02 December 2019
Namaste Experts, An RCS has been filed under section 38 of Specific Relief Act in 2018 at Chalisgaon to refrain the Defendant from entering upon the suit land and it is not a Declaration Suit.and since the filing of the said RCS no Status-Quo or Stay has been granted yet. However, an application before the Mandal Adhikari has been moved for mutation entry of the name by the Petitioner in the above said Suit. Can the Mandal Adhikari proceed with the case in his Court fort Mutation Entry? If yes then help me with the judgments, its a very humble request. The hearing before the Mandal Adhikari has been scheduled on 04.12.2019. Regards, Rizwan Shaikh
CORAM: HON'BLE MR. JUSTICE HEMANT GUPTA HON'BLE MR. JUSTICE RAJIV NARAIN RAINA
Present: Mr. Amit Rawal, Senior Advocate, with Mr. Maninder Arora, Advocate for the petitioner.
Mr. Hari Pal Verma, Addl. AG, Punjab, for respondent Nos.1 to 3.
Mr. Vikas Mehsempuri, Advocate, for respondent Nos.4 to 12.
HEMANT GUPTA, J. The present writ petition has been placed before us on a reference made by learned Single Judge of this Court on 14.03.2012 referring the following question for the opinion of this Bench:
"W hether the mutation of inheritance can be kept in abeyance specifically when the mutation does not confer any title and is entered only with a view to update the revenue record?" The aforesaid question arises out of the fact that the petitioner filed a suit for declaration that he is owner of the property described in the suit as a successor-in-interest of Basant Kaur on the basis of Will dated 30.07.1963. The private respondents herein are relying upon another Will dated 02.11.1976 said to be executed by Basant Kaur. The Assistant Collector, Ist Grade, Ludhiana adjourned the mutation proceedings sine die till the decision of the civil suit vide order dated 17.08.2005. The said order was set aside by the Collector on 07.09.2006 and the matter remitted to the Assistant Collector for fresh decision. The Assistant Collector passed an order on 24.12.2007 sanctioning mutation. The said order was again set aside by the Collector on 07.11.2008 and the matter remitted back to the Assistant Collector. When the matter was pending before the Assistant Collector, an application for stay of mutation proceedings was filed by the petitioner, which was declined on 16.03.2009. The revision against the said order was dismissed on 21.08.2009. Further revision was also dismissed on 25.05.2010. It is the said orders, which are subject matter of challenge in the present writ petition.
Learned counsel for the petitioner relies upon a Division Bench judgment of this Court reported as Jagtar Singh Vs. State of Punjab 2007 (4) P.L.R. 638, wherein this Court has not interfered with the order passed by the Commissioner that the mutation should be kept in abeyance till the matter is decided by the Civil Court.
On the other hand, learned counsel for the private respondents relies upon another Division Bench judgment of this Court in Harjit Kaur Vs. Kartar Kaur 2007 (3) PLR 572 to contend that the mutation does not confer any title and the same is entered only with a view to update the revenue records. The intricate questions regarding inheritance are not required to be gone into by the revenue officials in exercise of summary jurisdiction of the revenue authorities. The questions of title are to be decided by the Civil Court, but the mutation has to be sanctioned by the Revenue Authorities to update the revenue record.
Learned Single Judge noticed the apparent conflict between the two Division Bench judgments relied upon by the respective parties and referred the question, as mentioned above, to the Larger Bench.
Before this Bench, learned counsel for the petitioner relies upon a Single Bench judgment of this Court reported as Shamsher Singh Vs. Commissioner, Patiala Division, Patiala & others 2011 (4) PLR 254, wherein it was ordered that the writ petitions arising out of summary proceedings of mutation should ordinarily not be entertained and parties should be left to get their respective title decided in a suit for declaration. It was ordered that after abolition of land revenue in the States of Punjab & Haryana, no land revenue is to be recovered; therefore, no mutation is required to be carried out if mutation is disputed/contested by the respective parties. In case mutation is contested, entry should be made to the effect that mutation is contested between the parties so described. It is, thus, contended that though the purpose of the mutation is to maintain record for the purposes of realization of the revenue, but after the abolition of land revenue, no useful purpose is served in the process of sanction of the mutation, therefore, the judgment of the Single Bench of this Court in Shamsher Singh's case (supra) is a correct exposition of the law. On the other hand, learned counsel for the private respondents relied upon the various provisions of the Punjab Land Revenue Act, 1887 to contend that the revenue record is maintained by the Revenue Officers in discharge of statutory duties assigned to such officers under the Act. The updating of the record consequent to death, sale or other events of transfer of the property, is one of the functions assigned to the Revenue Authorities under the Act. Though one of the purposes for updating of the record was to realize land revenue, but even if there is no incidence of land revenue as on today, yet updating of the record still remains a statutory duty required to be carried out by the Revenue Officers. Such statutory duty cannot be obliterated by a judicial order that mutation shall be kept in abeyance or that mutation need not be sanctioned in the event of contest. The interference against the order of sanction of the mutation in a writ petition falls within the judicial discretion of the Court, which may not be ordinarily invoked, but to say that the mutations shall not be sanctioned is not sustainable.
