The High Court
Case Details
IN THE HIGH COURT OF MEGHALAYA AT SHILLONG WP(C)No. (SH) 189 OF 2012 Umpling (R) Co-operative Consumer Stores Ltd., a co-operative Society Registered under the Assam Co-operative Societies Act, 1949 having its registered Office at Plot No. 228 RR Colony PO Rynjah, Shillong-793006, Meghalaya, represented by Secretary Shri Shankar Shyam. ::: Petitioner By Advocates : Mr HS Thangkhiew, Sr. Advocate Mr L Khyriem, Mr N Mozika, Mr P Nongbri, Advocates -Vs- 1. The State of Meghalaya, Represented by the Secretary, Revenue Department, Shillong. 2. The Deputy Commissioner, East Khasi Hills District, Shillong. 3. Shri kripesh Ranjan Kar s/o (L) Kedar Ranjan Kar, R/o House No. 2, Durgabari lane, Bhaskar Nagar Guwahati-18 Assam. ::: By Advocates : Mr ND Chullai, Sr. GA Mr S Sen, Adv. For respdt No. 3. Respondents -PRESENT- THE HON’BLE MR JUSTICE T NANDAKUMAR SINGH Date of hearing : 04.04.2013 Date of Judgment & Order : 04.04.2013 WP(C)No.(SH)189 of 12 Page 1 of 7 JUDGMENT AND ORDER (ORAL) Heard Mr HS Thangkhiew, learned senior counsel appearing for the petitioner. Also heard Mr ND Chullai, learned senior GA appearing for respondents No. 1 and 2 and Mr S Sen, learned counsel appearing for the respondent No. 3. 2. In this writ petition, the petitioner is assailing the order of the Meghalaya Board of Revenue, Shillong dated 20.06.2012 passed in Revenue Appeal No. MBR/RA No. 3 of 2010 (Annexure 21
Decision
to the writ petition). 3. Both the parties do not dispute the existence of the Mortgage Deed dated 20.08.1973 executed by Shri Kedar Nath Kar predecessor-in-interest of the respondent No.3. From the records, it appears that there is dispute as to validity of the Mortgage Deed dated 20.08.1973. 4. The respondent No. 3’s the father of Shri Kedar Nath Kar who migrated from the then East Pakistan was allotted a plot of land measuring area about 4553 sq. ft. being Plot No. 228 at Umpling (Rynjah) Relief and Rehabilitation Colony (for short the said land) under the Rehabilitation Scheme of the Government of India. It is stated that the respondent No. 3’s, father of Shri Kedar Nath Kar executed the said Mortgage Deed on 20.08.1973 for mortgaging the said land for taking a loan of Rs. 13,000/- (Rupees Thirteen thousand) only from the present petitioner. A copy of the WP(C)No.(SH)189 of 12 Page 2 of 7 Mortgage Deed dated 20.8.1973 is available at Annexure 3 to the writ petition. 5. On perusal of the Mortgage Deed dated 20.08.1973, it is apparent that the respondent No. 3’s father had mortgaged the said land for a period of ten years, and if he failed to pay the full loan amount of Rs. 13,000/- along with interest the right of redemption of mortgage will be foreclosed. From the records, it appears that the respondent No. 3 had taken a plea in the Court below that the said mortgage deed dated 20.08.1973 is null and void for certain reason and also at the same time the petitioner had taken a plea in the Court below that the said Mortgage Deed dated 20.08.1973 is not valid. 6. Mr S Sen, learned counsel appearing for respondent No. 3 further contended that assuming the Mortgage Deed dated 20.08.1973 is a valid one, it would be an usufructuary mortgage and the property is in constructive possession of respondent No. 3. Be that as it may, as on today the physical possession of the said mortgage property is with the petitioner. 7. Mr Sen, learned counsel appearing for respondent No. 3 strenuously contended that there cannot be clog on the equity of redemption of mortgage and the respondent No. 3 has the right for redemption of the mortgage under Section 60 of the Transfer Property Act. However, the right to redemption is extinguished only under the conditions mentioned in the proviso of Section 60 of the Transfer of Property Act. Under Article 61 of the Limitation Act, the WP(C)No.(SH)189 of 12 Page 3 of 7 suit for redemption should be filed within thirty years from the date when the right to redeem or to recover possession accrues. 8. Mr Sen also further contended that the condition of three years for redemption of the mortgage as mentioned in Mortgage Deed dated 20.08.1973 is invalid under the said provisions of the Transfer Property Act as well as the Article 61 of the Limitation Act. Therefore, the said period for 3 years for redemption of the mortgage dated 20.08.1973 will not be valid under Section 28 of the Indian Contract Act, 1872, inasmuch as, such term and condition which are illegal under the law cannot be valid. 9. The petitioner filed an application for mutation of the said mortgage land basing on the said Mortgage Deed dated 20.08.1973. On the conjoint reading of the Regulations No. 50, 52 and 53 of the Assam Land and Revenue Regulation, 1886, it appears that the dominant factor for deciding the application for mutation is possession. Regarding nature of possession, basing on which, an application for mutation is to be filed, was the subject matter of different cases before the High Court. In this regard, Mr HS Thangkhiew, learned senior counsel appearing for the petitioner contended that the petitioner is in possession of the mortgaged property on the basis of the said registered mortgage. 