2015 Supreme(SC) 663

SUPREME COURT OF INDIA
H.L. Dattu, CJI., S.A.Bobde and Arun Mishra, JJ.
Maharaji Educational Trust and Ors. – Appellant
Vs.
SGS Constructions & Dev. P. Ltd. and Ors. – Respondent
Civil Appeal No. 4494 of 2015 (Arising out of SLP (Civil) No. 34115 of 2013), Civil Appeal No. 4495 of 2015 (Arising out of SLP (Civil) No. 36569 of 2013) and Civil Appeal No. 4496 of 2015 (Arising out of SLP (Civil) No. 1510 of 2014)
Decided On : 15-05-2015

IMPORTANT POINTS
It is beyond writ jurisdiction of High Court to declare any property as unencumbered. Such rights between private parties cannot be made subject-matter of writ jurisdiction.
It is not open to High Court, under writ jurisdiction, to decide effect of exchange and applicability of section 70, TP Act.
Disputed questions of fact regarding encumbrance of land cannot be raised in writ petition.
Order passed by Recovery Officer DRT Delhi could not be challenged before Lucknow Bench of Allahabad High Court.
High Court should not entertain a writ petition in which even part of the cause of action did not arise within it territorial jurisdiction.
Provisions of section 15(1)(m) of Uttar Pradesh Avas Evam Vikas Parishad Adhiniyam, 1965 has to be read with reference to objectives of the Adhiniyam and functions of the Parishad.
Remedy for demarcation lies in section 24 of the Revenue Code 2006 and not Article 226 of the Constitution.

Headnote:(a) Constitution of India – Article 226 – Writ jurisdiction – It is beyond writ jurisdiction of High Court to declare any property as unencumbered – Such rights between private parties cannot be made subject-matter of writ jurisdiction – Direction to demarcate part of the land as unencumbered property and to maintain status quo – Writ petition not maintainable – Directions not tenable. (Para 11, 13)

       (b) Constitution of India – Article 226 r/w section 70, Transfer of Property Act, 1908 – Exchange of immovable property – Not open to High Court, under writ jurisdiction, to decide effect of exchange and applicability of section 70. (Para 13, 14)

       © Constitution of India – Article 226 – Builder filing writ petition on strength of agreement to sell for demarcation of land as unencumbered even without having possession – Petition not maintainable. (Para 15)

       (d) Constitution of India – Article 226 – Disputed questions of fact regarding encumbrance of land raised in writ petition – Matter within jurisdiction of Recovery Officer, DRT – Order of Recovery Officer not challenged – Writ petition not maintainable. (Para 15)

       (e) Constitution of India – Article 226 – Order passed by Recovery Officer DRT Delhi –Challenged before Lucknow Bench of Allahabad High Court – Not maintainable – High Court ought not entertain the petition. (Para 15)

       (f) Constitution of India – Article 226 – Cause of action – Trust exchanging its 21 acres of land with Avas Evam Vikas Parishad – After handing over the exchanged land to the Trust the Parishad had nothing to do with it – The Trust executing agreement to sell the said land to the Builder – Builder having no issues with Parishad – No cause of action arising at a place where Parishad had its head office, namely Lucknow – Lucknow Bench of High Court had no jurisdiction in the matter – Ought not entertain the writ petition. (Para 16, 21)

       (1975) 2 SCC 671; (1994) 4 SCC 711; (2004) 9 SCC 786; (2007) 11 SCC 335; (2008) 3 SCC 456 – Relied upon

       (g) Uttar Pradesh Avas Evam Vikas Parishad Adhiniyam, 1965 – Section 15 – Provisions of section 15(1)(m) cannot be read in isolation – Has to be read with reference to objectives of the Adhiniyam, 1965 and functions of the Parishad. (Para 26)

       (h) Uttar Pradesh Avas Evam Vikas Parishad Adhiniyam, 1965 – Section 15(1)(m) – Cannot be read in isolation – The words "to make investigation, examination or survey of any property" will take their meaning and colour from other phrases in section 15(1) – Noscitur a socii. (Para 27)

       (1990) 3 SCC 447 – Relied upon

       (i) Uttar Pradesh Revenue Code, 2006 – Section 24 and Section 41, U.P. Land Revenue Act, 1901 – Demarcation of boundaries – Trust submitting application to Avas Evam Vikas Parishad for limited purpose of sanction of plan of housing society – Not for demarcation of boundaries – Does not support builder’s claim for demarcation – Further, remedy for demarcation lies in section 24 of Code 2006 and not Article 226 of the Constitution. (Para 28, 29)

       Facts of the case:

       As the loan was not repaid by the Trust, HUDCO had started proceedings before the Debt Recovery Tribunal at Delhi. The recovery proceedings are pending before the Recovery Officer, in which the builder has filed objections which are stated to be pending. The objections have been filed by the Builder in respect of property No. 6 against the action initiated by HUDCO for sale of mortgaged property under Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 ('the SARFAESI Act').

       The Builder has filed objections on the strength of an agreement to sell dated 26.8.2010 entered with Trust which was initially unregistered for purchase of 63.45 acres of land comprised in property No. 6, which includes the 21 acres of land which was exchanged by the Trust with the Avas Evam Vikas Parishad. The agreement was executed between the Builder and the Trust for consideration of Rs. 154 crores. Out of the same, it is submitted that sum of Rs. 9 crores has been paid by the Builder to the Trust. The agreement had been registered subsequently, which has been questioned by the Trust and writ petition is pending in High Court at Allahabad. A civil suit is also stated to be pending.

       Notwithstanding the pendency of the aforesaid proceedings, the Builder preferred writ petition in question before the High Court of Allahabad, Bench at Lucknow

       The High Court has directed the Avas Evam Vikas Parishad to demarcate 42.45 acres of the mortgaged land and 21 acres as unencumbered land out of total area of 63.45 acres in writ petition filed by SGS Construction & Development (P) Ltd.

       Finding of the Court:

       The writ petition was misconceived.

       Result: Appeal allowed with cost.