No Acts & Articles mentioned in this case
AFR
Reserved on 29.05.2019
Delivered on 31.10.2019
Court No. - 34
Case :- WRIT - C No. - 32687 of 2018
Petitioner :- Hari Babu Jain And 2 Others
Respondent :- State Of U.P. And 2 Others
Counsel for Petitioner :- Ishwar Chandra Tyagi,Nirvikar Gupta
Counsel for Respondent :- C.S.C. Ajit Kumar Singh (Addl. A.G.),
Nimai Das & Sudhanshu Srivastava (Addl.C.S.C.)
Hon'ble Sudhir Agarwal,J.
Hon'ble Virendra Kumar Srivastava,J.
(Delivered by Hon'ble Sudhir Agarwal,J.)
1.Heard Sri Nirvikar Gupta, learned counsel for petitioners and Sri
Ajit Kumar Singh, Additional Advocate General assisted by Sri Nimai
Das and Sri Sudhanshu Srivastava, Additional Chief Standing Counsel.
2.This writ petition under Article 226 of Constitution of India has
been filed by three petitioners namely Hari Babu Jain, Ajit Kumar Jain
and Praveen Kumar Jain, all real brothers and sons of Late Sri Panna Lal,
resident of 3-A/3, P.D. Tandon Road, Civil Lines, Allahabad. They have
prayed for issue of a writ of certiorari to quash order dated 14.08.2018
(Annexure 1 to the writ petition), passed by District Magistrate,
Allahabad communicating that State has exercised right of resumption in
respect of Nazul land no.127, Civil Station, Allahabad area 2 acres 3947
Sq. Yards. Letter/notice of aforesaid order is addressed to 21 persons
including three petitioners, who are at Serial No.5 in the aforesaid notice.
3.Petitioners have also prayed for issue of a writ of mandamus
directing respondents 1 and 2 not to dispossess petitioners from area of
1204.23 Sq. Meters, in Bungalow No.3, P.D.Tandon Road, (Old Kanpur
Road), Civil Lines, Allahabad, which is part of Nazul Plot No.127, Civil
Station, Allahabad and also not to demolish dwelling house and
constructions, superstructures, sheds, office etc., raised by petitioners on
the aforesaid land.
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4.Facts in brief as set out in writ petition are that Nazul Plot No.127,
Civil Station, Allahabad (hereinafter referred to as “Disputed Nazul
Land”) is a very big plot having area of 2 acres 3947 Sq. Yard i.e. total
11393.53 Sq. Meters. It was initially leased out to one 'E.J.Lazarus' by
Secretary of State for India in Council through Collector, District
Allahabad vide lease deed dated 02.04.1862. The period of lease was 50
years. After expiry of initial period of 50 years on 01.4.1912, another
lease deed was executed on 18.06.1912 for a further period of 50 years
and period of lease commenced from 02.4.1912. This lease deed was
executed by Secretary of State for India in Council through Collector
Allahabad in favour of 'Evelyn Constance Trisham'. The lease was
executed for allowing lessee to raise a dwelling house, garden or
pleasure grounds. Period of lease expired on 01.4.1962.
5.Disputed Nazul Land was let out by erstwhile lessee i.e.
E.C.Trisham to Vishun Nath son of Shambhu Nath and his name was
also recorded in Nazul Register. Vishun Nath died in 1958 leaving
behind his widow Smt. Jamuna Devi and three sons namely Harihar
Nath Dhar, Triloki Nath Dhar, and Sri Dhar. Since lease expired on
01.4.1962, Sri Dhar son of Vishun Nath submitted application dated
04.5.1962 requesting for grant of fresh lease of Disputed Nazul Land.
Superintendent Municipal Estates and Nazul Properties, Nagar
Mahapalika, Allahabad vide letter dated 26.5.1962 informed him that no
subdivision of Disputed Nazul Land would be allowed and all co-lessees
have to apply jointly for fresh lease for entire site measuring 2 acres
3947 Sq. Yards. Fresh lease could not be executed, as is evident from
letter dated 13.8.1969 sent by Nazul Superintendent, Nagar Mahapalika,
Allahabad requiring Smt. Jamuna Devi and Shri Dhar to file affidavit on
behalf of all the legal heirs. Heirs of Vishun Nath, however, inducted in
1980, petitioners as tenant over 1204.23 Sq. Yards, allocated in Northern
part of P.D.Tandon Road at the rent of Rs.250/- per month. Petitioners
raised various constructions etc. over the said land and continuously paid
3
rent to Harihar Nath Dhar, who issued rent receipts being Karta of
family. Petitioners constructed wood shop by the main P.D.Tandon Road
in which they started a Furniture Showroom in the name of “Shree
Digamber Traders”. In the other portion, family members of petitioners
were residing. Petitioners are also paying house tax and water tax of
property in their possession.
6.Special Nazul Officer, Allahabad issued a letter dated 05.01.1981
addressed to Harihar Nath Dhar requiring him to produce following
documents :
^^1-eSfVªd iz.kkyh ij cuk gqvk lkbV dk uD'kk ftlesa iwjk fufeZr {ks=Qy iwjs
uki ds lkFk fn[kk;k x;k gksA ;fn Hkwfe dk ,d ls vf/kd mi;ksx gks jgk gS rks
fofHkUu Hkw mi;ksxksa dk uD'ks ij Li"V :i ls iznf'kZr fd;k tk; vkSj ;fn lkbV
dk foHkktu gqvk gS rks bls Hkh uD'ks ij fn[kk;k tk;A
2-foHkktu dh fLFkfr esa foHkktu Lohd`r djkus lEcU/kh ftyk/kh'k @ 'kklu
dk vkns'k Hkh izLrqr djsaA
3-vius LoRo ds leFkZu esa vko';d nLrkost izLrqr djsaA
4-;fn lekIr yht ds dbZ iV~Vsnkj Fks vkSj vkids vfrfjDr
vU; yksx u;k iV~Vk ysus ds bPNqd ugha gSa rks vkids i{k esa
iV~Vk fn, tkus gsrq mudk fyf[kr laLrqfr @ lgefr gsrq izLrqr
djsaA**
“1-The site-map be made on the basis of the metric system, in
which whole constructed area be shown with all dimensions. If the
land is used for more than one purpose, then all different usages
be specifically shown in the map, and if the site has been
partitioned, then it be also shown on the map.
2-In case of partition, order of District Magistrate/
Government relating to approval of partition be also produced.
3-In support of the title, necessary documents be produced.
4-If there were many other lease-holders, and except you, no
one is prepared to take new lease, then written
recommendation/consent for allotting lease in your favour be
produced.” (Emphasis added)
(English Translation by Court)
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7.Vishun Nath died in 1958. His wife Smt. Jamuna died in 1974. An
agreement was executed on 08.11.1988 between Harihar Nath as Karta
of family and petitioners Hari Babu Jain, Ajit Kumar Jain and Praveen
Kumar Jain for transfer of portion of land and structure i.e. area 1204.23
Sq.meters subject to permission of Government, on payment of sale
consideration of Rs.84,297.50 by petitioners to Harihar Nath. Relevant
stipulations of agreement contained in paras 3, 6, 7 and 10 are as under :
3.That the 2nd party will be responsible to obtain the
permission of the Government for the transfer of the portion of
the land shown red in the attached plan at his own cost and
expenses.
6.That the 1st party will transfer the land under the
possession of the 2nd party after the permission was granted by
the government after the grant of the fresh lease.
7.That in case the fresh lease was not granted in favour of
the 1st party by including the land proposed to be transferred the
2nd party will have the rights to get the fresh lease granted to
them direct from the government on payment of premium and
fixed annual ground rent demanded by the government and in
that case the 1st party will have no objection.
10.That the 1
st
party including his heirs, executors,
administrators and assigns will have no objection in case the 2nd
party got the fresh lease executed in their favour direct from the
government.” (Emphasis added)
8.The entire consideration was paid by petitioners to Harihar Nath.
They are transferees/assignees and co-lessees of part of Disputed Nazul
Land measuring 1204.23 Sq. meters. In the light of State Government's
policy of making freehold of lease rights enshrined in Government Order
(hereinafter referred to as “G.O.”) dated 01.12.1998, petitioner-1 Hari
Babu Jain, being Karta of family and on behalf of all other petitioners,
filed application dated 28.01.1999 before Collector Allahabad for
freehold and also deposited 25 percent of circle rate i.e. Rs.1,08,260/-
vide Treasury Challan dated 28.01.1999. Since no decision was taken,
5
petitioners served notice dated 09.6.2003 on Collector, Allahabad,
requesting him to decide petitioners' application for freehold. Another
reminder notice was sent on 21.8.2013 by petitioners to Collector
Allahabad. Petitioners also filed Original Suit No.392 of 2015,
impleading Omeshwar Nath, Brijeshwar Nath, Kamleshwar Nath and
Gyaneshwar Nath, all sons of late Harihar Nath, and State of Uttar
Pradesh through District Magistrate, Allahabad as defendants 1 to 5 and
sought following reliefs:
^^11-;g fd ekuuh; U;k;ky; }kjk tfj;s ?kks"k.kkRed fMdzh Hkou la0 3,@ 3
ih0Mh0 V.Mu jksM flfoy ykbu bykgkckn dks oknhx.k ds gd esa ?kks"k.kk dj nh
tkosA mDr Hkou ds ekfyd dkfct nkf[ky oknhx.k gSa izfroknhx.k ls
dksbZ okLrk ugha gSA
12- ¼v½;g fd izfroknhx.k ls oknhx.k dks eqdnek [kpkZ fnyk;k tk;A
¼c½;g fd djhu fgalk cgd oknhx.k fo:) izfroknhx.k lkfcr dj fy;s
tk;sA**
“11.That a decree of declaration for building no. 3A/3, PD
Tandon Road, Civil Lines, Allahabad may kindly be passed by the
Hon'ble Court in favour of the plaintiffs to the effect that he
plaintiffs are owners having possession over the said building
and the defendants have no concern with it.
12(a)That the cost of the case may kindly be awarded to
the plaintiffs from the defendants.
b)That share of plaintiff against defendants be declared.
(Emphasis added)
(English Translation by Court)
9.The aforesaid suit is still pending. In the meantime, now
respondent-2 has passed impugned order dated 14.08.2018.
10.The order has been assailed on various grounds, i.e. notice
contains names of some persons who are already dead; petitioners had
applied for freehold but their application has not been decided; in an
abrupt manner, impugned order has been passed without giving any
opportunity; it is illegal and arbitrary particularly when in number of
6
cases freehold has been allowed; respondents could have acquired land
following procedure laid down in Right to Fair Compensation and
Transparency in Land Acquisition, Rehabilitation and Resettlement Act,
2013 (hereinafter referred to as Act, 2013”) but the said procedure has
not been followed and therefore, resumption is wholly illegal; lot of land
is available for developing as 'Sports Complex' besides the fact that a
'Sport Complex' is already available in the city hence alleged
requirement for development of 'Sports Complex' is not genuine and
against public policy; petitioners cannot be ousted forcibly without
resorting to procedure prescribed in Uttar Pradesh Public Premises
(Eviction of Unauthorized Occupants) Act, 1972 (hereinafter referred to
as “U.P. Act, 1972”); and, petitioners having been allowed to stay in
land in dispute despite expiry of lease in 1962, bring in doctrine of
estoppel against respondents and now they cannot take a somersault by
asking petitioners to vacate land in dispute over which several
developments by raising constructions have been made by petitioners.
11.Respondent -2 contesting the writ petition has filed counter
affidavit sworn by Sri Gore Lal Shukla, Additional District Magistrate
(Nazul), Allahabad. He has pleaded that Disputed Nazul Land was
leased out to E.C.Tresham vide lease deed dated 18.6.1912 executed for
a period of 50 years with effect from 02.04.1912. In terms of
Government Grants Act 1895 (hereinafter referred to as “GG Act, 1895”)
rights of parties are to be governed by the said lease deed and not by
any other contrary statutory law. With respect to surrender after expiry of
period of lease, relevant stipulations in lease deed reads as under :-
“....And also shall and will at the end, expiration or other sooner
determination of the said term peaceably and quietly leave
surrender and yield up to the said Secretary of State, his
Successors or Assigns the said piece or parcel of land or ground
together with all such of the said erection or building and all
fixtures and fittings which at any time and during the said term
shall be affixed or set up within or upon the said demised premises
7
as the said Secretary of State, his Successors and Assigns shall
desire to take over at a valuation according to the option
hereinafter reserved to them, subject however to the conditions
hereinafter contained.” (Emphasis added)
12.With respect to resumption by State Government, lease deed
contains a clause, which reads as under:-
“Provided always and it is hereby declared and agreed that no
compensation or payment shall be claimable by the said lessee
his Executors, Administrators or Assigns for any buildings,
erections, or fixtures, erected affixed, or placed by him, them or
any of them in or upon the said premises or any part thereof, in
case these premises shall be determined by re-entry for forfeiture
in which case the buildings, erections and fixtures shall vest
absolutely in the said Secretary of State, his Successors and
Assigns as his own property without any compensation or
payment in respect thereof” (Emphasis added)
13.Land is required for public purpose of developing a 'Sports
Complex' in the city of Allahabad, which has been chosen to be
developed as “Smart City”. A proposal sent to State Government on
19.6.2018 for resumption/re-entry has been approved by State
Government vide letter 9.8.2018 and in terms thereof order dated
14.8.2018 has been passed by District Magistrate, Allahabad. No lease
deed was ever executed in favour of Vishun Nath son of Shambhu Nath
and there is no renewal of lease after 1.4.1962. The alleged induction of
petitioners in 1980 is wholly unauthorized as it was never approved or
sanctioned by State Government. Mere application for 'freehold' does not
confer any vested right in petitioners as held by the Full Bench of this
Court in Anand Kumar Sharma Vs. State of U.P. 2014 (2) ADJ 743.
In any case, petitioners have no right over land in dispute on the basis of
agreement dated 8.11.1988 since, Executors at that time did not possess
any transferable right at all. Power of resumption is consistent with
terms of lease read with provisions of GG Act 1895. It is also said that
GG Act, 1895 has been repealed by Repealing and Amending (Second)
8
Act, 2017 (hereinafter referred to as “Act, 2017”) but rights etc. in
respect of effect and consequences etc. of act already done or suffered
have been saved. Section 2 provides that enactment specified in First
Schedule are hereby repealed. Reference of GG Act, 1895 is in First
Schedule. Section 4 of Act, 2017 reads as under :
“4.Savings.- The repeal by this Act of any enactment shall not
affect any other enactment in which the repealed enactment has
been applied, incorporated or referred to;
and this Act shall not affect the validity, invalidity, effect or
consequences or anything already done or suffered, or any right,
title, obligation or liability already acquired, accrued or
incurred, or any remedy or proceeding in respect thereof, or any
release or discharge of or from any debt, penalty, obligation,
liability, claim or demand, or any indemnity already granted, or
the proof of any past act or thing;
nor shall this Act affect any principle or rule of law, or
established jurisdiction, form or course of pleading, practice or
procedure, or existing usage, custom, privilege, restriction,
exemption, office or appointment, notwithstanding that the same
respectively may have been in any manner affirmed or recognized
or derived by, in or from any enactment hereby repealed;
nor shall the repeal by this Act of any enactment revive or
restore any jurisdiction, office, custom, liability, right, tittle,
privilege, restriction, exemption, usage, practice, procedure or
other matter or thing not now existing or any force.”
(Emphasis added)
14.In view of GG Act, 1895 read with Section 4 of Act, 2017,
respondents 1 and 2 have exercised power of resumption. The
respondents, in their counter affidavit have placed reliance upon Hajee
S.V.M. Mohd. Jamaludeen Bros. & Co. vs. Govt. of T.N., (1997) 3
SCC 466; State of U.P. vs. Zahoor Ahmad (1973) 2 SCC 547;
Chintamani Ghosh and another vs. State of U.P. and others, 2001 (2)
UPLBEC 1003; State of Andhra Pradesh vs. Kaithala Abhishekam,
AIR 1964 AP 450; Union of India and others vs. Harish Chand
9
Anand, AIR 1996 SC 203; Smt. Shakira Khatoon Kazmi and others
vs. State of U.P. and others, 2002 (1) AWC 226; Azim Ahmad Kazmi
and others vs. State of U.P. and others (2012) 7 SCC 278; Anand
Kumar Sharma vs. State of U.P. and others, 2014 (2) ADJ 742 and
judgment of this Court in Writ Petition No. 62588 of 2010 (M/s
Madhu Colonizers Pvt. Ltd. vs. State of U.P. and others) decided on
2.4.2013.