10. This Court is of the considered opinion that appropriate forum for deciding the validity or other words of the mortgage deed dated 20.08.1973 would be the civil court of competent jurisdiction. 11. After hearing the submissions of the learned counsel appearing for the parties, it appears that the main ground of the WP(C)No.(SH)189 of 12 Page 4 of 7 respondent No. 3 for assailing the mutation order dated 30.06.2006 passed by the learned Addl. Deputy Commissioner, (Revenue), Shillong allowing the mutation of the mortgage property in the name of the writ petitioner is that it was passed without affording any opportunity to the respondent No. 3 for objection. 12. Mr Sen, learned counsel appearing for respondent No. 3 drawing my attention to the letter of Joint Secretary to the Government of Meghalaya, Revenue & Disaster Management Department dated 13.06.2006 (Annexure A-9) addressed to the Deputy Commissioner, East Khasi Hills District, Shillong contended that the advice given by the Joint Secretary under the said letter is not tenable in law, inasmuch as, the Joint Secretary was completely unaware of the provisions of Section 60 of the Transfer of Property Act, Article 61 of the Limitation Act and Section 28 of the Contract Act. In this regard, this Court made an observation that any conditions in the said mortgage dated 20.08.1973 which are in violation of the law will not be valid. If the law has been violated while prescribing the terms and conditions of the Mortgage Deed dated 20.08.1973 is left to be decided by the civil Court of competent jurisdiction. 13. Mr HS Thangkhiew, learned senior counsel appearing for the petitioner also contended that the Board of Revenue, Shillong while passing the impugned order dated 20.06.2012 had made some findings by usurping the jurisdiction of the civil court, inasmuch as, only the civil court of competent jurisdiction can only decide the validity or other words of the mortgage deed. He, further reiterated that the validity or other words of the mortgage deed dated 20.08.1973 is to be looked into by the civil court of WP(C)No.(SH)189 of 12 Page 5 of 7 competent jurisdiction. After taking into the consideration of the submissions of the learned counsel appearing for the parties and provisions of Section 60 of the Transfer of Property Act, Article 61 of the Limitation Act and under Section 28 of the Contract Act, this Court is compelled to make finding that the opinion of the Joint Secretary in his letter dated 13.06.2006 (Annexure A9 to the writ petition) addressed to the Deputy Commissioner, East Khasi Hills District, Shillong is not correct. 14. On perusal of the record, it is also appeared that an opportunity for filing objection was not afforded to the respondent No. 3 at the time of consideration of the application filed by the petitioner for mutation before the Addl. Deputy Commissioner, Revenue. An opportunity should have been afforded to the respondent No. 3 for filing objection at the time of consideration of the application for mutation filed by the petitioner. The consequence of the denial of principles of natural justice to the respondent No. 3 would be that both the mutation order dated 30.06.2006 and the order of the Meghalaya Board of Revenue, Shillong dated 30.06.2012 are illegal. However, it is made clear that this Court is not giving any finding on the merit of the case. Therefore, if the application for mutation filed by the present petitioner basing on the said mortgage deed is maintainable or not is to be decided by the Addl. Deputy Commissioner, East Khasi Hills District, Shillong afresh after hearing both the parties. 15. For the foregoing reasons, the Addl. Deputy Commissioner, Revenue Board, Shillong is directed to dispose of the mutation case No. 46 of 2006 afresh after giving ample opportunity to the parties to put their respective cases or in other WP(C)No.(SH)189 of 12 Page 6 of 7 words there should be a denovo hearing of the mutation case No. 46 of 2006. For enabling the Addl. Deputy Commissioner, East Khasi Hills District, Shillong to hear of mutation case afresh, both the mutation order dated 30.06.2006 passed by the Addl. Deputy Commissioner (Revenue), Shillong and the order dated 20.06.2012 passed by the Meghalaya Board of Revenue are hereby set aside and quashed. The parties are however, directed to appear before the Addl. Deputy Commissioner (Revenue), Shillong on 30th April, 2013. 16. The Registry is directed to send a copy of this order to the Addl. Deputy Commissioner (Revenue), Shillong. dev JUDGE WP(C)No.(SH)189 of 12 Page 7 of 7