S.N.Srivastava - (1.) -Present petition has been instituted for the relief of a writ of mandamus commanding respondents to record the names of the petitioners in the revenue record as co-tenure holders along with respondents 4 to 7 in Gata Nos. 237 and 187 Kha situated in village Ashok Nagar, Bengali Colony, Manpur Ojha Tahsil Bilaspur district Rampur. The petitioners claim themselves to be family members of the family which was displaced and migrated to India from East Pakistan.
(2.) THE dispute in the instant petition revolves round Gata Nos. 237 and 187 Kha situated in village Ashok Nagar, Bengali Colony, Manpur Ojha Tahsil Bilaspur district Rampur, which land admeasuring five acres, had been allotted to late Mahanand Bairagi as head of the family. THE displaced family consisted of Smt. Mayanabala (mother), Sadanand Bairagi, Dwijber Bairagi, Tulka Bairagi all sons of Manohar Bairagi besides late Mahanand Bairagi. At the relevant time, Smt. Mayanabala mother was blind and the petitioners were minors. THE dispute arose after the death of Mahanand Bairagi as the names of his widow namely Shishu Bala and sons namely, Harish Chandra, Guru Chandra and Deepak were mutated to the exclusion of the petitioners who being brothers of Mahanand Bairagi and being part of displaced family, were equally entitled to be recorded as co-tenure holders of the land in question. It is alleged that the petitioners represented the matter to the Government vide their representation dated 21.5.2005 with attended papers and as a sequel thereto, the Joint Secretary, U. P. Shasan, communicated to the Collector by means of letter dated 6.11.1978, stating therein that in case names of other members were mentioned in the Main Registered Card, their names might also be included to which Government would have no objection. It is in this backdrop that the present petition has been instituted for the relief of a writ of mandamus. It is argued by the learned counsel for the petitioners that lukewarm response to the representation has constrained the petitioners to institute the present petition for the relief of a writ of mandamus. On the other hand, the learned standing counsel emphatically urged that a writ of mandamus could be issued to the authority competent under any law to adjudicate upon the dispute in accordance with law. It is a settled position in law that a mandamus could be issued against public authority who is under a duty imposed by a statute or any common law to do a particular act and that authority refrains from doing such act and is not exercising power which it is his duty to exercise, the Court may issue writ of mandamus to direct such authority to do so but the duty must be under some law or statute to exercise such power. Issuing a writ of mandamus is hedged with certain conditions, i.e., firstly the petitioner must show his legal rights on the date of petition, secondly, the duty imposed by Constitution or by Statute or common law or bye-laws or orders having the force of law by a public authority.
(3.) COMING to the present case, it is noticeable that the learned counsel for the petitioners has not drawn attention of the Court to any provisions of the Government Grants Act nor any other provisions of any Rules to vouch for the fact that the civil rights of co-tenancy claimed by the petitioners could be gone into and adjudicated upon by any public authority in relation to a land which was allotted in the name of-one member of the family under the Government Grants Act. I have traversed upon the Government Grants Act and there appears to be no provision by which it may be indicated that any authority was empowered to adjudicate upon the civil rights of a party in such matters. Regard being had to the fact that no forum was created by the statute for declaration or adjudication of co-tenancy rights of the petitioners along with his other brothers under any statute, it is only the civil court under Section 9 of the C.P.C., which could entertain the suit. Section 9 of the Code of Civil Procedure being germane to the point is excerpted below : "9. Courts to try all civil suits unless barred.-The Courts shall (subject to the provisions herein contained) have jurisdiction to try all suits of a civil nature excepting suits of which their cognizance is either-expressly or impliedly barred. Explanation (1).-A suit in which the right to property or to an office is contested is a suit of a civil nature, notwithstanding that such right may depend entirely on the decision of questions as to religious rites or ceremonies. Explanation (2).-For the purposes of this section, it is immaterial whether or not any fees are attached to the office referred to in Explanation 1 or whether or not such office is attached to a particular place." In certain cases, the Legislatures have eclipsed the jurisdiction of civil courts and provided separate forums for trying the suits, like U.P.Z.A. & L.R. Act. The suit for declaration of rights involving agricultural land could be decided by revenue courts, the jurisdiction of civil courts in such situation for declaration or adjudication of rights being barred. From the materials on record, it transpires that grant was made in favour of Mahanand Bairagi, by reason of his being the eldest brother of the petitioners who then claimed themselves to be the members of the self-same displaced family and by this reckoning, co-tenure holders of the land in dispute. As stated supra, there is no provision under the Government Grants Act authorising any authority at Governmental level to adjudicate upon the rights of the petitioners in the land in dispute and the only remedy is by way of a suit in appropriate forum.;