State of UK v. Amardeep Singh and Others

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Page 1 Wednesday, July 10, 2024

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2020 SCC OnLine Utt 977 : (2020) 149 RD 497
In the High Court of Uttarakhand at Nainital

(BEFORE LOK PAL SINGH, J.)
State of Uttarakhand … Petitioner;

Versus
Amandeep Singh and Others … Respondents.
Writ Petition No. 2180 (M/S) of 2018
Decided on July 28, 2020
Advocates who appeared in this case:
Mr. Sunil Khera, Deputy Advocate General with Mr. Narain Dutt, Brief
Holder for the petitioner State.
Mr. Siddhartha Singh, Advocate for respondent no. 3.
Mr. Bhupesh Kandpal, Advocate for respondent no. 4.
The Judgment of the Court was delivered by
LOK PAL SINGH, J.:— By way of instant writ petition, moved under
Article 227 of the Constitution of India, the petitioner State seeks to set
aside the order dated 26.03.2018, passed by the Board of Revenue,
Uttarakhand, Dehradun in Revision no. 166/2017-18, Amandeep Singh
v. State of Uttarakhand.
2. Facts leading to filing of present writ petition are that respondent
nos. 1 and 2 purchased the suit property from Board of Methodist
Church in India through Power of Attorney Sri. Aman Jassoriya through
registered sale deed dated 19.01.2009. Some persons namely, Richard
Wheeler and Puran Singh instituted suits against the State of
Uttarakhand and others for declaration of their right under Section
229B of the U.P.Z.A. & L.R. Act, claiming their adverse possession on
the suit property. It is pertinent to mention here that the suit property
includes two residential houses and land appurtenant thereto which is
recorded in the name of American Methodist Mission, which was
subsequently purchased by Respondent nos. 1 and 2 from Board of
Methodist Church in India through registered sale deed. Thereafter, the
names of respondent nos. 1 and 2 were recorded in the revenue records
vide mutation order dated 15.04.2010, passed by Tehsildar, Almora in
mutation case no. 253/2008-09 in column nos. 7 to 12 of the aforesaid
khatauni.
3. One of the litigant namely Awdhesh Kumar Verma, who lost the
civil cases against respondent nos. 1 and 2, preferred Special Leave
Petitions (Civil) no. 36208-36209 of 2013, Awdhesh Kumar Verma v.
American Methodist Mission. Initially, the Hon'ble Apex Court passed
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the following order on 25.08.2017:

“Learned counsel for the State of Uttarakhand states that
proceedings pending before the State-Authorities will be concluded
within a period of two months from today. It will be open to the
parties to present their view points before the concerned authority in
accordance with law.
A copy of the final order be brought on record to this Court before
the next date.
List the matters on 4th December, 2017.”
4. Aforementioned Special Leave Petitions (Civil) were finally decided
by Hon'ble Supreme Court vide judgment and order dated 04.12.2017.
The same is reproduced hereunder:
“We have heard learned counsel for the parties and perused the
record.
On 25th August 2017, the following order was passed:
“Learned counsel for the State of Uttarakhand states that
proceedings pending before the State-Authorities will be
concluded within a period of two months from today. It will be
open to the parties to present their view points before the
concerned authority in accordance with law.
A copy of the final order be brought on record to this Court
before the next date.
List the matters on 4th December, 2017.”
It has been brought to our notice that two orders have been
passed. One, dated 30th July, 2017, by the Assistant Collector (Ist
Class), Sadar, Almora and another dated 30th November, 2017 by
the Revenue Council, Dehradun.
In view of above two orders, no order is necessary on the special
leave petitions and the contempt petition. Accordingly, the same
stand disposed of.
If any party is aggrieved by the above orders, the same may be
challenged before the appropriate forum in accordance with law.
Pending application, if any, shall also stand disposed of.”
5. The petitioner-State instituted a Revenue Case no. 01/2015-16
against respondent nos. 1 and 2 that the sale deed dated 19.01.2009
has been executed exercising the Power of Attorney executed by Board
of Methodist Church in India in favour of Aman Jassoriya. It is
contended that since the sale deed has been executed in violation of
Section 152-A of the U.P.Z.A. & L.R. Act, therefore, the sale deed is null
and void and the property is liable to be vested in the State of
Uttarakhand and an order in this regard be passed.
6. Respondent nos. 1 and 2 contested the case. Learned Asstt.
Collector, First Class, Almora vide judgment and order dated
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31.10.2017 allowed the application filed by the petitioner and directed

