Gayatri Agrawal (Smt.) vs Chhattisgarh Housing Board and Others

Satish K. Agnihotri, J.—With the consent of the parties, the matter is heard finally. By this petition, the petitioner seeks following relief''s:-

(I) That the Hon''ble Court be pleased to call for entire record of Revenue Case No. 3A-70-2008-09 relating to Smt. Gayatri Agrawal v. C.G. Housing Board pending before respondent No. 2.

(II) That the Hon''ble Court be pleased to restrain the Respondent No. 1 from making any construction on the approach-road leading towards lands of the petitioner by issuing appropriate writ or direction.

(III) That the Hon''ble Court be pleased to direct the respondent No. 1 to remove the construction if any made by issuing appropriate writ or direction.

(IV) That the Hon''ble Court be pleased to mould the relief as and when required.

(V) That the Hon''ble Court be pleased to issue any other writ or writs, order or orders, direction or directions deemed fit in the interest of justice.

The indisputable facts, in nutshell, as projected by the petitioner, are that the petitioner is a resident of 67 Old Nehru Nagar, Bhilai, Tahsil & District Durg. The petitioner is the owner and in possession of land bearing khasra Nos. 205/4, 205/5 and 205/6 area 0.45. 0.45 and 0.76 hectares, respectively in total 1.66 hectares situated at village Junwani, Patwari Halka No. 15, Revenue Circle/Division-Durg 01. There is a Nallah on the North side of the land, on South side Deshlahara''s land, on the West side land bearing khasra No. 205/1 and on the East side land bearing khasra No. 205/3 and, as such, the land of the petitioner is surrounded by the lands belonging to others and grassland. Pursuant to the order dated 7-12-2005 passed by the Nazul Tahsildar, Durg, in Revenue Case No. 1 -A/68 Year 2005-06, a piece of 0.12 hectares curbed out from khasra No. 201, 0.03 hectares curbed out from khasra No. 203 and 0.25 hectares curbed from khasra No. 205 in total 0.40 hectares was inserted in Revenue Records as approach-road. The respondent No. 1 started construction on the above stated approach-road.

Being aggrieved, the petitioner filed an application u/s 131 read with Section 32 of the Chhattisgarh Land Revenue Code. 1959 (for short "the Code, 1959") before the Tahsildar, Durg. The case was registered as Revenue Case No. 3A-70 Year 2008-09. By order dated 21-11-2008 (Annexure-P/4), the Court of Tahsildar directed to maintain status quo in respect of construction made on the said approach-road for a period till 10-12-2008. The respondent No. 1 without complying with the interim order to maintain status quo in defiance has raised the construction on the said approach-road.

Shri Tamaskar, learned counsel appearing on behalf of the petitioner, would submit that the land in dispute being a grass-land cannot be leased out under any circumstances without complying with the provisions of Sections 237 and 238 of the Code, 1959. The lease granted in favour of the respondent No. 1 is not a legal document, as the said document is not registered. The document involving immovable property of value of more than Rs. 100/- is compulsorily registrable document under the provisions of Section 17 of the Registration Act. 1908 (for short "the Act, 1908").

Per contra, Shri Patel, learned counsel appearing on behalf of the respondent No. I, would submit that the Chhattisgarh Grih Nirman Mandal Adhiniyam, 1972 (for short "the Adhiniyam, 1972") has been enacted to provide for the incorporation and regulation of houses satisfying the needs of housing accommodation and to undertake development scheme and for matters connected therewith. A scheme called Deen Dayal Awas Yozna was floated by the State Government for construction of houses for the weaker section of the society. The land in dispute being a nazul land was leased to the respondent No. 1 for construction of houses. The respondent No. 1 has deposited a sum of Rs, 6,63,736/- on 28-2-2008, pursuant to the order dated 22-2-2008 passed by the Collector, Durg. The registration of a document u/s 90(1)(d) of the Act, 1908 is not required. The respondent No. 1 has obtained proper sanction and permission from the Joint Director, Town & Country Planning, Durg. The interim relief granted by the Tahsildar was only upto 10-12-2008 and the same was not extended. The petitioner without approaching the Tahsildar for execution of the order has approached this Court under Article 226 of the Constitution of India. The petitioner has withdrawn the pending cases from the Court of Tahsildar on 16-12-2008, on the ground that the petitioner has preferred a writ petition in this Court. It is not a Nistar land, as claimed by the petitioner because the petitioner has not filed any Nistar Patrak to substantiate her claim.

