Uttarakhand High Court
WPMS/933/2019 on 13 June, 2022
Office Notes, reports, orders
SL. or proceedings or directions
Date COURT'S OR JUDGES'S ORDERS
No and Registrar's order with
Signatures
13.06.2022
WPMS No. 933 of 2019
Hon'ble Sharad Kumar Sharma, J.
Mr. Anand Singh, Advocate, holding brief
of Mr. Pankaj Tangwan, Advocate, for the
petitioner.
Mr. M.S. Bisht, Brief Holder, for the
State.
Ms. Seema Sah, Advocate, for the
respondent(s).
In this writ petition, the petitioner had
sought for a writ of mandamus, commanding
respondent Nos. 2 & 3, to release the land of the
father of the petitioner, which was mortgaged for
the purposes of taking loan advances from
respondent No. 4.
When despite having availed the benefit
under the Scheme floated by the State Government
called as 'Ekmusht Samadhan Yojna, 2015', in
pursuance to the correspondence made by the Bank
on 24.03.2015, the learned counsel for the
petitioner contends that the predecessors of the
petitioner had deposited the entire amount before
the respondent/bank, and rather the bank has also
issued a 'No due certificate', and thus the land,
which was mortgaged for the purposes of taking
loan advances, is now free from all encumbrances.
But, when despite several requests the land was not
released, the petitioner represented the matter on
29.12.2018. Subsequent thereto, the petitioner
preferred this writ petition on 03.04.2019, for the
aforesaid relief. But, however, the coordinate
Bench of this Court, by an order dated 09.07.2019,
had dismissed the writ petition. The matter was
carried before the Division Bench in Special
Appeal, being Special Appeal No. 7 of 2020, Girish
Chandra Dietiya Vs. State of Uttarakhand and
others.
The Division Bench, by the judgment
dated 10.01.2020, had passed an order to the
following effect, which is extracted hereunder:-
"7. The writ petition was filed on 03.04.2019, notice
was issued to the respondents on 04.04.2019, and they were
granted three weeks' time to file their respective counter-
affidavits on 10.05.2019. The fact, however, remains that neither
respondents 2 and 3 nor the 4th respondent have filed their
respective counter affidavits, and Writ Petition (M/S) No. 933 of
2019 was disposed of on 09.07.2019, even without counter
affidavits being filed, merely on the basis of the instructions
obtained by them. In the absence of a counter affidavit, the
appellant-writ petitioner was in no position to rebut the
instructions furnished by the Tehsildar to the learned Standing
Counsel, and by him to the Court."
In view of the peculiar circumstances, the
respondents were called upon to file their counter
affidavit. The respondents had filed counter
affidavit, and in the counter affidavit, thus filed by
respondent No. 3, they have expressed their
inability to revert back the land in the absence of
there being the details provided to them pertaining
to the mortgage of the property which was created
by the bank, for the purposes of extension of the
loan advances, which was extended to the
predecessors of the petitioner, and the reasons
which was given therein, has been referred to in the
correspondence made by the office of the Sub-
Registrar, Champawat on 20.02.2020.
In these peculiar circumstances, this
Court, by an order dated 25.05.2022, directed the
General Manager of Uttarakhand State Cooperative
Land Development Bank, Haldwani, to appear in
person with all the relevant records. Records have
been produced before the Court and in relation to
the loan advances, which were extended to the
predecessors of the petitioner, it is contended by the
respondent/official, who is present in person, that in
fact the mortgage deed was executed on
30.11.1966, and in support thereto, since there was
no description of land given in the mortgage deed,
the reference of which has been made by the
official, who is present in person, he has submitted
that when the NOC was issued that document
didn't find the reference of the details of property,
which was mortgaged, but subsequently a statement
has been made that even an NOC, has been issued
by the bank after remittance of the total financial
liability under the Scheme of 2015, the NOC thus
issued didn't contain the details of property which
was mortgaged for the loan advances. Subsequent
the respondent who is present in person has placed
before this Court the relevant documents and has
relied upon the report, which has been submitted by
the Searching Officer, for the purposes of the
issuance of second encumbrance certificate, which
was issued in Form 21, wherein he has certified
that for the purposes of the loan advances, the
following property was mortgaged, which has been
described in the details of the property given in
column Nos. 2, 3 & 4, which describes the property
as to be bearing bandobasti khevat khata No. 13,
khatauni khata No. 22, having an area of 199 nali,
which was said to have been mortgaged for the loan
advances extended to the tune of Rs. 13,000/- as
back as in the year 1966.
After having been satisfied with the
documents, which has been placed on record, by
virtue of which the mortgage was created in
relation to the aforesaid property, for which even as
per the schedule in view of the mortgage created, it
had described the property in Form 12, to be a land
as described above, lying in khet No. 5886, 5887,
5889 and 5890.
The official, who is present in person Mr.
K.S. Bisht, would send the relevant information to
the office of the Tehsildar, in relation to the details
of the mortgaged property, as it could be reflected
from the records placed before this Court, within a
period of two weeks from today and the Tehsildar
would thereafter, proceed in accordance with the
mortgage thus created for the purposes of release of
the property for which the loan advances have
already been satisfied by the predecessors of the
petitioner under the Scheme of 2015.
Put up this writ petition in the week
commencing 25.07.2022, and on that day the
concerned officer would remain present.
(Sharad Kumar Sharma, J.)
13.06.2022
Mahinder/
