Disposed

Gauri Devi Sampatram and Ors. v. State of Raj and Ors.

Rajasthan HC10 Nov 2016CW/13299/2008

Case brief

AI extract

What is this about?

The writ petition against mutation of property and bank account operations was dismissed as questions involved determination of facts like will validity, which lie beyond writ jurisdiction. Court directed filing of an appeal with liberty for interim relief.

What did the court decide?

Petitioners directed to file appeal within one month; property alienation stayed till appeal disposal; liberty granted for interim relief.

Gauri Devi Sampatram and Ors. Vs State of Raj… — Succession and Inheritance | Rajasthan HC (2016)

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CWP - 13299/2008

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IN THE HIGH LOUR T OF JUDICA TURE FOR RAJAS THAN A T JAIPUR BENCH, JAIPUR

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5. B. CIVlL WRIT PElTTON NO. 13299/2008

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PrnTTONERS :-

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I. Gauri Devi Sampatram W/o. Late Shri Sampatram, Permanent Resident of 22, Shivaji Marg, Diggi House, C-Scheme, Jaipur, presently Residing at D-4/13, Char Imli, Bhopal (Madhya

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Smt. Kamla Verma W/o. Shri Sohan Lal Verma, D/o. Late Shri Sampatram, Resident of Bungalow No. 136, Near Saint Zavier Church, Sector No.8-A, Gandhi Nagar (Gujrat).

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Shakuntala Bhagotiya W/o. Shri Jamuna Prasac! Bhagotiya, D/o. Ltrte Shri Sampatram, Resident of SP-6-A, Babha Alarg, Adarsh Nagar, Jaipur (Raj.)

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3/1. Smt. Archana Bhagotia W/o. Shri Abhishekh Bairwa, aged 42 years, R/o. 20, Shri Shivaji Nagar, Civil Lines, Jaipur (Raj.) -302006

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3/2. Smt. Anjana Bhagotia W/o. Shri Kamlesh malviya, aged 39 years, C/o. Shri J.P. Bhagotia, SPA-A, Babha Marg, Adarsh Nagar, Jaipur (Raj.)

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CWP - 13299/2008

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3/3. Shri Abhishekh Bhagotia S/o. Shri J.P. Bhagotia, C/o. C/o. Shri J.P. Bhagotia, SP-6-A, Babha Marg, Adarsh Nagar, Jaipur (Raj.1

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Smt. Nirmala Parihar W/o. Shri Nandlal Parihar, D/o. Late Shri Sampatram, Resident of 5-1, Income Tax Flats, Opposite Old High Court, Navrang Ahemdabad (Gujrat).

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5. Smt. Sharda Birdi W/o. Dr. Dev Raj Birdi D/o. Late Shri Sampatram, R/o. D-4/13, Char Imli, Bhopal (M.P)

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VERSUS

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RESPONDENTS :-

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1. State of Rajasthan through Chief secretary, Government of Rajasthan, Rajasthan Secretariat, Jaipur.

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Principal Secretary, Department of Revenue, Government of Rajasthan, Rajasthan Secretariat, Jaipur (Raj.)

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Principal Secretary Department of Urban Development, Government of Rajasthan, Rajasthan Secretariat, Jaipur (Raj.)

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Shri Jagdish Prasad S/O. Late Shri Sampatram, Resident of 22, Shivaji Marg, Outside of Diggi House, C-Scheme, Jaipur having attained superannuation from the post of Deputy chief Medical

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Officer, Department of Health, Government of Rajasthan.

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CWP - 13299/2008

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Shri Ashok Sampatram, Son of Late Shri Sampatram, Resident of 22, Shivaji Marg, Outside Diggi House, C-Scheme, Jaipur presently working as Principal Secretary, Department of Industries, Govt. of Rajasthan, Jaipur.

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Shri Jaswant Sampatram S/o. Late Shri Sampatram, Resident of 99, Moji Colony, Malviya Nagar, Jaipur presently working as Additional Director General of Police, Police headquarters, Jaipur (Raj.)

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Municipal Corporation through its Chief Executive Officer, Deen Dayal Upadhayay Bhawan, Lal Kothi, Jaipur.

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Jaipur Development Authority through its Commissioner, JDA, Indra Circle, Jaipur.

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Inspector General, Stamps and Registration department, Kar Bhawan, Ajmer (Raj.)

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State Bank of Bikaner and Jaipur through its Regional manager,

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Tilak Marg, Jaipur.

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Collector, Alwar District, Alwar.

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Tekaildar, Tehsil Behror, District Alwar.

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Tehsildar, Tehsil Alwar, District Alwar.

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Shri Basanta Ram S/o. Late Shri Balveer, Resident of Village

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Diwani, Tehsil Behror, District Alwar (Raj.)

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Date of Order : I bh November, 2016

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CWP- 13299/2008

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HON'BLE MR. JUSTICE M.N.BHANbARI

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Mr.AK Shrama, Sr. Adv. with MrShailesh Prakash Sharma, for the

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petitioner/s.

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Mr.Anurag Sharma, AAG with Mr.Aniroodh Mathur, for respondent Nos.l,2,3,9,11,12 & 13. Mr.Dheeraj Tripathi, Dy.GC. Mr.Kamlakar Sharma, Sr. Adv. with

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Mrs.Alankrita Sharma ] Mr.Asad Ali 1, for respondent No.6. Mr.Ashok Gaur, Sr. Adv. with Mr.A.Jaiman, for respondenth. ~r.~harat Vyas, for the respondent/s. Mr.Alok Garg with Ms.Lalima Purohit, for respondent No.10-SBBJ. Mrs.Naina Saraf 1 Mr.Amit Kuri 1, for the respondent/s. Mr.Sandeep Pathak 1 Mr.Rahul Lodha 1, for the respondent No.4

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BY THE COURT : -

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By this writ petition, a challenge is made to the order dated 06'h October, 2007, whereby, property in dispute was mutated in favour of the private respondents.