that since the sale deed has been executed in contravention of the
provisions contained in Section 152-A of U.P.Z.A. & L.R. Act, the
property shall vest in the state of Uttarakhand.
7. Feeling aggrieved by order dated 31.10.2017, respondent nos. 1
and 2 preferred revision no. 166/2017-18 before the learned Board of
Revenue, Uttarakhand. The Chairman, Board of Revenue vide judgment
and order dated 26.03.2018 allowed the revision and set aside the
order dated 31.10.2017 passed by the Asstt. Collector, First Class,
Almora.
8. Instant writ petition under Article 227 of the Constitution of India
has been preferred, inter alia, on the following grounds:
i) That the impugned order dated 26.03.2018 passed by the Board of
Revenue, Uttarakhand, Dehradun in Revision no. 166/2017-18,
namely Amandeep v. State of Uttarakhand is totally illegal,
perverse hence not legally sustainable.
ii) That the court below has failed to consider the fact that the
disputed land was sold out to the respondent no. 1 and 2 herein
in pure violation of Section 152-A of U.P.Z.A. & L.R. Act (Adaption
of Modification order 2001 (Amendment) Act, 2003.
iii) That the court below failed to appreciate the legal aspect of the
matter that since the disputed land has been vested in State
Government free from all the encumbrances no rights can accrue
to anyone thereafter.
iv) That at the time of making transfer of the disputed land to
respondent nos. 1 and 2 herein no prior permission was obtained
as such the said transfer of the disputed land is made in pure
violation of Section 152-A of U.P.Z.A. & L.R. Act, but the court
below has failed to consider this legal issue also and passed the
impugned order in a cursory manner.
v) That the court below did not appreciate the fact that the
respondent nos. 1 and 2 herein are not bonafide purchasers of the
disputed land as there was no prior permission before making
such transfer.
vi) That the Hon'ble Supreme Court vide order dated 24.11.2015
passed in Special Leave Petition no. 36208-36209/2013, Awadesh
Kumar Verma v. American Methodist Mission, going through an
order of Addl. Commissioner, Kumaon Mandal, Nainital has asked
the Collector, Almora that in case the interest of the State
Government is vested in the disputed land the same interest of
the State Government to be kept safe but the court below did not
take into consideration on such observation made by Hon'ble
Supreme Court in the aforesaid Special Leave Petition (Civil).
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9. Counter affidavit has been filed by Mr. Richard Wheeler

