Bans Bahadur Singh & Anr. vs State Of U.P. Through Principal Secy. Land Revenue & Ors.

Hon'Ble Irshad Ali, J.

Heard Sri S.K. Pathak, learned counsel for the petitioners, Sri Amit Kumar Singh, learned counsel for respondent Nos.5, 6 & 8 and Sri L.M. Khare, learned Standing Counsel for respondent(s) – State.

The present writ petition has been filed on following prayer(s):

Factual matrix of the case is that the petitioners purchased land bearing Gata No. 764, situated at Village Nara, Gram and Post Adhanpur, Tehsil Musafir Khana, District Sultanpur from Shri Faiz Bux by means of a registered sale deed dated 24.11.1990. After purchase of the aforesaid land, the petitioners came to know that respondent no.9, namely, Shri Surendra Pratap Singh had illegally constructed a house over the land belonging to the petitioners.

Consequently, the petitioners instituted Original Suit No. 693 of 1996 before the Court of Civil Judge (Junior Division), North, Sultanpur, seeking demolition/removal of the house bearing House No. 762, which had allegedly been illegally constructed by respondent no. 9 over the petitioners' land. The said suit is still pending. During the pendency of the aforesaid suit, the petitioners purchased the said house from respondent no.9.

Respondent no.6, namely, Mohd. Riyaz, who was a tenant of respondent no.9, Shri Surendra Pratap Singh and was occupying half portion of the aforesaid house bearing No.762-B, instituted Original Suit No. 1483 of 1997, which is also pending consideration.

It is mentioned that respondent no.6, namely, Mohd. Riyaz, respondent no.5, namely, Samar Bahadur Singh, respondent no.7, namely, Ram Sumiran, and respondent no.8, namely, Sharda Prasad, were owners of different portions of land bearing Gata No. 763 and had been intimidating the petitioners and attempting to encroach upon the petitioners' land.

In order to protect their rights and possession over the disputed land, the petitioners instituted Suit No.1637 of 1997, in which the learned trial court passed an interim order dated 18.12.1997 restraining the parties from raising any construction over the land in dispute. Thereafter, on an application moved by the petitioners, learned District Judge, Sultanpur, vide order dated 10.05.2002, directed that the aforesaid cases be heard by the same court.

Subsequently, respondent no.6, namely, Mohd. Riyaz sold his land comprised in Gata No. 763 in favour of respondent no.5, namely, Shri Samar Bahadur Singh. Thereafter, respondent no.5, namely, Samar Bahadur Singh instituted proceedings bearing Case No. 654/716/903/1016 under Section 28 of the U.P. Land Revenue Act before the Court of the Additional District Magistrate (Administration)/Upper Collector, Sultanpur, alleging that the area of land comprised in Gata No. 763 had been shown less, whereas the area of Gata No.764 had been shown more and seeking correction thereof.

In the aforesaid proceedings respondent no.3, namely, Additional District Magistrate (Administration), Sultanpur, proceeded on the basis of the report dated 04.08.2001 submitted by the Mukhya Anurakshak, Chakbandi, according to which the area of Gata No.764 had been shown in excess and the area of Gata No.763 had been shown less. Respondent no.3 came to the conclusion that the alleged deficiency in Gata No. 763 could be compensated from the alleged excess area of Gata No.764 and accordingly confirmed the report of the Mukhya Anurakshak, Chakbandi, District Sultanpur, by order dated 20.07.2004.

Respondent no.5, namely, Samar Bahadur Singh had also applied for correction of the map relating to Gata No.763 before the Additional District Magistrate (Administration), Sultanpur. In the said proceedings, the petitioners raised an objection with respect to an area measuring approximately 4 Biswa 1 Dhur in Gata No.764 and specifically pointed out that a pakka house had already been constructed over the alleged excess land sought to be transferred from Gata No.764 to Gata No. 763. However, respondent no.3, in a hurried manner, confirmed the report of respondent no.4 without properly considering the fact that the dispute relating to the land was already pending adjudication before the competent Civil Court.

The proceedings initiated for correction of the area and map ought not to have been entertained in the manner in which they were proceeded with, particularly when the dispute involved the identity, possession and title over the land comprised in Gata Nos.763 and 764. Respondent no.4, without properly determining the existing boundaries and without following the prescribed procedure, wrongly measured the land and deducted a portion thereof from Gata No.764 for inclusion in Gata No.763.

