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2020 DIGILAW 292 (UTT)

State of Uttarakhand v. Amandeep Singh

2020-07-28

LOK PAL SINGH

body2020
JUDGMENT : LOK PAL SINGH, J. 1. By way of instant writ petition, moved under Article 227 of the Constitution of India, the petitioner State seeks to set aside the order dated 26.03.2018, passed by the Board of Revenue, Uttarakhand, Dehradun in Revision No. 166/2017-18, Amandeep Singh and Another vs. State of Uttarakhand and Others. 2. Facts leading to filing of present writ petition are that respondent nos. 1 and 2 purchased the suit property from Board of Methodist Church in India through Power of Attorney Sri Aman Jassoriya through registered sale deed dated 19.01.2009. Some persons namely, Richard Wheeler and Puran Singh instituted suits against the State of Uttarakhand and others for declaration of their right under Section 229B of the UPZA&LR Act, claiming their adverse possession on the suit property. It is pertinent to mention here that the suit property includes two residential houses and land appurtenant thereto which is recorded in the name of American Methodist Mission, which was subsequently purchased by Respondent nos. 1 and 2 from Board of Methodist Church in India through registered sale deed. Thereafter, the names of respondent nos. 1 and 2 were recorded in the revenue records vide mutation order dated 15.04.2010, passed by Tehsildar, Almora in mutation case no. 253/2008-09 in column nos. 7 to 12 of the aforesaid khatauni. 3. One of the litigant namely Awdhesh Kumar Verma, who lost the civil cases against respondent nos. 1 and 2, preferred Special Leave Petitions (Civil) No. 36208-36209 of 2013, Awdhesh Kumar Verma vs. American Methodist Mission. Initially, the Hon’ble Apex Court passed the following order on 25.08.2017: “Learned counsel for the State of Uttarakhand states that proceedings pending before the State-Authorities will be concluded within a period of two months from today. It will be open to the parties to present their view points before the concerned authority in accordance with law. A copy of the final order be brought on record to this Court before the next date. List the matters on 4th December, 2017.” 4. Aforementioned Special Leave Petitions (Civil) were finally decided by Hon’ble Supreme Court vide judgment and order dated 04.12.2017. The same is reproduced hereunder: “We have heard learned counsel for the parties and perused the record. A copy of the final order be brought on record to this Court before the next date. List the matters on 4th December, 2017.” 4. Aforementioned Special Leave Petitions (Civil) were finally decided by Hon’ble Supreme Court vide judgment and order dated 04.12.2017. The same is reproduced hereunder: “We have heard learned counsel for the parties and perused the record. On 25th August 2017, the following order was passed: “Learned counsel for the State of Uttarakhand states that proceedings pending before the State-Authorities will be concluded within a period of two months from today. It will be open to the parties to present their view points before the concerned authority in accordance with law. A copy of the final order be brought on record to this Court before the next date. List the matters on 4th December, 2017.” It has been brought to our notice that two orders have been passed. One, dated 30th July, 2017, by the Assistant Collector (1st Class), Sadar, Almora and another dated 30th November, 2017 by the Revenue Council, Dehradun. In view of above two orders, no order is necessary on the special leave petitions and the contempt petition. Accordingly, the same stand disposed of. If any party is aggrieved by the above orders, the same may be challenged before the appropriate forum in accordance with law. Pending application, if any, shall also stand disposed of.” 5. The petitioner-State instituted a Revenue Case No. 01/2015-16 against respondent nos. 1 and 2 that the sale deed dated 19.01.2009 has been executed exercising the Power of Attorney executed by Board of Methodist Church in India in favour of Aman Jassoriya. It is contended that since the sale deed has been executed in violation of Section 152-A of the UPZA&LR Act, therefore, the sale deed is null and void and the property is liable to be vested in the State of Uttarakhand and an order in this regard be passed. 6. Respondent nos. 1 and 2 contested the case. Learned Assistant Collector, First Class, Almora vide judgment and order dated 31.10.2017 allowed the application filed by the petitioner and directed that since the sale deed has been executed in contravention of the provisions contained in Section 152-A of UPZA&LR Act, the property shall vest in the state of Uttarakhand. 7. Feeling aggrieved by order dated 31.10.2017, respondent nos. 1 and 2 preferred revision no. 7. Feeling aggrieved by order dated 31.10.2017, respondent nos. 1 and 2 preferred revision no. 166/2017-18 before the learned Board of Revenue, Uttarakhand. The Chairman, Board of Revenue vide judgment and order dated 26.03.2018 allowed the revision and set aside the order dated 31.10.2017 passed by the Assistant Collector, First Class, Almora. 