(respondent no. 3 herein) denying the averments made in the writ
petition. In paragraph no 4 of the counter affidavit it has been stated
that Sri. Aman Jassoriya had no right to execute the alleged sale deeds
in favour of respondent nos. 1 and 2. The sale deeds are illegal,
ineffective and hence void-ab-initio, conferring no right, title &
possession to respondent nos. 1 and 2. It is further stated that mere
mutation of names does not confer valid rights, title. Lastly it is stated
that the mutation is fiscal in nature, an outcome of summary
proceedings which are subject to final title proceedings.
10. Respondent no. 4 American Methodist Church has also filed its
counter affidavit. It has been stated that the answering respondent is
the owner of the suit property and its name was recorded as bhumidhar
with transferable rights in revenue records, as such it is entitled to sell
the land to respondent nos. 1 and 2. It is further stated that since the
answering respondent is the owner of the property, therefore, the
proceedings carried out under Section 229B of U.P.Z.A. & L.R. Act by
one Richard Wheeler is totally unsustainable in the eyes of law. It is
also stated that the provisions of Section 152-A of U.P.Z.A. & L.R. Act
have no relevance in the present case as the same is not applicable
since the provisions of Section 171, 172, 174 and 175 are not attracted
in the present case and, as such, there is no violation of Section 152-A
of U.P.Z.A. & L.R. Act.
11. In the rejoinder affidavit filed on behalf of the petitioner-State it
has been stated that the learned Board of Revenue, Uttarakhand after
going through the facts and circumstances of the case has rightly
dismissed the appeal of respondent no. 3, but the learned Board of
Revenue while allowing the revision of respondent nos. 1 and 2 and
their vendor has committed gross error of law. Further Sri. Aman
Jassoriya, being a Power of Attorney had no legal right to sell the entire
property, as the Power of Attorney executed in favour of Aman Jassoriya
had been executed without obtaining prior permission of the Collector,
which is in violation of Section 152-A of U.P.Z.A. & L.R. Act. Lastly, it is
stated that Sri. Aman Jassoriya is not the person covered under
Sections 171, 172, 174 or 175 of U.P.Z.A. & L.R. Act, 1950, but the
learned Board of Revenue has not considered the above legal position
and has allowed the revision of respondent nos. 1 and 2 and their
vendor in an illegal manner.
12. Before further discussion it would be apt to reproduce herein
Sections 152-A of the U.P.Z.A. & L.R. Act, 1950 (hereinafter referred to
as ‘the Act’). The same reads as under:
“152-A. - (1) A bhumidhar with transferable rights may execute
power of attorney for transfer of land in favour of persons who are
covered under Sections 171, 172, 174 or 175 and in case no such
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person is existing, such Power of Attorney may be executed in favour

of any other person with the prior permission of the Collector of the
district or of the Indian consulate in ease of persons living abroad.
(2) A registered Power of Attorney to sell the land executed on or
before 12.9.2003 shall be valid if the sale deed on the basis of such
Power of Attorney is executed on or before 31.3.2004, irrespective of
any time limit provided in such Power of Attorney, unless extended
by the Collector of the district for reasons to be recorded in writing.”
13. A perusal of the material available on record would reveal that
indisputably the sale deed had been executed in regard to the old
residential bungalows, outhouses and land appurtenant thereto along
with trees. Admittedly, these bungalows and outhouses were erected
during British era. Thus it cannot be said that these bungalows,
outhouses and land appurtenant thereto along with trees have been
mentioned in the sale deed for any oblique motive.
Effect of non-declaration of land under Section 143 of U.P.Z.A. & L.R.
Act, 1950-
14. It would also be apt to quote herein Section 143 of the Act. The
same is excerpted hereunder:
143. Use of holding for industrial or residential purposes.-
[(1) Where a bhumidhar with transferable rights uses his holding
or part thereof for a purpose not connected with agriculture,
horticulture or animal husbandry which includes pisciculture
and poultry farming, the Assistant Collector-in-charge of the
subdivision may, suo motu or on an application, after making
such enquiry as may be prescribed, make a declaration to that
effect.
(1-A) Where a declaration under sub-section (1) has to be made
in respect of a part of the holding the Assistant Collector-in-
charge of the sub-divisions may in the manner prescribed
demarcate such part for the purposes of such declaration.]
(2) Upon the grant of the declaration mentioned in sub-section
(1) the provisions of this chapter (other than this section) shall
cease to apply to the bhumidhar with transferable rights with
respect to such land and he shall thereupon be governed in the
matter of devolution of the land by personal law to which he is
subject.
(3) Where a bhumidhar with transferable rights has been granted,
before or after the commencement of the Uttar Pradesh Land
Laws (Amendment) Act, 1978, any loan by the Uttar Pradesh
Financial Corporation or by any other Corporation owned or
controlled by the State Government, on the security of any land
held by such bhumidhar, the provisions of this Chapter (other
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than this section) shall cease to apply to such bhumidhar with

