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2019 DIGILAW 106 (UTT)

Chandra Singh v. State of Uttarakhand

2019-02-20

LOK PAL SINGH

body2019
JUDGMENT : Present writ petition has been filed by the petitioner seeking writ in the nature of mandamus directing and commanding the respondents not to recover any amount from the land of the petitioner, bearing khasra nos. 260, 265, 266, 267, 268, 269, 273, situated in Village Raini Chak Subhai, Tehsil Joshimath, District Chamoli. 2. Brief facts of the case are that the petitioner belongs to the Scheduled Tribe community and he was the recorded owner of land bearing khasra nos. 260, 265, 266, 267, 268, 269, 273, situated in Village Raini Chak Subhai, Tehsil Joshimath, District Chamoli. The petitioner and fifth respondent M/s Rishi Ganga Hydro Power Corporation Ltd. entered into an agreement to sell on 16.09.2006 by which it has been decided that the petitioner will provide the land to the fifth respondent on payment of Rs.90,000/- per Nali and a total land measuring area 7 Nali 11 Muthi was decided to be sold for a consideration of Rs.7,14,375/-. Out of said amount the petitioner received Rs.1,85,000/- in advance and the remaining balance of Rs.5,29,375/-. Fifth respondent undertook that the sale deed will be executed after payment of the remaining amount. Copy of the agreement to sell is annexed with the writ petition which depicts that the possession has been handed over to the fifth respondent for raising construction of power project. The petitioner has annexed a copy of agreement to sell executed by him in favour of fifth respondent. A perusal of the contents of agreement to sell would reveal that the petitioner himself has permitted the fifth respondent to raise construction over the land in dispute, meaning thereby that petitioner himself has handed over the possession to the fifth respondent after taking 1/4th sale consideration. 3. It is alleged in the writ petition that fifth respondent never paid the remaining amount of the petitioner and started the construction of project and the same has not been completed till date. It is also alleged that on the basis of said agreement fifth respondent took loan of rupees 45 crores from the Punjab National Bank, Branch Industrial Area, Ludhiana, Punjab. On 20.03.2016, all the villagers made application to the Director of fifth respondent for payment of balance amount and for compensation. On 08.07.2016, the petitioner made application to the District Magistrate, Chamoli in the Samadhan portal. On 20.03.2016, all the villagers made application to the Director of fifth respondent for payment of balance amount and for compensation. On 08.07.2016, the petitioner made application to the District Magistrate, Chamoli in the Samadhan portal. The office of the District Magistrate, Chamoli forwarded the letter to the Tehsildar Joshimath and the Managing Director of fifth respondent for necessary action. On 01.05.2018, the petitioner and other villagers have made application to Mr. Nipon Bansal, Resolution Professional in the matter of Rishi Ganga Hydro Power Corporation Ltd. stating therein that the agreement to sell was never executed and the balance amount has not been paid and on the basis of rough agreement M/s Rishi Ganga Hydro Power Corporation Ltd. is trying to grab the land of the petitioner and since the National Company Law Tribunal, Chandigarh has appointed him for regulation or the liquidation since the land is not being sold to the company, therefore, the petitioner will deprive of his land. The company has used the land without payment of rent, therefore, the objection may be accepted and the Corporation be directed not to create any third party interest or execute any sale deed. 4. It is apt to mention here that a revenue case no. 36 of 2010-11, State vs Rishi Ganga Hydro Power Corporation Ltd. was filed and on 30.11.2017, the land of petitioner has been vested in the Government as the possession of the land in lieu of an agreement has been delivered to Rishi Ganga Hydro Power Corporation by the petitioner in violation of the provisions of Section 167 of the U.P.Z.A. & L.R. Act. On 14.05.2018, the petitioner made an application to Mr. Nipon Bansal Resolution Professional in the mater of M/s Rishi Ganga Hydro Power Corporation Ltd., stating therein that on the basis of the agreement to sell, the amount has not been paid by the company for the last 12 years and the fifth respondent was permitted to set up the plant of the company in the land belonging to the petitioner in which the company has no legal right