15.A rejoinder affidavit has been filed by petitioners denying all
averments made in the counter affidavit which are contrary to pleadings
of petitioners in writ petition. Basically averments in rejoinder affidavit
are repetition of pleadings of writ petition, hence, we are not dealing
with the same but may refer the same at a later stage whenever it is
required.
16.Learned counsel for petitioners argued that petitioners are in
possession of land in dispute since 1980. No step was taken by State of
U.P. or Collector, Allahabad to dispossess petitioners from land in
dispute, hence petitioners' possession over land in dispute cannot be said
to be wholly illegal. They cannot be treated as mere trespasser. In
accordance with policy of freehold, petitioners have also applied for
conversion of lease rights into freehold but no decision has been taken
thereon and abruptly impugned order has been passed, that too, without
any show cause notice to the petitioners or giving opportunity, hence it is
wholly illegal and in violation of principles of natural justice. It is also
said that resumption, in effect, amounts to acquisition of land and
therefore, taking land of petitioners without following procedure
prescribed under Act, 2013 is patently illegal. He further submitted that
respondents have discriminated petitioners by keeping petitioners'
application for conversion of lease rights into freehold pending while in
various other matters such conversion has been allowed. Lastly, it is said
that resumption on the ground of 'public purpose' i.e. for development of
10
'Sports Complex' is nothing but illusory and pretext to oust petitioners
from land in dispute over which petitioners' residence and commercial
establishments are existing, providing shelter and source of earning
livelihood, hence petitioners' ouster in such manner violate their
fundamental right under Articles 14 and 21 of Constitution of India.
17.Sri Ajit Kumar Singh, learned Additional Advocate General said
that petitioners are wholly unauthorised occupants over land in dispute;
have no right at all whatsoever; writ petition at the instance of petitioners
in respect of land in dispute is not maintainable and deserves to be
dismissed for this reason alone. He further reiterated all the conditions
and arguments, which have been pleaded in counter affidavit and relied
on authorities, which are cited in counter affidavit, which we have
noticed above.
18.From rival submissions, issues which, in our view, require to be
adjudicated in these writ petitions are :
i.What is “Nazul”?
ii.What is/are Statute(s) governing Crown (later amended as
“Government”) Grant of land owned by Crown
(Government) i.e. Nazul? Its status and effect.
iii.Whether lease right governed by instrument of lease read
with GG Act, 1895 is transferrable and if so, whether it is
subject to any condition and any transfer made not
consistent with such conditions, whether would be valid and
confer an actionable right upon Transferree?
iv.What was the status of Lessee after expiry of lease-deed and
any subsequent Transferee inducted by such Lessee on the
land in respect whereof Grant was executed, whether such
person brought in possession before expiry of lease or
subsequently, would have any legally enforceable right over
such premises?
11
v.Whether petitioners had right to get land in dispute freehold
on mere submission of application form and such right will
override right of State for resumption/re-entry on disputed
Nazul land?
vi.Whether right of resumption exercised by State in the
present case is valid and in accordance with law and is it
open to State Government to seek resumption by giving
notice to occupant of the land in accordance with terms of
lease deed or State is bound to follow procedure of filing
suit for eviction or procedure laid down in U.P. Act, 1972?
vii.Whether impugned notice and order of approval of State
Government for resumption/re-entry over land in dispute is
invalid on account of lack of opportunity to petitioners. In
other words, whether principles of natural justice are
applicable when State Government chose to exercise right
of resumption/re-entry in respect of land owned by it?
19.We have framed above questions in the light of the fact that it is
admitted by all the parties that land in dispute is 'Nazul' and owned by
State Government.
20.Questions (i) and (ii), in our view, can be taken together hence we
proceed to discuss both these questions (i) and (ii) together.
21.Every land owned by State Government is not termed as 'Nazul'
and therefore it has become necessary to understand, what is 'Nazul'.
22.State Government may own land by having acquired and vested in
various ways, which includes vesting of land in the capacity of a
Sovereign body and having right of bona vacantia. Property may also be
acquired and owned by State by way of acquisition under the Statute
relating to acquisition of land or by purchase through negotiation or gift
by an individual or in similar other manner. All such land, which is
12
owned and vested in State Government results in making the State,
owner of such land, but in legal parlance, the term “Nazul” is not
applicable to all such land.
23.It is only such land which is owned and vested in the State on
account of its capacity of Sovereign, and application of right of bona
vacantia, which is covered by the term 'Nazul', as the term is known for
the last more than one and half century. In Legal Glossary 1992, fifth
edition, published by Legal Department of Government of India, at page
589, meaning of the term 'Nazul' has been given as 'Rajbhoomi, i.e.,
Government land'.
24.Nazul is an Arabic word. It refers to a land annexed to Crown.
During British Regime, immoveable property of individuals, Zamindars,
Nawabs and Rajas when confiscated for one or the other reason, it was
termed as 'Nazul property'. The reason being that neither it was acquired
nor purchased after making payment. In old record, when such land was
referred in Urdu, this kind of land was shown as 'Jaidad Munzabta'.
25.For dealing with such property, under the authority of Lt.
Governor of North Western Provinces, two orders were issued in
October, 1846 and October, 1848. Therein, after the words “Nazul
property”, its english meaning was given as 'Escheats to the
Government'. Sadar Board of Revenue on May 20, 1845 issued a circular
order in reference to “Nazul land” and in para 2 thereof it mentioned,
“The Government is the proprietor of those land and no valid title to
them can be derived but from the Government”. Nazul land was also
termed as “Confiscated Estate”. Under Circular dated July 13, 1859,
issued by Government of North Western Provinces, every Commissioner
was obliged to keep a final confiscation statement of each District and
lay it before Government for orders.
26.Right of King to take property by 'escheat' or as 'bona vacantia'
was recognized by common law of England. Escheat of property was
13
Lord's right of re-entry on real property held by a tenant, dying intestate,
without lawful heirs. It was an incident of Feudal Tenure and based on
the want of a tenant to perform Feudal services. On the tenant dying
intestate without leaving any lawful heir, his estate came to an end and
Lord, by his own right and not by way of succession or inheritance from
the tenant, re-entered real property as owner. In most cases, land
escheated to Crown as the 'Lord Paramount', in view of gradual
elimination of Intermediate or Mesne lords since 1290 AD. Crown takes
as 'bona vacantia' goods in which no one else can claim property. In
Dyke v. Walford 5 Moore PC 434= 496-13 ER 557 (580) it was said 'it
is the right of the Crown to bona vacantia to property which has no other
Owner'. Right of the Crown to take as “bona vacantia” extends to
personal property of every kind. The escheat of real property of an
intestate dying without heirs was abolished in 1925 and Crown thereafter
could not take such property as bona vacantia. The principle of
acquisition of property by escheat, i.e., right of Government to take on
property by 'escheat' or 'bona vacantia' for want of a rightful owner was
enforced in Indian territory during the period of East India Company by
virtue of Statute 16 and 17 Victoria, C. 95, section 27.
27.We may recollect, having gone through history, that prior to 1857,
several Estates were taken over by British Company i.e. East India
Company by way of annexation. Doctrine of lapse applied in Jhansi was
another kind of above mentioned two principles.
28.The above provision had continued by virtue of Section 54 of
Government of India Act, 1858, section 20(3)(iii) of Government of
India Act, 1915 and section 174 of Government of India Act, 1935. After
enactment of Constitution of independent India, Article 296 now
continues above provision and says:
'Subject as hereinafter provided, any property in the territory of
India which, if this Constitution had not come into operation,
14
would have accrued to His Majesty or, as the case may be, to the
Ruler of an Indian State by escheat or lapse, or as bona vacantia
for want of a rightful owner, shall if it is property situate in a
State, vest in such State, and shall, in any other case, vest in the
Union.' (Emphasis added)
29.Article 296, therefore, has retained power of State to get
ownership of such land, in respect whereof principle of 'escheat', 'lapse'
or 'bona vacantia' would have been applicable prior to enforcement of
Constitution of India. The above power continued to apply after
enactment of Constitution with the only modification that if such land is
situate within the territory of State Government, it will vest in State and
in other cases, it will vest in Union of India. Vesting of land and giving
ownership to State Government or Union of India under Article 296 is
clearly in respect of a land, which will come to it by way of 'escheat',
'lapse' or 'bona vacantia' and not by way of acquisition of land under
some statute or purchase etc.
30.In Pierce Leslie and Co. Ltd. Vs. Miss Violet Ouchterlony
Wapsnare, AIR 1969 SC 843, Court has considered the above
principles in the context of 'Sovereign India' as stands under Constitution
after independence, and, has observed :
“....in this country the Government takes by escheat immoveable
as well as moveable property for want of an heir or successor. In
this country escheat is not based on artificial rules of common law
and is not an incident of feudal tenure. It is an incident of
sovereignty and rests on the principle of ultimate ownership by
the State of all property within its jurisdiction”.
(Emphasis added)
31.Court placed reliance on Collector of Masulipatam v. C. Vencata
Narainapah 8 MIA 500, 525; Ranee Sonet Kowar v. Mirza Himmut
Bahadoor (2) LR 3 IA 92, 101, Bombay Dyeing and Manufacturing
Co. Ltd. v. State of Bombay [1958] SCR 1122, 1146, Superintendent
and, Legal Remembrancer v. Corporation of Calcutta [1967] 2 SCR
15
170.
32.Judicial Committee in Cook v. Sprigg (1899) AC 572 while
discussing, 'what is an act of State', observed :
“The taking possession by Her Majesty, whether by cession or by
any other means by which sovereignty can be acquired, was an
act of State.” (Emphasis added)
33.This decision has been followed in Raja Rajinder Chand v. Mst.
Sukhi, AIR 1957 SC 286.
34.In Nayak Vajesingji Joravarsingji v. Secretary of State for
India in Council AIR 1924 PC 216, Lord Dunedin said :
“When a territory is acquired by a sovereign State for the first
time, that is an act of State. It matters not how the acquisition has
been brought about. It may be by conquest, it may be by cession
following on treaty, it may be by occupation of territory hitherto
unoccupied by a recognised ruler. In all cases the result is the
same. Any inhabitant of the territory can make good in the
municipal courts established by the new sovereign only such
rights as that sovereign has, through his officers, recognised. Such
rights as he had under the rule of predecessors avail him
nothing.” (Emphasis added)
35.In Dalmia Dadri Cement Co. Ltd. v. CIT [1958] 34 ITR 514
(SC) : AIR 1958 SC 816, Court said (page 523 of 34 ITR) :
“The expression 'act of State' is, it is scarcely necessary to say,
not limited to hostile action between rulers resulting in the
occupation of territories. It includes all acquisitions of territory
by a sovereign State for the first time, whether it be by conquest
or cession.” (Emphasis added)
36.In Promod Chandra Deb v. State of Orissa AIR 1962 SC 1288,
Court said, 'Act of State' is the taking over of sovereign powers by a
State in respect of territory which was not till then a part of its territory,
either by conquest, treaty or cession, or otherwise'.
37.To the same effect was the view taken by a Constitution Bench in
Amarsarjit Singh v. State of Punjab AIR 1962 SC 1305, where in para
16
12, Court said:
“It is settled law that conquest is not the only mode by which one
State can acquire sovereignty over the territories belonging to
another State, and that the same result can be achieved in any
other mode which has the effect of establishing its sovereignty.”
38.In Thakur Amar Singhji v. State of Rajasthan AIR 1955 SC
504, in para 40, Court said :
“The status of a person must be either that of a sovereign or a
subject. There is no tedium quid. The law does not recognise an
intermediate status of a person being partly a sovereign and
partly a subject and when once it is admitted that the
Bhomicharas had acknowledged the sovereignty of Jodhpur their
status can only be that of a subject. A subject might occupy an
exalted position and enjoy special privileges, but he is none the
less a subject...” (Emphasis added)
39.In State of Rajasthan vs. Sajjanlal Panjawat AIR 1975 SC 706
it was held that Rulers of the erstwhile Indian States exercised sovereign
powers, legislative, executive and judicial. Their firmans were laws
which could not have been challenged prior to the Constitution. Court
relied on earlier decisions in Director of Endowments, Govt. of
Hyderabad vs. Akram Ali, AIR 1956 SC 60, and Sarwarlal vs. State
of Hyderabad, AIR 1960 SC 862.
40.In Promod Chandra Deb vs. State of Orissa AIR 1962 SC 1288
"act of the State" was explained in the following words :
“an "act of State" may be the taking over of sovereign powers
either by conquest or by treaty or by cession or otherwise. It may
have happened on a particular date by a public declaration or
proclamation, or it may have been the result of a historical
process spread over many years, and sovereign powers including
the right to legislate in that territory and to administer it may be
acquired without the territory itself merging in the new State.”
(Emphasis added)
41.This decision has been followed later in Biswambhar Singh vs.
State of Orissa 1964 (1) SCJ 364 wherein Court said:
17
16.Thus, a territory acquired by a sovereign State is an Act of
State but the land comprising territory does not become the land
owned by State. The land owned by State may come to it in
various ways, like confiscation, purchase, escheat or bona
vacantia, gift, etc. In such a case the ownership vests in State, like
any other individual and State is free to deal with the same in a
manner like any other owner may do so.
17.Thus 'Nazul' is a land vested in State for any reason
whatsoever that is cession or escheat or bona vacantia, for want
of rightful owner or for any other reasons and once land belong
to State, it will be difficult to assume that State would acquire its
own land. It is per se impermissible to acquire such land by
forcible acquisition under Act, 1894, since there is no question of
any transfer of ownership from one person to another but here
State already own it, hence there is no question of any acquisition.
(Emphasis added)
42.Thus the land in question which is admittedly 'Nazul', belonged to
the category as discussed above i.e. it came to be vested and owned by
State in its capacity of Sovereign and right of bona vacantia. When
acquisition is made under the provisions of a Statute, purpose of
acquisition is already known and State pay its price but when land is
owned by State, which is Nazul, objective of use of such land is not
predetermined but it can be utilized by State for larger public welfare
and its benefit, as necessitated from time to time. In other words 'Nazul'
land forms the asset owned by State in trust for the people in general
who are entitled for its use in the most fair and beneficial manner for
their benefit. State cannot be allowed to distribute such largesse by pick
and choose or to some selected groups etc.
43.Historical documents, record as also authorities discussed above
show that earlier Government i.e. East India Company upto 1858 and
thereafter British Government used to allot “Nazul land” to various
persons, who had shown their alliance to such Government in various
ways, sometimes by deceiving their Indian counter parts who had raised
voice against British Rule, or remained faithful to British regime and
18
helped them for their continuation in ruling this country and similar
other reasons. Sometimes land was given on lease without any condition
and sometimes restricted for certain period etc., but in every cases, lease
was given to those persons who were faithful and shown complete
alliance to British Rule. The reason was that in respect of Nazul, no
predetermined objective was available as was the case in respect of land
acquired by State by way of acquisition under Statute of Acquisition
after paying compensation or purchase. Such allocation of land by
English Rulers used to be called “Grant”.
44.In other words, we can say that initially land owned by State used
to be allotted in the form of 'Grant' by British Government. No specific
statutory provisions were available to govern it. TP Act, 1882 was
enacted to govern transfer of immovable property. Sections 10 to 12 of
TP Act, 1882 made provisions invalidating with certain exceptions, all
conditions for forfeiture of transferred property on alienation by
transferee and all limitations over consequence upon such alienation or
any insolvency of or attempted alienation by him.