I have heard learned counsel appearing for the parties, perused the pleadings and the documents appended thereto.

It is evident that the case of the petitioner is that the respondent No. 1 has not complied with the interim order dated 21-11-2008 (Annexure-P/4 passed by the Tahsildar. On perusal of the document, it appears that the said order was effective till 10-12-2008. The petitioner has not taken any steps to settle the dispute before the Tahsildar, which was the proper forum; rather the petitioner preferred this writ petition before this Court under Article 226 of the Constitution of India praying the above stated relief''s. The above stated relief''s cannot be granted without making out a case for interference. The questions involved in this petition are that firstly; whether the land in dispute is nazul or nistar land and secondly; whether the Housing Board has constructed the houses unauthorizedly or on the basis of lease granted to the respondent No. 1. When the matter was pending before the Tahsildar the petitioner has chosen to file this petition when the relief claimed before the Tahsildar was one and the same.

The Hon''ble Supreme Court in the matter of AIR 1997 993 (SC) in categorical terms observed that:

It has been repeatedly held by this Court that the power of the High Court under Article 226 of the Constitution is not akin to appellate power. It is a supervisory power. While exercising this power, the Court does not go into the merits of the decision taken by the authorities concerned but only ensures that the decision is arrived at in accordance with the procedure prescribed by law and in accordance with the principles of natural justice wherever applicable. Further, where there are disputed questions of fact, the High Court does not normally go into or adjudicate upon the disputed questions of fact ...

Of course, where there is a statutory violation, interference would be permissible even in the case of a contract but not where the relevant facts are disputed and which dispute calls for an elaborate enquiry which cannot be conveniently done by the High Court in a writ petition.

Further in the matter of P.R. Murlidharan and Others Vs. Swami Dharmananda Theertha Padar and Others, , the Hon''ble Supreme Court observed that:

12 ... A person could not approach the High Court for the purpose of determining such disputed questions of fact which were beyond the scope and purport of the jurisdiction of the High Court while exercising writ jurisdiction as it is also involved determination of disputed questions of fact ...

Furthermore the jurisdiction of the civil court is wide and plenary in a case of this nature, a writ proceeding cannot be a substitute for a civil suit.

The Supreme Court in the matter of Noble Resources Ltd. Vs. State of Orissa and Another, while making the above position more clear observed as under:

It may, however, be true that where serious disputed questions of fact are raised requiring appreciation of evidence, and, thus, for determination thereof, examination of witnesses would be, necessary; it may not convenient to decide the dispute in a proceeding under Article 226 of the Constitution of India.

In one of the recent decisions i.e. in the matter of Moran M. Baselios Marthoma Mathews II and Others Vs. State of Kerala and Others, , the Supreme Court observed as under:

For the reasons stated hereinbefore, we are the opinion that the High Court committed manifest error in going into the disputed questions of title as also the disputed questions in regard to the rights of a particular group to manage the Churches, in exercise of its writ jurisdiction, particularly when such questions are pending consideration before competent civil courts...

Having regard to the disputed facts of the case, this Court has no wherewithal to deal with the case as adjudication requires examination of evidences. Thus, withdrawal of the application before the Court of Tahsildar by the petitioner cannot help the petitioner, as the issue involved herein ought to have been decided by the Tahsildar or by a competent Court of Civil jurisdiction. The petitioner is not entitled to any relief as sought for without establishing the material facts. There is no complaint of any breach of fundamental, legal or any other right, which can be adjudicated under the ambit of Article 226 of the Constitution of India. In view of the foregoing and without expressing any opinion on the merits of the case, this petition is liable to be dismissed and is accordingly dismissed. However, liberty is reserved to the petitioner to take recourse to any other statutory forum that may be available to the petitioner for adjudication of the disputed facts and appropriate relief.