AJJET SINGH RATHORE Vs. STATE OF UTTARAKHAND

JUDGEMENT

(1.) This appeal is preferred by the appellant against the order passed by the learned Single Judge in WPMS No. 3359 of 2018 dtd. 10/4/2019. The writ petition was filed by the petitioner seeking a writ of certiorari to quash the order passed by the Ziladhikari, Laksar regarding the land at Khata No. 77 situated at Village-Husainpur, Pargana, Manglor, Tehsil Laksar, District Haridwar.

(2.) The attachment order passed by the U.P. Ziladhikari was questioned by the appellant-writ petitioner by way of Writ Petition (M/S) No. 3359 of 2018, contending that the said property was sought to be auctioned on 12/11/2018 in an arbitrary and illegal manner. In the affidavit, filed in support of the writ petition, the appellant-writ petitioner stated that, from out of a total extent of 2.714 hectares of land, 0.6785 hectares of land came to his share, and to that of respondent nos. 4 to 6, after the death of the father, Sri Samay Singh; ever since then, the petitioner and respondent nos. 4 to 5 are cultivating their respective shares; the fifth respondent had gifted his 1/4th share of 0.6785 hectare to the petitioner, vide gift deed dtd. 30/10/2017, which was duly registered on 31/10/2017; and he has been cultivating both his share and that of the fifth respondent in the total extent of 1.357 hectares, ever since. The appellant-writ petitioner alleges that the fourth respondent had started threatening him that he would sell the said land to someone else; the appellant-writ petitioner was constrained to file an injunction suit against the fourth respondent in Civil Suit No. 32 of 2018 before the Senior Civil Judge, Laksar; and an order of temporary injunction was passed by the Civil Court by its order dtd. 23/4/2018. The appellant-writ petitioner further states that he was informed by the Halka Patwari that certain loans were due from the fourth respondent, a recovery citation had been issued against him, and he was arrested and sent to jail for a period of 14 days; he made an application to the Tehsildar Laksar informing him that there was a stay order in his favour granted by the learned Senior Civil Judge, Laksar; after a gift deed was executed in his favour on 30/10/2017, no right was left over with the fourth respondent with respect to the subject land; in terms of Sec. 286 (2) of the U.P. Z.A. and L.R. Act, the said land could not be attached; and, in terms of the said Act, the amount due against a person may be realized only from the property of the defaulter, and not from the property of any other person.

(3.) In the counter affidavit, filed by the Senior Manager, Punjab National Bank, it is stated that Sri Samay Singh (the father of the petitioner and respondent nos. 4 to 6) was a bhumidhar of agricultural land in Khata No. 77; he took an agricultural loan of Rs.5,00,000.00 from the Punjab National Bank on 11/5/2010; as security for the said loan, he had mortgaged his agricultural land, and had executed a Mortgage Deed in favour of the Bank on 11/5/2010; when Sri Samay Singh expired, the amount due in his loan account was Rs.2,73,951.00, which included interest upto 31/3/2018; this amount was not paid to the Bank either by Samay Singh or his heirs and, consequently, a recovery certificate dtd. 24/10/2018 was issued by the Bank to the District Magistrate, Haridwar for recovery of the due amount; in addition thereto, the fourth respondent and his wife had taken an agricultural loan from the bank on 12/2/2010, for purchase of a Tractor, in regard to which a recovery certificate was also issued for realization of Rs.5,31,333.00; since this amount was not paid, the Tehsil authorities were entitled in law to proceed to recover the said amount; the gift deed dtd. 30/10/2017 had no legal effect in law as Sri Samay Singh, the father of the petitioner, had bequeathed the property with the lien of the bank; the bank had the right to realize its dues from the property left by the father of the appellant-writ petitioner; the Suit filed by the appellant-writ petitioner was collusive, and an order of injunction was passed with the consent of the fourth respondent, as is evident from a bare reading of the order itself; and the said order would not disable the bank from recovering its dues, since the bank is not a party to the said suit.