar Palika Parishad (now Nagar
Nigam Saharanpur) based on alleged sale deed
of
7.5.1963,
without
challenging
earlier
mutation order, unsustainable. Civil Court
decree in Suit No. 276 of 1993, affirmed up to
Supreme Court, rejected Nagar Palika's claim
under alleged sale deed, confirming petitioners'
title and possession. Substantial delay of 28
years in initiating mutation by Nagar Palika casts
doubt on validity of sale deed. Impugned orders
dated
30.10.2006
(Board
of
Revenue),
30.9.1993
(Additional
Commissioner),
and
7.7.1993 (Tehsildar) set aside as they ignored
prior final mutation order and civil court
findings. (Paras 10-14)

Writ Petition Allowed.

Case Law Cited:

1. Shardul Ranjan & ors. Vs Deputy Director of
Consolidation & ors., 2015 (129) RD 495 (Para
14)

(Delivered by Hon'ble Chandra Kumar
Rai, J.)

1. Heard Mr. Mohit Kumar holding
the brief of Mr. Ajit Kumar, learned counsel
for the petitioners, Mr. Rajesh Kumar
Tiwari, learned Additional Chief Standing
3 All. Zakir Hasan & Ors. Vs. Board of Revenue, U.P. Lucknow & Ors.
831
Counsel for the State-respondents and Mr.
Vivek Mishra, learned counsel appearing
for respondent no.2-Nagar Palika Parishad
now Nagar Nigam Saharanpur.

2. Brief facts of the case are that
petitioners' father Tahir Hasan was the
Zamindar of the plot situated in Khewat
No.6/1 and 6/2 Mahalgar Daiyan, VillageKhan Alampura, Pergana, Tehsil and
District Saharanpur. The aforementioned
plots were situated initially under Nagar
Palika Parisahd Saharanpur now Nagar
Nigam Saharanpur. In the khatauni of 1371
fasli (1963-64) the plots were recorded as
khudcast of petitioners' father Tahir Hasan
and entry continued till the death of Tahir
Hasan which took place on 15.12.1977.
Petitioners being son of Tahir Hasan
(recorded
tenure
holder)
applied
for
mutation and Tehsildar passed an order for
mutation on 19.9.1981 for recording the
names of petitioners in the place of
deceased Tahir Hasan. Against the order of
mutation dated 19.9.1981 Nagar Palika
Parisahd Saharanpur filed a restoration
application
which
was
allowed
on
13.6.1984 and mutation case was restored
on 13.6.1984 for fresh adjudication on
merit. Tehsildar again heard the matter in
presence of Nagar Palika who set up his
case on the basis of sale deed alleged to be
executed on 7.5.1963 in favour of Nagar
Palika by Tahir Hasan and vide detailed
order
dated
27.8.1990
directed
that
petitioners are entitled to be recorded in the
place of their father Tahir Hasan as
petitioners are in possession over the plots
in dispute and Nagar Palika Parisahd has
not taken any steps for recording his name
on the basis of sale deed executed long
back in the year 1963. Appeal filed by
Nagar Palika Parisahd under Section 210 of
U.P. Land Revenue Act was dismissed on
14.8.1991 by Sub Divisional Officer.
Revision under Section 219 of U.P. Land
Revenue Act filed by Nagar Palika
Parisahd was dismissed on 6.2.1992 by
Additional Commissioner Meerut Division
Meerut. Nagar Palika Parisahd applied for
fresh mutation of his name in the year 1991
after 29 years on the basis of sale deed
alleged to be executed by Tahir Hasan on
7.5.1963 which was allowed by Tehsildar
vide order dated 22.12.1992 in arbitrary
manner without affording opportunity of
hearing to the petitioners as well as without
setting aside the earlier mutation order
passed in favour of petitioners as earlier
mutation order passed in favour of
petitioners had attained finality. Petitioners
applied for restoration against the order
dated 22.12.1992 which was set aside on
17.3.1993 and the case was restored for
fresh decision. Tehsildar vide subsequent
order dated 7.7.1993 again allowed the
application of Nagar Palika Parisahd filed
on 7.7.1993 and restored the earlier exparte
mutation
order
dated
22.12.1992.
Petitioners challenged the order dated
7.7.1993
through
revision
before
Commissioner which was dismissed on
30.9.1993 by Additional Commissioner. A
revision under Section 219 of U.P. Land
Revenue Act was filed on behalf of
petitioners before Board of Revenue which
was entertained on 20.10.1993 and interim
was also granted. Board of Revenue finally
heard the revision filed by petitioners and
dismissed the same vide order dated
30.10.2006, hence, this writ petition on
behalf of the petitioners challenging the
impugned
order
dated
30.10.2006,
30.9.1993 and 7.7.1993.