We have heard learned counsel for the parties. Before we examine their respective contentions, we find it necessary to reproduce certain relevant statutory provisions of the Punjab Land Revenue Act, 1887 (for short 'the Act'). They are as under:
19. Power to Revenue-officer to summon person :- (1) A Revenue- officer may summon any person whose attendance he considers necessary for the purpose of any business before him as a Revenue-officer. (2) A person so summoned shall be bound to appear at the time and place mentioned in the summons a person or, if the summons so allows, by his recognized agent or a legal practitioner. (3) The person attending inobedience to the summons shall be bound to state the truth upon any matter respecting which he is examined or makes statements, and to produce such documents and other things relating to any such matter as the Revenue-officer may require. xx xx xx xx 31. Record-of-rights and documents included therein:- (1) Save as otherwise provided by this Chapter, there shall be record-of-rights for each estate. (2) The record-of-rights for an estate shall include the following documents, namely:- (a) statements showing, so far as may be practicable:- (i) the persons who are land-owners, tenants or assignees of land- revenue in the estate or who are entitled to receive any of the rents, profits or produce of the estate or to occupy land therein; (ii) the nature and extent of the interests of those persons, and the conditions and liabilities attaching thereto; (iii) the rent, land-revenue, rates, cesses or other payments due from and to each of those persons and to the Government; xx xx xx xx 34. Making of that part of the annual record which relates to land- owners, assignee of revenue and occupancy tenants:- (1) Any person acquiring, by inheritance, purchase, mortgage, or otherwise, any right in an estate as a land-owner, assignee of land- revenue or tenant having a right of occupancy, shall report his acquisition of the right to the patwari of the estate. (2) If the person acquiring the right is a minor or otherwise disqualified, his guardian or other person having charge of his property shall make the report to the patwari. (3) The patwari shall enter in his register of mutations every report made to him under sub-section (1) or sub-section (2), and shall also make an entry therein respecting the acquisition of any such right as aforesaid which he has reason to believe to have taken place, and of which a report should have been made to him under one or other of those sub-sections and has not been so made. (4) A Revenue-officer shall from time to time inquire into the correctness of all entries in the register of mutations and into all such acquisitions as aforesaid coming to his knowledge of which, under the foregoing sub- sections, report should have been made to the patwari and entry made in that register and shall in each case make such order as he thinks fit with respect to the entry in the annual record of the right acquired. (5) Such an entry shall be made by the insertion in that record of description of the right acquired and by the omission from that record of any entry in any record previously prepared which by reason of the acquisition has ceased to be correct. xx xx xx xx 36. Determination of disputes: -(1) If during the making, revision or preparation of any record or in the course of any inquiry under this Chapter a dispute arises as to any matter of which an entry is to be made in a record or in a register of mutations, a Revenue-officer may, of his own motion, or on the application of any party interested but subject to the provisions of the next following section, and after such inquiry as he thinks fit, determine the entry to be made as to that matter. (2) If any such dispute the Revenue-officer is unable to satisfy himself as to which of the parties thereto is in possession of any property to which the dispute relates, he shall ascertain by summary inquiry who is the person best entitled to the property, and shall by order direct that person be put in possession thereof, and that an entry in accordance with that order be made in the record or register. (3) A direction of a Revenue-officer under sub-section (2) shall be subject to any decree or order which may be subsequently passed by any Court of competent jurisdiction. xx xx xx xx 39. Penalty for neglect to report acquisition of any right referred to in section 34: - Any person neglecting to make the report required by section 34 within three months from the date of his acquisition of a right referred to in that section shall be liable, at the discretion of the Collector, to a fine not exceeding five times the amount of the fee which would have been payable according to the scale fixed under the last foregoing section if the acquisition of the right had been reported immediately after its accrual. 40. Obligation to publish information necessary for the preparation of records:- Any person whose rights, interests or liabilities are required to be entered in any record under this Chapter shall be bound to furnish, on the requisition of any Revenue-officer or village-officer engaged in compiling the record, all information necessary for the correct compilation thereof. The purpose of mutation in the record-of-rights has come in for consideration since long before the Courts. The Privy Council in a judgment reported as (Thakur) Nirman Singh & others Vs. Thakur Lal Rudra Partap Narain Singh & otheers, AIR 1926 Privy Council 100, has held that the proceedings for the mutation of names are not judicial proceedings. They are more in the nature of fiscal inquiries instituted in the interest of the State for the purpose of ascertaining which of the several claimants for the occupation of certain denominations of immovable property may be put into occupation of it with greater confidence that the revenue for it will be paid. It was held to the following effect:
"It is an error to suppose that the proceedings for the mutation of names are judicial proceedings in which the title to and the proprietary rights in immovable property are determined. They are nothing of the kind, as has been pointed out times innumerable by the Judicial Committee. They are much more in the nature of fiscal inquiries instituted in the interest of the State for the purpose of ascertaining which of the several claimants for the occupation of certain denominations of immovable property may be put into occupation of it with greater confidence that the revenue for it will be paid." Later, in Nand Kishwar Bux Roy Vs. Gopal Bux Rai and others AIR 1940 PC 93, it was held that the mutation proceedings are merely in the nature of fiscal inquiries, instituted in the interest of the State for the purpose of ascertaining which of the several claimants for the occupation of the property may be put into occupation of it with the greater confidence that the revenue for it will be paid.
The Hon'ble Supreme Court reiterated the same principle when in Jattu Ram Vs. Hakam Singh (1993) 4 SCC 403, it held that the jamabandi entries are only for fiscal purpose and they create no title. In Smt. Sawarni Vs. Smt. Inder Kaur (1996) 7 SCC 223, the Court held:
"Mutation of a property in the revenue record does not create or extinguish title nor has it any presumptive value on title. It only enables the person in whose favour mutation is ordered to pay the land revenue in question." The said view was reiterated in Balwant Singh & another Vs. Daulat Singh (1997) 7 SCC 137. Later in Suraj Bhan Vs. Financial Commissioner (2007) 6 SCC 186, the court examined a case, where a suit regarding genuineness or otherwise of the Will was already pending, when mutation was effected in the revenue record by the Tehsildar on the basis of an application submitted by one of the parties to the lis. The Court held:
"8. So far as mutation is concerned, it is clear that entry has been made and mutation has been effected in revenue records by the Tahsildar on the basis of an application made by Respondent 5 herein and his name has been entered in record-of-rights on the basis of the will said to have been executed by Ratni Devi. In our opinion, therefore, it cannot be said that by entering the name of Respondent 5 in revenue records, any illegality had been committed by the Tahsildar. It is true that no notice was issued to the appellants but the Tahsildar had taken the action on the basis of will said to have been executed by deceased Ratni Devi in favour of Respondent 5. The said order has been confirmed by the Collector as also by the Financial Commissioner. When the grievance was made against the said action by filing a writ petition, the High Court also confirmed all the orders passed by the Revenue Authorities under the Act. We see no infirmity so far as that part of the order is concerned." In Rajinder Singh Vs. State of Jammu & Kashmir and others (2008) 9 SCC 368, the Court held as follow:
"18. It is clear from the record that grievance of Respondent 2 daughter, related to mutation entry. If the authorities under the Tenancy Act felt that the action was in consonance with law, it could have retained the entry. The inquiry, however, was limited to the entry in the revenue records and nothing more. It had no bearing whatsoever as to the right of ownership, inheritance or title to the property. In our opinion, therefore, neither the authorities under the Tenancy Act nor the High Court could have entered into the question of ownership, title or inheritance in the present proceedings and they ought to have decided the controversy limited to mutation entry in the revenue records." Considering some of the judgments, referred to above, a Division Bench of this Court in LPA No.440 of 2009 titled 'Palwinder Singh & others Vs. The Financial Commissioner & others' decided on 09.12.2009, has held to the following effect:
"9. It is a rule of judicial discretion that in the matter arising out of sanction of mutation, this Court does not interfere in such orders in exercise of the power of judicial review. The reason is that such order does not create or extinguish any rights of the parties. Mutation is primarily entered for the purposes of collecting land revenue from the persons in whose favour the mutation is entered. The rights of the parties in respect of title over the property are to be adjudicated upon by the Civil Court alone. Therefore, in mutation matters, this Court does not interfere in the order passed as such disputed questions of title are left for adjudication by the Civil Court alone. It is one thing to say that the writ Court will not have the jurisdiction to entertain the writ petition regarding