Himachal Pradesh High Court
M/S S. P. Construction vs State Of Himachal Pradesh & Ors on 20 October, 2023
Author: Tarlok Singh Chauhan
Bench: Tarlok Singh Chauhan
IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA CWP No. 6165/2023 Reserved on: 19.10.2023 Decided on : 20.10.2023 .
M/s S. P. Construction .....Petitioner Versus State of Himachal Pradesh & ors. ....Respondents Coram:
The Hon'ble Mr. Justice Tarlok Singh Chauhan, Judge.
of The Hon'ble Mr. Justice Ranjan Sharma, Judge.
Whether approved for reporting?1No rt For the Petitioner:
For the Respondents:
Mr. C. N. Singh, Advocate.
Mr. I. N. Mehta, Sr. Addl.A.G., with Ms. Sharmila Patial, Addl. A.G. and Mr. J. S. Guleria, Dy.A.G. for respondents No. 1 to 4.
Mr. Arvind Sharma, Advocate, for respondent No.5-PNB.
____________________________________________________________________ Justice Tarlok Singh Chauhan, Judge The instant petition has been filed for grant of the following substantive reliefs:
i. Issue a writ in the nature of mandamus or other appropriate writ order direction as this Hon'ble Court deems fit directing Respondents no. I to 4 to take appropriate measures to rectify the note mutated on 10.08.2022 in Jamabandi /Revenue record (i.e. one MA No. 11 of 2022 title M/s Heaven on Earth vs Punjab National Bank pending before DRT Chandigarh.), to 1 Whether reporters of the local papers may be allowed to see the judgment? Yes.::: Downloaded on - 20/10/2023 20:38:42 :::CIS 2
immediately remove the impugned note from the Jamabandi /Revenue record pertaining to the property (i.e. Land measuring 00-03-62 Hectare being 181/201 share .
of the land measuring 0-04-02 hectare comprised in Khasara No.1033/ 132, Khata /Khatauni No.126/175 incorporated in Nakal Jamabandi for the year 2010-2011 along with any structure constructed thereupon as well as Land Measuring 00-00-40 Hect being 20/201 share of land measuring 0-04-02 Hect comprised under Khasara of No.1033/132,Khata/Khatauni No. 126/175 situated at Muhal Nasogi Phati Nasogi Kothi Manali Tehsil Manali District Kullu ,Himachal Pradesh incorporated in Nakal Jamabandi for the year 2010-2011 along with any rt structure constructed thereupon, sold to the Petitioner in terms of Sale certificate Dated 08.06.2022( Annexure P-1) free from all encumbrances, for all intents and purposes, within in time bound manner.
ii. Issue a writ in the nature of mandamus or other appropriate writ order direction as this Hon'ble Court deems fit directing the respondent authorities to take disciplinary action against the erring official (respondent no. 6) etc who has acted malafidely, unlawfully and beyond its jurisdiction in effecting the impugned note Dt. 10.08.2022 ((i.e. one MA No. 11 of 2022 title M/s Heaven on Earth vs Punjab National Bank pending before DRT Chandigarh.) from the Jamabandi /Revenue record pertaining to the property (i.e. Land measuring 00- 03-62 Hectare being 181/201 share of the land measuring 0-04- 02 hectare comprised in Khasara No.1033/132,Khata /Khatauni No.126/175 incorporated in Nakal Jamabandi for the year 2010-2011 along with any structure ::: Downloaded on - 20/10/2023 20:38:42 :::CIS 3 constructed thereupon as well as Land Measuring 00-00- 40 Hect being 20/201 share of land measuring 0-04-02 Hect comprised under Khasara No. .
1033/132,Khata/Khatauni No. 126/175 situated at Muhal Nasogi Phati Nasogi Kothi Manali Tehsil Manali ,District Kullu ,Himachal Pradesh incorporated in Nakal Jamabandi for the year 2010-2011, sold to the Petitioner in terms of Sale certificate Dated 08.06.2022( Annexure P-
1) free from all encumbrances, for all intents and of purposes, within in time bound manner.
iii. In alternative Issue a writ in the nature of mandamus or other appropriate writ order direction as this Hon'ble Court deems fit in the facts and circumstances of the case rt directing the Respondent no.5 to refund the sale consideration amount of Rs.2,34,11,000/- (Rupees Two Crore Thirty Four lacs Eleven Thousands only) to the Petitioner in terms of Sale certificate dated 08.06.2022, with up to date interest along with heavy costs.
