RAJAN ROY,J. - (1.) Heard learned counsel for the parties.
(2.) This is a writ petition under Article 226 of the Constitution of India challenging the order dated 02.01.2017 passed by the Tehsildar under Section 34 of the Land Revenue Act, 1901. This Court on 06.01.2017 had passed the following order:- "Heard learned counsel for the petitioner and learned Additional Chief Standing Counsel for the State. One of the questions which falls for consideration is as to whether this writ petition should be entertained directly against an order passed in mutation proceedings under Section 34 of the Land Revenue Act when there is a remedy of appeal under Section 210 and further remedy under Section 219 of the U.P. Land Revenue Act. In this regard the contention of Shir Girish Chandra Sinha, learned counsel for the petitioner is firstly that the report for mutation was filed based on registered Gift Deed in respect of the land in question said to have been executed by the Bhoomidhar in favour of the opposite party no. 1. After hearing the matter, orders were reserved on the maintainability of objections of the petitioner on 26.12.2016 calling for written arguments from the parties, which according to the learned counsel for the petitioner was submitted on 30.12.2016. Thereafter, the petitioner filed an application for transfer of the proceedings to some other Court before the Collector on the basis of certain events which transpired on 30.12.2016 when the petitioner's counsel went to submit written arguments as the same are mentioned in the writ petition, the petitioner apprehended that he will not get justice. According to the learned counsel surprisingly enough, though, the order was reserved on the maintainability of objections while pronouncing the order on 02.01.2017 the mutation proceedings were decided on merits that too without any inquiry into possession or holding any proceedings involving proving of the Gift Deed, which is the normal procedure i.e. without following the procedure prescribed, even if, the objections of the petitioner were to be held as not maintainable. As regards locus, the learned counsel for the petitioner placed reliance upon Section 164 to contend that the physical possession of the land in question was handed over by his uncle Sangam Prasad in lieu of loan advanced to him, therefore, it was covered under the said provision. It is also the contention that Sangam Prasad himself in proceedings under Section 145 Cr.P.C. gave it in writing that he was still owner and in possession over the land in question. Further more, he contends that the opposite party no. 1 himself gave a complaint that the petitioner was forcibly cultivating the land and harvesting the crops thereon, therefore, apparently he was not in possession thus, in view of Sections 34 and 35 of the Land Revenue Act, 1901 order of mutation could not have been passed by the Tehsildar in the manner in which it was done, without ascertaining the fact as regards actual possession. There are also allegations of undue political influenced being exercised in the matter. Considering the facts and issues involved, though, ultimately a writ petition against an order of mutation is not directly maintainable, but, then it is a Rule of restraint exercised by this Court under Article 226 of the Constitution of India, however, if the factual scenario as asserted by the petitioner is ultimately found to be correct it would be difficult for this Court to close its eyes and relegate the matter to the alternative remedy referred herein above. However, without drawing any conclusive opinion in this regard as of now, let notice be issued to the opposite parties no. 1 and 2 returnable at an early date. List/ put up on 27.01.2017 as fresh. Considering the assertions of the petitioner as noted herein above, assuming that the petitioner did not have locus the mutation order could not have been passed without due inquiry as per the procedure prescribed into the question of possession as also the requirement of proving the Gift Deed, therefore, the impugned order shall not be given effect till the next date of listing. The Tehsildar, who has passed the impugned order shall appear along with original records before this Court on the next date."
(3.) In the aforesaid order in the last paragraph at internal page 2 the word "ultimately" has erroneously been typed whereas it should be 'normally,' therefore, the order shall stand corrected of which cognizance has been taken by the Court suo motu.;