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2024 DIGILAW 201 (UTT)

Nandan Kumar Mittal v. State of Uttarakhand

2024-03-19

RAVINDRA MAITHANI

body2024
JUDGMENT : Ravindra Maithani, J. By means of instant petition, the petitioners have sought the following reliefs:- “(i) Issue a writ, order or direction in the nature of certiorari quashing the order dated 24.12.2021 (Annexure No.20) issued by the Sub Divisional Magistrate, Sadar, Dehradun, wherein it has been referred that the property belongs to the State Government. (ii) Issue a writ, order or direction in the nature of mandamus commanding the respondent Nagar Nigam, Dehradun to mutate the name of petitioner no.2 in place of Smt. Rajkumari consequent to her death, the petitioner no.2 being the successor of Smt. Rajkumari by virtue of her Will dated 07.12.2006, and extra names mentioned in the Nagar Nigam records be struck off. (iii) Issue a writ, order or direction in the nature of mandamus commanding the respondents to not to interfere in the peaceful possession of the petitioners and to not to dispute the title of the petitioners over the property in question. (iv) Or/and pass any other order which this Hon’ble court may deem fit and proper under the circumstances of the case.” 2. Heard learned counsel for the parties and perused the record. 3. Instant petition has been filed with regard to the property No. 158 Rajpur Road, Dehradun (also referred to as 89/158 or 383/158 Rajpur Road, property unique id:PT-248430-118592) bearing Khasra No.48 (New No. 126 kha and 127 kha having an area of 0.416 acres) and 49/4 (New No. 127 Gha having an area of 0.13 acres) situated at Village Jakhan, Central Doon, Dehradun, which as per the petitioners was originally owned by one Smt. Sarla Devi W/o late Kunwar Kanhaiya Lal. In the khatauni for the fasli year 1376, the name of Smt. Sarla Devi was recorded as owner in respect of Khasra No. 49/4 and Abadi bhatta khandahar in Khasra no. 48. 4. It is the case of the petitioners that the father of the petitioner No.1 and the grandfather of the petitioner no.2 Sumer Chand was owner of the disputed property by way of adverse possession, which was subsequently declared in Original Suit No. 2 of 2005 (2006), instituted by Smt. Raj Kumari, the mother of the petitioner no.1 and the petitioner no.1 in the court of Civil Judge (Senior Division), Dehradun. Smt. Raj Kumari died on 29.09.2015, but prior to her death, she had bequeathed the property in favour of the respondent no.2, who happens to be her real grandson. The petitioner no.2, post death of Smt. Raj Kumari moved an application for mutating his name in the record of respondent no.3 Nagar Nagar Dehradun (“Nagar Nigam”) in place of Smt. Raj Kumari by virtue of a will dated 07.12.2006. But, the respondent no.3, the Nagar Nigam declined to enter the name of the petitioner no.2 in their records by a communication dated 28.09.2020. 5. It is the case of the petitioners that, in fact, a communication dated 24.12.2021 was issued by the Sub-Divisional Magistrate (“SDM”) Dehradun to the Assistant Nagar Ayukt and the Joint Secretary, Mussoorie Dehradun Development Authority, in which, it was recorded that part of the disputed property is in the name of the State Government. 6. The challenge in this petition is made to the communication dated 24.12.2021 made by the SDM, Dehradun with other reliefs, as quoted hereinabove. 7. The respondent nos. 3 and 4 have filed separate counter affidavits and pleadings have already been exchanged. 8. Learned counsel for the petitioners would submit that the disputed land had already been recorded in the name of Smt. Sarla Devi. Earlier, it was owned by Sumer Chand, the predecessor-in-interest of the petitioners, who was managing the property. In fact, he had filed a suit on behalf of Sarla Devi during her lifetime also. It is argued that after the death of Sumer Chand, the petitioner no.1 and his mother both had filed a civil suit claiming themselves as the owner of the property. That property was recorded as Gair Bhatta Mumkin in the revenue record, which is in the possession of the petitioners. It is argued that this fact is not disputed. 9. Learned counsel for the petitioners would submit that the SDM, Sadar made the impugned communication dated 24.12.2021, recording therein, that since the disputed property is recorded non-agricultural Bhatta Gair Mumkin and it is not recorded in the name of R.K. Mittal and N.K. Mittal, it falls within the limit of Nagar Nigam and how it could be given Property No. 158. It is the case of the petitioners that based on this impugned communication dated 24.12.2021, the respondent no.3, Nagar Nigam had declined to enter the name of the petitioner no.2 in their records, which the petitioner no.2 is entitled to, based on the will executed by his mother in his favour. Learned counsel for the petitioners would also submit that the State under its might is trying to interfere with the title and possession of the petitioners. 