45.Apprehending that above provisions of TP Act, 1882, may be
construed as a fetter upon discretion of Crown in creation of inalienable
Jagirs in 'Grants', acting upon advice that it would not be competent for
Crown to create an inalienable and impartible estate in the land
comprised in the Crown Grant, unless such land has heretofore
descended by custom as an impartible Raj, it was sought to make a
separate statute to give supremacy to the provisions contained in
Crown's Grant, notwithstanding any other law including TP Act, 1882.
With this object, i.e., 'GG Act 1895' was enacted.
46.Preamble of GG Act, 1895 gives purpose of its enactment stating
that doubts have arisen to the extent and operation of TP Act, 1882 and
to the power of Crown (later substituted by word “Government”) to
impose limitations and restrictions upon grants and other transfers of
19
land made by it or under its authority, hence to remove such doubts, GG
Act, 1895 was enacted.
47.Section 2 of GG Act, 1895, as it was initially enacted, read as
under :
“Transfer of Property Act, 1882, not to apply to Government
grants.- Nothing in the Transfer of Property Act, 1882, contained
shall apply or be deemed ever to have applied to any grant or
other transfer of land or of any interest therein heretoforce made
or hereafter to be made by or on behalf of Her Majesty the Queen
Empress, Her heirs or successors, or by or on behalf of the
Secretary of State for India in Council to, or in favour of, any
person whomsoever; but every such grant and transfer shall be
construed and take effect as if the said Act had not been
passed.” (Emphasis added)
48.The above provision was amended in 1937 and 1950. The
amended provision read as under :
“2. Transfer of Property Act, 1882, not to apply to Government
grants.- Nothing in the Transfer of Property Act, 1882, contained
shall apply or be deemed ever to have applied to any grant or
other transfer of land or of any interest therein heretoforce made
or hereafter to be made by or on behalf of the Government to, or
in favour of, any person whomsoever; but every such grant and
transfer shall be construed and take effect as if the said Act had
not been passed.” (Emphasis added)
49.Section 3 of GG Act, 1895 read as under :
3.Government grants to take effect according to their tenor.-
All provisions, restrictions, conditions and limitations over
contained in any such grant or transfer as aforesaid shall be
valid and the effect according to their tenor, any rule of law,
statute or enactment of the Legislature to the contrary
notwithstanding.”
50.In State of Uttar Pradesh, vide Government Grants (U.P.
Amendment) Act, 1960 (U.P. Act No.XIII of 1960), Sections 2 and 3 of
GG Act, 1895, were substituted by Section 2, as under :
20
“2. (1) Transfer of Property Act, 1882, not to apply to
Government Grants.- Nothing contained in the Transfer of
Property Act, 1882, shall apply or be deemed ever to have
applied to any grant or other transfer of land or of any interest
therein, heretoforce made or hereafter to be made, by or on behalf
of the Government to or in favour of any person whomsoever; and
every such grant and transfer shall be construed and take effect
as if the said Act had not been passed.”
(2)U.P. Tenancy Act, 1939 and Agra Tenancy Act, 1926 not to
affect certain leases made by or on behalf of the Government.-
Nothing contained in the U.P. Tenancy Act, 1938, or the Agra
Tenancy Act, 1926, shall affect, or be deemed to have ever
affected any rights, created, conferred or granted, whether before
or after the date of the passing of the Government Grants (U.P.
Amendment) Act, 1960, by leases of land by, or on behalf of, the
Government in favour of any person; and every such creation,
conferment or grant shall be construed and take effect,
notwithstanding anything to the contrary contained in the U.P.
Tenancy Act, 1939, or the Agra Tenancy Act, 1926.
(3)Certain leases made by or on behalf of the Government to
take effect according to their tenor.- All provisions, restrictions,
conditions and limitations contained in any such creation,
conferment or grant referred to in Section 2, shall be valid and
take effect according to their tenor, any decree or direction of a
court of law or any rule of law, statute or enactment of the
Legislature, to the contrary notwithstanding :
Provided that nothing in this section shall prevent, or be
deemed ever to have prevented, the effect of any enactment
relating to the acquisition of property, land reforms or the
imposition of ceiling on agricultural land.” (Emphasis added)
51.A perusal of Section 2 of GG Act, 1895 shows two things :
i.A declaration is made that any grant or other transfer of land
or of any interest therein, made by or on behalf of Government, in
favour of any person, on and after enactment of GG Act, 1895,
would not be governed by provisions of TP Act, 1882 i.e. nothing
contained in TP Act, 1882 shall apply to such Grant, transfer or
21
interest.
ii.A clarification that a Grant or Transfer, referred to in
Section 2, when is to be construed and given effect, it shall be
done in such manner and by treating as if TP Act, 1882 has not
been passed.
52.Thus, GG Act, 1895, in fact, was a declaratory statute. First
declaration is in respect of Grant or transfer of land or creation of any
interest, as the case may be, to exclude TP Act, 1882 for all purposes.
Second part of Section 2 clarified that while construing and giving effect
to a Grant or Transfer, referred to in Section 2, it will be presumed that
TP Act, 1882 has not been passed at all.
53.In Section 2(1) of GG Act, 1895, as amended in Uttar Pradesh, we
do not find any distinction vis a vis what has been said in Section 2 of
GG Act, 1895. There is an addition in GG Act, 1895 in its application to
Uttar Pradesh, by inserting sub-section (2) in Section 2, a provision in
respect of U.P. Tenancy Act, 1939 and Agra Tenancy Act, 1926 also,
making a similar declaration, as made in sub section (1) in respect of TP
Act, 1882.
54.Sub-section (3) of Section 2 of GG Act, 1895 protect certain
leases, already made, declaring same to be valid in the light of insertion
of sub-section(1) of Section 2 in the State of Uttar Pradesh and that is
why, notwithstanding any decree or direction of Court of law, leases
already made, were validated, which otherwise might have been affected
by U.P. Tenancy Act, 1938 or Agra Tenancy Act, 1926.
55.Proviso to sub-section (3) of Section 2 of GG Act, 1895 further
declare that Section 2 of GG Act, 1895 will have no effect when land is
sought to be acquired under the provisions of Statute relating to
acquisition or for giving effect to a Statute relating to land reforms or
imposition of ceiling on agricultural land.
22
56.Section 3 of GG Act, 1895 is not available in State of U.P. after
U.P. Amendment Act, 1960 since Sections 2 and 3 of Principal Act
virtually got amalgamated in the form of Section 2, by Government
Grants (U.P. Amendment) Act, 1960. However, intent, effect and
declaration by legislature is almost pari materia with the only addition
that in State of U.P., U.P. Tenancy Act, 1939 and Agra Tenancy Act,
1926 are also excluded in the same manner as was done in respect of TP
Act, 1882.
57.Sections 2 and 3 of GG Act, 1895 were considered in State of
U.P. vs. Zahoor Ahmad, 1973(2) SCC 547 and in para 16, Court said :
“Section 3 of the Government Grants Act declares the unfettered
discretion of the Government to impose such conditions and
limitations as it thinks fit, no matter what the general law of the
land be. The meaning of Sections 2 and 3 of the Government
Grants is that the scope of that Act is not limited to affecting the
provisions of the Transfer of Property Act only. The Government
has unfettered discretion to impose any conditions, limitations,
or restrictions in its grants, and the right, privileges and
obligations of the grantee would be regulated according to the
terms of the grant, notwithstanding any provisions of any
statutory or common law.” (Emphasis added)
58.Again in Hajee S.V.M. Mohamed Jamaludeen Bros. & Co. vs.
Government of Tamil Nadu (1997) 3 SCC 466, Court said that
combined effect of two sections of GG Act, 1895 is that terms of any
Grant or terms of any transfer of land made by a Government would
stand insulated from tentacles of any statutory law. Section 3 places
terms of such Grant beyond reach of any restrictive provision contained
in any enacted law or even equitable principles of justice, equity and
good conscience adumbrated by common law, if such principles are
inconsistent with such terms. Court said :
“The two provisions are so framed as to confer unfettered
discretion on the government to enforce any condition or
limitation or restriction in all types of grants made by the
23
government to any person. In other words, the rights, privileges
and obligations of any grantee of the government would be
completely regulated by the terms of the grant, even if such
terms are inconsistent with the provisions of any other law.”
(Emphasis added)
59.In Azim Ahmad Kazmi and others vs. State of U.P. and
Another (2012) 7 SCC 278 observations made in para 16 in State of
U.P. vs. Zahoor Ahmad (supra) have been reproduced and followed.
60.In State of U.P. and others vs. United Bank of India and others
(2016) 2 SCC 757, in para 30 of the judgment, Court said :
“Indisputably, the lease of nazul land is governed by the
Government Grants Act, 1895. Sections 2 and 3 of the
Government Grants Act, 1895 very specifically provide that the
provisions of the Transfer of Property Act do not apply to
government lands …..” ( Emphasis added)
61.Thus, a 'Grant' of a Nazul will be governed by terms and
conditions contained in the instrument/deed of Grant, wholly unaffected
by any Statute providing otherwise. It cannot be doubted that the lease
granted in the case in hand is/was a 'Grant' governed by GG Act, 1895.
Broadly, 'Grant' includes 'lease'.
62.The term “Grant” has not been defined in GG Act, 1895. What a
'Grant' would mean is of importance for the reason that GG Act, 1895
has used the term “Grant”. Therefore, it has to be seen “whether a lease
executed by State in respect of land owned by it and covered by the term
“Nazul”, through a lease deed or instrument of lease or indenture of
lease, whatever the term used, will constitute a “Grant” of State or it is
something else.
63.In Black's Law Dictionary, Eighth Edition, at page 719, the
word “Grant” has been defined as under :
“Grant, n. 1. An agreement that creates a right of any description
other than the one held by the grantor. Examples include leases,
easements, charges, patents, franchises, powers,and licenses. 2.
24
The formal transfer of real property. 3. The document by which a
transfer is effectd; esp., DEED. 4. The property or property right
so transferred.”
64.Interestingly, in Black's Law Dictionary, 'Grant' has been said to
be of various kinds and it has enumerated seven types of 'Grant' as
under:
“Community grant. A grant of real property made by a
government (or sometimes by an individual) for communal use,
to be held in common with no right to sell. A community grant
may set out specific, communal uses for the property, such as for
grazing animals or a playground. Cf. Private grant.
Escheat grant. A government's grant of escheated land to a new
owner. - Also termed escheat patent.
imperfect grant. 1. A grant that requires the grantee to do
something before the title passes to another. Cf. Perfect grant. 2. A
grant that does not convey all rights and complete title against
both private persons and government, so that the granting
person or political authority may later disavow the grant. See
Paschal v. Perex, 7 Tex. 368 (1851).
inclusive grant. A deed or grant that describes the boundaries of
the land conveyed and excepts certain parcels within those
boundaries from the conveyance, usu. Because those parcels of
land are owned or claimed by others.- Also termed inclusive deed.
office grant. A grant made by a legal officer because the owner is
either unwilling or unable to execute a deed to pass title, as in the
case of a tax deed. See tax deed under DEED.
Perfect grant. A grant for which the grantor has done everything
required to pass a complete title, and the grantee has done
everything required to receive and enjoy the property in fee. Cf.
Imperfect grant
private grant. A grant of real property made to an individual for
his or her private use, including the right to sell it. Private grants
made by a government are often found in the chains of title for
land outside the original 13 states, esp. in former Spanish and
Maxican possession.”
65.In Corpus Juris Secundum, A Complete Restatement of the
25
Entire American Law, as developed by All Reported Cases, Volume
XXXVIII, word “Grant” has been defined at page 1066-1070, as under :
“Grant – In General – A word which has a peculiar and
appropriate meaning in the law, and is to be construed and
understood according to such meaning; but its signification, in
particular cases is to be determined from its connection and the
manner of its use.
As a Noun
In General.The act of granting; a bestowing or conferring; a
boon, a concession, a gift; also the thing granted or bestowed. As
applied to grants by public authority, the word “grant” implies
the conferring by the sovereign power of some valuable privilege,
franchise, or other right of like character on a corporation,
person, or class of persons; an act evidenced by letters patent
under the great seal, granting something from the king to a
subject. In a somewhat different sense, an admission of something
as true.
As a Contract. A grant is said to be a contract executed, that
is, one in which the object of the contract is performed.
Ordinarily, the essential elements of a contract are necessary to
constitute a grant, such as competent parties and a subject matter,
a legal consideration, a mutuality of agreement and of obligation.
As in the case of other contracts in writing, it ordinarily
comprehends something more than the mere execution of the
instrument; it includes a delivery of it. It is not indispensable,
however, that technical words be used.
Transfer of Property.As a technical term, originally used to
signify a conveyance of an incorporeal hereditament whereof
livery could be had, but now of far more extended application, see
Deeds (1 c notes 54 – 63). While the term is commonly used to
denote private conveyances, it has been characterized as a nomen
generalissimum, applicable to all sorts of conveyances, and in this
sense has been defined as a transfer of property, real or personal,
by deed or writing. The following notes contain examples of what,
under particular circumstances and according to the subject
matter and the context, the term may be applied to, or be held to
include or what the term may be held not to include.
26
...
Transferring property.An operative word of transfer,
technically applicable to real estate, although not necessarily so.
It is made use of in deeds of conveyance of lands to import a
transfer; and in this application has been defined as meaning to
convey; to make conveyance of; to transfer property by an
instrument in writing.
As used in a will, to devise or to bequeath.”
66.In Words and Phrases, Permanent Edition, Volume 18A Gone-
Gyrotiller, word “Grant” has been defined at page 379, as under :
“ ...
To grant means to give over, to make conveyance of, to give
the possession or title to, to convey-usually in answer to
petitioner; to confer or bestow, with or without compensation,
particularly in answer to prayer or request; to admit as true when
disputed or not satisfactorily proved; to yield belief to; to allow;
to yield; to concede. Grant is usually regarded as synonymous
with give, confer, bestow, convey, transfer, admit, allow, concede.
As a noun, the term signifies: (1) The act of granting; a bestowing
or conferring; concession; admission of something as true. (2)
The thing granted or bestowed; a gift; a boon. (3) a transfer of
property by deed or writing, especially an appropriation or
conveyance made by the government, as a grant of land.”
67.In Jowitts Dictionary of English Law, Second Edition by John
Burke (Volume 1), word “Grant” has been defined at page 870, as
under:
“Grant :a common law conveyance.
. . .
The sovereign's grants are matters of record, and are either
letters patent or writs close.
“Grant” is the term commonly applied to rights created or
transferred by the Crown, e.g., grants of pensions, patents,
charters, franchises. It is also used in reference to public money
devoted to special purposes. See Exchequer Grants.”
68.In Biswas Encyclopedic Law Dictionary (Legal & Commercial)
27
Third Edition 2008, word “Grant” has been defined at page 737, as
under :
“GRANT. The act of granting; something granted, especially a
gift for a particular purpose; a transfer of property by deed or
writing; the instrument by which such a transfer is made; also
the property so transferred.
A grant may be defined generally as the transfer of
property by an instrument in writing without the deliverty of
possession of any subject-matter thereof. Mozley & Whiteley's
Law Dictionary, 8
th
edn.”
69.In P Ramanatha Aiyar's “The Law Lexicon”, Fourth Edition
2017, word “Grant” has been defined at page 762-763, as under :
“...
An operative word of conveyance, particularly appropriate to
deeds of grant, properly so called, but used in other conveyances
also, such as deeds of bargain and sale, and leases.
...
“This word is taken largely where any thing is granted or passed
from one to another, and in this sense it doth comprehend
feofments, bargains and sales, gifts, leases, charges, and the like;
for he that doth give, or sell, doth grant also and thus it is
sometimes in writing or by deed, and sometimes it is by word
without writing. But the word being taken more strictly and
properly, it is the grant, conveyance, or gift, by writing of such
an Incorporeal thing as lieth in grant, and not in livery, and
cannot be given or granted by word only without deed, or it is
the grant by such persons as cannot pass anything from them
but by deed, as the King, bodies corporate, &c. And this albeit it
may be made by other most proper to this purpose”
The word “grant” in sec. 5 connotes transfer of property and
mining leases are property. Biswanath Prasad v. Union of India,
AIR 1965 SC 821, 825. [Mines and Minerals (Regulation and
Developments) Act (67 of 1957), S. 5(1)]
The expression “grant” is wide enough to take within its sweep a
grant by the government to the Girasdar and is not limited to a
grant by the Girasdar to the tenant. Digvijaysingh Ji v. Manji
28
Savda, AIR 1969 SC 370, 372. [Saurashtra Land Reforms Act (25
of 1951), S. 18]
“GRANT, BESTOW, CONFER. Honours, distinctions, favours,
privileges are conferred. Goods, gifts, endowments are bestowed.