3. This court entertained the matter on
20.12.2006 and granted interim order
which runs as follows :-

"Hon'ble Anjani Kumar, J.
832 INDIAN LAW REPORTS ALLAHABAD SERIES

Heard learned counsel for the
petitioners and learned standing counsel for
respondent nos.1, 3, 4, 5 and 6 as well as
Sri C.K. Parekh, learned counsel for the
respondent no.2. Sri Parekh prays for and is
granted three weeks time to file a counter
affidavit. The petitioner will have two
weeks thereafter to file rejoinder affidavit.

List thereafter.

Till the next date of listing, if the
petitioners are in possession of the land in
dispute, shall not be dispossessed."

4. In pursuance of the order dated
20.12.2006 respondent no.2 has filed his
counter affidavit and petitioners filed their
rejoinder affidavit also.

5. Mr. Vivek Mishra, advocate, has
filed his vakalatnama on 25.3.2022 signed
by U.P. Nagar Ayukt Nagar Nigam
Saharanpur as the plot in dispute has came
under Nagar Nigam.

6. On behalf of petitioners a
supplementary affidavit dated 15.5.2023
annexing the judgment passed by civil
court dated 15.2.2007 and 24.5.2009, High
Court dated 24.5.2011 as well as Hon'ble
Supreme Court dated 8.5.2020 in which the
civil court has passed injunction decree in
favour of petitioners in respect of the same
property considering the case set up by
Nagar Palika on the basis of sale deed
alleged to be executed on 7.5.1963. In
respect of civil proceeding the facts are that
petitioner no.1 Jakir Hasan filed a Suit
No.276 of 1993 impleading Nagar Palika
Parisahd and others as defendants for
decree
of
of
perpetual
injunction,
mandatory injunction as well as for
damages in respect to same Khasra No.25
area 1.577 hectare which was decreed by
trial court after framing issues and giving
parties
to
lead
evidence.
In
the
aforementioned suit Nagar Palika Parisahd
has set up his plea on the basis of alleged
sale deed dated 7.5.1963 which was not
accepted by trial court. The Civil Appeal
No.10 of 2007 filed by Nagar Palika
Parisahd was dismissed with cost by well
reasoned judgment and decree dated
25.4.2009. The Second Appeal No.759 of
2009 filed by Nagar Palika Parisahd before
this court was also dismissed by detailed
judgment dated 24.5.2011 considering the
various provisions of U.P. Tenancy Act,
1939, U.P. Urban Area Zamindari Abolition
Act and U.P. Zamindari Abolition 1956 and
Land Reforms Act, 1950. The special leave
to appeal (civil) No(s)26210 of 2011 filed
by Nagar Palika Parisahd before Hon'ble
Apex Court was dismissed as withdrawn
vide order dated 30.9.2011 with liberty to
file review application before High Court.
Review Application No.356417 of 2011
filed by Nagar Palika Parisahd now Nagar
Nigam Saharanpur was rejected by this
Court vide order dated 4.2.2013. Nagar
Nigam further Special Leave to Appeal (C)
No.25602-25603 of 2013 before Hon'ble
Apex Court which was dismissed vide
order dated 24.8.2016. Nagar Nigam
further filed a Review Petition (C)
No.3844-3845 of 2016 before Hon'ble
Apex Court which was dismissed on
17.1.2017 and Curative Petition filed by
Nagar Nigam was also dismissed on
8.5.2020.

7. Learned counsel for the petitioners
submitted that petitioner was ordered to be
recorded in place of his father on
27.08.1990. He further submitted that the
appeal filed by the respondent no.2/Nagar
Palika Parisahd against the mutation order
dated 27.08.1990, was dismissed by
appellate Court on 14.08.1991. He further
submitted that revision filed under Section
219 of U.P Land Revenue Act against the
3 All. Zakir Hasan & Ors. Vs. Board of Revenue, U.P. Lucknow & Ors.
833
appellate order was also dismissed on
06.02.1992. He further submitted that order
of mutation was passed in favour of the
petitioner has attained finality. He further
submitted
that
respondent
no.2-Nagar
Palika
Parisahd
initiated
a
separate
mutation proceeding on the basis of saledeed alleged to be executed on 7.5.1963 by
the petitioners' father and without affording
proper opportunity of hearing to the
petitioners, the mutation order was passed
in favour of respondent no.2-Nagar Palika
Parisahd. Counsel for the petitioner applied
for restoration, appeal as well as revision,
which have been dismissed by the Court
concerned without considering the fact that
earlier mutation order passed in respect to
the property in question has not been
challenged by anybody, as such, the
subsequent mutation proceeding in respect
to the same property cannot be entertained
and allowed. He further submitted that civil
suit for injunction filed by the petitioners
being Suit No.276 of 1993 impleading the
Nagar Palika Parisahd and others was
decreed by trial Court, vide judgment and
decree dated 15.02.2007, restraining the
defendants from interfering in the peaceful
possession of the petitioners, in any
manner. He further placed issues framed in
the suit in order to demonstrate that title of
the plaintiffs-petitioners was examined and
considering the title of the petitioners in
respect to the plot in question, the decree
was passed by the Civil Court. He further
submitted that Nagar Palika Parisahd
challenged the judgment and decree dated
15.02.2007 in appeal and ultimately special
leave to appeal filed by Nagar Palika
Parisahd before the Hon'ble Apex Court
was dismissed affirming the judgment and
decree passed by the Civil Court in Civil
Suit No.276 of 1993. He further submitted
that in view of the adjudication of the
dispute by the Civil Court, the impugned
order of mutation passed in favour of
respondent no.2-Nagar Palika Parisahd be
set aside and petitioners' mutation order
dated 27.08.1990, be maintained.

