IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL Writ Petition No. 2567 (M/S) of 2001 (Old No. 49763 of 1999) Smt. Guddi. ……….. Petitioner. Versus The Additional Commissioner, Saharanpur Division, Saharanpur and another. ………. Respondents. Mr. M.S. Tyagi, learned counsel for the petitioner. Sri Sharad Sharma, learned counsel for the respondent no. 2. Date : June 17, 2008 Hon’ble P.C. Verma, J This writ petition has been filed by the petitioner challenging the order dated 02.11.1999, passed by Additional Commissioner, Saharanpur Division, Saharanpur, under section 219 of Land Revenue Act, contained as Annexure No. 1 to the writ petition. 2. The land in dispute was leased out under the Government Grants Act, 1895 in favour of the petitioner’s father. The lease deed is on record (Annexure no. 2 to the writ petition), which contains conditions of lease and regarding the succession/devolution of the property. Condition no. 1 provides that specific succession will be made in accordance with sections 171 to 174 of U.P. Zamindari Abolition and Land Reforms Act, 1950. Since there is specific provision for succession in accordance with U.P. Z.A. & L.R. Act, 1950 other mode i.e. testamentary succession stands excluded. 2. Reliance has been placed on the maxim “expressio unius est exclusio alterius”. Even otherwise, the lease deed or licence granted under section 3 of Government Grants Act, 1895 has to be construed strictly on its tenor, as specifically it has been inserted by amendment by the State of U.P. in section 3, which reads as under:- “Government Grants to take effect according to their tenor – All provisions restrictions, conditions and limitations over contained in any such grant or transfer as aforesaid shall be valid and the effect according to their tenor, any rule of law, statute or enactment of the Legislature to the contrary notwithstanding. State Amendments. Uttar Pradesh. For sections 2 and 3 of the Principal Act the following shall be substituted and be deemed always to have been substituted. (3) Certain leases made by or on behalf of the Government to take effect according to their tenor. – All provisions, restrictions, conditions and limitations contained in any such creation, conferment or grant referred to in section 2, shall be valid and take effect according to their tenor, any decree or direction of a Court of law or any rule of law, statute or enactment of the Legislature, to the contrary notwithstanding: Provided that nothing in this section shall prevent, or deemed ever to have prevented the effect of any enactment relating to the acquisition of property, land reforms or the 2 imposition of ceiling on agricultural lands – U.P. Act no. 13 of 1960, Section 2.” 3. Therefore, this succession after the death of petitioner’s father is to take place only as per condition No. 1 and not by testamentary succession. On the death of petitioner’s father, petitioner moved application for mutation of her name on the basis of being the only daughter. The Tehsildar has rightly ordered for mutation, which is upheld in appeal by the Assistant Collector 1st Class. The Revisional Court illegally without considering the above legal position held that testamentary succession was also open and was not barred, therefore allowed the revision and ordered for mutation de novo. 4. The Revisional Court could not have ordered merely on the basis of registered WILL ignoring the condition of lease grant under Government Grants Act and without WILL being proved, mutation could not have ordered and the case could have been remanded only. 5. Learned counsel for the respondent No.2 placed reliance on plethora of judgments following by this court that writ petition is not maintainable against the revisional order passed in mutation proceedings. Perusal of these judgments clearly shows that present writ petition should not be entertained but the power of Article 227 vested in the High Court are enough to correct the miscarriage of justice. In the facts and circumstances of this case, writ petition is not maintainable but in the peculiar facts of this case as 3 narrated above, the Court cannot shut its eyes to undo the injustice done in exercise of its power under Article 227 of the Constitution of India. It was appropriate for the Revisional Court to have relegated the revisionist to file suit under section 229 B of U.P.Z.A. & L.R. Act for declaration of her title. The WILL could have been proved or disproved and the effect of clause 1 of lease deed could have been considered properly. Therefore, by exercising the power under Article 227 of the Constitution of India, I correct the error committed by the Revisional Court. The impugned order passed by the Revisional Court shall be kept in abeyance till the proceedings under section 229 B of the U.P. Zamindari Abolition and Land Reforms Act are not decided. However, the suit under section 229 B of the U.P. Zamindari Abolition and Land Reforms Act before the trial court shall not be affected by any finding recorded by the Revisional Court or in the mutation proceedings. The respondent no.2 (revisionist before the Revisional Court) is directed to file suit under section 229 B of U.P. Z.A. & L.R. Act to get her title declared. 6. With the aforesaid direction, writ petition is disposed of finally. No order as to costs. (P.C.Verma,J.) 17.06.2008 SKS/P.Singh 4