In the litigation already pending before the Civil Court, the question relating to the title and rights of the petitioners over the land comprised in Gata No.764 is directly involved and is yet to be adjudicated after the parties adduce their respective evidence. Despite the pendency of the civil proceedings concerning the same property and substantially overlapping questions, the respondents proceeded with the revenue proceedings, thereby giving rise to multiplicity of proceedings involving substantially the same facts, issues and parties.

The correction made in the map relating to Gata No.764 is contrary to the provisions of the U.P. Land Revenue Act, 1901. Section 28 of the said Act deals with the maintenance of maps and field-books and requires correction of errors in accordance with the prescribed procedure. The provisions relating to reporting and recording of succession or transfer are contained in Sections 34 and 35 of the Act. The petitioners had duly reported the transfer of the immovable property in question before the concerned Tahsildar of the Tahsil in which the disputed land is situated and the said transfer was accordingly registered by the competent revenue authority.

Respondent no.2 while exercising powers under the provisions of the U.P. Land Revenue Act, 1901 had no jurisdiction to adjudicate upon a dispute involving a substantial question of title. Further, disputes relating to boundaries are required to be determined with reference to the existing survey map and, where such determination is not possible, on the basis of actual possession. In the present case, respondents no.2 and 3, instead of following the prescribed procedure, proceeded to treat a portion of the land comprised in Gata No.764 as excess land and directed its inclusion in Gata No.763, thereby seriously prejudicing the rights and interest of the petitioners.

The presumption attached to revenue entries under Section 57 of the U.P. Land Revenue Act, 1901 does not take away the right of a person to establish his title or interest in the land before the competent Civil Court. The revenue proceedings, therefore, could not have been utilized for finally determining the petitioners' title or for adversely altering their rights over Gata No.764, particularly when the matter was already pending before the Civil Court.

While conducting the measurement of Gata Nos.763 and 764, respondent no.4, instead of taking the measurement in a straight and proper manner, adopted a triangular method of measurement, as depicted in the map filed along with the writ petition as Annexure No. 10. By adopting such a method, a substantial portion of the land extending from the road was allegedly included in Gata No.763 by taking out the maximum possible area from Gata No.764, thereby facilitating the interest of the owner of Gata No.763.

Respondent no.4, Mukhya Anurakshak, Sultanpur, in collusion with respondent no.5, namely, Samar Bahadur Singh, deliberately measured the land in the aforesaid manner so as to show that the house of the petitioners situated over Gata No.764 fell within Gata No.763. The object of such measurement was to create a basis for depriving the petitioners of their house and property and to facilitate the claim of respondent no.5 over the disputed land.

There has been some delay in filing the present writ petition on account of the petitioners' efforts in collecting the relevant papers and arranging the necessary funds for approaching this Hon'ble Court. The entire action and conduct of respondent no.4 are arbitrary, high-handed, illegal and unlawful and are contrary to the provisions of Article 14 of the Constitution of India as well as the provisions of the U.P. Land Revenue Act, 1901. Hence, the present writ petition has been preferred before this Court.

Submission of learned counsel for the petitioner is that the impugned judgment and order dated 20.07.2004 passed by respondent no.3 and the revisional judgment and order dated 03.07.2006 passed by respondent no.2 are legally unsustainable, having been passed in excess of jurisdiction and without properly appreciating the nature of the dispute between the parties. The proceedings under Section 28 of the U.P. Land Revenue Act, 1901 could not have been utilized for adjudicating or indirectly determining the substantive rights, title and possession of the parties over Gata Nos.763 and 764, particularly when the same property was already the subject matter of civil litigation.

It is further submitted that the petitioners are the registered purchasers of Gata No.764 by virtue of a registered sale deed dated 24.11.1990. Their rights and interest in the property could not have been adversely affected merely on the basis of an alleged deficiency in the area of adjoining Gata No.763. Any correction in the revenue map or field-book could be undertaken only in accordance with the statutory procedure and upon a proper determination of the factual position and not by mechanically transferring the alleged deficiency of one plot to the alleged excess of another.