8. On the other hand, Mr. Vivek
Mishra
appearing
for
Nagar
Nigam/NagarPalika
Parisahd
and
Mr.
Rajesh Kumar Tiwari, learned Additional
Chief Standing Counsel for the Staterespondents, submitted that writ petition
arises out of mutation proceeding, as such,
the same is not maintainable. They further
submitted that civil suit was filed for
perpetual and mandatory injunction but the
sale-deed of Nagar Palika Parisahd has not
been cancelled, as such, mutation order
passed in favour of respondent no.2 cannot
be set aside. They further submitted that
petitioners should file a suit for declaration
of their right before appropriate Court.

9. I have considered the arguments
advanced by learned counsel for the parties
and perused the record.

10. There is no dispute about the fact
that after the death of Tahir Hussain,
petitioners were ordered to be recorded
being legal heirs of deceased on 27.08.1990
and the mutation order was maintained in
appeal as well as revision. There is also no
dispute about the fact that separate
mutation proceeding was initiated by
respondent no.2-Nagar Palika Parisahd,
which was decided in favour of Nagar
Palika Parisahd but there was no challenge
to the mutation order passed in favour of
the petitioners. There is also no dispute
about the fact that civil suit for perpetual
injunction,
mandatory
injunction
and
damages filed by the petitioners in respect
to the same property in dispute was decreed
by the trial Court and the decree has been
maintained up to the Hon'ble Apex Court.
834 INDIAN LAW REPORTS ALLAHABAD SERIES

11. In order to appreciate the
controversy involved in the matter, the
perusal of the relevant portion of the decree
passed in Civil Suit No.276 of 1993 will be
necessary, which is being produced as
under :-

"मूलवाि सांख्या 276/1993
जावकर हसन बनाम नगर पावलका व अन्य

बाि वबन्िु सांख्या-1

यह वाि वबन्िु इस आर्शय का है वक क्या वािी
वववािग्रस्ि भूवम का भूवमिर िथा उस पर अध्यासीन है?

वनष्कर्ा.............................................
...................................................
......................................उपरोक्त वववेचना से
यह वसद्ध होिा है वक वािी ही वािग्रस्ि भूवम का िजा सांक्रमणीय
भूवमिर है और वववािग्रस्ि भूवम उसके अध्यासन में भी है।
आिेर्श
वाि, सव्यय आञप्त वकया जािा है।

प्रविवािी को एिद्वारा र्शासवि वनर्ेिाञा से वनवर्द्ध
वकया जािा है वक वह वववािग्रस्ि भूवम में वािी के कब्जा िखल में
प्रत्यक्ष व अप्रत्यक्ष रूप से वकसी प्रकार का हस्िक्षेप न करें एवां
वािग्रस्ि भूवम पर अपने द्वारा डाली गयी वमट्टी एवां बनाये गये मजवे
को वनणाय के विनाांक से 30 विन के अन्िर अपने व्यय पर हटा लें।
प्रविवािी द्वारा अपने वमट्टी और मलवे को न हटाये जाने पर वािी,
वि अपील अववि, स्वयां हटा ले िथा उस पर हुए युवक्तयुक्त व्यय
को प्रविवािी से वनष्पािन की कायावाही से प्राप्त करें। िद्नुसार आञवप्त
बनायी जायें।

विनाांक 15.02.2007
ह०अ० 15.02.07
(आविल आफिाब अहमि)
लघुवाि न्यायािीर्श/वसववल जज (सी०डी०) सहारनपुर।

वनणाय उपरोक्त आज मेरे द्वारा हस्िाक्षररि व विनाांवकि
होकर खुले

न्यायालय में पढकर सुना गया।

विनाक 15.02.2007

 ह०अ० 15.02.07
(आविल आफिाब अहमि)
लघुवाि न्यायािीर्श/वसववल जज (सी०डी०)
सहारनपुर।"

12. It is very material that Civil Court
has considered the case set up by Nagar
Palika Parisahd on the basis of sale deed
alleged to be executed on 7.5.1963 and
recorded finding of fact that no right will
accrue to Nagar Palika Parisahd on the
basis of alleged sale deed considering the
provisions contained under U.P. Tenancy
ACt 1939, U.P. Urban Area Zamindari
Abolition Act
1956,
U.P.
Zamindari
Abolition Act, 1950. The judgment of trial
court has been further maintained in appeal
as well as second appeal by well reasoned
and well considered judgement on every
issues i.e. title as well as possession etc.
The
Hon'ble
Apex
Court
has
also
maintained the judgment of all the three
courts.

