Case: Maharaji Educational Trust Vs. Sgs Constructions &amp; Dev.P.Ltd

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.6. Notwithstanding the pendency of the aforesaid proceedings, the Builder preferred writ petition in question before the High Court of Allahabad, Bench at Lucknow claiming following reliefsIssue a writ in the nature of mandamus commanding the Respondent/Opposite Party No.1 i.e. U.P. Awas Evam Vikas Parishad to demarcate lands measuring 42.45 acres out of 63.45 acres, which are mortgaged so that if at a later date the properties at Sl. No.6 as mentioned in Annexure P/1 were to be sold by the Respondent No.3, there would be no ambiguity in identifying the mortgaged property.ii) Issue a writ, order or direction commanding the Respondent No.2 to implement its order dated 6th September, 2011 in a time bound manner preferably with a period of 3 months in order to sell properties at Sl. No.1 to 5 as mentioned in Annexure P/1 and further restrain the Respondent No.2 to proceed with the application filed by the Respondent No.3 dated 20.10.2011 (Annexure P/7) till the properties at Sl. No.1 to 5 are not sold.iii) Issue any writ, direction or orders as may be deemed fit and proper in the facts and circumstances of theprayer had been abandoned at the time of final hearing of the writ

Reasoning:
9. After hearing learned counsel for the parties at length, we are of the considered opinion that it was a misadventure on the part of the Builder to file a writ petition for the kind of reliefs prayed for and that too could not have been entertained by the Bench at21 acres of land, out of the total of 63.45 acres which was mortgaged to HUDCO as item No.6, had been exchanged by the Trust with Avas Evam Vikas Parishad. Thus, the exchange was with the property which was under mortgage with HUDCO and the exchange deed had been deposited by the Trust with HUDCO on 11.7.2011. Before the Debt Recovery Officer, New Delhi, prayer has been made by the Builder to sell property Nos.1 to 5 and not to sell property No.6 with respect to which he has entered into an agreement with the Trust.Though, there is serious dispute between the parties to the lis whether the said land is unencumbered, finding has been given by the High Court that 21 acres of land is unencumbered. The High Court could not have treated 21 acres of land as unencumbered one out of 63.45 acres. It was not open to the High Court to enter into the aforesaid arena, which of the property is encumbered and to be sold in realization of debt is the outlook of the Recovery Officer, DRT, Delhi, where the recovery proceedings are pending, including the objections preferred by the Builder.13. In our opinion, it was not open to the Builder to file a writ application for the aforesaid reliefs. Though the second relief had been abandoned at the time of final arguments but the first relief could not have been granted without going into the said question. The High Court in writ jurisdiction has made a declaration that the property 21 acres of land is unencumbered. The High Court could not have adjudicated on the property rights under the guise of directing Avas Evam Vikas Parishad to demarcate the land and give finding that it was unencumbered land. The High Court has erred in law in giving a finding on merits on effect of exchange and that section 70 of TP Act is not applicable.We could have decided the aforesaid question finally. However, we refrain from doing so as, in our opinion, it was not open to the High Court to take up these questions under writ jurisdiction and to declare the properties as unencumbered. It was for the parties to agitate the questions before the DRT where the recovery proceedings are pending at the instance of HUDCO with whom the property had been mortgaged by the Trust.15. Prima facie, we are of the view that on the strength of the agreement to sell, particularly when possession had not been handed over to the Builder, it was not open to him to file a writ application for demarcation of the property as unencumbered property or otherwise. What was sought to be achieved by filing a writ petition, was to get rid of the proceedings pending before the Recovery Officer, DRT at Delhi, and to save land at serial No.6 from being sold which includes 21 acres of land, and an attempt was made to get the 21 acres of land declared as unencumbered one. As a matter of fact, such disputed questions with respect to the properties inter se between the Builder and the Trust as to demarcation, writ petition could not be said to be appropriate remedy, particularly when the order passed by the Recovery Officer, DRT, was not in question and the order passed by the DRT, Delhi, could not have been questioned before the Lucknow Bench of High Court ofthe 21 acres of land had been given to the Trust, Avas Evam Vikas Parishad had nothing to do with that land. This, it was a wholly misconceived venture on the part of the Builder to ask Avas Evam Vikas Parishad to demarcate the land given to the Trust, particularly when the Parishad was not having any housing scheme with respect to the land which had been given to the Trust. Thus, filing of the writ petition at Lucknow Bench was totally uncalled for and the propriety required that it should not have been entertained at Lucknow Bench. Merely because the transfer petition filed in this court for transfer of case was withdrawn and the direction was issued by the Chief Justice of High Court to decide at an early date, would not confer jurisdiction on Bench at Lucknow, all the questions had been left open to be agitated at the time of hearing. In our opinion, Bench at Lucknow ought not to have entertained the petition as it lacked the jurisdiction.Apart from that, we find that there is no merit in the submission that the Housing Board could have demarcated the land in exercise of powers within the purview of section 15 of the Act of 1965. The objective of the Act of 1965 is to tackle the housing and development problems of urban areas.It is apparent from the scheme of the Adhiniyam of 1965 that the provisions contained in section 15(1)(m) are not to be read in isolation but with reference to the objectives of the Adhiniyam of 1965 and its functions relating to housing and development issues.It was also submitted on behalf of the appellants that the agreement which was entered into between the Trust and the Builder was required to be registered under the provisions of the Registration Act as per Section 17 read with section 49 of the Registration Act as applicable in U.P. and section 3 read with section 54 of the TP Act. We decline to entertain and examine the submissions as it would not be proper to do so in the present proceedings and as effect ofand validity of registration made subsequently has been questioned in Writ Petition [C] No.38596/2013 pending consideration before the High Court of Allahabad. Thus, it is for the High Court to adjudicate upon the aforesaid questions.