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2001 DIGILAW 7 (SIK)

SAMPATLAL BUCHA v. UNION OF INDIA

2001-03-19

ANUP DEB, RIPUSUDAN DAYAL

body2001
DAYAL, C. J. ( 1 ) JOINT Secretary, Land Revenue Department, Government of Sikkim working under respondent No. 6, the Secretary, Land Revenue Department, Government of Sikkim has filed preliminary objection, being authorized by respondent Nos. 4, 5 and 6 to do so, that the writ petition may be dismissed as not maintainable. This objection has been registered as Civil Miscellaneous Application No. 34 of 2001. ( 2 ) WE have heard Shri Home Choudhury, senior Advocate appearing on behalf of the petitioners and Shri S. P. Wangdi, learned Advocate General on behalf of respondent Nos. 4 to 8. Shri Wangdi has submitted that the Writ Petition is not maintainable, since the petitioners have no locus standi to file the petition, since the petition raises disputed questions of facts which cannot be conveniently decided in a writ petition and also because the writ petition suffers from suppression of material facts. On the other hand, Shri Home Choudhury has submitted that the writ Court has the jurisdiction to decide disputed questions of facts and the petitioners have the locus standi to file the petition and also that the petition does not suppress any material facts. ( 3 ) IN order to appreciate the controversy, it is necessary to refer to the prayers made in the writ petition and also to some of the averments made therein. The petition has been filed by Sampatlal Bucha, petitioner No. 1 as Karta of the Hindu undivided firm M/s. Nauratanmal Ashok Kumar which has been impleaded as petitioner No. 2. The first respondent is the Union of India, second and third respondents are the Commissioner of Income-tax, Jalpaiguri Range, West Bengal and the Income-tax Officer, Ward No. 1, Treasury Road, Kalimpong, District Darjeeling respectively. Fourth respondent is the State of Sikkim through the Chief Secretary and fifth respondent is the Finance Secretary, Government of Sikkim, sixth respondent is the Secretary, Land Revenue Department, Government of Sikkim, seventh respondent is the District Collector, East District, eighth respondent is the Sub-Divisional Officer, East District, Gangtok, ninth respondent is Srimati Sakuntala Devi, tenth respondent is Azey Bhutiani, Kazi Road, Gangtok and the eleventh respondent is Smt. K. Rinzing, Yama House, M. G. Marg, Gangtok. The petitioners have claimed the following reliefs :- (A) a Writ of Mandamus be issued against the Respondents 4 to 8 directing them to quash and cancel the impugned Sale Deed dated 4-10-1996 Annexure 'p-4' as the same is void, illegal and non est; (b) an appropriate Writ of Certiorari against the Respondents 4 to 8 quashing and cancelling the impugned Sale Deed dated 4-10-1996, Annexure "p-4" which has been registered or purported to have been registered in violation of the provisions of Laws in force in Sikkim; (c) a writ or an order declaring the impugned Sale Deed as bad, void, illegal, invalid and non est and the same is ineffective for all intent and purposes; (d) an order of injunction be issued against the Respondents 4 to 10 not to give effect or further effect to the said impugned Sale Deed dated 4-10-1996, Annexure 'p-4' and also not to give effect to the same by effecting mutation in favour of the Transferee the Respondent No. 10 on the basis of the Void Deed; (e) an appropriate order be issued for stay of operation of the mutation proceeding (Annexure 'p-9') on the basis of the impugned Sale Deed till the final decision of this Writ Petition; (f) to issue appropriate order to the State of Sikkim, the Respondent No. 4 to provide sufficient security to the life and properties of the Petitioner No. 1 which are in danger due to constant threat from the Respondent No. 10 and her associates; (g) interim Orders in terms of Paragraphs (d), (e) and (f) above made; and (h) any other appropriate order or orders as the Hon'ble Court may deem fit and proper. The petitioners were the tenants under respondent No. 9, Shrimati Sakuntala Devi on monthly rent of Rs. 400. 00 in respect of some portions of the building in question. The petitioners have alleged that they paid rent regularly to respondent No. 9 up to the month of October, 1980 against proper receipts but subsequently, the landlady refused to accept rent. One sale deed, exhibit P-4 has been executed by Shrimati Sakuntala Devi, (Bai) in favour of Azey Bhutiani in respect of the building which is under the tenancy of the petitioners. The sale deed shows the sale consideration as Rs. 10,75,000. 00. The sale deed purports to have been executed on 3-9-1996 and registered on 4-10-1996. One sale deed, exhibit P-4 has been executed by Shrimati Sakuntala Devi, (Bai) in favour of Azey Bhutiani in respect of the building which is under the tenancy of the petitioners. The sale deed shows the sale consideration as Rs. 10,75,000. 00. The sale deed purports to have been executed on 3-9-1996 and registered on 4-10-1996. The petitioners have alleged that the person who executed the sale deed is different from the person who is the landlady and has been impleaded as respondent No. 9. They have also averred that though the sale deed appears to have been executed in favour of one Azey Bhutiani, the identity of the alleged purchaser is surrounded with mystery as Azey Bhutiani who has appeared as respondent no. 10 is not the same Azey Bhutiani who apparently purchased the property and the sale deed has been registered by the concerned authorities in derogation of the provisions of Section 230-A of the Income-tax Act, 1961 and also the rules applicable to the registration of documents despite the fact that they lodged complaints with the various authorities for not registering the sale deed and the authorities have also not cancelled the registration despite requests have been made to do so. According to the petitioners, the sale deed is void, invalid, inoperative and illegal from its very inception and has been registered on account of the negligence and inaction on the part of the authorities concerned and the sale is greatly affecting their tenancy rights in the property and some anti-social persons are demanding rent from the petitioners. Several documents have been annexed by the petitioners along with the petition. One of them is a complaint, Annexure P-2, dated 10-12-1996 made by them to the Income- tax Officer, Kalimpong, West Bengal, inter alia, alleging that once during 1993-94, the owners of the building wanted to sell the property to petitioner No. 2 and there was a verbal agreement for such sale at a total price of Rs. 15,00,000. 