the orders in mutation proceedings and other to say that it will not interfere with the order passed. Though this Court has the jurisdiction to entertain the writ petition against the orders passed in mutation proceedings in exercise of the powers of judicial review, but in view of the fact that such order does not conclusively decided any of the lis between the parties, this Court normally does not interfere in the mutation proceedings." A Larger Bench of the Hon'ble Supreme Court in a judgment reported as Calcutta Municipal Corporation & others Vs. Shrey Mercantile (P) Ltd. & others (2005) 4 SCC 245 considered the issue as to whether the process of change in the name of the owner in the assessment books of the Corporation is in the nature of 'a fee' or 'tax'. While discussing the said issue, it held that such charges is a 'tax' as no special benefits result to the transferee who is made statutorily liable to inform the Corporation of the change, if any, in the name of the person primarily liable to pay the tax. The Bench held to the following effect:
"19. In the case of Nand Kishwar Bux Roy v. Gopal Bux Rai AIR 1940 PC 93 the Court, while discussing the nature of mutation proceedings, observed: "[M]utation proceedings are merely in the nature of fiscal inquiries, instituted in the interest of the State for the purpose of ascertaining which of the several claimants for the occupation of the property may be put into occupation of it with the greater confidence that the revenue for it will be paid." 20. Therefore, it is clear that mutation enquiry is instituted in the interest of the Corporation for tax purposes and not for the benefit of the taxpayer." The common thread in all the judgments, referred to above, is that the entries in the annual records is for fiscal purposes i.e. for realization of land revenue. In Thakur Nirman Singh's case (supra), the Hon'ble Privy Council has held that proceedings for the mutation are not judicial proceedings.
In view of the judgments referred to above, and in order to answer the question referred to this Bench for its opinion, we need to first examine the following issues:
(1) Whether the proceedings for sanction of mutation are administrative or quasi judicial proceedings? (2) Whether the maintenance of record-of-rights and its periodical up-dating is a mandatory requirement of a Statute? In respect of the first question, we find that a Division Bench of this Court in The State of Punjab Vs. Sham Kaur etc. (1973) 1 ILR (Punjab) 650, considered the question; whether an officer acting and deciding a matter in the course of the mutation proceedings under the Punjab Land Revenue Act is a 'Court' within the meaning of Section 195 (1) (c) & (2) of the Code of Criminal Procedure, 1898. The Bench observed as under:
"19. The case law on the subject in hand has been so ably discussed by our learned brother in his order of reference that we would like, with his permission, to adopt that order, as the introductory part of our judgment. Extracts from two rulings which appear to have a direct bearing on the point in controversy have been reproduced in that order of reference. Out of a feeling of inertia, there may be a disinclination to turn over the pages and these extracts are being reproduced here again for the sake of continuity; even at the risk of repetition :- "Reliance was then placed on a Single Bench judgment of the Punjab Chief Court in Emperor v. Lehna Singh 16 Cr. L.J. Reports 785 (AIR 1915 Lahore 250), where Shah Din J., on a consideration of the relevant provisions of the Punjab Tenancy and the Land Revenue Act, had clearly held that in the case of mutation proceedings held by a Naib-Tehsildar, he acts in his administrative capacity of a 'Revenue Officer' and that the proceedings are not those of 'Revenue Court' within the meaning of section 195(2) of the Code of Criminal Procedure." *** "In evaluating the rival contention it first deserves notice that as early as 1926, the Privy Council in Thakur Nirman Singh and others v. Thakur Lal Rudro Partab Narain Singh and others, on considering the nature, of mutation, proceedings expressed itself in categorical terms as follows :- The perusal by their Lordships of the judgment of the Court of the Judicial Commissioner of Oudh, at page 482 of the record, leads their Lordships to think that its judgment is to a great degree based on the mischievous but persistent error that the proceedings for the mutation of names is a judicial proceeding in which the title to and the proprietary rights in immovable property are determined. They are nothing of the kind as has been pointed out times innumerable by the Judicial Committee. They are much more in the nature of fiscal inquiries instituted in the interest of the State for the purpose of ascertaining which of the several claimants for the occupation of certain denominations of immovable property may be put into occupation of it with greater confidence that the revenue for it will be paid. It is little less than a travesty of judicial-proceeding to regard the two orders of the Extra Commissioner of Bahraich and Mr. M. L. Ferrar, Deputy Commissioner, as Judicial determinations expelling proprie vigore and individual from any proprietary right or interest he claims in immovable property. This statement of the law is in the clearest terms and the attempt of Mr. Dhaliwal to distinguish this case from the present one is futile. The Allahabad and the Sind cases in which this authority has been referred to in passing were decided on the particular provisions of the relevant statutes." 