of ownership. Therefore, the land of the petitioner may not be sold. Therefore, the land of the petitioner may not be sold. It is alleged that fifth respondent company deliberately and knowingly not paid the loan to PNB, as the company is not the owner of the land and it will not suffer any loss if the property of the petitioner will be sold by the bank to other person. The respondent bank has to recover the loan amount from the fifth respondent and its guarantors the petitioner has not taken any loan and also not the guarantor thus his land cannot be sold. On 30.06.2018, a meeting was held with fifth respondent and the authorities of the PNB and the Oriental Bank of Commerce for undergoing corporate insolvency regulation process. 5. It is alleged by the petitioner in the writ petition that the petitioner is the actual owner of the property and has not received the full and final payment from the fifth respondent and no sale deed has been executed in its favour. It is mentioned that the petitioner will file an appeal against the judgment and order dated 30.11.2017, passed by Asstt. Collector, Joshimath before the higher court. It is further alleged that respondents have neither served any notice upon the petitioner nor opportunity of hearing was granted to the petitioner and without following the principle of natural justice, the respondents are trying to take the land of the petitioner which is not permissible under the law. It is further alleged that the regulation dated 30.06.2018 is illegal and against the provisions of law as the petitioner made not made party there, as such, the regulation dated 30.06.2018 is null and void in the eyes of law. The liquidation proceedings are arbitrary, against the provisions of law and are liable to be set aside / quashed. 6. Second and third respondents have filed their counter affidavit, wherein it is contended that the petitioner is a member of the Scheduled Tribe community, but it is nowhere revealed in the writ petition that the petitioner is in physical possession over the land of khasra nos. 260, 265, 266, 267, 268, 269, 273 as the petitioner has not produced any evidence regarding his possession over the land in dispute. The petitioner has annexed copy of Khatauni pertaining to the Fasli year 1400-1405 and deliberately has not annexed the latest copy of khatauni. It is also contended that in case no. 260, 265, 266, 267, 268, 269, 273 as the petitioner has not produced any evidence regarding his possession over the land in dispute. The petitioner has annexed copy of Khatauni pertaining to the Fasli year 1400-1405 and deliberately has not annexed the latest copy of khatauni. It is also contended that in case no. 36/2010-11 filed before the Asstt. Collector, I Class, Joshimath, Chamoli under Sections 166/167 of U.P.Z.A. & L.R. Act, 1950, the same was decided vide order dated 30.11.2017, vesting the land measuring 0.183 Hectare of khatauni no. 25 khasra no. 260, 265, 266, 267, 268, 269, 273 of Village Raini chak Subhai in the State. 7. Now the land has been settled and vested in the State of Uttarakhand and after deleting the name of the petitioner the property has been entered in the revenue record in the name of the State Government. 8. It is further contended that the petitioner was not the party in the aforesaid suit as the name of the petitioner is not entered in the revenue records and the name of the fifth respondent was recorded in the khasra of the aforesaid land. Lastly, it is contended that the petitioner has a remedy to file an appeal against the order dated 30.11.2017, passed by Assistant Collector, I Class, Joshimath, Chamoli. 9. Fifty and sixth respondents have also filed their counter affidavit, wherein it is contended that respondent company was incorporated for setting up 13.30 MW Hydro Power Project on Rishi Ganga river having its project site at village Raini, Tehsil Joshimath. The said project is of national importance supplying power to the public at large without causing any degradation or pollution to the environment. The project was commissioned on 13.09.2011 and continued generating power till August 2016. However, due to natural calamity in August 2016, the site where the project was operating got damaged, thereby the project was closed. Thereafter, PNB financial creditor of the respondent company (fifth respondent) initiated the Corporate Insolvency Resolution Process (CIRP) before National Company Law Tribunal (NCLT), Chandigarh against the debtor under Section 7 of the Insolvency and Bankruptcy Code, 2016. NCLT, Chandigarh suspended the