Learned counsel submits that the entire proceedings proceeded on the assumption that the alleged deficiency in Gata No.763 could automatically be made good from Gata No.764. Such an approach is fundamentally erroneous. The revenue authorities were required to first establish, by a lawful survey and measurement, the actual boundaries and dimensions of both plots. Unless the alleged error in the original map or record was conclusively established in accordance with law, no portion of the petitioners' land could have been deducted merely to compensate the alleged deficiency of the adjoining plot.

It is urged that the report dated 04.08.2001 submitted by the Mukhya Anurakshak, Chakbandi, was accepted by respondent no.3 without undertaking an independent and effective examination of the objections raised by the petitioners. The impugned order dated 20.07.2004 is, thus, founded substantially upon the said report and does not disclose any cogent consideration of the petitioners' specific objection that the alleged excess area of Gata No.764 included land over which a pakka house was already standing and that the dispute concerning the property was pending before the competent Civil Court.

Learned counsel further submits that the existence of the pending civil proceedings was a material circumstance which could not have been ignored. The petitioners had already instituted proceedings before the competent Civil Court concerning their rights over the disputed property and the civil proceedings were pending adjudication. The revenue authorities, while exercising limited jurisdiction under the Land Revenue Act, could not have undertaken an exercise which had the effect of prejudicially determining the petitioners' proprietary rights or altering the identity and extent of the property claimed by them.

It is contended that the impugned orders have the effect of deciding, indirectly, a substantial question of title between the parties. Such a question could only be adjudicated by the competent Civil Court upon the parties being afforded full opportunity to lead evidence. The revenue authorities could not, under the guise of correction of map or area, determine that a portion of Gata No.764 actually belonged to Gata No.763, particularly when the identity, possession and title of the disputed land were themselves matters of controversy before the Civil Court.

Learned counsel submits that the manner in which the measurement was undertaken by respondent no.4 is itself demonstrative of the illegality committed in the proceedings. Instead of determining the boundaries by adopting a proper and lawful method of measurement, respondent no.4 allegedly adopted a triangular method, thereby including a substantial portion extending towards the road within Gata No.763 and correspondingly reducing the area of Gata No.764. Such measurement could not constitute a lawful basis for altering the existing revenue position or depriving the petitioners of their land.

It is further submitted that the petitioners specifically objected to the proposed adjustment of approximately 4 Biswa 1 Dhur from Gata No.764 and brought to the notice of the authorities that a constructed house existed over the disputed portion. The said objection was of vital significance because any alteration in the map affecting an existing structure and the possession of the petitioners necessarily required careful verification at the spot and consideration of the competing claims. The failure to deal with this material objection vitiates the impugned orders.

Learned counsel submits that the revenue authorities have failed to distinguish between a mere correction of a clerical or arithmetical error in the revenue record and an alteration which substantially affects the identity, boundaries, possession and proprietary rights in immovable property. Section 28 of the U.P. Land Revenue Act cannot be stretched to confer jurisdiction upon the revenue authorities to finally adjudicate disputed title or to take away a portion of land from one tenure-holder and add it to the holding of another on the basis of a disputed measurement.

It is also submitted that the presumption arising from revenue entries cannot be treated as conclusive proof of title. Revenue records are primarily maintained for fiscal and administrative purposes and cannot, by themselves, extinguish or create substantive proprietary rights. Consequently, when the petitioners' title and rights were already the subject matter of adjudication before the Civil Court, the revenue authorities ought to have exercised restraint and could not have passed orders having the effect of substantially prejudicing the petitioners' pending claim.

Learned counsel further submits that the impugned revisional order dated 03.07.2006 also suffers from the same jurisdictional and legal infirmities. The revisional authority failed to appreciate that the original order dated 20.07.2004 was based upon an erroneous measurement and upon a report which had not been properly tested against the objections and existing factual circumstances. The revisional authority ought to have examined whether the subordinate authority had acted within the limited jurisdiction available under the Act and whether the statutory procedure for correction of the map had actually been followed.

It is urged that the impugned orders are also vitiated by non-application of mind. The material circumstances, namely, the registered sale deed of the petitioners, the pending civil litigation, the existing construction over the disputed portion, the specific objections raised by the petitioners and the disputed manner of measurement, were all relevant considerations. Failure to consider such material aspects renders the orders arbitrary and legally unsustainable.