8. Instant writ petition under Article 227 of the Constitution of India has been preferred, inter-alia, on the following grounds: (i) That the impugned order dated 26.03.2018 passed by the Board of Revenue, Uttarakhand, Dehradun in Revision No. 166/2017-18, namely Amandeep and Another vs. State of Uttarakhand is totally illegal, perverse hence not legally sustainable. (ii) That the court below has failed to consider the fact that the disputed land was sold out to the respondent no. 1 and 2 herein in pure violation of Section 152-A of UPZA&LR Act (Adaption of Modification order 2001 (Amendment) Act, 2003. (iii) That the court below failed to appreciate the legal aspect of the matter that since the disputed land has been vested in State Government free from all the encumbrances no rights can accrue to anyone thereafter. (iv) That at the time of making transfer of the disputed land to respondent nos. 1 and 2 herein no prior permission was obtained as such the said transfer of the disputed land is made in pure violation of Section 152-A of UPZA&LR Act, but the court below has failed to consider this legal issue also and passed the impugned order in a cursory manner. (v) That the court below did not appreciate the fact that the respondent nos. 1 and 2 herein are not bona-fide purchasers of the disputed land as there was no prior permission before making such transfer. (vi) That the Hon’ble Supreme Court vide order dated 24.11.2015 passed in Special Leave Petition No. 36208-36209/2013, Awadesh Kumar Verma vs. American Methodist Mission and Others, going through an order of Addl. Commissioner, Kumaon Mandal, Nainital has asked the Collector, Almora that in case the interest of the State Government is vested in the disputed land the same interest of the State Government to be kept safe but the court below did not take into consideration on such observation made by Hon’ble Supreme Court in the aforesaid Special Leave Petition (Civil). 9. Counter affidavit has been filed by Mr. Richard Wheeler (respondent no. 9. Counter affidavit has been filed by Mr. Richard Wheeler (respondent no. 3 herein) denying the averments made in the writ petition. In paragraph no 4 of the counter affidavit it has been stated that Sri. Aman Jassoriya had no right to execute the alleged sale deeds in favour of respondent nos. 1 and 2. The sale deeds are illegal, ineffective and hence void-ab-initio, conferring no right, title & possession to respondent nos. 1 and 2. It is further stated that mere mutation of names does not confer valid rights, title. Lastly it is stated that the mutation is fiscal in nature, an outcome of summary proceedings which are subject to final title proceedings. 10. Respondent no. 4 American Methodist Church has also filed its counter affidavit. It has been stated that the answering respondent is the owner of the suit property and its name was recorded as bhumidhar with transferable rights in revenue records, as such it is entitled to sell the land to respondent nos. 1 and 2. It is further stated that since the answering respondent is the owner of the property, therefore, the proceedings carried out under Section 229B of UPZA&LR Act by one Richard Wheeler is totally unsustainable in the eyes of law. It is also stated that the provisions of Section 152-A of UPZA&LR Act have no relevance in the present case as the same is not applicable since the provisions of Section 171, 172, 174 and 175 are not attracted in the present case and, as such, there is no violation of Section 152-A of UPZA&LR Act. 11. In the rejoinder affidavit filed on behalf of the petitioner-State it has been stated that the learned Board of Revenue, Uttarakhand after going through the facts and circumstances of the case has rightly dismissed the appeal of respondent no. 3, but the learned Board of Revenue while allowing the revision of respondent nos. 1 and 2 and their vendor has committed gross error of law. Further Sri Aman Jassoriya, being a Power of Attorney had no legal right to sell the entire property, as the Power of Attorney executed in favour of Aman Jassoriya had been executed without obtaining prior permission of the Collector, which is in violation of Section 152-A of UPZA&LR Act. Further Sri Aman Jassoriya, being a Power of Attorney had no legal right to sell the entire property, as the Power of Attorney executed in favour of Aman Jassoriya had been executed without obtaining prior permission of the Collector, which is in violation of Section 152-A of UPZA&LR Act. Lastly, it is stated that Sri Aman Jassoriya is not the person covered under Sections 171, 172, 174 or 175 of UPZA&LR Act, 1950, but the learned Board of Revenue has not considered the above legal position and has allowed the revision of respondent nos. 1 and 2 and their vendor in an illegal manner. 12. Before further discussion it would be apt to reproduce herein Sections 152-A of the UPZA&LR Act, 1950 (hereinafter referred to as ‘the Act’). The same reads as under: “152-A - (1) A bhumidhar with transferable rights may execute power of attorney for transfer of land in favour of persons who are covered under Sections 171, 172, 174 or 175 and in case no such person is existing, such Power of Attorney may be executed in favour of any other person with the prior permission of the Collector of the district or of the Indian consulate in ease of persons living abroad. (2) A registered Power of Attorney to sell the land executed on or before 12.9.2003 shall be valid if the sale deed on the basis of such Power of Attorney is executed on or before 31.3.2004, irrespective of any time limit provided in such Power of Attorney, unless extended by the Collector of the district for reasons to be recorded in writing.” 