respect to such land and he shall thereupon be governed in the
matter of devolution of the land by personal law to which he is
subject.”
15. Admittedly, the old bungalows, outhouses and land appurtenant
thereto along with trees were already there over the suit property,
though no declaration under Section 143 of the Act has been made to
this effect. From a bare reading of Section 143 of the Act it is evidently
clear that where a bhumidhar with transferable rights uses his holding
or part thereof for a purpose not connected with agriculture,
horticulture or animal husbandry which includes pisciculture and
poultry farming, the Assistant Collector-in-charge of the sub-division
may, suo motu or on an application, after making such enquiry as may
be prescribed, make a declaration to that effect. Thus a duty casts upon
the Assistant Collector-in-charge of the sub-division to ascertain all the
relevant facts during enquiry and then make a declaration to this effect.
16. The Assistant Collector (I Class), Almora without taking note of
the provisions contained in Section 143 of the Act had passed the order
dated 31.10.2017. The powers under Section 143 of the Act can be
exercised suo motu or on an application of any person, and after
making such enquiry as may be prescribed, the declaration could have
been made by the Assistant Collector, but he failed to discharge his
legal obligation as mandated under Section 143 of the Act.
17. Section 3(14) of the U.P.Z.A. & L.R. Act, 1950, defines “land” as
under:—
“3. Definitions.
………….
14) “Land” except in Sections 109, 143 and 144 and Chapter VII
means land held or occupied for purposes connected with
agriculture, horticulture or animal husbandry which includes
pisciculture and poultry farming.”
18. Since the jurisdiction under Section 143 of the Act is exercisable
suo motu and admittedly the bungalows, outhouses and land
appurtenant thereto along with trees already exist over the suit
property, therefore, a declaration under Section 143 of the Act should
have been made by the Assistant Collector-in charge of the sub-
division. As soon as a declaration is made under Section 143 of the Act,
the land as defined under Section 3(14) of the Act comes out from the
purview of the Act, but in the case where the declaration has not been
made but in fact land is being used for the purposes not connected with
agriculture, horticulture or animal husbandry which includes
pisciculture and poultry farming, the effect of non-declaration under
Section 143 of the Act would also lead to the position that the suit
property shall be deemed to be excluded from the provisions of the Act.
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Effect of declaration of land under Section 143 of U.P.Z.A. & L.R. Act,
1950-
19. As soon as the land defined under Section 3(14) of the Act is not
being used for the purposes of agriculture, horticulture or animal
husbandry which includes pisciculture and poultry farming and a
declaration under Section 143 of the Act is made, the provisions of
Chapter VIII of the Act (except Section 143) ceased to apply to the
bhumidhar with transferable rights with respect to such land. As soon
as a declaration is made no further permission under any of the
provisions of the Act is required.
20. A perusal of the sale seed would reveal that the sale deed has
not been executed in regard to the agricultural land alone. A further
perusal of the sale deed would reveal that the sale deed has been
executed in regard to 201 Nali 10 Muthi land consisting of two old
bungalows, outhouses and land appurtenant thereto along with 63
trees standing thereon situated in Village Papersali, District Almora. It
is nowhere stated that it is only the agricultural land. It seems to this
Court that these bungalows, outhouses and land appurtenant thereto
along with trees cannot be considered as agricultural land. Therefore,
the provisions contained in Section 152-A are not applicable to it. The
suit property is outside the purview of the U.P.Z.A. & L.R. Act, 1950.
21. A bare reading of the definition of “land” as defined under
Section 3(14) of the Act would make it evidently clear that this
property sold out to respondent nos. 1 and 2 does not fall within the
meaning of “land”, as the same is not being for the purposes connected
with agriculture, horticulture or animal husbandry, rather the same is
being used for the residential purposes as two bungalows, outhouses
and land appurtenant thereto along with trees exist on the suit
property. Though this Court is not happy with the findings recorded by
the revisional court in allowing the revision but the fact remains that
the ultimate decision of the case will remain the same as held by the
Board of Revenue, Uttarakhand.
22. Hon'ble Apex Court in the case of Radhey Shayam v. Chhabi
Nath1 has held as under:
“26. The Bench in Surya Dev Rai, (2003) 6 SCC 675 also observed
in para 25 of its judgment that distinction between Articles 226 and
227 stood almost obliterated. In para 24 of the said judgment
distinction in the two articles has been noted. In view thereof,
observation that scope of Article 226 and 227 was obliterated was
not correct as rightly observed by the referring Bench in Para 32
quoted above. We make it clear that though despite the curtailment
of revisional jurisdiction under Section 115 CPC by Act 46 of 1999,
jurisdiction of the High Court under Article 227 remains unaffected,
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it has been wrongly assumed in certain quarters that the said