00 and though the petitioner No. 2 firm was agreeable, the deal was not finalized because the owners ultimately backed out. One other complaint on record is a copy of a letter dated 9/11/1996 (Annexure P-3) addressed to the Chief Minister of Sikkim again stating "we, ourselves, few years back wanted to purchase the building from our landlords and offered a price of Rs. 15,00,000. One other complaint on record is a copy of a letter dated 9/11/1996 (Annexure P-3) addressed to the Chief Minister of Sikkim again stating "we, ourselves, few years back wanted to purchase the building from our landlords and offered a price of Rs. 15,00,000. 00 (Rupees fifteen lakhs) only, but the landlords did not agree to sell the property to us. " They further added "if actually the property has been sold by the owners to anyone, the owners ought to have been informed us officially as because we are occupying portions of the premises as bona fide monthly tenants. " ( 4 ) IT would thus appear that the petitioners wanted to purchase the property but the landlady did not sell the same to them. Therefore, they want the cancellation of the sale deed purported to have been executed by respondent No. 9 in favour of respondent No. 10. The remedy of writ is not meant in respect of disputes of title where the parties seek to litigate under ordinary civil law. Remedy of writ is available against a public authority or anyone performing public duty for the enforcement of a fundamental right or performance of a constitutional or statutory duty. The Supreme Court held in Parvatibai Subhanrao Nalawade v. Anwarali Hasanali Makani, (1992) 1 SCC 414 : (AIR 1992 SC 1780) in paragraph 10 "that in cases relating to immovable properties which are governed by the ordinary civil law the High Court should not exercise its special jurisdiction under the Constitution unless the circumstances are exceptional. " Similarly, the Supreme Court observed in State of Rajasthan v. Bhawani Singh, AIR 1992 SC 1018 in Paragraph 7 as under :"7. Having heard the counsel for the parties, we are of the opinion, that the writ petition was misconceived insofar as it asked for, in effect, a declaration of writ petitioner's title to the said plot. It is evident from the facts stated hereinabove that the title of the writ petitioner is very much in dispute. Disputed question relating to title cannot be satisfactorily gone into or adjudicated in a writ petition. It is evident from the facts stated hereinabove that the title of the writ petitioner is very much in dispute. Disputed question relating to title cannot be satisfactorily gone into or adjudicated in a writ petition. "shri Home Choudhury referred to Babubhai Maljibhai Patel v. Nandlal Khodidas Barot, AIR 1974 SC 2105, in support of his submission that the High Court is not deprived of its jurisdiction to entertain a petition under Article 226 merely because in considering the petitioner's right of relief, questions of fact may fall to be determined and that the High Court has the jurisdiction to try issues both of fact and law. But the same judgment also makes it clear that when the petition raises complex questions of fact, which may for their determination require oral evidence to be taken, and on that account the High Court is of the view that the dispute should not appropriately be tried in writ petition, the High Court may decline to try the petition. Thus, it depends upon the nature of the averments made and the relief claimed, whether the High Court should in the given context enter into the questions of fact. So far as the jurisdiction is concerned, the High Court has undoubtedly the jurisdiction to enter into questions of fact though it is open to the High Court to decline to enter into such questions where the questions involved are complex which may more appropriately be tried in a civil suit. At the same time, this is so where the case involves the enforcement of a fundamental right or a statutory right but where the petitioner seeks remedy under the ordinary civil law, he cannot be allowed to convert civil suit into a writ petition by deft drafting. The High Court has to consider what the real relief claimed is and if the dispute brought before the Court is not appropriate to the jurisdiction of the writ Court, the petition has to be dismissed as not maintainable. We are of the view that, in the instant case, the dispute before the Court is not appropriate to the writ jurisdiction and, therefore, there is no question of entering into the disputed questions of fact. ( 5 ) BESIDES, the petitioners have no locus standi to bring the petition as they are the tenants. We are of the view that, in the instant case, the dispute before the Court is not appropriate to the writ jurisdiction and, therefore, there is no question of entering into the disputed questions of fact. ( 5 ) BESIDES, the petitioners have no locus standi to bring the petition as they are the tenants. A tenant has no locus to challenge the validity of a sale deed which his landlord executes in favour of another person. On the execution of the sale deed only the landlord changes and not the rights and obligations under the lease. As such, we do not see any merit in the submission made on behalf of the petitioners that they have locus standi to raise the dispute about the validity of the sale deed as has been done in this case. ( 6 ) WE do not consider it necessary to consider whether the petitioners have suppressed any material facts. ( 7 ) IN the result, the writ petition is dismissed with costs payable to respondents Nos. 4 to 6. Counsel fee is assessed at Rs. 5,000. 00. Petition dismissed. --- *** --- .