Requests, prayers, privileges, favours, gifts, allowances,
opportunities are granted. A peculiar sense attaches to the word
Grant as a legal term, as a piece of land granted to a noble or
religious house. So Blackstone speaks of “the transfer of property
by sale, grant, or conveyance.” (Smith. Syn. Dis.)”
70.Under Indian Easements Act, 1882, (hereinafter referred to as “IE
Act, 1882”), definition of “licence” in Section 52 says that it is the Grant
of a right made by Grantor. Sections 53 and 54 of IE Act, 1882 also refer
to grant of licence. Thus, without a “Grant” in general sense, a licence
cannot be created. This is how definition of “licence” under IE Act, 1882
vis a vis the term “Grant” was considered in Hajee S.V.M. Mohamed
Jamaludeen Bros. & Co. (supra). Court also said that though the term
“Grant” is not defined in GG Act, 1895, but it is quite evident that this
word has been used in GG Act, 1895 in its ethnological sense and
therefore, it should get its widest import.
71.In Mohsin Ali vs. State of M.P. AIR 1975 SC 1518, Court said :
“in the widest sense 'grant' may comprehend everything that is
granted or passed from one to another by deed. But commonly
the term is applied to rights created or transferred by the Crown
e.g. grants of pensions, patents, charters, franchise.”
(Emphasis added)
72.Court in Hajee S.V.M. Mohamed Jamaludeen Bros. & Co.
(supra), in para 16, said that word “Grant” used in GG Act, 1895 could
envelop within it, everything granted by the government to any person. A
licence obtained by a person by virtue of agreement would also fall
within the ambit of “Grant” envisaged in GG Act, 1895.
73.In Pradeep Oil Corporation vs. Municipal Corporation of
Delhi and others (2011) 5 SCC 270, Court said that GG Act, 1895 is a
29
special Statute and will prevail over general Statute i.e. TP Act, 1882. It
says:
“In the present case grant has been made by the President of
India in terms of Section 2 of the Government Grants Act, 1895
and the Transfer of Property Act, 1882 may have little bearing in
the instant case. The former, i.e. the Government Grants Act,
1895 being a special statute would prevail over the general
statute, i.e. the Transfer of Property Act, 1882. Accordingly, the
rights and obligations of the parties would be governed by the
terms of the provisions of Government Grants Act, 1895
whereunder the Government is entitled to impose limitations and
restrictions upon the grants and other transfer made by it or
under its authority.” ( Emphasis added)
74.Therefore, where 'Nazul' is let out to a person by Government
under agreement of lease i.e. Grant, it is governed by GG Act, 1895 and
rights of parties therefore have to be seen in the light of stipulations
contained in the document of 'Grant'. 'Grant' includes a property
transferred on lease though in some cases, 'Grant' may result in wider
interest i.e. transfer of title etc. Whatever may be nature of document of
transfer i.e. instrument of 'Grant', the fact remains that terms and
conditions of 'Grant' shall be governed by such document and it shall
prevail over any other law including TP Act 1882. One cannot take resort
to TP Act, 1882 to wriggle out of any condition or limitation etc.
imposed in terms of document of 'Grant'.
75.In State of Uttar Pradesh, management of 'Nazul', in absence of
statutory provisions, is governed by various administrative orders
compiled in a Manual called “Nazul Manual”. Here Government has
made provisions of management of 'Nazul' through its own authorities
namely District Magistrate or Commissioner, or, in some cases, through
local bodies.
76.Nature of orders compiled in “Nazul Manual” in the context of
'Nazul' has been considered in State of U.P. vs. United Bank of India
30
(supra) where Court has said that land and building in question is
"Nazul" being property of Government, maintained by State authorities
in accordance with 'Nazul Rules' but not administered as a 'State
property'. Court has also observed that lease of "Nazul" land is governed
in accordance with GG Act, 1895. Sections 2 and 3 thereto very
specifically provide that provisions of TP Act, 1882 do not apply to
Government land. Section 3 says that all provisions, restrictions,
conditions and limitations contained in any such 'Grant' or 'Transfer', as
aforesaid, shall be valid and take effect according to their tenor, any rule
of law, statute or enactment of Legislature to the contrary,
notwithstanding. Thus the stipulations in "lease deed" shall prevail and
govern entire relation of State Government and lessee notwithstanding
any statute providing otherwise.
77.Superiority of stipulations of Grant to deal with relation between
Grantor and Grantee has been reinforced in Azim Ahmad Kazmi and
others (Supra). Therein dispute related to Plot No. 59, Civil Station,
Allahabad, area 1 acre and 4272 sq. yard, i.e., 9112 sq. yard or 7618 sq.
meter. Initially a lease deed was executed on 11.01.1868 by Secretary of
State for India in Council in favour of one, Thomas Crowby, for a period
of 50 years and it was signed by Commissioner, Allahabad Division on
behalf of Secretary of State for India in Council. After expiry of lease, a
fresh lease was executed for another period of 50 years on 12.04.1923
w.e.f. 01.01.1918. Lease holder with permission of Collector, Allahabad
transferred lease rights to Purshottam Das in 1945. The legal heirs of Sri
Purshottam Das, on 31.10.1958, transferred leasehold rights in favour of
Smt. Shakira Khatoon Kazmi, Smt. Sabira Khatoon Kazmi and Smt.
Maimoona Khatoon Kazmi. After the death of Smt. Maimoona Khatoon
Kazmi, her legal heirs, namely, Azim Ahmad Kazmi, Omar Ahmad
Kazmi, Shamim Ahmad Kazmi, Alim Ahmad Kazmi and Maaz Ahmad
Kazmi also claimed lease rights by succession. Lease granted on
12.04.1923 w.e.f. 01.01.1918 expired on 31.12.1967. It was renewed on
31
19.03.1996 for a period of 30 years w.e.f. 01.01.1968 which period
expired on 31.12.1997. Again on 17.07.1998 it was renewed for a further
period of 30 years w.e.f. 01.01.1998. While lease was continuing, vide
G.O. dated 15.12.2000, right of resumption was exercised by State
Government. It directed resumption of possession of plot in question and
lease deed was cancelled. District Magistrate, Allahabad served a notice
dated 11.01.2001 to lease holders intimating them that State
Government's order dated 15.12.2000 has cancelled lease and resumed
possession of land in question as the same was required for public
purpose. Notice also directed lease holders to remove structures standing
on plot, failing which possession would be taken in accordance with
Clause 3(c) of lease deed. Lease holders filed objections against notice
to District Magistrate and also stated that they have sent representation/
objection to Chief Minister praying for revocation of G.O. dated
15.12.2000. District Magistrate passed order on 24.08.2001 rejecting
objection of lease holders and sent a cheque of Rs. 10 lacs representing
compensation for the building standing over plot. State authorities
claimed that they took possession of open land on 01.09.2001. Lease
holders filed writ petition which was dismissed vide judgment dated
07.12.2001, Shakira Khatoon Kazmi vs. State of U.P., AIR 2002 All
101. Lease holders challenged judgment dated 07.12.2001 in Supreme
Court to the extent they failed. State Government filed appeal against
part of order of this Court, wherein an observation was made that State
Government is not entitled to take forcible possession though it may take
possession of demised premises in accordance with procedure
established by law. After considering Clause 3(c) of lease deed which
provides for resumption of land for public purpose, after giving a
month's clear notice to lessee to remove any building standing at the
time on demised premises and within two months of receipt of notice to
take possession thereof, on expiry of that period. Court said that Clause
3(c) of lease deed confers power upon State Government that plot in
32
question, if required by State Government for its own purpose or for any
public purpose, it shall have right to give one month's notice in writing
to lessees to remove any building standing on the plot and to take
possession thereof on expiry of two months from the date of service of
notice. Court said that land, if required for any public purpose, State
Government has absolute power to resume leased property and under the
terms of Grant it is absolute, therefore, order of resumption is perfectly
valid and cannot be said to be illegal. It also refers to an earlier instance
where Nazul Plot No. 13, Civil Station, Allahabad situate in Civil Lines
area was resumed by State Government for the purpose of construction
of a 'Bus Stand' by exercising similar power, without initiating any
proceeding under Land Acquisition Act, 1894 (hereinafter referred to as
“LA Act, 1894”). Resumption in that case was also challenged in Writ
Petition No. 44517 of 1998, Sayed Shah Khursheed Ahmad Kashmi
vs. State of U.P. and said writ petition was dismissed on 16.12.1999 by
a Division Bench of this Court, whereagainst Special Leave Petition No.
4329 of 2000 was dismissed by Supreme Court on 07.09.2001. First
question, therefore, was answered in negative and in favour of
Government.
78.With respect to procedure for taking possession, Supreme Court,
while considering Question-2, said that in absence of any specific law,
State Government may take possession by filing a suit. When a land is
acquired under LA Act, 1894, Government can take possession in
accordance with provisions of said Act and in case of urgency, Collector
can take possession after publication of notice under Section 9 and no
separate procedure is required to be followed. Court said that similarly
where a lease has been granted under the terms of GG Act, 1895, then
what procedure has to be followed is provided by Section 3 of GG Act,
1895 which says that all provisions, restrictions, conditions and
limitations contained in any such creation, conferment or Grant referred
to in Section 2, shall be valid and take effect according to their tenor;
33
any decree or direction of a Court of Law or any rule of law, statute or
enactments of the Legislature, to the contrary, notwithstanding it relied
on its earlier judgment in State of U.P. vs. Zahoor Ahmad, 1973(2)
SCC 547 holding that Section 3 of GG Act, 1895 declares unfettered
discretion of Government to impose such conditions and limitation as it
thinks fit, no matter what the general law of land be. Then Court
construing Clause 3(C) of lease deed said that it provides procedure for
taking possession of demised premises when State Government re-enter
or resume possession of demised land. Court in para 30 and 32 of
judgment, said:
“30. In the case of The State of U.P. vs. Zahoor Ahmad and
Another, 1973(2) SCC 547, this Court held that the Section 3 of
the Act declares the unfettered discretion of the Government to
impose such conditions and limitation as it thinks fit, no matter
what the general law of land be. From Clause 3(C) of the deed, it
is clear that the State of U.P. while granting lease made it clear
that if the demised premises are at any time required by the
lessor for his or for any public purpose, he shall have the right
to give one month’s clear notice to the lessee to remove any
building standing at the time of the demised property and within
two months’ of the receipt of the notice to take possession
thereof on the expiry of that period subject to the condition that
the lessor is willing to purchase the property on the demised
premises, the lessee shall be paid for such amount as may be
determined by the Secretary to the Government of U.P. in the
Nagar Awas Department.”
“32. Under Clause 3(C) of the lease deed, the respondent-State
was permitted resumption of the land which required for its own
use or for public purpose and after giving one month’s clear
notice in writing is entitled to remove any building standing at the
time on the demised premises and within two months of the receipt
of the notice to take possession thereof subject to the condition
that if the lessor is willing to purchase the building of the demised
premises required to pay the lessee the amount for such building
as may be determined by the Secretary to Government of U.P. in
the Nagar Awas Department....” (Emphasis added)
79.Having said so, Court said :
“we are of the view that there is no other procedure or law
required to be followed, as a special procedure for resumption of
34
land has been laid down under the lease deed”.
80.Supreme Court then set aside direction of this Court that State will
not take possession forcibly except in accordance with procedure
established by any other law by holding that since special procedure for
resumption is prescribed under lease deed, no direction otherwise could
have been issued to State Government.
81.The above discussion makes it clear that 'Nazul' is a land owned
and vested in State. It is such land which has vested in State by virtue of
its 'Sovereignty' and incidence of 'Sovereignty' i.e. annexation, lapse and
bona vacantia. Further, 'Grant' means transfer of property by a deed in
writing and includes within its ambit, an instrument of lease/lease deed.
Such 'Grant' is governed by provision of GG Act, 1895, which were
applicable to 'Grants' executed on and after enforcement of GG Act,
1895 and rights and entitlement of private parties in respect of land,
which was transferred to such person under such 'Grant' would be
governed by terms and conditions contained in such 'Grant' and not by
provisions of TP Act, 1882 or any other Statute. Moreover, in State of
U.P., wherever applicable, U.P. Tenancy Act, 1939 and Agra Tenancy
Act, 1926 will also be inapplicable to such 'Grant'. For the purpose of
resumption/ re-entry of land, State Government can follow procedure
prescribed in the terms of lease as it is a special procedure for such
purpose and it is not necessary to look into any other procedure
prescribed in law.
82.We, therefore, answer questions (i) and (ii) accordingly.
83.The answer to questions (i) and (ii), in effect, gives answer to
question (iii) and (iv) also, inasmuch as, Grantee cannot transfer
property, which was transferred to it by way of 'Grant' except the manner
in which it is permitted by such 'Grant'. Any transfer otherwise will be
illegal and would not confer any right upon Transferree.
84.Here, we remind ourselves with the principle that a person can
35
transfer only such rights and interest which he or she possesses and not
beyond that. If a person did not possess any right of transfer or such right
is subject to any restriction like prior permission of owner etc., it means
that such person has no right of transfer and/or his right is restricted in a
particular manner and such restriction is to be observed in words and
spirit to validate such transfer, else the transfer shall be illegal and will
not result in bestowing any legal right upon Transferee. In other words,
any otherwise transfer by such person of land subjected to Grant, will
not confer any valid right or interest upon the person to whom property
under 'Grant' is transferred in violation of stipulations contained in
Grant.
85.In Delhi Development Authority Vs. Anant Raj Agencies Pvt.
Ltd. (2016) 11 SCC 406 Court said :
“It is well settled position of law that the person having no right,
title or interest in the property cannot transfer the same by way of
sale deed.”
86.In State of U.P. and others vs. United Bank of India and others
(supra) considering a similar situation, Court held that any transfer
without sanction of lessor will be invalid. In paras 39 and 40 of the
judgment Court said as under :
39. This "within written lease" is the original lease deed as
mentioned in the Form 2 of the Nazul Manual. Form 2 of lease of
Nazul land for building purposes it is one of the condition between
the lessor and the lessee that " the lessee will not in any way
transfer or sublet the demised premises or buildings erected
thereon without the previous sanction in writing of the lessor".
40. In the present case there was nothing on the record to show
that the lessee i.e. (ABP) has obtained any written sanction from
the lessor i.e. Government before mortgaging his leasehold
interest in the Nazul Land. Meaning thereby the mortgage done
by the lessee in favour of the Bank itself is bad in law, which
was done in clear violation of the terms of the lease deed i.e.
36
mortgage of the Nazul land without previous sanction in writing
of the State.” (Emphasis added)
87.Further, any such invalid transfer can also be construed as breach
of terms of Grant and would empower and enable principal Grantor i.e.
State, owner of property, to take such steps including resumption/re-
entry to the property under Grant, to itself, besides claiming damages,
compensation, as the case may be, and law permits.
88.Applying above principles to the facts of present writ petition, we
find that last lease-deed was executed on 18.6.1912 with effect from
02.4.1912 for a period of 50 years, in favour of Evelyn Constance
Trisham. Hence, original Lessee was Sri Trisham. He let out leased land
to Sri Vishun Nath. When it was let out, is not stated in writ petition but
in para 7 of writ petition, it is said that it was more than 60 years back.
Whether said transfer was made after complying terms and conditions of
lease-deed and procedure stated therein or not, also cannot be
ascertained since nothing has been said in this regard by either of the
parties. However, it has been placed on record that name of Vishun Nath
was mutated in Nazul record in register No.165/169 at serial No.025 at
page no. 7 (file no. 341) of Register Book No.1, maintained by
Collector, Allahabad, in respect of Nazul land. Thus, we can assume that
Sri Trisham may have transferred lease right to Vishun Nath after
complying provisions contained in lease-deed i.e. with the permission of
Collector.