13. A perusal of the material available on record would reveal that indisputably the sale deed had been executed in regard to the old residential bungalows, outhouses and land appurtenant thereto along with trees. Admittedly, these bungalows and outhouses were erected during British era. Thus it cannot be said that these bungalows, outhouses and land appurtenant thereto along with trees have been mentioned in the sale deed for any oblique motive. Effect of non-declaration of land under Section 143 of UPZA&LR Act, 1950: 14. It would also be apt to quote herein Section 143 of the Act. The same is excerpted hereunder: “143. Thus it cannot be said that these bungalows, outhouses and land appurtenant thereto along with trees have been mentioned in the sale deed for any oblique motive. Effect of non-declaration of land under Section 143 of UPZA&LR Act, 1950: 14. It would also be apt to quote herein Section 143 of the Act. The same is excerpted hereunder: “143. Use of holding for industrial or residential purposes: (1) Where a bhumidhar with transferable rights uses his holding or part thereof for a purpose not connected with agriculture, horticulture or animal husbandry which includes pisciculture and poultry farming, the Assistant Collector-in-charge of the sub-division may, suo motu or on an application, after making such enquiry as may be prescribed, make a declaration to that effect. (1-A) Where a declaration under sub-section (1) has to be made in respect of a part of the holding the Assistant Collector-in-charge of the sub-divisions may in the manner prescribed demarcate such part for the purposes of such declaration. (2) Upon the grant of the declaration mentioned in sub-section (1) the provisions of this chapter (other than this section) shall cease to apply to the bhumidhar with transferable rights with respect to such land and he shall thereupon be governed in the matter of devolution of the land by personal law to which he is subject. (3) Where a bhumidhar with transferable rights has been granted, before or after the commencement of the Uttar Pradesh Land Laws (Amendment) Act, 1978, any loan by the Uttar Pradesh Financial Corporation or by any other Corporation owned or controlled by the State Government, on the security of any land held by such bhumidhar, the provisions of this Chapter (other than this section) shall cease to apply to such bhumidhar with respect to such land and he shall thereupon be governed in the matter of devolution of the land by personal law to which he is subject.” 15. Admittedly, the old bungalows, outhouses and land appurtenant thereto along with trees were already there over the suit property, though no declaration under Section 143 of the Act has been made to this effect. Admittedly, the old bungalows, outhouses and land appurtenant thereto along with trees were already there over the suit property, though no declaration under Section 143 of the Act has been made to this effect. From a bare reading of Section 143 of the Act it is evidently clear that where a bhumidhar with transferable rights uses his holding or part thereof for a purpose not connected with agriculture, horticulture or animal husbandry which includes pisciculture and poultry farming, the Assistant Collector-in-charge of the sub-division may, suo motu or on an application, after making such enquiry as may be prescribed, make a declaration to that effect. Thus a duty casts upon the Assistant Collector-in-charge of the sub-division to ascertain all the relevant facts during enquiry and then make a declaration to this effect. 16. The Assistant Collector (1 Class), Almora without taking note of the provisions contained in Section 143 of the Act had passed the order dated 31.10.2017. The powers under Section 143 of the Act can be exercised suo motu or on an application of any person, and after making such enquiry as may be prescribed, the declaration could have been made by the Assistant Collector, but he failed to discharge his legal obligation as mandated under Section 143 of the Act. 17. Section 3(14) of the UPZA&LR Act, 1950, defines “land” as under: “3. Definitions: ................. (14) “Land” except in Sections 109, 143 and 144 and Chapter VII means land held or occupied for purposes connected with agriculture, horticulture or animal husbandry which includes pisciculture and poultry farming.” 18. Since the jurisdiction under Section 143 of the Act is exercisable suo motu and admittedly the bungalows, outhouses and land appurtenant thereto along with trees already exist over the suit property, therefore, a declaration under Section 143 of the Act should have been made by the Assistant Collector-in charge of the sub-division. Since the jurisdiction under Section 143 of the Act is exercisable suo motu and admittedly the bungalows, outhouses and land appurtenant thereto along with trees already exist over the suit property, therefore, a declaration under Section 143 of the Act should have been made by the Assistant Collector-in charge of the sub-division. As soon as a declaration is made under Section 143 of the Act, the land as defined under Section 3(14) of the Act comes out from the purview of the Act, but in the case where the declaration has not been made but in fact