20. Without meaning any disrespect to the Hon'ble Judge who decided Mohar Singh Vs. The State 1968 CLJ 103, it may be observed that no sufficient reasons were given for making a departure from the law so authoritatively laid down by the Punjab Chief Court in Lehna Singh's case, and then by the Privy Council in Thakur Nirman Singh's case.... xx xx xx xx 26. If the presumption of correctness mentioned in section 44 of the Punjab Land Revenue Act is to have any meaning, the records of rights must be overhauled from time to time and kept up-to-date. All changes in the world of reality, in so far as these affect the records, must be posted and entered and the revenue officer is only a part of the machinery that has been set up to secure a timely mutation of entries. He is only a book- keeper or chronicler of events taking place from day to day. He decides a dispute only to the extent that a munim at a shop determines the business policy of his master. He can claim to make a final decision to the same extent that a store-keeper in the cricket ground can claim to decide the fate of the match. The Cricket score-book may be more inviolate than the mutation entries which only carry a rebuttal presumption and which are subject to the decision of a civil Court. It cannot, therefore, be said that the revenue officer has in a certain sphere exclusive jurisdiction, wherein he brooks no interference. A party to the dispute can, with impunity, choose to keep away from the mutation proceedings and say that in view of the futility of these proceedings up to highest revenue officer in the hierarchy, he would not like to waste his time before the revenue set-up and will carry the dispute straightaway to the civil Court for final determination. 27. .....Section 19(3) of the Punjab Act says that the person summoned is bound to state the truth but there is no provision in the Punjab Act for the administration of oath to the person summoned. In disputed cases of mutation, the revenue officer is supposed, in view of the provisions of section 36(1) of the Punjab Act to determine the entry to be made after such inquiry as he thinks fit. The parties to the dispute do not appear to have the right of reasonable opportunity to produce all the evidence that they may like to produce. The revenue officer is, therefore, supposed to make only a summary inquiry which only satisfies him as to the entry that he would make in the records of rights in accordance with the provisions of section 37 of the Punjab Act. The parties are thereafter left to have the matter more fully gone into or thrashed out in the civil Courts." The Bench has approved the judgment of the predecessor court, the Punjab Chief Court, reported as Emperor Vs. Lehna Singh (AIR 1915 Lahore 250), wherein it was observed that:
"The mutation proceedings dated the 22nd April, 1913, in the course of which the petitioner Lehna Singh produced his bahi which contains the entry that is alleged to have been forged, were held by the Naib Tahsildar in his administrative capacity of a "Revenue Officer", and not in his judicial capacity as a "Revenue Court", and, therefore, under Section 195, sub-Section (1)(c), read with Section 195, sub-Section (2), the previous sanction of the Naib Tahsildar was not essential to the institution of criminal proceedings against the petitioner under Sections 465, 468 and 471, Indian Penal Code. Section 4, Clause (14) of the Punjab Tenancy Act draws a distinction between a "Revenue Officer" and a "Revenue Court", and the distinction is clearly observed in the provisions of the Act that follow; and in Section 3, Clause (12) of the Punjab Land Revenue Act the expression "Revenue Officer", as used in any provision of the Act, is defined as meaning: "a Revenue Officer having authority under the Act to discharge the functions of the Revenue Officer under that provision." The Naib Tahsildar before whom the bahi was produced on the 22nd April, 1913, was acting under the provisions of Sections 34 and 36 of the Land Revenue Act and his proceedings were those of a "Revenue Officer" and not of a "Revenue Court" within the meaning of Section 195(2) of the Criminal Procedure Code." From the above judgments of this court and that of the Privy Council in Thakur Nirman Singh's case Supra, it is apparent that Section 19(3) of this Punjab Act lays down that the person summoned shall be bound to state the truth, but there is nothing in this Act to suggest that oath has also to be administered to give the mutation proceedings the sanctity of 'judicial proceedings' as defined in clause (m) of section 4(1) of the Code. From the reading of Section 3 of the Evidence Act, the information or material placed before the revenue officer, whether in the form of word of mouth or in black and white, would be evidence only if that officer could be described as a 'Court' and that in mutation proceedings held by a Naib- Tehsildar, he acts in his administrative capacity of a 'Revenue Officer' and that the proceedings are not those of 'Revenue Court' within the meaning of section 195(2) of the Code of Criminal Procedure.