2 The Undisputed facts of the case are the petitioner-
firm purchased the property, (as detailed in the relief clause, supra), through online auction conducted by the respondent-
Bank in exercise of its power conferred under the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 (for short, the Act) for a sum of Rs.2,34,11,000/- (Two Crore Thirty Four Lac and Eleven Thousand only) and thereafter the respondent-Bank, through it authorized officer, on 8.6.2022 issued a sale certificate in ::: Downloaded on - 20/10/2023 20:38:42 :::CIS 4 favour of the petitioner clearly mentioning therein that the scheduled property was free from all encumbrances.
.
3 On the the basis of sale certificate, the petitioner-
firm got entered its name in the revenue record vide mutation No. 369 dated 8.8.2022, which was attested in presence of Chief Manager of the respondent-Bank in the office of respondent No.4-Tehsildar at Manali.
of 4 On 9.6.2023, the petitioner executed an agreement to sell of the property in question with the proposed buyers and rt the date for the registration of sale stipulated therein was 7.7.2023. The proposed buyers approached the revenue authorities and inspected the revenue record and it is then that they came to know regarding a note having been appended at the bottom of jamabandi that a case, being M.A. No. 11/2022, titled as M/s Heaven on Earth vs. Punjab National Bank, is pending before the Debt Recovery Tribunal (DRT) at Chandigarh.
5 The proposed buyers accordingly informed the petitioner-firm about the note, for which strong exception is now being taken by the petitioner, on the ground that this note had been got appended behind the back of the petitioner by the revenue authorities in connivance with previous owner and ::: Downloaded on - 20/10/2023 20:38:42 :::CIS 5 despite having filed an application for removal of the note and having obtained No Objection Certificate (NOC) from the .
respondent-Bank, respondents No.1 to 4 are not removing the note, constraining the petitioner to file the instant petition.
6 Respondents No. 1 to 4 filed their reply, wherein factum of entering mutation No. 369 has not been disputed and it has also not been disputed that note in the mutation of regarding pendency of case being M.A. No. 11/2022, titled as M/s Heaven on Earth vs. Punjab National Bank rt was entered on 10.8.2022. However, it is claimed that this note was entered after seeking advice from the Assistant District Attorney, Civil Courts Manali, dated 29.7.2022 and on the basis of clarification/direction given by the Additional Chief Secretary (Revenue) to the Government of Himachal Pradesh, to all the Tehsildars/Naib Tehsildars in Himachal Pradesh vide letter No. Rev. B.A.(3)1/2004-III-Loose, dated 3.9.2012.
7 The petitioner-firm has filed a rejoinder, wherein it has been reiterated that respondent No.4 could not have entered note in the jamabandi, that too, behind back of the petitioner as the same affects its right to enjoy or dispose of the property in question and thus, action of respondents No. 1 to 4 is against the law settled by the Hon'ble Supreme Court in its ::: Downloaded on - 20/10/2023 20:38:42 :::CIS 6 recent judgment in Civil Appeal No.5542-5543 of 2023 (C.E.L.I.R. Vs. B.A.F.N.A. Motors (Mumbai) Pvt. Ltd. & ors., .
2023 SCC OnLine SC 1209, wherein the Hon'ble Supreme Court has unequivocally held that the borrower's right of redemption did not stand terminated on the date of the auction sale of the secured asset itself and remained alive till the transfer was completed in favour of the auction purchaser, by of registration of the sale certificate and delivery of possession of the secured asset. It was further held rt that the amended provisions of Section 13(8) of the Act make it clear that the rights of the borrower to redeem the secured asset stand extinguished thereunder on the very date of publication of the notice for public auction under Rule 9(1) of the Rules of 2002.