land is being used for the purposes not connected with agriculture, horticulture or animal husbandry which includes pisciculture and poultry farming, the effect of non-declaration under Section 143 of the Act would also lead to the position that the suit property shall be deemed to be excluded from the provisions of the Act. Effect of declaration of land under Section 143 of UPZA&LR Act, 1950: 19. As soon as the land defined under Section 3(14) of the Act is not being used for the purposes of agriculture, horticulture or animal husbandry which includes pisciculture and poultry farming and a declaration under Section 143 of the Act is made, the provisions of Chapter VIII of the Act (except Section 143) ceased to apply to the bhumidhar with transferable rights with respect to such land. As soon as a declaration is made no further permission under any of the provisions of the Act is required. 20. A perusal of the sale seed would reveal that the sale deed has not been executed in regard to the agricultural land alone. A further perusal of the sale deed would reveal that the sale deed has been executed in regard to 201 Nali 10 Muthi land consisting of two old bungalows, outhouses and land appurtenant thereto along with 63 trees standing thereon situated in Village Papersali, District Almora. It is nowhere stated that it is only the agricultural land. It seems to this Court that these bungalows, outhouses and land appurtenant thereto along with trees cannot be considered as agricultural land. Therefore, the provisions contained in Section 152-A are not applicable to it. The suit property is outside the purview of the UPZA&LR Act, 1950. 21. It is nowhere stated that it is only the agricultural land. It seems to this Court that these bungalows, outhouses and land appurtenant thereto along with trees cannot be considered as agricultural land. Therefore, the provisions contained in Section 152-A are not applicable to it. The suit property is outside the purview of the UPZA&LR Act, 1950. 21. A bare reading of the definition of “land” as defined under Section 3(14) of the Act would make it evidently clear that this property sold out to respondent nos. 1 and 2 does not fall within the meaning of “land” as the same is not being for the purposes connected with agriculture, horticulture or animal husbandry, rather the same is being used for the residential purposes as two bungalows, outhouses and land appurtenant thereto along with trees exist on the suit property. Though this Court is not happy with the findings recorded by the revisional court in allowing the revision but the fact remains that the ultimate decision of the case will remain the same as held by the Board of Revenue, Uttarakhand. 22. Hon’ble Apex Court in the case of Radhey Shayam and Another vs. Chhabi Nath and Others, (2015) 5 SCC 423 has held as under: “26. The Bench in Surya Dev Rai, (2003) 6 SCC 675 also observed in Para 25 of its judgment that distinction between Articles 226 and 227 stood almost obliterated. In Para 24 of the said judgment distinction in the two articles has been noted. In view thereof, observation that scope of Article 226 and 227 was obliterated was not correct as rightly observed by the referring Bench in Para 32 quoted above. We make it clear that though despite the curtailment of revisional jurisdiction under Section 115 CPC by Act 46 of 1999, jurisdiction of the High Court under Article 227 remains unaffected, it has been wrongly assumed in certain quarters that the said jurisdiction has been expanded. Scope of Article 227 has been explained in several decisions including Waryam Singh and Another vs. Amarnath and Another, AIR 1954 SC 215 , Ouseph Mathai vs. M. Abdul Khadir, (2002) 1 SCC 319 , Shalini Shyam Shetty vs. Rajendra Shankar Patil, (2010) 8 SCC 329 and Sameer Suresh Gupta vs. Rahul Kumar Agarwal, (2013) 9 SCC 374 . In Shalini Shyam Shetty (supra), this Court observed: “64. In Shalini Shyam Shetty (supra), this Court observed: “64. However, this Court unfortunately discerns that of late there is a growing trend amongst several High Courts to entertain writ petition in cases of pure property disputes. Disputes relating to partition suits, matters relating to execution of a decree, in cases of dispute between landlord and tenant and also in a case of money decree and in various other cases where disputed questions of property are involved, writ courts are entertaining such disputes. In some cases the High Courts, in a routine manner, entertain petitions under Article 227 over such disputes and such petitions are treated as writ petitions. 65. We would like to make it clear that in view of the law referred to above in cases of property rights and in disputes between private individuals writ court should not interfere unless there is any infraction of statute or it can be shown that a private individual is acting in collusion with a statutory authority. 