Board of the debtor and subsequently a new management took over the said project. The new management in terms of NCLT’s order dated 13.11.2018 deposited a sum of rupees fifty lacs for distribution among the local operational creditors. NCLT, Chandigarh suspended the Board of the debtor and subsequently a new management took over the said project. The new management in terms of NCLT’s order dated 13.11.2018 deposited a sum of rupees fifty lacs for distribution among the local operational creditors. NCLT vide its order dated 07.12.2018 permitted the bank to advertise general notice in newspaper. Pursuant to order dated 07.12.2018, a general notice was published on 15.12.2018 for disbursing sum of Rs.50,00,000/- among the claimants proportionately on pro rata basis of their accepted claims. 15 days time from the date of publication of said notice was fixed for said purpose. The new management has undertaken the said project on Build, Own, Operate and Transfer (BOOT) basis and eventually the said project would be handed over to the State Government for the benefit of public at large. Lastly, it is contended that the resolution plan passed by the NCLT is binding on all the stakeholders, including the petitioner. 10. The agreement to sell was executed on 16.09.2006 and possession was delivered to the fifth respondent to raise construction over the land in question, who in turn mortgaged the property with fourth respondent and borrowed the loan. Subsequently, fifth respondent became defaulter. The fourth respondent initiated proceedings before NCLT, Chandigarh under Section 7 of the Insolvency and Bankruptcy Code, 2016. NCLT vide its judgment and order dated 31.11.2018 disposed of the appeal. Said judgment and order dated 31.11.2018 has attained finality. 11. An aggrieved person can prefer an appeal under Section 32 of the Code before National Company Law Appellate Tribunal, but none has preferred the appeal. 12. The petitioner could have filed his objection before NCLT, but he did not choose to file the same. If the petitioner could not file the objection, then he could have challenged the judgment of the NCLT in appeal, if he is an aggrieved person, but the same has not been done. 13. Learned counsel for the petitioner would submit that since the petitioner belongs to Scheduled Tribe community, therefore, he could not have executed the agreement to sell in favour of the fifth respondent, thus, no rights accrued in favour of the fifth respondent. 14. 13. Learned counsel for the petitioner would submit that since the petitioner belongs to Scheduled Tribe community, therefore, he could not have executed the agreement to sell in favour of the fifth respondent, thus, no rights accrued in favour of the fifth respondent. 14. No doubt, the petitioner could not execute the agreement to sell the property in favour of the fifth respondent, but the fact remains that not only an agreement to sell executed by the petitioner in favour of the fifth respondent, the petitioner had delivered the possession to the fifth respondent to raise the construction, who thereafter raised construction over the land in question and more than 12 years have elapsed. Since the possession has been delivered to the fifth respondent and the petitioner has not filed any suit for recovery of possession against the fifth respondent within two years under Section 209 of the U.P.Z.A. & L.R. Act, as such, in view of Section 210 of the U.P.Z.A. & L.R. Act, the suit has become time barred and fifth respondent perfected the titled over the land on the basis of possession. The rights, if any, of the petitioner have been extinguished by afflux of time in view of the provisions contained in Section 209 and 210 of the U.P.Z.A. & L.R. Act. Section 209 and 210 are being excerpted here-in-below for reference: “209. Ejectment of persons occupying land without title. - [(1)] A person taking or retaining possession of land otherwise than in accordance with the provisions of the law for the time being in force; and- (a) where the land forms part of the holding of a bhumidhar, [* * *] or asami without the consent of such bhumidhar, [* * *] or asami; (b) where the land does not form part of the holding of a bhumidhar, [* * *] or asami without consent of the [Gaon Sabha], shall be liable to ejectment on the suit in cases referred to in Clause (a) above of the bhumidhar, [* * *] or asami concerned and in cases referred to in Clause (b) above of the [Gaon Sabha] [* * *] and shall also be liable to pay damages. [(2) To every suit relating to a land referred to in Clause (a) of