jurisdiction has been expanded. Scope of Article 227 has been
explained in several decisions including Waryam Singh v. Amarnath,
AIR 1954 SC 215; Ouseph Mathai v. M. Abdul Khadir, (2002) 1 SCC
319; Shalini Shyam Shetty v. Rajendra Shankar Patil, (2010) 8 SCC
329 and Sameer Suresh Gupta v. Rahul Kumar Agarwal, (2013) 9
SCC 374. In Shalini Shyam Shetty (supra), this Court observed:
“64. However, this Court unfortunately discerns that of late
there is a growing trend amongst several High Courts to entertain
writ petition in cases of pure property disputes. Disputes relating
to partition suits, matters relating to execution of a decree, in
cases of dispute between landlord and tenant and also in a case of
money decree and in various other cases where disputed
questions of property are involved, writ courts are entertaining
such disputes. In some cases the High Courts, in a routine
manner, entertain petitions under Article 227 over such disputes
and such petitions are treated as writ petitions.
65. We would like to make it clear that in view of the law
referred to above in cases of property rights and in disputes
between private individuals writ court should not interfere unless
there is any infraction of statute or it can be shown that a private
individual is acting in collusion with a statutory authority.
66. We may also observe that in some High Courts there is a
tendency of entertaining petitions under Article 227 of the
Constitution by terming them as writ petitions. This is sought to
be justified on an erroneous appreciation of the ratio in Surya Dev
and in view of the recent amendment to Section 115 of the Civil
Procedure Code by the Civil Procedure Code (Amendment) Act,
1999. It is urged that as a result of the amendment, scope of
Section 115 CPC has been curtailed. In our view, even if the scope
of Section 115 CPC is curtailed that has not resulted in expanding
the High Court's power of superintendence. It is too well known to
be reiterated that in exercising its jurisdiction, High Court must
follow the regime of law.
67. As a result of frequent interference by the Hon'ble High
Court either under Article 226 or 227 of the Constitution with
pending civil and at times criminal cases, the disposal of cases by
the civil and criminal courts gets further impeded and thus
causing serious problems in the administration of justice. This
Court hopes and trusts that in exercising its power either under
Article 226 or 227, the Hon'ble High Court will follow the time
honoured principles discussed above. Those principles have been
formulated by this Court for ends of justice and the High Courts
as the highest courts of justice within their jurisdiction will adhere
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to them strictly.”
(emphasis supplied)
23. Hon'ble Apex Court in the case of Radhey Shyam v. Chhabi
Nath1 considering the nine Judge Bench Judgment in Naresh Shridhar
Mirajkar v. State of Maharashtra2 has held that the remedy under
Section 226/227 of the Constitution of India is not an appealable
remedy and can be used only in very exception cases when manifest
miscarriage of justice has been occasioned and where there is some
perversity in the order passed by the Court. Relevant paragraphs of the
judgment rendered in Naresh Shridhar Mirajkar2 are extracted
hereunder:
“62. But apart from this aspect of the matter, we think it would be
inappropriate to allow the petitioners to raise the question about the
jurisdiction of the High Court to pass the impugned order in
proceedings under Article 32 which seek for the issue of a writ of
certiorari to correct the said order. It questions about the jurisdiction
of superior Courts of plenary jurisdiction to pass orders like the
impugned order are allowed to be canvassed in writ proceedings
under Article 32, logically, it would be difficult to make a valid
distinction between the orders passed by the High Courts inter
partes, and those which are not inter partes in the sense that they
bind strangers to the proceedings. Therefore, in our opinion having
regard to the fact that the impugned order has been passed by a
superior Court of Record in the exercise of its inherent powers, the
question about the existence of the said jurisdiction as well as the
validity or propriety of the order cannot be raised in writ proceedings
taken out by the petitioners for the issue of a writ of certiorari under
Article 32.
63. Whilst we are dealing with this aspect of the matter we may
incidentally refer to the relevant observations made by Halsbury on
this point. “In the case of judgments of inferior Courts of civil
jurisdiction”, says Halsbury in the footnote,
“it has been suggested that certiorari might be granted to
quash them for want of jurisdiction [Kemp v. Balne, (1844), 1
Dow. & L. 885, at p. 887], inasmuch as an error did not lie upon
that ground. But there appears to be no reported case in which
the judgment of an inferior Court of civil jurisdiction has been
quashed on certiorari, either for want of jurisdiction or on any
other ground.”
The ultimate proposition is set out in the terms:“Certiorari does
not lie to quash the judgments of inferior Courts of civil jurisdiction”.
These observations would indicate that the England the judicial
orders passed by civil Courts of plenary jurisdiction in or in relation
to matters brought before them are not held to be amenable to the
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jurisdiction to issue writs of certiorari.”