Section 36 of the Act deals with determination of disputes, empowers a Revenue Officer to conduct an inquiry, as he thinks fit, to determine the entry to be made. Sub-section (2) of Section 36 of the Act contemplates that if the Revenue Officer is unable to satisfy himself as to which of the parties thereto is in possession of any property to which the dispute relates, he shall ascertain by summary inquiry, who is the person best entitled to the property and shall by order direct that that person be put in possession thereof. The inquiry contemplated is without oath and summary in nature. A revenue officer discharges administrative functions when he up dates the revenue record by sanction of the mutation as such revenue officer is only a book-keeper or a chronicler of events taking place from day-to-day.
As held in Sham Kaur's case (supra), it is open to a party to carry disputes straightway to the Civil Court for final determination instead of "waste his time before the revenue set-up". Still further, it has been held that the Revenue Officer is supposed to make only a summary inquiry, which only satisfies him as to the entry that he would make in the record-of-rights in accordance with the provisions of Section 37 of the Act. Any direction of a Revenue Officer in terms of sub-section (3) of Section 36 of the Act is subject to any decree or order, which may be subsequently passed by any Court of competent jurisdiction. Such summary inquiry does not have any trappings of the judicial proceedings and cannot be called quasi judicial proceedings.
The fact that the power of the Revenue Officer while sanctioning mutation is an administrative function gets support from the fact that Chapter IX of the Act dealing with the partition of the land empowers a Revenue Officer to determine the question of title as though he was such a 'Court'. If the Revenue Officer acts as a 'Court' under the provisions of Punjab Tenancy Act, 1887, such Revenue Officer discharges quasi judicial functions, but if he acts as a 'Court' under clause (b) of Section 117(2) of the Act, the Revenue Officer would be acting as a 'Civil Court'. Therefore, the same Act in respect of partition empowers the Revenue Officer to act as a 'Court', but on the other hand, the exercise of powers by a Revenue Officer in respect of determination of disputes under Section 36 of the Act, is only an administrative function. In view of the Division Bench Judgment of this court in Sham Kaur's case (supra), with which we are not only bound but are in respectful agreement with, we hold that the revenue officer while sanctioning mutation is discharging purely administrative functions and not that of a quasi judicial authority possessing some of the trappings of a court.