Learned counsel submits that the action of the revenue authorities also suffers from violation of the principles of natural justice. Where the proposed correction directly affects the petitioners' valuable rights in immovable property, the objections raised by them were required to be considered in a meaningful and reasoned manner. A mere formal opportunity of filing objections cannot satisfy the requirements of natural justice where the objections touching the very foundation of the proposed alteration have not been effectively dealt with.

It is further submitted that the impugned action is arbitrary and offends Article 14 of the Constitution of India, inasmuch as the authorities have proceeded upon an artificial assumption that the alleged deficiency in Gata No.763 could be compensated from Gata No.764 without first establishing the correctness of the existing boundaries and the alleged error in the revenue record. The State authorities are required to act fairly, reasonably and in accordance with the statutory procedure, particularly when their action has civil consequences affecting valuable rights in immovable property.

Learned counsel submits that the petitioners do not seek adjudication of the disputed title by this Hon'ble Court in the present writ petition. Their grievance is confined to the fact that the revenue authorities, while exercising limited statutory jurisdiction, have themselves travelled beyond that jurisdiction and have passed orders which effectively prejudice the petitioners' title, possession and enjoyment of Gata No.764. Such exercise of jurisdiction is liable to be interfered with in judicial review.

It is lastly submitted that the proper course for the revenue authorities, in the facts and circumstances of the case, was to undertake measurement strictly in accordance with the statutory procedure and the authentic survey/map records, after affording due opportunity to all concerned and without deciding questions of title which are pending before the competent Civil Court. The petitioners are therefore entitled to protection against any alteration of their land on the basis of an irregular or disputed measurement.

On the other hand, learned counsel for respondent Nos.5, 6 & 8 submitted that the present writ petition is misconceived inasmuch as the impugned proceedings arise under Section 28 of the U.P. Land Revenue Act, 1901, which is confined to the maintenance and correction of the revenue map and field-book. The jurisdiction exercised thereunder does not extend to adjudication of title, ownership or substantive rights in the property.

He submitted that Section 28 casts a statutory duty upon the Collector to maintain the village map and field-book in accordance with the revenue record and to correct errors appearing therein. Therefore, correction of an erroneous map so as to bring it in conformity with the recorded area and existing revenue records cannot, by itself, be treated as adjudication of title or transfer of any property.

He submitted that the impugned order merely corrects the discrepancy in the revenue map and does not confer any title, possession or proprietary interest upon respondent Nos. 5, 6 and 8. Consequently, the petitioners cannot challenge the order on the assumption that the proceedings under Section 28 resulted in determination of their title or dispossession.

His next submission is that any dispute relating to title, ownership or possession is beyond the limited scope of proceedings under Section 28 of the U.P. Land Revenue Act and can be adjudicated only by the competent forum in appropriate proceedings. The petitioners, therefore, cannot convert the present writ petition into proceedings for adjudication of disputed questions of title or possession.

His submission is that the allegation that the impugned map correction automatically resulted in change of possession is legally untenable. A correction of the revenue map does not, in the absence of a specific order or separate lawful proceeding for delivery or alteration of possession, operate as an order of dispossession.

He further submitted that the petitioners' challenge proceeds on a legally erroneous premise that correction of the map necessarily amounts to transfer of land from one tenure-holder to another. Such an inference is impermissible, particularly when the impugned proceedings themselves do not determine title or direct delivery of possession.

He submitted that the supplementary affidavit seeks to introduce a new case regarding alleged change of possession pursuant to the map-correction order. Such a plea, having not formed the basis of the original challenge and being unsupported by any order passed in the proceedings under Section 28, cannot enlarge the scope of the writ petition at the stage of final adjudication.

His submission is that the existence of any independent dispute concerning title or possession does not invalidate an otherwise lawful correction of the revenue map. The remedy of a person claiming an independent title or possession lies before the competent civil/revenue forum and not by seeking adjudication of such disputed questions in proceedings arising out of Section 28.

He submitted that the writ jurisdiction under Article 226 of the Constitution is not intended to determine disputed questions of title on the basis of conflicting factual assertions, particularly where the impugned order is confined to correction of a revenue map and does not finally determine proprietary rights.