24. This Court in exercise of its jurisdiction under Article 227 of the
Constitution of India cannot act like an appellate court. The Court can
only interfere when the petitioner is able to successfully prove that
miscarriage of justice has occasioned to him, while passing the
impugned order. The petitioner has not proved what grave injustice or
failure of justice has occasioned to it for which the Court may exercise
its jurisdiction under Article 227 of the Constitution of India in view of
the three contingencies when (i) the court or tribunal has assumed a
jurisdiction which it does not have, (ii) has failed to exercise a
jurisdiction which it does have, such failure occasioning a failure of
justice, and (iii) the jurisdiction though available is being exercised in a
manner which tantamounts to overstepping the limits of jurisdiction.
25. Thus, it can safely be construed that the remedy under Article
227 of the Constitution of India is not an appealable remedy and can be
used only in a very exceptional cases when manifest miscarriage of
justice has been occasioned and where there is some perversity in the
order passed by the court below.
26. In view of the above discussion, the writ petition is devoid of
merit and is liable to be dismissed. The same is hereby dismissed.
However, there will be no order as to costs.
———
1 (2015) 5 SCC 423, Radhey Shayam v. Chhabi Nath
2
AIR 1967 SC 1, Naresh Shridhar Mirajkar v. State of Maharashtra
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SCC Online Web Edition, © 2024 EBC Publishing Pvt. Ltd.

Page 1 Wednesday, July 10, 2024

2020 SCC OnLine Utt 977 : (2020) 149 RD 497

In the High Court of Uttarakhand at Nainital

State of Uttarakhand … Petitioner;

the following order on 25.08.2017:

31.10.2017 allowed the application filed by the petitioner and directed

9. Counter affidavit has been filed by Mr. Richard Wheeler

person is existing, such Power of Attorney may be executed in favour

than this section) shall cease to apply to such bhumidhar with

it has been wrongly assumed in certain quarters that the said

jurisdiction to issue writs of certiorari.”

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