The second question is required to be examined keeping in view the principles of interpretation of Statutes as to when a provision is mandatory or directory. In May George Vs. Special Tehsildar & others, (2010) 13 SCC 98, the Hon'ble Supreme Court considered its earlier judgments to consider as to when a provision can be said to be directory or mandatory. It observed as under:
15. While determining whether a provision is mandatory or directory, in addition to the language used therein, the Court has to examine the context in which the provision is used and the purpose it seeks to achieve. It may also be necessary to find out the intent of the legislature for enacting it and the serious and general inconveniences or injustice to persons relating thereto from its application. The provision is mandatory if it is passed for the purpose of enabling the doing of something and prescribes the formalities for doing certain things. xx xx xx xx 25. The law on this issue can be summarised to the effect that in order to declare a provision mandatory, the test to be applied is as to whether non- compliance with the provision could render the entire proceedings invalid or not. Whether the provision is mandatory or directory, depends upon the intent of the legislature and not upon the language for which the intent is clothed. The issue is to be examined having regard to the context, subject-matter and object of the statutory provisions in question. The Court may find out as to what would be the consequence which would flow from construing it in one way or the other and as to whether the statute provides for a contingency of the non-compliance with the provisions and as to whether the non-compliance is visited by small penalty or serious consequence would flow therefrom and as to whether a particular interpretation would defeat or frustrate the legislation and if the provision is mandatory, the act done in breach thereof will be invalid. Section 31 of the Act mandates record-of-rights for each estate. The 'estate' as per Section 3 (1) of the Act means an area for which a separate record-of-rights has been made or which has been separately assessed to land revenue, or would have been so assessed if the land revenue had not been released, compounded for or redeemed or which the State Government may, by general rule or special order, declare to be an estate. Such record-of-rights is to include the documents showing the persons, who are land-owners, tenants or assignees of land-revenue in the estate or who are entitled to receive any of the rents, profits or produce of the estate or to occupy land therein and also nature and extent of the interests of those persons, and the conditions and liabilities attaching thereto. A statement of customs respecting rights and estate are also required to be recorded in the record-of-rights. Section 39 of the Act contemplates imposition of fine, if any person neglects to make the report required by Section 34 within three months from the date of his acquisition of a right referred to in that section. Section 40 of the Act contemplates that any person, whose rights, interests or liabilities are required to be entered in the record, shall be bound to furnish, all information necessary for the correct compilation thereof. Since negligence to give report required by Section 34 of the Act carries a penalty of fine, therefore, the provisions of Section 31 of the Act are mandatory in nature. It is the statutory duty conferred on the Revenue Officer to update record-of-rights, when it makes obligatory for every person to report the change and also obligatory for any person to furnish correct information to the Revenue Officer in terms of Section 40 of the Act. The record-of-rights are to be maintained in terms of the statute and in furtherance of the statutory duties. The record-of-rights are not maintained only for the purpose of realization of the land revenue, but for larger public interest to find out as to who are the landowners, tenants or assignees or who are entitled to receive rent and profits. Such record-of-rights carry presumption of correctness under Section 44 of the Act. Therefore, the maintenance of record-of-rights and its periodical updating is a statutory requirement in terms of Section 31 of the Act read with Sections 39, 40 & 44 of the Act.
In Jagtar Singh's case (supra), referred to by the learned counsel for the petitioner, none of the judgments in respect of scope of Chapter IX including that of Section 31 of the Act, were brought to the notice of the Court. The judgment in Suraj Bhan's case (supra), wherein even though civil suit was pending, but still mutation proceedings were not said to be unwarranted, has not been referred to. Therefore, the judgment in Jagtar Singh's case (supra) is a judgment rendered per incuriam and does not lay down a binding precedent. The single Bench in Shamsher Singh's case was again not apprised of earlier judgments and the statutory provisions noticed here-in-before. Therefore, the said judgment is also overruled.
The judgments, referred to above, have consistently held that the mutation entries are primarily for fiscal purposes recorded in the interest of the State as the only question raised and debated before them. But as the mandate of Section 31 of the Act, the record-of-rights is also to include the name of persons, who are land-owners, tenants or assignees of land-revenue in the estate or who are entitled to receive any of the rents, profits or produce of the estate or to occupy land therein. Such records are still required to be maintained even if, the land revenue is not payable by the landowners. The purpose of realizing land revenue is not the sole purpose of the maintenance of the records, but one of the purposes contemplated by Section 31 of the Act. Since the proceedings are summary in nature and in exercise of administrative functions, therefore, such proceedings do not create or extinguish any right or title in the land. The right or title in the property is to be decided by the Civil Court. Therefore, this Court in exercise of writ jurisdiction does not interfere with the orders sanctioning mutation, as such process does not involve any adjudicatory process of resolution of disputes amongst the parties and that any decision arrived at in the mutation proceedings does not determine the rights or interest of the parties.
With the said observations, the question of law is answered that the mutation proceedings cannot be kept in abeyance during the pendency of the dispute before the Civil Court. The revenue officers are duty bound in terms of the statute to enter mutations in exercise of their administrative functions.
With the question of law answered, the writ petition be listed before the Single Bench for further proceedings.