13. It is also material that Nagar
Palika Parisahd has not taken any steps to
record his name in the revenue record till
1991 on the basis of sale deed alleged to be
executed on 7.5.1963, in favour of Nagar
Palika Parisahd by petitioner's father. Tahir
Hasan, petitioner's father expired on
15.12.1977 but Nagar Palika Parisahd has
not applied for mutation till 1991 i.e. for
about 28 years. In the mutation proceeding
initiated by petitioners Nagar Palika
Parisahd contested the matter but Tehsildar
has ordered to record the name of
petitioners being legal heir of deceased
tenure holder Tahir Hasan vide order dated
27.8.1990 which has attained finality as
such Tehsildar can not further order of
mutation in respect to same property
without setting aside the earlier order of
mutation.

14. It also relevant to mention that
although there is no limitation for filing
mutation application but substantial delay
3 All. Chandrabhan Yadav Vs. State of U.P. & Ors.
835
of 28 years in initiating the proceeding for
mutation on the basis of sale deed creates
doubt about the document in question as
held by this court in the case reported in
2015 (129) RD 495 Shardul Ranjan and
others vs. Deputy Director of Consolidation
and others. Court of Tehsildar as sell as
Civil Court has considered the case set up
by Nagar Palika Parisahd on the basis of
alleged sale deed which requires no further
interference by this Court.

15. Considering the entire facts and
circumstances of the case the impugned
orders
dated
30.10.2006
passed
by
respondent
no.1/Board
of
Revenue,
30.9.1993
paased
by
Additional
Commissioner, Meerut Division Meerut
and
7.7.1993
passed
by
respondent
no.5/Tehsildar Sadar, Saharanpur are liable
to be set aside and the same are hereby set
aside.

16. The writ petition stands allowed.

17. The mutation order dated
27.8.1990 passed by Tehsildar in favour of
petitioners is hereby affirmed.
----------
(2024) 3 ILRA 835
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 25.01.2024
BEFORE

THE HON'BLE MANOJ KUMAR GUPTA,
A.C.J.
THE HON'BLE KSHITIJ SHAILENDRA, J.

Writ C No. 18397 of 2018

Chandrabhan Yadav ...Petitioner
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Sri Jitendra Nath Sharma, Sri Indresh
Kumar
Counsel for the Respondents:
C.S.C.

Land
Acquisition
-
Right
to
Fair
Compensation and Transparency in Land
Acquisition,
Rehabilitation
and
Resettlement
Act,
2013
-
Sections
24(1)(a) & 64 - Land Acquisition Act,
1894 - Sections 11 & 17 - Applicability of
2013 Act for Compensation - Award made
after 01.01.2014 - Dispute Reference to
Authority

The petitioner challenged the Collector's order
dated 08.07.2018, rejecting the application for
referring a dispute over enhanced compensation
to the Authority under Section 64 of the 2013
Act, and the award dated 26.12.2014. The land
was acquired under the 1894 Act, with
possession taken on 06.06.2012 and the award
made on 26.12.2014, after the 2013 Act came
into force. Held: As per Section 24(1)(a) of the
2013 Act, if no award was made under Section
11 of the 1894 Act before 01.01.2014, the 2013
Act's
compensation
provisions
apply,
irrespective of possession date. The Collector's
rejection, based on possession under the 1894
Act, was erroneous. The prior writ court's order
allowing reference under Section 64 had
attained finality. The deposit of 80% estimated
compensation under Section 17(3A) of the 1894
Act did not affect the petitioner's right to seek
reference. The impugned order was quashed,
and the Collector was directed to refer the
dispute to the Authority within three weeks for
expeditious adjudication.

Case Law Cited:
1. Sabita Sharma Vs St. of U.P., 2023 (3) AWC
3062

2. Chandrabhan Yadav Vs St. of U.P. & Ors.,
(2024) 3 ILRA, Writ C No. 18397 of 2018,
decided on 25.01.2024 (All. HC, Lucknow
Bench)

 (Delivered by Hon'ble Manoj Kumar
Gupta, A.C.J.
&
Hon'ble Kshitij Shailendra, J.)