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2021 DIGILAW 398 (UTT)

Mukesh Bhatt v. State Of Uttarakhand

2021-08-27

SHARAD KUMAR SHARMA

body2021
ORDER Sharad Kumar Sharma, J. - It is very peculiar situation and case too, where the petitioner has preferred this writ petition praying for the following reliefs:- "I. To issue a writ, order or direction in the nature of mandamus directing the respondents to correct the revenue record and to remove the entry of ceiling case no.294/1974 from the column no.7-12 of khatoni of Village Shyampur (Parwadoon) District Dehradun, bearing khata khatoni serial no.01342 khasra no.255-cha-min area 0.0251 hectare, which has been recorded in the name of the petitioner (Mukesh Bhatt) (Annexure No. 4 to this petition). II. To issue a writ, order or direction in the nature of mandamus commanding the respondents not to evict the petitioner from the land owned by the petitioner which has been recorded in the revenue record bearing khata khatoni serial no.01342 khasra no.255-cha-min area 0.0251 hectare, situated at Village Shyampur (Parwadoon) District Dehradun. III. Any other relief which this Hon'ble Court may deem fit and proper, may kindly be awarded in favour of the petitioner and against the respondents. IV. Award the cost of the petition in favour of the petitioner and against the respondents." 2. In fact on the culmination of the ceiling proceedings as were held under the Ceiling Act, a Ceiling Case No.294 of 1974, was decided in relation to the land lying in village Shyampur, District Dehradun, in Khata Khatuni Serial No.01342, Khasra No.255 having an area of 0.0251 hectares, which is alleged to have been recorded in the name of the petitioner Mukesh Bhatt. Simultaneously, a writ of mandamus has been sought to evict the respondents from land in question. The sole basis of the claim of the petitioner is that he contends that he was posted in Indian Army and has availed a financial assistance from a bank for the purposes of purchasing the land from its predecessor owner. Consequently, the sale deed was executed in his favour by its predecessor owner Mrs. Sarla Devi Badoni. Though the date of sale deed and sale deed of petitioner is not on the records of the writ petition. 3. Consequently, the sale deed was executed in his favour by its predecessor owner Mrs. Sarla Devi Badoni. Though the date of sale deed and sale deed of petitioner is not on the records of the writ petition. 3. The contention of the Senior Counsel, for the petitioner is that prior to sanctioning of the loan by the bank, the bank has already undertaken the process of verification, prior to advancing of the loan facility to the petitioner, and hence on the basis of the said verification made by the bank since the loan was sanctioned in his favour on 09.08.2010, on the basis of which he has said to have purchased a property from its predecessor owner on 08.03.2010, he contends that he is a bonafide purchaser and the property purchased by him was free from all encumbrances. 4. The petitioner contends that prior to making of a sale in his favour, he has undertaken the process of scrutinization of the revenue records, by getting the documents of 'barah salah', entries and had verified the propriety and the property in question and contends that he is the bonafide purchaser. On the contrary, this Court is of the view that in view of the provisions contained under Explanation 2 to Section 3 of the Transfer of Property Act, the entire burden to verify, that the petitioner, is purchasing a property, which is free from all the encumbrances, has to be discharges by him. His contention is that it was after the purchase, made by him, that the entries pertaining to the Ceiling Proceedings of 1974, was recorded much thereafter in the revenue records and hence he was left remediless, thus a writ of mandamus would lie seeking directions to make necessary corrections in the revenue records, as well as for the grant of writ of mandamus, for eviction of the private respondents. 5. 5. This argument of the learned Senior Counsel for the petitioner, is not acceptable by this Court for the reason being that on the basis of the proceedings of sale of 08.03.2010, if there was any encumbrances, which stood created prior in time over the land in question, then the appropriate recourse which would be available for the petitioner would be to sue his seller, by initiating an appreciation proceeding, before the competent civil court, writ would not be the remedy available to the petitioner, for issuing a writ of mandamus as it is not an enforcement of a fundamental right which has been allegedly infringed, but rather a private right, which is being sought to be enforced by invoking Article 226 of the Constitution of India. 6. Apart from it, even for the time being if it is taken, though it has not been substantiated by any plausible evidence on record, that the entries made in the revenue records was subsequent to his purchase made by the petitioner, but still the fact remains that the entries have been made in the revenue records and in that eventuality, the revenue law itself provides the petitioner a forum to file an appropriate application, before the competent authority for making necessary rectification in the revenue entries, if he succeeds to establish by evidence that was wrongfully made, which has been made in the revenue record, which is alleged to have been recently made, after his purchase. But the writ courts under Article 226 of the Constitution of India, cannot be resorted to by the petitioner as a platform to rectify the entries of a ceiling case orders, which has been made in column 7 to 12 of the Khatauni pertaining to 1420 to 1425 fasli. 7. Invoking of a writ jurisdiction for the purposes of enforcement of a writ of mandamus, there are certain clearly specified parameters, which has been laid down by the Hon'ble Apex Court, in catena of judgments that there has had to be a breach of a fundamental right or a right which is protected by the constitution which has to be established to be breached, which is alleged ought to have been attempted to be rectified first by approaching a competent authority, which would be a pre-condition prior to invoking the writ jurisdiction under Article 226 of the Constitution of India. In the absence of there being any such plea and evidence or pleading on record that there was a breach of his fundamental rights which had been guaranteed under Constitution and that the petitioner had approached the competent authorities for rectifying the revenue entries, as per the law, the writ of mandamus would not be the remedy which would be available to the petitioner. Hence, once statute itself contemplates a special platform or provides with a power to a court to decide a matter and particularly when the authority competent to make the necessary alternations in the revenue entries, have not been approached by the petitioner prior to filing the writ petition under Section 226 of the Constitution of India, a writ for a writ of mandamus to rectify the entries in relation to Ceiling Proceedings of 1974 effecting a civil right of others, and that to being instituted after 11 years of purchase made by the petitioner, would not be sustainable under Article 226 of the Constitution of India, because he has got to enforce his civil rights before the competent civil court available to him under law. Even otherwise also for the purposes of grant of nature of relief claimed by the petitioner there has had to be an appreciation of evidence, to be adduced by the parties, who are likely to be affected by the grant of relief, which will not fall to be within the ambit of a writ domain under Article 226 of the Constitution of India and it could be only appreciated by the civil courts. In that view of the matter, I am not hesitant to hold that the writ petition would not be maintainable in relation to the nature of the relief, which has been sought for by the petitioner in the present writ petition. The same is accordingly dismissed.