89.Conditions imposing restriction upon transfer of disputed Nazul
land is contained in following clauses of lease-deed :
(i)“PROVIDED FURTHER and it is hereby agreed that the
said Lessee, her Executors, Administrators and Assigns, shall not
assign or underlet or otherwise part with the possession of the
said premises or any part thereof without the permission of the
said Secretary of State his Successors or Assigns (which
permission may be signified by the said Collector or by such other
person as the Government of the North-Western Provinces or the
37
said Secretary of State may appoint in that behalf) for that express
purpose had and obtained.”
(ii)“PROVIDED ALWAYS that if the said Lessee her
Executors, Administrators or Assigns shall Assign or transfer
these presents, or the lease or term hereby granted or created, or
the unexpired portion of the said term, or shall underlet the said
premises or any part thereof with such permission as aforesaid
unto any other person or persons of whom the said Collector
shall approve, and if such person or persons shall engage and
bind themselves to observe all the conditions, agreements and
provisions of these presents in respect of such portion of the said
term or of the said premises as shall have been so assigned or
underlet to him as aforesaid and shall procure such assignments
or sublease to be registered in such manner as shall be
appointed by the said Secretary of State for purpose of
registering lease and other instruments of or relating to lands
situate within the local limits of Allahabad (and for the registry
of which assignments or sublesses a fee of not more than Rs. 16
shall be paid by the person of persons tendering such assignment
or sublease for registry) then and otherwise the liability of the
said lessee her Heirs, Executors, Administrators, for the purpose
or subsequent observance and performance of the covenants on
the leases part herein contained, so far as relates to the portion
of the said term or of the said premises so assigned or underlet
as aforesaid, but not further or otherwise, shall cause and
determine, but without prejudice however to the right of section
of the Secretary of State his Successors or Assigns in respect or
on account of any previous breach of any covenant or covenants
herein contained. ( Emphasis added)
90.Without permission, therefore, no right and interest in respect of
disputed Nazul land, whether entire or part thereof, could have been
transferred. For the present case, however, we may assume that Sri
Vishun Nath was transferred such lease rights in compliance of
requirement of lease-deed for remaining period. That is how, his name
was entered into Nazul Register. The fact remains that lease expired on
01.04.1962. It is also evident that Sri Vishun Nath died in 1958,
therefore, whatever lease rights for balance period, he had, same would
38
have been succeeded by his legal heirs for remaining period only. Family
tree of Vishun Nath, as evident from record is as under :
Shambhoo Nath
|
Vishun Nath
(Died in 1958)
(Smt. Yamuna Devi) Wife
(Died in 1974)
______________________|_____________________
| | |
Harihar Nath Dhar Triloki Nath Dhar Sridhar
__________|____________________________________
| | | |
Omeshwar Nath Brijeshwar Nath Kamleshwar Nath Gyaneshwar Nath
91.Legal heirs of Vishun Nath could not have succeeded any right,
larger and more than what Vishun Nath himself had on transfer from
original Lessee i.e. E.C.Trisham. The said lease rights were only for a
period upto 1
st
April, 1962.
92.It is admitted position that lease has never been extended
thereafter. Induction of petitioners by legal heirs of Vishun Nath i.e.
Harihar Nath Dhar, even if he acted as a Karta of family after death of
Vishun Nath, was wholly unauthorised and illegal, inasmuch as, neither
he had any such power of transfer after 1
st
April, 1962 nor any transfer of
right and/or interest in land in question, whether in respect of entire land
or part thereof, could have been made without permission of Collector,
which admittedly was not taken in the case in hand.
93.A perusal of lease deed also shows that no construction could have
been raised on land in dispute unless permitted by Lessor i.e. owner of
land i.e. State Government or Collector. There is neither any pleading
nor any material on record to show that alleged transfer of disputed land
to petitioners in 1980 was with the permission of Collector or State
Government and/or construction raised by petitioners over land in
dispute was after permission and/or sanction of Collector, Allahabad or
State Government. Thus transfer of disputed land and construction raised
by petitioners over such land all are/were wholly illegal and
unauthorised. It would not confer even an iota of actionable interest or
39
right in petitioners to take recourse to legal action for protection of their
illegal and unauthorised possession as well as structure raised on land in
dispute.
94.We also find that this aspect is covered by a recent judgment of
Supreme Court in State of U.P. and others vs. United Bank of India
and others (2016) 2 SCC 757 wherein Court in similar circumstances,
where transfer without sanction of Lessor was made, held illegal and
void. We have already referred paras 39 and 40 of this judgment above.
95.In view thereof, we have no hesitation in holding that petitioners
never entered into possession of disputed land validly and transfer to
them by Harihar Nath Dhar was wholly illegal, unauthorised and without
having any legal consequence. It did not create any right or interest in
petitioners over land in dispute. In fact, Harihar Nath Dhar himself was
not having right or interest over land in dispute after lease expired on
01.04.1962. Neither land was owned by Harihar Nath Dhar nor he had
legal right after 01.04.1962 therefore, he could not have transferred
anything to petitioners in 1980 or 1988 when he himself did not possess
any right or interest over land in dispute at that point of time.
96.Questions (iii) and (iv) therefore are answered accordingly
against petitioners.
97.Now, we shall deal with questions (v) and (vi) together.
98.These questions again have to be considered in the light of
stipulations contained in 'Grant'. If the 'Grant' itself did not contemplate
any continuance of 'Grantee' over land subjected to 'Grant' and requires
Grantee to hand over or surrender possession on expiry of period of
'Grant', Grantee is obliged to do so and mere fact that he/she had
continued in possession over land subjected to 'Grant', will not confer
any legal status upon him/her or legality to such possession after expiry
of period of Grant.
99.If a person has lawfully entered a premises as a valid Lessee but
continued in possession over such land after expiry of period of lease or
40
after determination of lease by Lessor in terms of stipulations in lease,
status of Lessee becomes that of 'Tenant at sufference'. Supreme Court
said that even a quit notice under Section 106 of TP Act, 1882 is not
required to be given to such occupant.
100.Relying on earlier decision in R.V. Bhupal Prasad vs. State of
A.P. (1995) 5 SCC 698 in a recent decision in Sevoke Properties Ltd.
vs. West Bengal State Electricity Distribution Company Ltd. AIR
2019 SC 2664, Court held that once it is admitted by Lessee that term of
lease has expired, lease stood determined by efflux of time and in such
case, a quit notice under Section 106 is not required to be given. Court
has said as under :
“Once the lease stood determined by efflux of time, there was no
necessity for a notice of termination Under Section 106.”
(Emphais added)
101.In the above authority, Court held that after expiry of period of
lease, status of Lessee becomes that of 'Tenant at sufferance'. 'Tenant at
sufference' is one who comes into possession of land by lawful title, but
who holds it by wrong after termination of term or expiry of lease by
efflux of time. The tenant at sufferance is one who wrongfully continues
in possession after extinction of a lawful title. There is little difference
between him and a trespasser. Quoting from Mulla's Transfer of Property
Act (7th Edn.) at page 633, Court observed that tenancy at sufferance is
merely a fiction to avoid continuance in possession operating as a
trespass. It has been described as the least and lowest interest which can
subsist in reality. It, therefore, cannot be created by contract and arises
only by implication of law when a person who has been in possession
under a lawful title continues in possession after that title has been
determined, without consent of person entitled. A “tenancy at
sufferance” does not create relationship of landlord and tenant. Court
further quoted from page 769 of Mulla's transfer of Property Act (7
th
41
Edition), that act of holding over after expiration of term does not
necessarily create a tenancy of any kind. If lessee remains in possession
after determination of term, the common law Rule is that he is a tenant at
sufferance.
102.Lot of argument at this stage has been made that despite expiry of
lease right on 30.9.1986, since Lessee(s) did not hand over possession of
'disputed Nazul land' and State Government and its authorities did not
take any action for taking possession of land in dispute, therefore,
petitioners' possession had implied sanction of Lessor. However, no law
in support of above proposition has been placed before us. When lease
deed itself contemplate sanction, it is actual and not fictional. Petitioners,
however, relied on the decision in Purushottam Dass Tandon and
others vs. State of U.P. & Ors. AIR 1987 All. 56, to claim right of
renewal of lease. The decision deals with various G.Os. issued for
renewal of lease.
103.With regard to renewal of lease, Government circulated its policy
through various G.Os. The first G.O. was issued in March, 1958
whereby Chief Minister directed that case for renewal of leases may be
taken individually and possession may be taken only if lessee surrender
or lease stood terminated in absence of any request from lessee for grant
of fresh lease. Thereafter, on 23.04.1959, a G.O. was issued to grant
fresh lease in cases where lease has already expired but has not been
renewed so far, or which is likely to expire within the next 5 or 6 years,
on the terms and conditions given in the said G.O. The proposed
premium in the said G.O. was objected by Lease Holders, whose leases
were already expired or likely to expire. Several representations were
sent to Government. Some house-owners met the then Prime Minister
Late Pt. Jawahar Lal Nehru, who had visited Allahabad in November or
December, 1959. It resulted in issue of G.O. dated 07.07.1960 whereby
rate of premium on first three acres was reduced to Rs.2,000/- in each
42
slab. It also permitted payment of premium in five instalments and
reduced ground rent to Rs.100/- per acre. In the earlier G.O., there was
an insistence on construction of Community latrines till sewer lines were
laid but this insistence was given up in G.O. dated 07.07.1960. Lessees
were granted further three months' time to get leases renewed. Still
lease-holders did not comply and made representations to Government.
On 21.03.1963, again a G.O. was issued declaring rates of premium for
commercial sites. On 3.12.1965 a G.O. was issued indicating terms and
conditions for renewal of leases for commercial and residential purposes
and it was said that rates of premium and annual rent shall be as fixed
by G.O. dated 07.07.1960. Payment in five equal yearly instalments was
continued but in special cases, Commissioner, Allahabad Division,
Allahabad, was authorized to make recommendations to Government for
enhancing number of instalments. This G.O. further insisted for renewal
of existing leases on payment of at least one instalment, within one
month of receipt of intimation by Lessee from Collector, or within three
months of the date of expiry of lease, whichever is earlier. Deposit was
to be deemed to be proper step on the part of Lessee to get a fresh lease
executed by the Lessor. The G.O. of 1965 itself made a distinction
between those whose leases had expired and others by describing them
as sitting and existing lessees.
104.There was a second phase which covered period from 1966 to
1981. On 16.02.1966, U.P. Awas Vikas Parishad Adhiniyam, 1965
(hereinafter referred to as “U.P.Act, 1965”) was enacted for providing
housing sites and construction of building. G.O. dated 03.12.1965, thus
was modified by G.O. dated 04.11.1968, and it was directed that leases
of joint lessees should be renewed as far as possible for one acre only.
Sub-division was permitted only where sub-divided plot was not less
than 800 sq. yards. Concession in payment of lease money and ground
rent was allowed on same terms and conditions as it was in G.O. dated
03.12.1965 but time was extended for payment of first instalment for
43
those who had not received any intimation from Collector by a further
period of one month from the date of intimation by Collector. Clause (c)
of G.O. dated 04.11.1968 categorically said that where steps have been
taken for renewal of leases, as stated in earlier G.Os., fresh leases shall
be sanctioned according to terms offered by Competent Authority.
105.In March, 1970, a G.O. was issued banning grant of renewal of
leases all over the State, since Government was contemplating to bring
out legislation on Urban Ceiling. This ban was lifted on 12.01.1972 but
leases henceforth were to be sanctioned by State Government only.
Commissioner and Collector could make recommendations only.
Aforesaid G.O., however, provided that in all those cases where
Government had sanctioned grant of leases but it could not be executed
or registered because of ban imposed in 1970, steps may be taken
immediately for its execution. Clause (ii) of G.O. provided that all those
cases in which Collector or Commissioner had approved renewal but it
could not be executed because of 1970 order, should be sent to
Government immediately for acceptance. On 09.05.1972 Urban Building
Ceiling Bill was introduced and on 11.07.1972 Uttar Pradesh Ceiling of
Property (Temporary Restriction on Transfer), Ordinance, 1972 was
promulgated in pursuance of Article 398 of Constitution of India. The
Ordinance continued till it was replaced by Urban Land (Ceiling and
Regulation) Act, 1976 (hereinafter referred to as “U.P. Act, 1976”). The
said Act was enacted to prevent concentration of Urban Property and
discourage construction of luxurious houses. On 19.12.1972, provisions
pertaining to Nazul were amended providing for maximum area
permissible for renewal of leases of 2000 sq. yards plus land on which
building was constructed. Remaining area was to be surrendered to
Housing Board and Lessees were prohibited from sub-dividing or
transferring any land. On 10.12.1976, Government issued an order
superseding all previous orders in respect of renewal of leases of Civil
Lines, Allahabad in view of Act, 1976 and laid down fresh terms and
44
conditions for renewal of leases.
106.Here leases were to be renewed in the light of Sections 2 and 4 of
U.P. Act, 1976 and while doing so, all residents in one house were to be
treated as one unit. This again resulted in representations of Lease-
Holders to Government requesting for reduction in rate of premium and
ground rent. A G.O. was issued on 17.09.1979 superseding all previous
orders and it provided for submission of details about extent and type of
construction, utilisation of vacant land etc. Again representations, which
culminated in G.O. dated 19.04.1981, which superseded all previous
Orders and provided for renewal of leases on fresh and new terms. It is
said that Leaseholders and their heirs shall be treated as one Unit. They
were supposed to file details about land, constructed area, its user, time
when it was taken on lease etc. before 30.06.1981. List of residents
including out-houses dwellers was to be prepared by District Magistrate.
Heirs of deceased lease-holders were to be treated as one unit. Area for
which renewal could be made was reduced to building with 500 sq.
metre of land appurtenant and 500 sq. metre open land or 1500 sq. metre
whichever was more. Area of building for commercial purpose was fixed
at 2000 sq. metres. Premium was fixed at 50 paisa per sq. metre. Thus,
from 1976 onwards for the purpose of renewal, area was reduced from
acre to square metre and unit for premium and ground rent became
square feet instead of acre. All heirs of Lessees became one unit for
renewal. Land covered by outhouses were to be excluded. Lessees could
not even opt for it.
107.However, here is nothing on record to show that petitioners
complied the above G.Os. and sought renewal or fresh lease hence
petitioners cannot claim any benefit under the above mentioned G.Os.
108.Lease Holders, whose lease had already expired or those who
were sitting Lease Holders and leases were going to expire in a short
period, came to this Court in various writ petitions. This entire bunch
45
was decided in Purushottam Dass Tandon and others vs. State of
U.P., Lucknow and others (supra). There were two categories of writ
petitioners, before this Court, in Purushottam Dass Tandon and others
(supra) as under :
(i)Those, to whom notices were given by Collector and who
had complied with terms and conditions as laid down in various
orders issued from time to time prior to 1965; and
(ii)Those, to whom no notice was sent and till matter filed
before the Court, no steps were taken and no order was passed in
their favour.
109.Court held :
(I)A Lessor may, after expiry of period for which lease is
granted, renew the same or resume i.e. re-enter. But if out of the
two i.e. re-entry or resumption, the two divergent courses, he
chooses to grant fresh lease or at least creates that impression by
his conduct spread over long time, it results in abandonment.
(II)If the land is needed or building has to be demolished in
public interest for general welfare, probably no exception can be
taken as the interest of individual has to be sacrificed for the
society. But asking Lessee to vacate land or remove Malba for no
rhyme or reason but because State is the owner, cannot be
accepted to be in consonance with present day philosophy and
thinking about role of State.
(III)After Act, 1976, no person can successfully or validly claim
to hold land, more than the Ceiling limit.
(IV)Some part of G.O. of 1981 was not consistent with Act,
1976. The rules contained in Nazul Manual are set of
Administrative Orders or collections of guidelines issued by
Government for the authorities to deal with Government property.
46
(V)When a G.O. was issued and its conditions are complied
with, mere for bureaucratic delay, performance under the said
G.O. cannot be denied. Therefore, Lessee, who had deposited first
instalment, as directed in G.O. of 1965, were entitled for renewal
of their lease.