In effect, right of redemption available to the borrower under the present statutory regime is drastically curtailed and would be available only till the date of publication of the notice under Rule 9(1) of the Rules of 2002 and not till the completion of the sale or transfer of the secured asset in favour of the auction purchaser.
8 It is averred that in the instant case not only the sale certificate, but even the sale deed stood executed in favour of the petitioner and therefore, note regarding the pendency of ::: Downloaded on - 20/10/2023 20:38:42 :::CIS 7 any proceedings before the DRT was totally unwarranted apart from being mischievous and, therefore, advice given by the .
Assistant District Attorney is unlawful and without any basis;
and knowingly given in favour of the previous owner to cause loss to the petitioner.
9 We have heard the learned counsel for the parties and have also gone through the material place on record.
of 10 At the outset, it needs to be noticed that it is more than settled that mutation confers no title and cannot be made rt the basis or foundation of title as the same is only for fiscal purpose. Mutation entries only enable the State to collect revenues from the persons in possession and enjoyment of the property and the right, title and interest as to the property has to be established dehors such entries. Mutation entries are only one of the modes of proof of the enjoyment of the property and do not create or extinguish any title or interest therein.
11 Reference in this regard can be made to a decision rendered by the Privy Council about a century ago in Nirman Singh vs. Lal Rudra Partab Narain Singh, AIR 1926 P.C. 100, wherein it was held that the mutation proceedings are not judicial and they do not decide the title. It was observed:-
::: Downloaded on - 20/10/2023 20:38:42 :::CIS 8"The perusal by their Lordships of the judgment of the Court of the Judicial Commissioner of Oudh leads their Lordships to think that its judgment is to a great degree .
based on the mischievous but persistent error that the proceedings for the mutation of names are judicial proceedings in which the title to and the proprietary rights in immovable property are determined. They are nothing of the kind, as has been pointed out times innumerable by the Judicial Committee. They are much more in the nature of of fiscal inquiries instituted in the interest of the State for the purpose of ascertaining which of the several claimants for the occupation of certain denominations of immovable property may be put into the occupation of it with the rt greater confidence that the revenue for it will be paid."
12 This position of law has thereafter been consistently followed and reiterated in Sankalchan Jaychandbhai Patel and others vs. Vithalbhai Jaychandbhai Patel and others (1996) 6 SCC 433; Baleshwar Tewari (dead) by LRs. and others vs. Sheo Jatan Tiwary and others (1997) 5 SCC 112;
Sawarni(Smt.) vs. Inder Kaur, 1996 6 SCC 223; Balwant Singh & Anr. Vs. Daulat Singh(dead) by L.Rs. & Ors., 1997 7 SCC 137; Suman Verma v. Union of India, 2004 (12) SCC 58; Suraj Bhan v. Financial Commissioner, 2007 6 SCC 186; Faqruddin v. Tajuddin, 2008 (8) SCC 12; Rajinder Singh v. State of J&K, 2008 (9) SCC 368; Municipal ::: Downloaded on - 20/10/2023 20:38:42 :::CIS 9 Corporation, Aurangabad v. State of Maharashtra, 2015 (16) SCC 689; T. Ravi v. B. Chinna Narasimha, 2017 (7) SCC .
342; Bhimabai Mahadeo Kambekar v. Arthur Import & Export Co., 2019 (3) SCC 191; Prahlad Pradhan v. Sonu Kumhar, 2019 (10) SCC 259 and Ajit Kaur v. Darshan Singh, 2019 (13) SCC 70.
13 As regards the question of action of respondents-
of State, being mala fide or with an intent to help the previous owner, one would essentially have to refer to the instructions rt dated 3.9.2012, as relied upon by respondents-State for incorporating the note, which read as under:-
"Subject:-Entering of information of ongoing revenue/civil litigations in revenue record.
Sir, Government of India and perceptive observers have identified the failure to ensure conclusive title as one of the major causes for increased litigation in India. It has been pointed out that better titling can reduce unproductive work load at various levels and improve the climate for economic activity in the country. Various steps have been initiated in the direction of improving the accuracy of the land (property) records in the pursuit of this objective. Almost all lands records in the State have been computerised.