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Learned counsel for the private respondents have taken preliminary objections about maintainability of the writ petition. It is submitted that an appeal lies against the mutation in revenue record, however, statutory remedy of appeal has not been availed by the petitioners thus writ petition deserves to be dismissed on the aforesaid ground.

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A direction is also sought to allow operation of the bank accounts and detail for it is given in Schedule 'C' of the writ

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CWP - 13299/2008

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petition. It is apart from the challenge to entry of the name of the private respondent/s for a house situated in 22, Shivaji Marg, Outside Diggi House, C-Scheme, Jaipur without applying the procedure. All the orders and the relief prayed are having alternate remedy and involve question of facts thus present writ petition may be dismissed on the aforesaid ground itself.

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Learned counsel for the petitioners has opposed the preliminary objections raised by the private respondents. It is submitted that mutation entry for the agricultural land was opened without following the .procedure given under the Rules 131 and 132 of the Rajasthan Land Revenue (Land Records) Rules, 1957 (for short "the Rules of 1957). It is for the reason that private respondents are senior officer in the State of Rajasthan thus having influence. On an application for mutation, the names were entered on the same day, thereby, the procedure requiring hearing of interested person or even determination of validity of will has not been made. It is despite fact that the petitioners had sent information that without hearing them, no proceedings may be undertaken. In the exceptional circumstances, the writ petition was filed because the petitioners were not expecting justice in the hands of the Appellate Authority, working under the private respondents, who are highly placed in the Gqvernment.

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CWP- 13299/2008

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It is further submitted that Municipal Corporation, Jaipur also entered name of the private respondents for a house situated at 22, Shivaji Marg, Outside biggi House, C-Scheme, Jaipur and, in the same manner, bank account was not allowed to be operated. In the facts and circumstances of the case, writ petition is maintainable and otherwise, discretion lies with the Court while exercising jurisdiction under Article 226 - of the $onstitution of India. The alternate remedy does not cast absolute bar to maintain writ petition.

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If this Court finds that petitioners should take alternate remedy then, at least, a direction may be given for deciding all the issues raised by the petitioners before the Appellate Authority and, therein, after hearing the petitioners, a reasoned and speaking order be passed dealing with all the factual and legal issues. The petitioners should further be given liberty to take legal recourse for other prayers.

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I have considered the submissions made by learned counsel for the parties and scanned the matter car=fully.

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By this writ petition, mainly three prayers have been

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made.

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CWP - 13299/2008

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First prayer is in reference to the order dated 06th October, 2007 passed. on an application for mutation of agricultural land of deceased late Shri Sampat Ram. The other relief is regarding bank account and lastly for a house situated at 22, Shivaji Marg, Outside Diggi House, C-Scheme, Jaipur.

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Learned counsel for the petitioners has made serious allegations against the officers, who had accepted the application for mulation and also to record name of the private respondents for the property situated at 22, Shivaji Marg, Outside Diggi House, C-Scheme, Jaipur.-It is alleged that without production of original will, mutation was opened. It is even without determining the validity of the will, moreso when, a prior notice was given to provide hearing. The will is alleged to be forged and, thereby, no right should have been created in favour of the private respondents.

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I have considered the aforesaid and find that issues raised by the petitioners involve question of law and facts both. The issue as to whether the will is valid or not, or is forged, needs finding of fact. It can be recorded by the competent court or the authority. The factual issues, requiring evidence, cannot be

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CWP - 13299/2008

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decided by this Court while exercising jurisdiction under Article

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226 of the Constitution of India.

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Taking into consideration the aforesaid, I find that petitioners should have maintain an appeal against the mutation and to take remedy for other grievances, where, question of facts can be determined, which includes, as to whether will is valid and not or is forged.

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No doubt, it is true that discretion lies with the Court to entertain the writ petition even if alternate remedy exists, thereby, absolute bar does not exists to entertain the writ petition. However, in a case where question of facts needs to be determined, it is always better to avail remedy where the competent authority/court can determine the factual issues after taking evidence.

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In the light of the aforesaid, this writ petition is disposed of with liberty to the petitioners to avail other remedy along with the application for interim relief. In case of appeal or other remedy by the petitioners, the authorities /court are directed to consider each and every issue raised by the petitioner

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CWP - 13299/2008

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and after hearing them apart from other parties, pass a reasoned and speaking order.

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The petitioners are claiming right in the property by

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inheritance, I am of the opinion that private respondents should not alienate the agricultural land till disposal of the appeal against the mutation entry, which would be decided preferably within six months from the date of its filing and the appeal therein should be filed within a period of one month from today. In the similar manner, the remedy against the order, entering name of the private respondents for residential house situated at 22, Shivaji Marg, Outside Diggi House, C-Scheme, Jaipur may be taken. The petitioners would further be at liberty to apply for succession certificate for bank account.

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(M.N. BHANDARI), J.

Gauri Devi Sampatram and Ors. v. State of Raj and Ors.

Case brief

What is this about?

What did the court decide?

Gauri Devi Sampatram and Ors. v. State of Raj and Ors.

Case brief

What is this about?

What did the court decide?

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