(VI)After enactment of ceiling law, a Lessee cannot hold land
more than the provided limit.
(VII)If leases were renewed in respect of those, who had
acquired social or political status, whose names are given in para
15 of judgment, which includes, Dr. K. N. Katju, ex-Central Law
Minister, Chief Minister and Governor, Dr. S. K. Verma, ex-Chief
Justice and Governor, Sri B.L. Gupta, ex-Judge High Court, J. D.
Shukla, I.C.S., O. N. Misra, I.A.S., then there was no justification
not to give same benefit to others. Similar benefit must be given
since most of them were also distinguished persons namely S.N.
Kacker, ex-Central Law Minister, Solicitor General of India and
Advocate General of the State, Sri S. S. Dhavan, ex-Judge, High
Court and Governor and High Commissioner, Sri Lal Ratnakar
Singh I.A.S. Ex-Member of Board of Revenue, M.L.Chaturvedi,
ex-Judge, High Court and member of Union Public Service
Commission, W. Broome, I.C.S. etc.
110.Aforesaid judgment was confirmed by Supreme Court by
dismissing appeals preferred by State of U.P. and others in State of U.P.
and others vs. Purshottam Das Tandon and others 1989 Supp.(2)
SCC 412. Court clarified that renewal of leases shall be subject to the
provisions of U.P.Act, 1976 and High Court judgment shall apply to all
the leases to whom G.O. dated 23.04.1959, 02.07.1960 and 03.12.1965
were applicable and all those claiming under them. The order of
Supreme Court reads as under :
“We have heard the learned counsel for both the parties at
47
length. We do not find any infirmity in the judgment and order
passed by the High Court against which these special leave
petitions are preferred. We, however, make it clear that the leases
that are going to be granted pursuant to the writ issued by the
High Court will be subject to the provisions of the Urban Land
(Ceiling and Regulation) Act, 1976. On the leases being granted,
the Competent Authority under the Act shall be at liberty to apply
the provisions of the Act and in particular section 15 thereof to all
the leases and take away all the surplus lands in their hands after
determining the surplus lands in accordance with law. The
directions issued by the High Court can be availed of by all the
lessees to whom the G.O. dated 23
rd
April, 1959, 2
nd
July, 1960
and 3
rd
December, 1965 were applicable and all those claiming
under them.
All the Special Leave Petitions are dismissed accordingly
with these observations. If any further directions are needed, the
persons interested may approach the High Court.”
(Emphasis added)
111.Though, in the present case reliance has been placed on the
aforesaid judgment, but, we do not find that aforesaid judgment is
applicable to petitioners or that petitioners have applied for renewal of
lease in terms of above G.Os., applicable at the relevant point of time.
Hence, their status is of 'occupant' without any authority, inasmuch as,
lease having already expired, transfer of land to petitioners was without
any authority, hence possession of petitioners or anybody else under
them is without any authority of law.
112.It is contended that even if lease expired on 01.04.1962,
possession of petitioners since 1980 has continued on disputed Nazul
land and State has not taken any step for their eviction or dispossession,
it amounts to 'tacit approval' or 'sanction' by Government or Lessor
recognizing petitioners' aforesaid possession to be valid and for this
purpose, reference is made to Section 116 of TP Act, 1882. It is also said
that even if aforesaid right under Section 116 TP Act, 1882 could not
have been made applicable in 1980, since at that time, GG Act, 1895 was
48
operating, yet the time at which impugned notice has been issued, GG
Act, 1895 had already been repealed and thereafter petitioners' right is
entitled to be considered in terms of TP Act, 1882 and they are entitled to
take recourse to Section 116 of Act, 1882.
113.Section 116 of TP Act, 1882 reads as under :
“116. Effect of holding over.- If a lessee or under-lessee of
property remains in possession thereof after the determination of
the lease granted to the lessee, and the lessor or his legal
representative accepts rent from the lessee or under lessee, or
otherwise assents to his continuing in possession, the lease is, in
the absence of an agreement to the contrary, renewed from year to
year, or from month to month, according to the purpose for which
the property is leased, as specified in section 106.”
114.Twin conditions to attract principle of holding over vide Section
116 of TP Act, 1882, which need be satisfied, are:
(i) After determination of lease, lessor or his representative has
accepted rent from lessee or under lessee or accorded assent to his
continuing in possession; and
(ii)Lessee or under-lessee has remained in possession.
115.In the present case, it is not the case of any of the petitioners that
after expiry of lease on 01.04.1962, they were permitted to remain in
possession of disputed Nazul land and rent has been accepted by
respondents or they have paid rent. Even if what is said by petitioners is
taken to be correct, we do not find that Section 116 is applicable in the
case in hand at all.
116.Thus, in our view, Section 116 TP Act, 1882 is wholly inapplicable
in the case in hand. In order to attract Section 116 of TP Act, 1882, it is
necessary to obtain assent of landlord for continuation of lease after
expiry of lease period. Mere acceptance of rent by Lessor, in absence of
any agreement to the contrary, for subsequent months where Lessee
continued to occupy lease premises cannot be treated to be a conduct
49
signifying 'assent' on its part. This is what has been held in Shanti
Prasad Devi and others vs. Shankar Mahto and others (2005) 5 SCC
543 and followed in Delhi Development Authority vs. Anant Raj
Agencies Pvt. Ltd. (supra).
117.In the present case, even this fact is missing that petitioners while
continuing in possession, paid lease rent and premium etc. to Lessor.
Section 116 of TP Act, 1882, therefore, has no application either
immediately after expiry of lease or much thereafter.
118.At this stage, learned counsel for petitioners sought to argue that
petitioners are entitled to be given opportunity in terms of provisions of
Section 106 read with 116 of TP Act, 1882 since petitioners are in
continued possession after expiry of period of lease and are entitled to be
treated as holding over and cannot be evicted without following
procedure prescribed under TP Act, 1882, particularly in view of the fact
that GG Act, 1895 has already been repealed by Repeal Act, 2017. Now,
TP Act, 1882 will apply. He placed reliance on Supreme Court judgment
in State of U.P. vs. Zahoor Ahmad (supra). He also said that even if
possession is unauthorized, petitioner cannot be evicted arbitrarily but
State is bound to follow procedure consistent with law and principles of
natural justice and for this purpose, reliance is placed on Supreme
Court's judgments in Bishan Das and others Vs. State of Punjab and
others AIR 1961 SC 1570, Express Newspapers Pvt. Ltd. and others
Vs. Union of India (1986) 1 SCC 133, Yar Mohammad and another
vs. Lakshmi Das and others AIR 1959 Allahabad 1 and Lallu
Yeshwant Singh (dead) by his legal representative vs. Rao Jagdish
Singh and others, AIR 1968 SC 620.
119.It is not in dispute that GG Act, 1895 has been repealed by Repeal
Act, 2017. However, Section 4 thereof provides for saving of certain
aspect and read as under :
“4.Savings.- The repeal by this Act of any enactment shall not
50
affect any other enactment in which the repealed enactment has
been applied, incorporated or referred to;
and this Act shall not affect the validity, invalidity, effect or
consequences or anything already done or suffered, or any right,
title, obligation or liability already acquired, accrued or incurred,
or any remedy or proceeding in respect thereof, or any release or
discharge of or from any debt, penalty, obligation, liability, claim
or demand, or any indemnity already granted, or the proof of any
past act or thing;
nor shall this Act affect any principle or rule of law, or
established jurisdiction, form or course of pleading, practice or
procedure, or existing usage, custom, privilege, restriction,
exemption, office or appointment, notwithstanding that the same
respectively may have been in any manner affirmed or recognized
or derived by, in or from any enactment hereby repealed;
nor shall the repeal by this Act of any enactment revive or
restore any jurisdiction, office, custom, liability, right, tittle,
privilege, restriction, exemption, usage, practice, procedure or
other matter or thing not now existing or any force.
120.Section 4 of Repeal Act, 2017 clearly protects effect or
consequences or anything already done or suffered, which includes
effect of expiry of lease and obligation of Lessee to surrender possession
of leased land to State. Further, Lessee had already agreed that State can
re-enter land at any point of time. They are bound by said clause of
lease-deed. This is an obligation as also liability of petitioners and right
of State incurred, acquired and accrued in view of terms of lease-deed.
Mere fact that it has been exercised after repeal of GG Act, 1895 would
make no difference since all earlier situations/aspects have been
protected by Section 4 of Repeal Act, 2017. Therefore, it cannot be said
that after repeal of GG Act, 1895 by Repeal Act, 2017, petitioners' status
would stood changed vis-a-vis disputed Nazul land in respect whereof
State is entitled to re-entry and resume land in terms of conditions of
lease.
121.The judgment cited by learned counsel for petitioners, in our view,
51
are not at all applicable to the facts of this case as demonstrated
hereinafter.
122.In Bishan Das and others Vs. State of Punjab and others AIR
1961 SC 1570, a Constitution Bench had an occasion to consider
fundamental right of property vis-a-vis infringement therewith by
executive orders. Therein, one Lala Ramji Das , carrying on a joint
family business in the name and style of Faquir Chand Bhagwan Das,
desired to construct a Dharmasala on a Nazul property of the then State
of Patiala. In 1909, he sought permission of Government to construct a
Dharmasala on the said land, since it situate near Barnala Railway
Station, and therefore would have been convenient to Travellers who
come to that place. It appears that initially for the same purpose, Patiala
Government had granted permission to Choudhuris of Barnala bazar, but
they could not do so for want of funds. Therefore when Ramji Das
sought permission in the name of firm Faquir Chand Bhagwan Das in
May, 1909, same was granted and communicated by Assistant Surgeon
in-charge of Barnala Hospital, who was presumably in-charge of public
health arrangements at Barnala. The sanction was subject to certain
conditions, namely, no tax shall be taken for the land; shopkeepers will
arrange 'Piao' for the passengers; plans of the building shall be presented
before sanctioning authority; cleanliness and sanitary rules shall be
followed by the persons maintaining Dharmasala and no permission to
construct any shop will be granted and if any condition is violated, State
shall dispossess them from the land in dispute.
123.Dharmasala was constructed in 1909 and inscription on the stone
to the following effect was made:
"Dharmasala Lala Faquir Chand Bhagwan Das, mahajan, 1909."
124.Though a condition was imposed for not permitting construction
of any shop, but as a matter of fact, a number of shops were later
constructed, with the permission of authorities concerned, for meeting
52
expenses of maintenance of Temple and Dharmasala. A complaint was
made in 1911 against Ramji Das that he was utilizing Dharmasala for his
private purpose but it remained unheeded. On the complaint made, some
inquiry was also conducted by Tehsildar wherein Ramji Das got his
statement recorded in January, 1925. On 07.04.1928, Revenue Minister,
Patiala State, passed an order stating that though land on which
Dharmasala had been built, was originally Government land (nazul
property), it would not be proper to declare it as such and Dharmasala
should continue to exist for the benefit of the public. Ramji Das or any
other person will not be competent to transfer land and if such transfer is
made, it would be unlawful and invalid and in such event, Government
will escheat. Some further inquiry were also made and it appears that
Ramji Das was given permission to make a raised platform and other
extensions etc. On 10.09.1954, one Gopal Das, Secretary, Congress
Committee, Barnala, filed a petition to the Revenue Minister, Patiala,
making various allegations against Ramji Das. Thereupon an inquiry was
conducted by Tahsildar, who found that Dharmasala was constructed by
Ramji Das on Government lands, that Dharmasala was for public
benefit; and, that Ramji Das had been its Manager throughout. He,
however, said that Ramji Das was bound to render accounts which he
failed considering that property belong to him and, therefore, he should
be removed and past accounts be called for. When the matter went for
opinion of Legal Remembrancer of State Government, it was pointed out
that Dharmasala and Temple, though built on Government land, but not
Government property. It also said that though Ramji Das was repudiating
the existence of a public trust, he was working as Trustee of a trust
created for public purposes of a charitable or religious nature and could
be removed by State only under Section 92 Civil Procedure Code. Ramji
Das died on 10.12.1957. Petitioner Bishan Das and others came to
manage Dharmasala, Temple and the shops etc. On 23.12.1957, Gopal
Das and some others describing themselves as members of public, made
53
an application that since Ramji Das was dead, new arrangements should
be made for proper management of Dharmasala which is used for the
benefit of the public. Again a search of old papers was made and this
time Sub-Divisional Officer, Barnala, recommended that in the interest
of Government, Municipal Committee, Barnala, should take immediate
charge of the management of Dharmasala. This recommendation was
affirmed by the Deputy Commissioner, Sangrur, and pursuant to the said
order, Kanungo presumably dispossessed Bishan Das and others from
part of Dharmasala on 07.01.1958 and charge thereof was given to
Municipal Committee, Barnala. These orders were challenged by
petitioners alleging that the same were without any authority of law and
violative of fundamental rights enshrined under Articles 14, 19 and 31 of
the Constitution.
125.The defence taken was that property is trust property of a public
and charitable character, hence Bishan Das and others were not entitled
to claim any property rights in respect thereof.
126.Supreme Court observed in Para-10 that even if it is assumed that
the property is trust property, no authority of law authorizing State or its
Executive Officers to take action against Bishan Das and others in
respect of Dharmasala was shown. Government counsel sought to argue
that Bishan Das and others were trespassers and land on which
Dharmasala situate belong to Government, hence Government was
entitled to use minimum of force to eject trespassers. But this defence
was also rejected by Supreme Court holding that it is a clear case of
violation of fundamental right of Bishan Das and others. Supreme Court
said that nature of sanction granted in 1909 in respect of land whether it
was a lease or licence, with a Grant or an irrevocable licence are
questions of fact, need not be gone into by it but admitted position is that
land belonged to the Government who granted permission to Ramji Das
on behalf of joint family firm to build a Dharmasala, Temple and Shops
54
and manage the same during his life time. After his death his family
members continued with management. Thus, they were not trespassers at
all in respect of Dharmasala, Temple and Shops; nor could it be held that
Dharmasala, Temple and Shops belong to the State. The question
whether trust created was public or private is irrelevant. Court said that a
Trustee, even of a public trust, can be removed only by procedure known
to law. He cannot be removed by an executive fiat. The maxim, what is
annexed to the soil goes with the soil, has not been accepted as an
absolute rule of law in India and in this regard, Supreme Court referred
to decision in Thakoor Chunder Parmanick Vs. Ramdhone
Bhuttacharjee (1866) 6 W.R. 228; Lala Beni Ram Vs. Kundan Lall
(1899) L.R. 26 I.A. 58 and Narayan Das Khettry Vs. Jatindranath
(1927) L.R. 54 I.A. 218. Court said that a person who bona fide puts up
constructions on land belonging to others with their permission would
not be a trespasser, nor would the buildings so constructed vest in the
owner of the land by application of maxim quicquid plantatur solo, solo
credit. It said:
“It is, therefore, impossible to hold that in respect of the
dharmasala, temples and shops, the State has acquired any
rights whatsoever merely by reason of their being on the land
belonging to the State. If the State thought that the constructions
should be removed or that the condition as to resumption of the
land should be invoked, it was open to the State to take
appropriate legal action for the purpose.” (Emphasis added)
127.Court said that even if State proceeded on the assumption that
there was a public trust, it could have taken appropriate legal action for
removal of Trustees by way of Suit under Section 92 C.P.C. and not
otherwise. Constitution Bench then said:
“ .. that does not give the State or its executive officers the right
to take the law into their own hands and remove the trustee by an
executive order. (Emphasis added)
128.Court concluded its findings in Para-14 of the judgment as under:
55
“The facts and the position in law thus clearly are (1) that the
buildings constructed on this piece of Government land did not
belong to Government, (2) that the petitioners were in possession
and occupation of the buildings and (3) that by virtue of
enactments binding on the Government, the petitioners could be
dispossessed, if at all, only in pursuance of a decree of a Civil
Court obtained in proceedings properly initiated.”