2. All this is expected to go a long way in reducing litigation arising out of incomplete knowledge of the status of land. An initial step which can further enhance this ::: Downloaded on - 20/10/2023 20:38:42 :::CIS 10 objective considerably is making an entry of litigation in various revenue courts right from the AC-IInd Grade to F.C. (Appeals) in the remarks column of jamabandi.
.
3. It has been decided that when any application/appeal/ revision/review is filed before any Revenue Court right from Court of Assistant Collector 2nd Grade to the Court of Financial Commissioner (Appeals) or decided by the same a reference should be made to concerned Tehsildar/Naib Tehsildar to cause an entry to be made in remarks column of of relevant jamabandi recording this fact.
4.(a) Any matter instituted before a revenue court will be entered in the remarks column of the jamabandi on the case being registered giving therein the date of institution, rt case No. and nature of case(demarcation, correction of revenue entries, mutation, encroachment, partition, violation of section 118 etc.)
(b) Once the matter is decided information in this regard shall be sent to the Revenue officer under whose jurisdiction the relevant revenue estate falls and he shall cause the entry to be made accordingly in the remarks column of the Jamabandi giving the date of decision, case no. and reference, if relevant, to an earlier entry of institution of the case.
(c) On subsequent information regarding any appeal/revision being filed in a matter in which an entry has been made earlier, a similar note will again be made in the remarks column of jamabandi.
(d) Similarly, in civil litigation any party to a civil suit involving Immovable property shall have the right to approach the Revenue Officer concerned to get an entry made in revenue record (remarks column of relevant ::: Downloaded on - 20/10/2023 20:38:42 :::CIS 11 jamabandi) regarding litigation and nature thereof. The Revenue Officer shall ensure that the entries are made in revenue record, immediately.
.
All Revenue authorities will ensure that information regarding institution of a matter before them is compulsorily conveyed to the revenue officers in whose jurisdiction the relevant revenue estate falls immediately on such matter being instituted. Further, the concerned revenue officer i.e. the Tehsildar/Naib Tehsildar will of ensure the entries of the pending or decided matter being entered in the remarks column of the jamabandis. However, it is also clarified here that in cases the entries involved in such litigation are very large and since such rt entries are to be made in remarks column of jamabandis, the number pages of such jamabandi is required for the purpose, separate sub-sets of such jamabandi may be made and a reference to such extent may be made in the remarks column of main jamabandi.
These instructions will be operative with immediate effect. You are, therefore, requested to adhere to them in letter and spirit."
14 It is clearly evident from the aforesaid instructions that entering information of ongoing revenue/civil litigations in the revenue record is mandatory, more particularly, under clause 4(d) of the aforesaid instructions.
15 It could not be disputed even by the learned counsel for the petitioner that these instructions are mandatory. Once ::: Downloaded on - 20/10/2023 20:38:42 :::CIS 12 that be so, then obviously the same are required to be scrupulously followed, as has been done in the instant case.
.
16 As regards applicability of the judgment of the Hon'ble Supreme Court in C.E.L.I.R.'s case (supra), obviously there can be no quarrel with the proposition, more particularly, in light of the fact that it is the petitioner-firm, that is the absolute owner of the property in question and note, that has of been appended in the mutation, cannot, by itself, interfere in any manner with rt petitioner's right of enjoying the property including its right to transfer, alienate, encumber, etc., the property in question. In other words, note appended in the mutation otherwise does have no bearing much less creates any kind of impediment on the petitioner's right to sell the property as is proposed in the agreement entered into by the petitioner on 9.6.2023 with the prospective buyers.
17 With these observations, the petition is disposed of, so also the pending application(s), if any, leaving the parties to bear their own costs.
(Tarlok Singh Chauhan) Judge (Ranjan Sharma) 20.10.2023 Judge (pankaj) ::: Downloaded on - 20/10/2023 20:38:42 :::CIS