Girish Chandra vs Chief Revenue Commissioner & Ors.
2014 Latest Caselaw 3799 Del

        IN THE HIGH COURT OF UTTARAKHAND
                    AT NAINITAL
            Writ Petition No. 463 of 2005 (M/S)

Girish Chandra                                       .....Petitioner
                               Versus

Additional Chief Revenue Commissioner and others
                                   ..........Respondents

Present:

Mrs. Khushboo Tiwari Sharma, Advocate holding brief of Mr. Vipul Sharma, Advocate for the petitioner. Mr. R.C. Arya, Standing Counsel for the State/respondent nos. 1 & 2. Mr. Virendra Kaparwan, Advocate for respondent no. 4.

Hon'ble Alok Singh, J (Oral).

Undisputedly, Sri Mani Ram, father of the present petitioner, was bhumidhar with transferable rights of the property in question; Sohan Lal and Madan Lal S/o Damodar moved an application for mutation before the Tehsildar, Kotdwar on the ground that Sri Mani Ram, father of the petitioner, had executed one agreement on 8.2.1984 in favour of Sohan Lal and Madan Lal and possession of the property in question was transferred to Sohan Lal and Madan Lal, therefore, Sohan Lal and Madan Lal had acquired bhumidhari rights under Section 164 of the UPZA & LR Act; thus, their names may be mutated in the revenue record after deleting the name of Mani Ram, father of the petitioner; learned Tehsildar, vide order dated 7.4.1993, was pleased to allow the mutation application so moved by Sohan Lal and Madan Lal, and directed to mutate their names on the basis of alleged agreement dated 8.2.1984; feeling aggrieved, the petitioner, herein, preferred an appeal before the learned Assistant Collector, Ist Class; learned Assistant Collector, Ist Class, vide judgment dated 21.12.1994, was pleased to set aside the order dated 7.4.1993 passed by the Tehsildar having observed that

alleged agreement could not be proved on record; against the judgment dated 21.12.1994, Sohan Lal and Madan Lal filed a revision before the Additional Commissioner, Garhwal; learned Additional Commissioner was pleased to set aside the order passed by the Appellate Authority dated 21.12.1994 and was further pleased to remand the matter to the Appellate Authority; thereafter, the Appellate Authority/Assistant Collector, Ist Class, vide judgment dated 5.9.2000, once again was pleased to allow the appeal setting aside the mutation order dated 7.4.1993 passed by the learned Tehsildar, Kotdwar; against the judgment dated 5.9.2000, again a revision was preferred before the Additional Commissioner; learned Additional Commissioner, vide impugned judgment dated 15.11.2002, was pleased to allow the revision and was further pleased to set aside the judgment dated 5.9.2000 passed by the Appellate Authority and was further pleased to restore the mutation order passed by the learned Tehsildar dated 7.4.1993; feeling aggrieved, the petitioner preferred a revision before the Additional Chief Revenue Commissioner, Uttarakhand, which too was dismissed vide impugned judgment dated 21.2.2005; feeling aggrieved, the petitioner has invoked supervisory jurisdiction of this Court under Article 227 of the Constitution of India by means of present writ petition.

I have heard Mrs. Khushboo Tiwari Sharma, Advocate holding brief of Mr. Vipul Sharma, Advocate for the petitioner and Mr. Virendra Kaparwan, Advocate for respondent no. 4, and have carefully perused the record.

Undisputedly, mutation was directed to be carried out by the Tehsildar, which was affirmed by the

Additional Commissioner as well as by the Additional Chief Revenue Commissioner by the impugned judgments, on the basis of alleged agreement dated 8.2.1984 allegedly executed by Mani Ram, father of the petitioner, in favour of Sohan Lal and Madan Lal S/o Damodar by invoking Section 164 of UPZA & LR Act.

Section 164 of the UPZA & LR Act reads as under :

"164. Transfer with possession by a bhumidhar to be deemed a sale. - Any transfer of any holding or part thereof made by a bhumidhar by which possession is transferred to the transferee for the purpose of securing any payment of money advanced or to be advanced by way of loan and existing or future debt or the performance of an engagement which may give rise to a pecuniary liability, shall, notwithstanding anything contained in the document of transfer or any law for the time being in force, be deemed at all times and for all purposes to be a sale to the transferee and to every such sale the provisions of Sections 154 and 163 shall apply."

The plain reading of Section 164 of the Act would demonstrate that if a bhumidhar, under the agreement, transfers the possession of bhumidhari land for the purposes of securing any payment of money advanced by way of loan or future debt, then such transfer of the possession shall be deemed to be a sale in favour of the transferee subject to provisions of Section 154 and 163 of the UPZA & LR Act.

In my considered opinion, the sine qua non to invoke Section 164 of the Act is that bhumidhar must transfer the possession for the purpose of securing the loan amount.

Plain reading of the alleged agreement dated 8.2.1984 would reveal that the alleged agreement was in fact agreement to sale.

Mr. V.K. Kaparwan, learned counsel for the private respondent vehemently argued that since the father of the petitioner has received entire cost of land under the agreement and possession was transferred in favour of the private respondent, therefore, alleged agreement must be treated as valid sale, as held by learned Tehsildar as well as Additional Commissioner and Chief Additional Revenue Commissioner, Uttarakhand.

As per Section 54 of the Transfer of Property Act, sale of immovable property having valuation of more than Rs. 100/- can only be effected by way of registered document. Since, the alleged agreement is not a registered document, therefore, in my humble opinion, same cannot be treated to be a sale. Moreover, since possession was never transferred for the purpose of securing any loan amount, therefore, Section 164 of the Act has also no application in the present case.

There is nothing on record to prove that Mani Ram ever took any loan from Sohan Lal and Madan Lal or their predecessors in interest, and to secure such loan Mani Ram has executed the alleged agreement and has transferred the possession of the land in favour of Sohan Lal and Madan Lal.

Mr. Virendra Kaparwan, learned counsel for the private respondent, has vehemently argued that since present proceeding is arising out of mutation proceeding, therefore, writ petition is not maintainable and parties should be left to approach the regular court to get their respective titles decided.

Ordinarily, this Court does not entertain any writ petition arising out of summary proceedings of mutation, however, there is a caveat to it. If orders impugned are without jurisdiction and may result into the grave injustice, this Court cannot keep its eye shut and should always come forward to do complete justice. Since, the petitioner was deprived of his land only on the basis of alleged agreement, which was never proved and which was not proved to be a transfer of possession for securing the loan, therefore, orders impugned are without jurisdiction.

Consequently, orders impugned do not sustain in the eyes of law. In the net result, writ petition succeeds and is hereby allowed. Orders impugned are hereby quashed.

(Alok Singh, J.) 20.8.2014 Avneet/