129.Court passed serious stricture against State authorities holding that
the executive action taken by State and its Officers is destructive of the
basic principle of the rule of law. Hence action of Government in taking
law into their hands and dispossessing petitioners by display of force,
exhibits a callous disregard of normal requirements of rule of law, apart
from what might legitimately and reasonably be expected from a
Government functioning in a society governed by a Constitution which
guarantees to its citizens against arbitrary invasion by the executive on
peaceful possession of property. Supreme Court reiterated what was said
in its earlier judgment in Wazir Chand Vs. The State of Himachal
Pradesh AIR 1954 SC 415 that State or its executive officers cannot
interfere with the rights of others unless they can point out some specific
rule of law which authorizes their acts. Supreme Court seriously
deprecated State and said:
“We have here a highly discriminatory and autocratic act which
deprives a person of the possession of property without reference
to any law or legal authority. Even if the property was trust
property it is difficult to see how the Municipal Committee,
Barnala, can step in as trustee on an executive determination
only.”
130.Aforesaid decision has no application in the case in hand,
inasmuch as, here State has exercised its power following terms and
conditions laid down under lease-deed, which were made to prevail over
any Statute providing otherwise, including TP Act, 1882 vide Section 2
of GG Act, 1895. Further, respondents, in exercise of right of
resumption/re-entry, have not straightway went to dispossess petitioners
56
but notice in question has been given to them giving time to vacate the
premises whereafter respondents proposed to take further action for
taking possession. Therefore, it cannot be said that no notice has been
given to petitioners in the present case.
131.Express Newspapers Pvt. Ltd. and others Vs. Union of
India (1986) 1 SCC 133 is a matter which was decided in a Writ
Petition filed under Article 32 of Constitution by the aforesaid
Newspaper Company having its Establishment in Express Buildings at
9-10, Bahadurshah Zafar Marg, New Delhi, which was a land on
perpetual lease from Union of India, under a registered Indenture of
Lease, dated 17.03.1958. Five petitioners, who filed above Writ Petition
before Supreme Court included Indian Express Newspaper (Bombay)
Private Limited of which Express Newspapers Private Limited was a
subsidiary and petitioners-3, 4 and 5, namely, Sri Ram Nath Goenka was
Chairman of the Board of Directors, Nihal Singh was the Editor-in-chief
of the Indian Express and Romesh Thapar was the Editor of the Seminar
published from the Express Buildings. Union of India; Lt. Governor of
Delhi, Sri Jagmohan; Municipal Corporation of Delhi; Zonal Engineer
(Buildings) and Land and Development Officer were impleaded as
respondents-1 to 5. The validity of notice of re-entry upon forfeiture of
lease issued by Engineer Officer, Land and Development Office, New
Delhi on 10.03.1980 was challenged. The notice required petitioners to
show cause why Union of India should not re-enter upon and take
possession of the demised premises i.e. plots nos. 9 and 10, Bahadurshah
Zafar Marg, together with Buildings built thereon under Clause 5 of
Indenture of Lease, dated 17.03.1958, for committing breach of Clauses
2(14) and 2(5) of lease-deed. Another notice was issued earlier on
01.03.1980 by Zonal Engineer (Buildings), Municipal Corporation, City
Zone, Delhi requiring Express Newspapers Pvt. Ltd., New Delhi to show
cause why aforesaid buildings being unauthorized be not demolished
under Sections 343 and 344 of the Delhi Municipal Corporation Act,
57
1957 (hereinafter referred to as “DMC Act, 1957”). A challenge was
made, besides others, on the ground of personal vendetta against Express
Group of Newspapers and also being violative of Articles 14, 19(1)(a)
and 19(1)(g) of the Constitution. The questions posed by Supreme Court,
to be of far reaching consequence for maintenance of federal structure of
Government, were:
(1) Whether the Lt. Governor of Delhi could usurp the functions of
the Union of India, Ministry of Works and Housing and direct an
investigation into the affairs of the Union of India i.e. question the
legality and propriety of the action of the then Minister for Works
and Housing in the previous Government at the center in granting
permission to Express Newspapers Pvt. Ltd. to construct new
Express Building with an increased FAR of 360 with a double
basement for installation of a printing press for publication of a
Hindi Newspaper on the western portion of the demised premises
i.e. Plots No. 9 and 10, Bahadurshah Zafar Marg, New Delhi with
the Express Buildings built thereon?
(2) Whether the grant of sanction by the then Minister for Works
and Housing and the consequential sanction of building plans by
him of the new Express Building was contrary to the Master Plan
and the Zonal Development Plans framed under the Delhi
Development Act, 1957 and the municipal bye-laws, 1959 made
under the DMC Act, 1957 and therefore the lessor i.e. the Union
of India had the power to issue a notice of re-entry upon forfeiture
of lease under Clause 5 of the indenture of lease dated March 17,
1958 and take possession of the demised premises together with
the Express Buildings built thereon and the Municipal
Corporation had the authority to direct demolition of the said
buildings as unauthorized construction under Sections 343 and
344 of the DMC Act, 1957?
(3) Whether the threatened action which the petitioners
characterise as arbitrary, illegal and irrational was violative of
Article 19(1)(a) read with Article 14 of the Constitution?
132.Thereafter Court analyzed the facts of case in detail and respective
arguments and from Para-45 to 47 we find that Government of India and
Lt. Governor of Delhi were head on to each other and even Council's
58
role was not appreciated by Court. In the light of arguments advanced by
parties, in para-59 of judgment, Court formulated eight questions. The
issue of maintainability of writ petition under Article 32 was also raised
and it was considered by Supreme Court in the judgment from para-66
onwards and it was held that building in question was necessary for
running press. Any statutory or executive action to pull it down or forfeit
the lease, would directly impinge on the right of freedom of speech and
expression under Article 19(1)(a) and therefore, writ petition was
maintainable. Court said:
“... impugned notices of re-entry upon forfeiture of lease and of
the threatened demolition of the Express Buildings are intended
and meant to silence the voice of the Indian Express. It must
logically follow that the impugned notices constitute a direct and
immediate threat to the freedom of the press and are thus violative
of Article 19(1)(a) read with Article 14 of the Constitution.”
133.Since, land in dispute was Government land, provisions of
Government Grants Act, 1895 (hereinafter referred to as “GG Act,
1985”) were also relied on by Government and, therefore, Supreme
Court examined provisions thereof also. It held that GG Act, 1895 is an
explanatory or declaratory act. It said:
“Doubts having arisen as to the extent and operation of the
Transfer of Property Act, 1882 and as to the power of the
Government to impose limitations and restrictions upon grants
and other transfers of land made by it or under its authority, the
Act was passed to remove such doubts as is clear from the long
title and the preamble. The Act contains two sections and
provides by Section 2 for the exclusion of the Transfer of Property
Act, 1882 and, by Section 3 for the exclusion of, any rule of law,
statute or enactment of the Legislature to the contrary.”
(Emphasis added)
134.In Express Newspapers Pvt. Ltd. and others Vs. Union of
India (supra) Court further said:
“It is plain upon the terms that Section 2 excludes the operation of
59
the Transfer of Property Act, 1882 to Government grants. While
Section 3 declares that all provisions, restrictions, conditions and
limitations contained over any such grant or transfer as aforesaid
shall be valid and shall take effect according to their tenor,
notwithstanding any rule of law, statute or enactment of the
Legislature to the contrary. A series of judicial decisions have
determined the overriding effect of Section 3 making it amply
clear that a grant of property by the Government partakes of the
nature of law since it overrides even legal provisions which are
contrary to the tenor of the document. ” (Emphasis added)
135.Having said so, Supreme Court found that the stand taken on
behalf of Union of India that there was non compliance of mandatory
requirement of Clause-6, therefore notice of re-entry was valid, is not
correct.
136.Court then noted some contradictions in Constitution Bench
judgment in Bishan Das and others Vs. State of Punjab and others
(supra) and State of Orissa Vs. Ram Chandra Dev AIR 1964 SC 685.
137.In State of Orissa Vs. Ram Chandra Dev (supra), Constitution
Bench observed:
“Ordinarily, where property has been granted by the State on
condition which make the grant resumable, after resumption it is
the grantee who moves the Court for appropriate relief, and that
proceeds on the basis that the grantor State which has reserved
to itself the right to resume may, after exercising its right, seek to
recover possession of the property without filing a suit. ”
(Emphasis added)
138. It was observed that existence of a right is the foundation for a
petition under Article 226 of the Constitution. In Para-84 Court said that
in cases involving purely contractual issues, the settled law is, where
statutory provisions of public law are involved, writs will be issued and
referred to its earlier judgment in Mohammed Hanif Vs. State of
Assam (1969) 2 SCC 782. Thereafter it also considered the provisions
of Public Premises (Eviction of Unauthorized Occupants) Act, 1971
60
(hereinafter referred to as “Act, 1971”) and observed that Express
building was constructed with the sanction of lessor, i.e., Union of India
on plots demised on 'perpetual lease' by registered lease-deed dated
17.03.1958 hence cannot be regarded as 'public premises' belong to the
Central Government under Section 2(e). That being so, Act, 1971 has no
application.
139.Court then considered other provisions of power of Lt. Governor,
and Central Government and factual aspects involved in the matter, and,
in our view, the same are not relevant for the purpose of this Case. Court
also examined applicability of doctrine of estoppel but that has also not
been raised in these matters, hence it is not necessary to examine them.
140.One aspect we may notice hereat that detailed judgment has been
written by Hon'ble A.P. Sen, J. Justice E.S. Venkataramiah has agreed
with the judgment of Hon'ble A.P. Sen, J in relation to the aspect that Lt.
Governor of Delhi, Sri Jagmohan, has taken undue interest in getting
notices issued to Express Newspapers and this action is not consistent
with normal standards of administration and issued under pressure of Lt.
Governor of Delhi, notices were violative of Article 14, suffers with
arbitrariness and non application of mind. His Lordship said that it was
not necessary to express any opinion on the contention based on Article
19(1)(a) of Constitution. Hon'ble Venkataramiah further said that
question relating to civil rights of the parties flowing from the lease deed
cannot be disposed of in a petition under Article 32 of the Constitution
since questions whether there has been breach of the covenants under the
lease, whether lease can be forfeited, whether relief against forfeiture
can be granted etc. are foreign to the scope of Article 32 of the
Constitution which should be tried in a regular civil proceeding. His
Lordship further said in Para-202 of judgment as under:
“One should remember that the property belongs to the Union of
India and the rights in it cannot be bartered away in accordance
61
with the sweet will of an Officer or a Minister or a Lt. Governor
but they should be dealt with in accordance with law. At the same
time a person who has acquired rights in such property cannot
also be deprived of them except in accordance with law.”
141.Having said so, while agreeing with ultimate order of quashing of
notices, Hon'ble Venkataramiah, J. said:
“I express no opinion on the rights of the parties under the lease
and all other questions argued in this case. They are left open to
be decided in an appropriate proceeding.” (Emphasis added)
142.Hon'ble R.B. Misra, J. also agreed with Hon'ble A.P. Sen and E.S.
Venkataramiah, JJ that the notice challenged in writ petition is invalid,
having no legal consequences and must be quashed for reasons detailed
in both the judgments. His Lordship, however, said that other questions
involved in the case are based upon contractual obligations between the
parties and can be satisfactorily and effectively dealt with in a properly
instituted suit and not by way of writ petition on the basis of affidavits
which are so discrepant and contradictory in this case. Hon'ble R.B.
Misra, J. in para 207 of judgment said:
“207. The right to the land and to construct buildings thereon for
running a business is not derived from Article 19(1)(a) or 19(1)(g)
of the Constitution but springs from terms of contract between
the parties regulated by other laws governing the subject, viz., the
Delhi Development Act, 1957, the Master Plan, the Zonal
Development Plan framed under the Delhi Municipal Corporation
Act and the Delhi Municipal Bye-laws, 1959 irrespective of the
purpose for which the buildings are constructed. Whether there
has been a breach of the contract of lease or whether there has
been a breach of the other statutes regulating the construction
of buildings are the questions which can be properly decided by
taking detailed evidence involving examination and cross-
examination of witnesses.” (Emphasis added)
143.The above judgment also has no application to the facts of present
case. On the contrary, majority view expressed in above judgment is that
right to land and to construct building is not derived from Articles 19(1)
62
(a) or 19(1)(g) of Constitution but springs from promise of contract
between the parties. Whether there has been breach of contract of lease
or there has been breach of any provision regulating lease rights and
construction of building etc., are such questions which can be properly
decided by taking detailed evidence involving examination and cross
examination of witnesses and therefore, such rights can be enforced in
common law proceedings by filing suit.
144. In Yar Mohammad and another vs. Lakshmi Das and others
AIR 1959 Allahabad 1, a Full Bench of this Court considered following
question :
"Whether the jurisdiction of the Civil Court is barred by virtue of
Section 242 of the U. P. Tenancy Act in respect of suit filed under
Section 9 of the Specific Relief Act for obtaining possession over
agricultural land from which the plaintiff alleged his illegal
dispossession within six months of the date of the-suit".
145.Therein plaintiffs instituted suit on 30.11.1948 for possession
under Section 9 of Specific Relief Act, 1877 (hereinafter referred to as
“Act, 1877”) alleging that they were in actual possession of land in
dispute (land was admittedly an agricultural land) but wrongfully
dispossessed by defendants in November 1948. Defendants contested the
suit and disputed correctness of above allegations of plaintiffs and
pleaded that they were in possession of land as tenants of plaintiffs for
more than 12 years, hence, plaintiffs cannot eject them. They also
pleaded that suit was filed under Section 9 of Act, 1877 only to evade
jurisdiction of Revenue Court. Trial Court i.e. learned Munsif rejected
plea of lack of jurisdiction raised by defendants, accepted the case set up
by plaintiffs and decreed the suit. Defendants then filed revision no.461
of 1952, which resulted in Reference, to a Larger Bench. The issue was
with respect to applicability of Section 242 of U. P. Tenancy Act, 1939.
Court said that Section 242 confers exclusive jurisdiction on Revenue
Court and takes away jurisdiction of Civil Court only in respect of two
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kinds of actions.
(i) suits or application of the nature specified in the Fourth
Schedule of the Act; and
(ii) suits or applications based on a cause of action in respect of
which any relief can be obtained by means of a suit or application
specified in that schedule.
146.It was held that in order to attract Section 242, one has to
demonstrate that action would fall under either of the above-mentioned
two categories and if does not, jurisdiction of Civil Court is not ousted
and Revenue Court will have no jurisdiction to entertain the action.
147.Then construing the cases, which may resort to Section 9 of Act,
1877, Court said that Section 9 gives a special privilege to persons in
possession who take action promptly. In case they are dispossessed,
Section 9 entitles them to succeed simply by proving:
(1) that they were in possession,
(2) that they have been dispossessed by the defendant,
(3) that dispossession is not in accordance with law, and
(4) that dispossession took place within six months of the suit.
148.No question of title either of plaintiffs or of defendants can be
raised or gone into in an action brought under Section 9 of Act, 1877.
Plaintiffs will be entitled to succeed without proving any title on which
he can fall back upon and defendant cannot succeed even though he may
be in a position to establish the best of all titles. Restoration of
possession under Section 9 is however subject to a regular suit and
person who has real title or even better title cannot be prejudiced in any
way by a decree of a suit under Section 9. A person having real or better
title always has a right to establish his title in a regular suit and get the
possession back. The objective and idea behind Section 9, as the Court
observed is that law does not permit any person to take law in his own
64
hands and to dispossess a person in actual possession without having
recourse to a Court or Institution, in an illegal manner. In other words,
objective of Section 9 is to discourage people from taking law in their
own hands, how-ever good title they may have. In the interest of public
order that self-help is not permitted so far as possession over Immovable
property is concerned, Section 9 is intended to discourage and prevent
proceedings which might lead to serious breaches of peace. It does not
allow a person who has acted high-handedly by wrongfully
dispossessing a person in possession from deriving any benefit from his
own unjustified act. Section 9, infact, provides for a summary and quick
remedy for a person who is in possession but illegally ousted therefrom
without his consent. Court observed that 'Possession' is prima facie
evidence of title and if a person who is in possession is dispossessed, he
has a right to claim back possession from the person who dispossesses
him. In an ordinary common law proceedings, a person who has a title,
is entitled to possession and cannot be deprived of his right of possession
by a person, who has no title or inferior to the former. Court said that for
Section 9, claim of title is not allowed to be set up and possession
wrongfully taken, has to be restored. Full Bench therefore, answered
question formulated above in negative.