66. We may also observe that in some High Courts there is a tendency of entertaining petitions under Article 227 of the Constitution by terming them as writ petitions. This is sought to be justified on an erroneous appreciation of the ratio in Surya Dev and in view of the recent amendment to Section 115 of the Civil Procedure Code by the Civil Procedure Code (Amendment) Act, 1999. It is urged that as a result of the amendment, scope of Section 115 CPC has been curtailed. In our view, even if the scope of Section 115 CPC is curtailed that has not resulted in expanding the High Court's power of superintendence. It is too well known to be reiterated that in exercising its jurisdiction, High Court must follow the regime of law. 67. As a result of frequent interference by the Hon'ble High Court either under Article 226 or 227 of the Constitution with pending civil and at times criminal cases, the disposal of cases by the civil and criminal courts gets further impeded and thus causing serious problems in the administration of justice. This Court hopes and trusts that in exercising its power either under Article 226 or 227, the Hon'ble High Court will follow the time honoured principles discussed above. This Court hopes and trusts that in exercising its power either under Article 226 or 227, the Hon'ble High Court will follow the time honoured principles discussed above. Those principles have been formulated by this Court for ends of justice and the High Courts as the highest courts of justice within their jurisdiction will adhere to them strictly.” (Emphasis supplied) 23. Hon’ble Apex Court in the case of Radhey Shyam vs. Chhabi Nath (supra) considering the nine Judge Bench Judgment in Naresh Shridhar Mirajkar vs. State of Maharashtra, AIR 1967 SC 1 has held that the remedy under Section 226/227 of the Constitution of India is not an appealable remedy and can be used only in very exception cases when manifest miscarriage of justice has been occasioned and where there is some perversity in the order passed by the Court. Relevant paragraphs of the judgment rendered in Naresh Shridhar Mirajkar (supra) are extracted hereunder: “62. But apart from this aspect of the matter, we think it would be inappropriate to allow the petitioners to raise the question about the jurisdiction of the High Court to pass the impugned order in proceedings under Article 32 which seek for the issue of a writ of certiorari to correct the said order. It questions about the jurisdiction of superior Courts of plenary jurisdiction to pass orders like the impugned order are allowed to be canvassed in writ proceedings under Article 32, logically, it would be difficult to make a valid distinction between the orders passed by the High Courts inter partes and those which are not inter partes in the sense that they bind strangers to the proceedings. Therefore, in our opinion having regard to the fact that the impugned order has been passed by a superior Court of Record in the exercise of its inherent powers, the question about the existence of the said jurisdiction as well as the validity or propriety of the order cannot be raised in writ proceedings taken out by the petitioners for issue of a writ of certiorari under Article 32. 63. Whilst we are dealing with this aspect of the matter we may incidentally refer to the relevant observations made by Halsbury on this point. 63. Whilst we are dealing with this aspect of the matter we may incidentally refer to the relevant observations made by Halsbury on this point. “In the case of judgments of inferior Courts of civil jurisdiction” says Halsbury in the footnote: “It has been suggested that certiorari might be granted to quash them for want of jurisdiction [Kemp vs. Balne, (1844) 1 Dow & L 885] inasmuch as an error did not lie upon that ground. But there appears to be no reported case in which the judgment of an inferior Court of civil jurisdiction has been quashed on certiorari, either for want of jurisdiction or on any other ground.” The ultimate proposition is set out in the terms: “Certiorari does not lie to quash the judgments of inferior Courts of civil jurisdiction.” These observations would indicate that the England the judicial orders passed by civil Courts of plenary jurisdiction in or in relation to matters brought before them are not held to be amenable to the jurisdiction to issue writs of certiorari.” 24. This Court in exercise of its jurisdiction under Article 227 of the Constitution of India cannot act like an appellate court. The Court can only interfere when the petitioner is able to successfully prove that miscarriage of justice has occasioned to him, while passing the impugned order. The petitioner has not proved what grave injustice or failure of justice has occasioned to it for which the Court may exercise its jurisdiction under Article 227 of the Constitution of India in view of the three contingencies when (i) the court or tribunal has assumed a jurisdiction which it does not have, (ii) has failed to exercise a jurisdiction which it does have, such failure occasioning a failure of justice and (iii) the jurisdiction though available is being exercised in a manner which tantamounts to overstepping the limits of jurisdiction. 25. Thus, it can safely be construed that the remedy under Article 227 of the Constitution of India is not an appealable remedy and can be used only in a very exceptional cases when manifest miscarriage of justice has been occasioned and where there is some perversity in the order passed by the court below. 26. In view of the above discussion, the writ petition is devoid of merit and is liable to be dismissed. The same is hereby dismissed. 26. In view of the above discussion, the writ petition is devoid of merit and is liable to be dismissed. The same is hereby dismissed. However, there will be no order as to costs.