He next submitted that the competent revenue authorities, while exercising jurisdiction under Section 28, were required only to examine whether the map contained an error and whether correction thereof was warranted with reference to the relevant revenue record. The exercise of such statutory jurisdiction cannot be termed without jurisdiction merely because the consequential map does not accord with the petitioners' claim.

He further submitted that the petitioners cannot claim any vested legal right to retain an erroneous depiction in the revenue map merely because such depiction existed earlier. Revenue authorities are statutorily empowered and indeed obligated to correct errors in the map so that it corresponds with the lawful revenue record.

His submission is that the impugned orders having been passed within the statutory jurisdiction of the revenue authorities and the proceedings under Section 28 not determining title or possession, no ground for interference under Article 226 of the Constitution is made out. The writ petition is accordingly liable to be dismissed.

He lastly submitted that the petitioners' challenge, insofar as it seeks determination of ownership, possession or competing rights over Gata Nos.763 and 764, raises issues beyond the permissible scope of the present proceedings. Such issues, if otherwise maintainable, are required to be determined in appropriate independent proceedings before the competent forum. In support of his submissions, he placed reliance upon following judgments:

Learned Additional CSC for the respondent – State also adopted the same argument, as has been advanced by learned counsel for respondent Nos.5, 6 & 8.

I have considered the submissions advanced by learned counsel for the parties and perused the material on record.

To resolve the controversy involved in the matter, relevant portion of the judgments relied upon by learned counsel for respondent Nos.5, 6 & 8 are being extracted below:

Having considered the rival submissions and the material available on record, this Court finds that the controversy in the present writ petition is not one relating merely to the adjudication of title or possession by this Court in exercise of jurisdiction under Article 226 of the Constitution. The real question is whether the revenue authorities, while exercising their limited jurisdiction under Section 28 of the U.P. Land Revenue Act, 1901, could validly alter the existing map and area of Gata Nos. 763 and 764 on the basis of the report dated 04.08.2001, without properly determining the alleged error by a lawful survey and without effectively dealing with the specific objections raised by the petitioners.

The judgments relied upon by learned counsel for respondent Nos.5, 6 and 8, namely, Triveni Bahadur Singh (supra) and Rajjab Ali and others (supra), undoubtedly reiterate the settled proposition that proceedings under Section 28 of the U.P. Land Revenue Act are summary in nature and that questions of title and possession may ultimately be adjudicated before the competent civil court. However, the said proposition does not mean that every order passed under Section 28 is immune from judicial review or that the revenue authorities may, in the guise of correcting a map, act upon an unverified or disputed measurement in a manner which materially affects the identity and extent of land claimed by another party.

The facts of Triveni Bahadur Singh (supra) are materially distinguishable. In that case, the Court was dealing with the grievance of a person who claimed possession and ownership over the disputed plot and held that such claim could be agitated before the appropriate court. The said decision does not lay down that, where a party specifically challenges the very foundation of the proposed map correction, disputes the manner of measurement, points out the existence of a constructed house over the affected portion and places before the revenue authority the fact of pending civil litigation concerning the same property, the authority is nevertheless entitled to mechanically accept a report without recording a proper finding on such objections. Thus, the said judgment cannot be read as dispensing with the requirement of a lawful, fair and reasoned exercise of the statutory jurisdiction.

Likewise, the decision in the case of Rajjab Ali and others (supra) does not advance the case of the respondents to the extent sought to be contended. The observations therein were made in the context of a plea which had not been raised before the revisional authority and which was sought to be introduced for the first time in writ jurisdiction. The principle that a new factual plea, without foundation in the proceedings before the subordinate authority, ordinarily cannot be permitted to be raised for the first time in a writ petition, is unexceptionable. However, the present case stands on a different footing. The petitioners' grievance is founded upon the objections raised in the proceedings themselves concerning the disputed measurement, the alleged excess area of Gata No.764, the existence of construction over the affected portion and the pendency of civil proceedings concerning the property. The ratio of Rajjab Ali (supra), therefore, cannot be applied mechanically to sustain an order which is otherwise required to be tested on the touchstone of statutory procedure, fairness and proper consideration of the objections.