10. Learned counsel appearing for the State would submit that no such finding has been given by any authority that the property belongs to a particular entity. It is argued that whatever communication is being referred to that is interdepartmental communication. Learned State counsel would submit that whatever action shall be taken, that shall be taken in accordance with law. 11. In fact, the Court had posed the following questions to the learned counsel for the petitioners with regard to the maintainability of the petition i.e.: (i) The impugned communication dated 24.12.2021 of the SDM, Sadar Dehradun is merely an opinion. Why should it be challenged? And why challenge to it is to be entertained? (ii) If the respondent no.3, Nagar Nigam had declined to enter the name of the petitioner no.2 in their records, his order is appealable under Section 472 of the Uttarakhand Municipal Corporation Act, 1959 (“the Act”). So, in case, this Court issued any direction for including the name of the petitioner no.2 in the records of the Nagar Nigam, it would impliedly entertaining an appeal against the order by which the request of the petitioner no.2 for entering his name in the revenue record has been declined. 12. The Court posed a question that why statutory appeal remedy should be avoided and why should this Court straightaway take this writ petition for relief no.2. The relief no.3 is an injunction relief. The petitioners claim that the respondents be restrained to enter into their peaceful possession. This is a relief which may be granted by the civil court. 13. Learned counsel for the petitioners, at this stage, would submit that the writ petition may be decided in terms of the statement given by learned State counsel. 14. The impugned communication dated 24.12.2021 of the SDM, Sadar Dehradun is on record, which is Annexure 20. It is, in fact, an opinion. 13. Learned counsel for the petitioners, at this stage, would submit that the writ petition may be decided in terms of the statement given by learned State counsel. 14. The impugned communication dated 24.12.2021 of the SDM, Sadar Dehradun is on record, which is Annexure 20. It is, in fact, an opinion. Certain questions have been raised in this communication that the property is recorded as Gair Bhatta Mumkin as non agricultural property and it is not recorded in the name of N.K. Mittal and R.K. Mittal. It records that how the Property No. 158 has been given to it and thereafter, in last but one paragraph of this communication, it is suggested that this may be decided by the officer named in this paragraph after due coordination. It is being argued that this has been acted upon and the names of the petitioners has not been entered in the revenue record of the respondent no.3 Nagar Nigam. But, the fact also remains that the respondent no.3, Nagar Nigam has not entered the property in the name of State. 15. The impugned communication dated 24.12.2021 of the SDM, Sadar Dehradun is merely an opinion. For challenging this opinion, the writ petition may not be entertained. 16. Under Section 213 A of the Act, the name of a person is entered into the list. Any challenge to it, may be made in appeal under Section 472 of the Act. 17. Learned counsel for the petitioners would submit that the appeal is to be filed in the court of the Civil Judge. Now if the names of the petitioners have not been entered into the Nagar Nigam record by the respondent no.3 Nagar Nigam, the relief lies under Section 472 of the Act. The petitioners may very well challenge the order, by which the name of the petitioner no.2 has not been entered in the list, in accordance with Section 472 of the Act. Statutory remedy may not be ignored for entertaining the writ petition. 18. The third relief is an injunction relief. Basically, the petitioners claim the possession and title over the property. They seek that the respondents may be restrained from entering into their possession. There are various questions related to it. Statutory remedy may not be ignored for entertaining the writ petition. 18. The third relief is an injunction relief. Basically, the petitioners claim the possession and title over the property. They seek that the respondents may be restrained from entering into their possession. There are various questions related to it. If any such undue interference is made from any person, the petitioners are always free to seek such remedy from the civil court, as is permissible under the law. Moreover, today, a statement has been by learned State counsel that no interference is being done and if any action is taken in future, that would be done in accordance with the provisions of law. 19. In view of the foregoing discussion, this Court is of the view that there is no reason to interfere with the writ petition. Accordingly, the writ petition deserves to be dismissed. 20. The writ petition is dismissed accordingly. 21. When these lines are dictated, learned counsel for the petitioners seeks liberty to approach the civil court as well as Civil Judge, under Section 472 of the Act. The petitioner is always at liberty to take such statutory remedy as is permissible under the law.