sub-section (1) the State Government shall be impleaded as a necessary party.] [210. Consequence of failure to the suit under-Section 209. [(2) To every suit relating to a land referred to in Clause (a) of sub-section (1) the State Government shall be impleaded as a necessary party.] [210. Consequence of failure to the suit under-Section 209. - If a suit for eviction from any land under Section 209 is not instituted by a bhumidhar or asami, or a decree for eviction obtained in any such suit is not executed within the period of limitation provided for institution of such suit or the execution of such decree, as the case may be, the person taking or retaining possession shall- (a) where the land forms pail of the holding of a bhumidhar with transferable rights, become a bhumidhar with a transferable rights of such land and the right, title and interest of an asami, if any, in such land shall be extinguished; (b) where the land forms part of the holding of a bhumidhar with non-transferable rights, become a bhumidhar with non-transferable rights I and the right, title and interest of an asami, if any, in such land shall be I extinguished; (c) where the land forms part of the holding of an asami on behalf of the Gaon Sabha, become an asami of the holding from year to year.] [Provided that the consequences mentioned in Clauses (a) to (c) shall not ensue in respect of any land held by a bhumidhar or asami belonging to a Scheduled Tribe.]” 15. Since the petitioner himself has handed over the property in dispute to the fifth respondent with the permission to raise construction over it and, thereafter, the fifth respondent after raising construction took the loan and mortgaged the property with the PNB, the petitioner cannot take the benefit of his own wrong saying that a mandamus be issued directing and commanding the respondents that the loan granted to the fifth respondent by the bank should not be recovered from his property. 16. In the given facts of the present case, the petitioner is not entitled for the relief claimed by him. Firstly, petitioner is not the recorded owner of the land in question and he entered into an agreement to sell and delivered the possession to the fifth respondent, who thereafter raised the construction over the land and mortgaged the same with PNB. Firstly, petitioner is not the recorded owner of the land in question and he entered into an agreement to sell and delivered the possession to the fifth respondent, who thereafter raised the construction over the land and mortgaged the same with PNB. The alleged rights of the petitioner stood extinguished in view of the provisions contained in Section 209 and 210 of the U.P.Z.A. & L.R. Act. Further more, the petitioner being the member of Scheduled Tribe community had himself handed over the possession to the fifth respondent with the intention to sell the property. The State Government invoked the provisions of Section 167 of the U.P.Z.A. & L.R. Act and vested the land in it and now the entries in the revenue records are in the name of the State Government. Secondly, the same property was mortgaged by the fifth respondent with the PNB and thereafter, fifth respondent become defaulter and PNB initiated proceedings to recover the amount before NCLT. The judgment and order of NCLT has attained finality. Thirdly, the petitioner is seeking his rights and title over the property in dispute in writ jurisdiction. Writ Court cannot declare the rights of the parties over the property in dispute in exercise of its powers under writ jurisdiction. It cannot declare a party as owner of the property like a revenue court. 17. Hon’ble Apex Court in Hapur Palakhua Development Authority, Hapur vs Swantantra Bharat Paper Mills Private Limited and others, (2018) 12 SCC 799 , has categorically held that High Court cannot determine title to property in writ proceedings. 18. Admittedly, the rights in regard to the land in question have been finally decided by the NCLT, which has attained finality. An order passed by the NCLT is appealable and the same cannot be ignored by this Court in exercise of its writ jurisdiction under Article 226 of the Constitution of India. The petitioner is not legally entitled to such a relief in a writ jurisdiction under Article 226 of the Constitution of India. The petitioner may have opted for any other remedy available to him against the order of NCLT, but remedy of writ is not available to him at any point of time. 19. In view of the above, the writ petition is devoid of merit and the same is hereby dismissed. No order as to costs.