It is also significant that the respondents themselves contend that proceedings under Section 28 are summary proceedings and do not decide title. If that be so, the revenue authorities were required to confine themselves strictly to the limited question as to whether there existed a genuine error in the map or field-book and whether such error could lawfully be corrected on the basis of reliable survey and revenue records. They could not, under the guise of such correction, proceed upon a disputed assumption that the alleged deficiency of Gata No.763 necessarily represented excess land in Gata No.764 and thereafter deduct a specific portion from the petitioners' plot. Such an exercise becomes particularly questionable when the affected portion is stated to contain an existing construction and the identity and rights concerning the property are already the subject matter of civil proceedings.

The impugned order dated 20.07.2004 does not satisfactorily demonstrate that the aforesaid objections of the petitioners were examined in their proper perspective. The revisional order dated 03.07.2006 also does not cure the aforesaid infirmity. The authorities appear to have proceeded substantially on the basis of the report dated 04.08.2001 without undertaking the necessary exercise of determining whether the alleged discrepancy was in fact an error in the map, whether the measurement was conducted by adopting the legally permissible method and whether the proposed correction could validly be made without prejudicially affecting the existing rights and interests of the petitioners.

This Court is conscious of the settled principle that revenue entries and map-correction proceedings do not finally confer or extinguish title and that disputed questions of title are to be adjudicated by the competent court. Precisely for that reason, the impugned orders cannot be permitted to operate on the basis of a disputed factual determination which may substantially affect the identity and enjoyment of the property. The limited nature of the jurisdiction under Section 28 requires greater adherence to the statutory procedure; it does not dilute such requirement.

In the circumstances, this Court is not required to record any final finding as to the title or ownership of either party over the disputed portion of Gata Nos.763 and 764. Any such determination would also prejudice the pending civil proceedings. The appropriate course, therefore, is to set aside the impugned orders and remit the matter to the competent authority for fresh consideration strictly within the scope of Section 28 of the U.P. Land Revenue Act, 1901.

Accordingly, the writ petition succeeds and is allowed.

The impugned judgment and order dated 20.07.2004 passed by respondent no.3, Additional District Magistrate (Administration)/Upper Collector, Sultanpur, in Case No.654/716/903/1016 under Section 28 of the U.P. Land Revenue Act, 1901, as well as the revisional judgment and order dated 03.07.2006 passed by respondent no.2, Additional Commissioner (Judicial), Faizabad Division, Faizabad in Revision No.2383-Sultanpur, are hereby quashed.

The matter is remanded to the competent revenue authority for fresh consideration in accordance with law. The authority shall, after affording reasonable opportunity of hearing to all the affected parties, examine the relevant revenue records and the original survey/map and shall, if necessary, cause a fresh measurement of Gata Nos.763 and 764 to be undertaken in accordance with the prescribed procedure by the competent officer, after notice to all concerned parties. The objections of the petitioners, including their objection regarding the alleged measurement of the disputed portion and the existence of construction thereon, shall be specifically considered and dealt with by a reasoned order. 60. It is clarified that the authority, while undertaking the aforesaid exercise, shall confine itself to the jurisdiction lawfully available under Section 28 of the U.P. Land Revenue Act, 1901 and shall not adjudicate upon or record any final finding regarding title or ownership of the disputed property, particularly where such questions are pending before the competent Civil Court. The fresh exercise shall also not be treated as an expression of opinion by this Court on the merits of the competing claims of the parties.

The judgments relied upon by learned counsel for respondent Nos.5, 6 and 8 shall remain applicable to the extent that they hold that proceedings under Section 28 are summary in nature and that substantive questions of title and possession are to be adjudicated by the competent forum; however, those decisions do not preclude judicial review of an order passed in excess of the permissible scope of the statutory exercise, founded upon a disputed or inadequately examined measurement, or passed without proper consideration of material objections. The present order is, therefore, confined to correcting the procedural and legal infirmities noticed above and shall not prejudice either party in the pending civil proceedings.

The competent authority shall endeavour to conclude the fresh proceedings expeditiously, preferably within a period of six months from the date of production of a certified copy of this order, subject to cooperation of the parties.

It is further clarified that this Court has expressed no opinion on the ultimate merits of the rival claims and the authority shall take an independent decision strictly in accordance with law and on the basis of the material available before it.

There shall be no order as to costs.