149.In our view, above judgment has no application to the facts of this
case for the reason that title of land is not in dispute, inasmuch as, it is
admitted case of all the petitioners that land in dispute is 'Nazul', hence it
is owned and vested in Government. It is also not in dispute that
petitioners got possession of land in dispute being legal heirs of original
Lessees. Petitioners have not been evicted, so far, hence Section 9 of
Act, 1877 has no application. In the present case right of re-entry is
being exercised by respondent-State in terms of lease-deed, pursuant
whereto possession was given to Lessees and petitioners have derived
their interest from such Lessees, and now are bound to restore
possession in terms of lease whereunder even original lessee were
65
obliged to surrender/hand over possession to State Government.
150.We may also note hereat that in the case in hand, lease was
governed by provisions of GG Act, 1895 and Section 2, as amended in
State of U.P., has excluded provisions of U.P. Tenancy Act, 1939 for
governing rights etc. of parties. Only provisions contained in lease-deed
shall apply and have to be given effect to as if U.P. Tenancy Act, 1939
was not passed. Therefore also, reliance placed on the aforesaid
judgment in the case in hand is of no consequence.
151.Lallu Yeshwant Singh (dead) by his legal representative vs.
Rao Jagdish Singh and others, AIR 1968 SC 620 is a judgment which
came before two Judges Bench of Supreme Court from a dispute raised
under Qanoon Mal Riyasat Gwalior Samvat, 1983 (hereinafter referred
to as “Qanoon Mal”) that is from Madhya Pradesh. Under Section 326
of Qanoon Mal, a suit was filed by Yeshwant Singh and others i.e.
plaintiffs against Rao Jagdish Singh and others (defendants) in the Court
of Tehsildar for possession of some agricultural land. Plaintiffs set up a
case that they were in possession of land and forcibly dispossessed by
defendants, therefore, should be restored their possession. Tehsildar
decreed the suit and order was affirmed in appeal by Collector as well as
Commissioner. Revision was also dismissed by Board of Revenue and
decree passed by Tehsildar was maintained. Section 326 of Qanoon Mal
broadly provided summary remedy as is provided in Section 9 of Act,
1877. In para 7 of the judgment, Supreme Court has referred to both the
provisions and said that both are broadly similar. High Court took a
different view holding that it was not necessary for a Lessor to resort to
Court for obtaining possession and if there is default by plaintiff, it could
have been dispossessed by defendants. Supreme Court said that no
person can take law in its own hand and in such matter, where provisions
providing summary procedure for restoration of illegal dispossession of
land have been made, the same can be resorted to by the person who has
66
been illegally dispossessed. Supreme Court affirmed Full Bench
judgment of this Court in Yar Mohammad (supra). Here also we do not
find applicability of this judgment to the case in hand for the reasons we
have already said in respect of judgment in Yar Mohammad (supra).
152.The State of U.P. vs. Zahoor Ahmad and another (supra) was a
matter which came up before two Judges Bench of Supreme Court
arising from action by State in respect of certain land falling within
reserved forest in State of Uttar Pradesh. Zahoor Ahmad was granted
lease of a plot of land at Chandan Chowki, Sonaripur Range in North
Kheri Forest Division for an annual rent of Rs.100/-. The aforesaid land
was part of reserved forest of which State of U.P. is the proprietor. Lease
was granted for one year commencing from 18.03.1947 for industrial
purpose. It was renewed on 10.06.1948 with effect from 18.03.1948 for
further one year and again in 1949 for one year. Ultimately lease expired
on 18.03.1950. State of U.P., after termination of lease, allowed Zahoor
Ahmad to continue in possession of land on condition settled between
the parties that Licensee i.e. Zahoor Ahmad would pay Rs.1,000/- as
annual rent for occupation till 15.07.1950. Even after determination of
lease on 15.7.1950, Zahoor Ahmad i.e. Licensee continued in possession
and State of U.P. allowed him to remain in possession for three years
beyond 15.07.1950 though for this period Zahoor Ahmad did not agree
to give any undertaking of making payment of annual rent of Rs.1,000/-.
A letter dated 04.12.1951 was issued to Zahoor Ahmad asking him to
pay Rs.3,000/- for the year 1950-51. Letter further provided that if
Zahoor Ahmad did not agree to pay Rs.3,000/- for the year 1950-51,
amount of rent would be reduced to Rs.1800/- but he would not be
allowed lease in future in any circumstance. The fact remains that
Zahoor Ahmad was allowed to continue in occupation of land without
any agreement as to the amount of rent payable for 1950-51. On
29.10.1952, Conservator of Forests sent a letter that Zahoor Ahmad can
be allowed to run the mill beyond 15.07.1950 for three years if he pays
67
Rs.3,000/- per annum and for one year only, if he is ready to pay
Rs.1,800/- but thereafter lease would not be renewed. Notice also said
that he was only Licensee and should remove his plant and vacate the
premises within one month and pay Rs.6,000/- as damages for use and
occupation. Zahoor Ahmad did not pay the amount, hence, a suit for
recovery of damages was filed by State of U.P. High Court came to the
conclusion that Licensee (Zahoor Ahmad) was allowed to continue with
the consent of State of U.P. though there was no written agreement about
rate of rent and lease was granted for industrial purposes. Under Section
106 of TP Act, 1882, such lease is for year to year basis. The lease could
have been terminated by six months notice and since no such notice was
given, therefore, tenancy was not validly terminated. With respect to
amount of rent, Court took the view that under Section 116, renewal
would mean the same terms and conditions as made applicable in
previous lease. High Court therefore decreed the suit for payment of rent
of Rs.3,000/-. Possession was allowed by State with its consent. Thus,
High Court took the view that 'holding over' was applicable under
Section 116. State Government bye-passing provision of TP Act, 1882
sought to rely on GG Act, 1895. Whether the kind of above lease,
granted by State could have been brought within the purview of GG Act,
1895, Supreme Court examined this issue by referring to two judgments.
In one, lease of forest land of Sunderbans was held to be a 'Grant' while,
in another, Grant of Khas Mahal was not held to be as 'Grant'. In
Jnanendra Nath Nanda vs. Jadu Nath Banerji AIR 1938 Cal 211 two
leases of two lots were granted by Sunderban Commissioner on behalf of
Secretary of State. The land comprised in the lots were 'waste lands' of
the Government. 'Waste lands' of Sunderbans were not property of any
subject. Sunderbans was vast impenetrable forest. It was the property of
East India Company and later on vested in Crown by virtue of an
Imperial Statute. Court found that history of legislation showed that
grants of Sunderbans lands were treated to be 'Crown Grants' within
68
meaning of 'Crown Grants Act'. In another matter i.e. Secretary of State
for India in Council vs. Lal Mohan Chaudhuri, AIR 1935 Cal 746 in
respect of Khas Mahal, lease was granted by Government. It was held
that lease of Khas Mahal does not come within the category of 'Grant' as
contemplated in GG Act, 1935. Having said so, in para 13 of judgment,
Court said that lease granted to Zahoor Ahmad was for the purpose of
erecting a temporary rice mill and for no other purpose. The mere fact
that State is the lessor will not by itself make above lease a 'Government
Grant' within the meaning of GG Act, 1895. We may reproduce para 13
of the judgment in State of U.P. vs. Zahoor Ahmad (supra) as under :
“The lease in the present case was for the purpose of erecting a
temporary rice mill and for no other purpose. The mere fact that
the State is the lessor will not by itself make it a Government
grant within the meaning of the Government Grants Act. There
is no evidence in the present case in the character of the land or
in the making of the lease or in the content of the lease to
support the plea on behalf of the State that it was a grant within
the meaning of the Government Grants Act.” (Emphasis added)
153.When a question arose whether High Court has rightly applied
Section 116 of TP Act, 1882, Supreme Court, in this context, referred to
a judgment of this Court in Lala Kishun Chand vs. Sheo Dutta, AIR
1958 All. 879 wherein after expiry of lease of Nazul land, Licensee was
permitted by Board of Revenue to continue in occupation as tenant and
rent was also realized from him and held that in these facts, Section 116
of TP Act, 1882 was rightly applied. Then in paras 15 and 16, Court said
as under:
“15.In the present case the High Court correctly found on the
facts that the respondent after the determination of the lease held
over. Even if the Government Grants Act applied Section 116 of
the Transfer of Property Act was not rendered inapplicable. The
effect of Section 2 of the Government Grants Act is that in the
construction of an instrument governed by the Government Grants
Act the court shall construe such grant irrespective of the
69
provisions of the Transfer of Property Act. It does not mean that
all the provisions of the Transfer of Property Act are inapplicable.
To illustrate, in the case of a grant under the Government Grants
Act Section 14 of the Transfer of Property Act will not apply
because Section 14 which provides what is known as the rule
against perpetuity will not apply by reason of the provisions in the
Government Grants Act. The grant shall be construed to take
effect as if the Transfer of Property Act does not apply.
16.Section 3 of the Government Grants Act declares the
unfettered discretion of the Government to impose such conditions
and limitations as it thinks fit, no matter what the general law of
the land be. The meaning of Sections 2 and 3 of the Government
Grants is that the scope of that Act is not limited to affecting the
provisions of the Transfer of Property Act only. The Government
has unfettered discretion to impose any conditions, limitations, or
restrictions in its grants, and the right, privileges and obligations
of the grantee would be regulated according to the terms of the
grant, notwithstanding any provisions of any statutory or common
law. ”
154.In Bhawanji Lakhanishi vs. Himatlal Jamnadas AIR 1972 SC
819, Court said that basis of Section 116 is a bilateral contract between
erstwhile landlord and erstwhile tenant. It has been held that assent of
lessor cannot be inferred merely from his delay in taking steps to evict
lessee. We may also refer to Calcutta High Court decision in Ratan Lal
vs. Farshi Bibi (1907) ILR 34 Cal 396; Madras High in
Govindaswami vs. Ramaswami (1916) 30 Mad LJ 492; Patna High
Court in Christian vs. Hari Prasad AIR 1955 Pat 158 and Pritilata
Devi vs. Banke Bihari Lal AIR 1962 Pat 446; and Rajsthan High Court
in Gordhan vs. Ali Bux AIR 1981 Raj 206, holding that to attract
Section 116, therefore, it has to be shown that there was a bilateral act
creating a new tenancy. There is no implication of holding over. In our
view, there is neither any material nor pleading to attract Section 116 and
therefore, judgment in Zahoor Ahmad (supra) on this aspect does not
help petitioners. On the contrary, what has been said in para 16 of the
judgment, quoted above, the conditions of 'Grant' would prevail over
70
every law including TP Act, 1882.
155.Moreover, in respect of Section 116 TP Act, 1882, we have
already discussed the matter earlier to demonstrate that it is not attracted
in the present case.
156. There is one more aspect which may be considered at this stage. In
State of U.P., a special Statute was enacted in 1972 i.e. U.P. Act, 1972. It
also deals with a situation where a person has continued in possession
over Government owned land after expiry of period for which he was
authorized to remain in possession of such land and thereunder he is
declared as 'Unauthorized Occupant'. We find that similar provision was
also made by Parliament in Public Premises (Eviction of Unauthorised
Occupants) Act, 1971 (hereinafter referred to as “Act, 1971”).
157.In U.P. Act, 1972, Section 2(g) and 2(e) define “unauthorised
occupation” and “public premises”, and the same read as under :-
"2(g) "unauthorised occupation", in relation to any public
premises, means the occupation by any person of the public
premises without authority for such occupation, and includes the
continuance in occupation by any person of the public premises
after the authority (whether by way of grant or any other mode of
transfer) under which or the capacity in which he was allowed to
hold or occupy the premises has expired or has been determined
for any reason whatsoever and also includes continuance in
occupation in the circumstances specified in sub-section (1) of
Section 7 and a person shall not, merely by reason of the fact that
he had paid any amount as rent, be deemed to be in authorised
occupation."
"2(e) "public premises" means any premises belonging to or
taken on lease or requisitioned by or on behalf of the State
Government, and includes any premises belonging to or taken on
lease by or on behalf of-.
(i) any company as defined in Section 3 of the Companies Act,
1956, in which not less than fifty-one per cent of the paid-up share
capitals held by the State Government: or
71
(ii) any local authority; or
(iii) any Corporation (not being a company as defied in Section 3
of the Companies Act, 1956 or a local authority) owned or
controlled by the State Government: or
(iv) any society registered under the Societies Registration Act,
1860, the governing body whereof consists, under the rules or
regulations of the society, wholly of public officers or nominees of
the State Government or both:
and also includes-
(i) Nazul land or any other premises entrusted to the
management of local authority (including any building built with
Government funds on land belonging to the State Government
after the entrustment of the land to that local authority, not being
land vested in or entrusted to the management of a Gaon Sabha or
any other local authority, under any law relating to land tenures):
(ii) any premises acquired under the Land Acquisition Act, 1894
with the consent of the State Government for a company (as
defined in that Act) and held by that company under an agreement
executed under Section 41 of that Act providing for re-entry by the
State Government in certain conditions:" (Emphasis added)
158.Definition of "unauthorized occupation" clearly includes
occupation of a public premises by a person after expiry of authority to
occupy such land which includes a person whose period of lease has
expired and still he or she is continuing in possession. "Public Premises"
includes any premises belonging to or taken on lease including "nazul
land".
159.Considering provisions of U.P. Act, 1972, in Ashoka Marketing
Ltd. And another vs. Punjab National Bank and others, (1990) 4
SCC 406, a Constitution Bench held that U.P.Act, 1972 being a special
Act will override a general statute and a person who may have entered
tenancy legally may become "unauthorized occupant" subsequently, after
expiry of lease period.
160.A similar issue in the context of 'Nazul', managed by Delhi
72
Development Authority and Government under provisions of Act, 1971
was considered in Delhi Development Authority Vs. Anant Raj
Agencies Pvt. Ltd. (supra). In that case land belonged to Delhi
Improvement Trust. It had executed a lease deed dated 6.1.1951 in
favour of Balraj Virmani (hereinafter referred to a "original lessee").
After enactment of Delhi Development Act, 1957, Development
Authority was constituted thereunder, namely, Delhi Development
Authority(hereinafter referred to as "DDA"). Lease was initially for a
period of 20 years i.e. from 11.8.1948 to 10.8.1968, liable for
extension/renewal for further period of 20 years at the option of lessee.
Original lessee on 23.2.1967 approached DDA for renewal of lease.
DDA served notice on 16.2.1968 alleging breach of terms and conditions
of lease deed. DDA vide notice dated 1.9.1972 terminated lease which
was challenged by original lessee in Original Suit No. 47 of 1975 before
Sub Judge, Delhi seeking restraint order against DDA. Suit was decreed
by Sub Judge holding that notice dated 1.9.1972 terminating lease was
illegal. DDA preferred appeal which was dismissed by Additional
District Judge vide judgment dated 29.9.1982. DDA preferred Second
Appeal in Delhi High Court, being RSA No. 06 of 1983. During
pendency of second appeal, an application under Order 22 Rule 10 of
Code of Civil Procedure (hereinafter referred to as "CPC") was filed
alleging that original lessee has sold disputed property through sale deed
to M/s. Anant Raj Agencies Pvt. Ltd.(hereinafter referred to as
"subsequent purchaser"). This sale deed was claimed to have been
executed between original lessee and subsequent purchaser pursuant to
some compromise decree dated 22.6.1988 passed by High Court in a
matter between original lessee and subsequent purchaser. The
application of subsequent purchaser for substituting as respondent in
second appeal filed by DDA was allowed by High Court. Further
subsequent purchaser also applied to DDA for conversion of lease land
to freehold and deposited a sum of Rs.96,41,892/- towards conversion
73
charges. DDA rejected the said application of subsequent purchaser.
Aggrieved thereof, subsequent purchaser preferred writ petition no.
10015 of 2005 in Delhi High which was disposed of vide order dated
19.7.2007, directing DDA to decide subsequent purchase's request for
conversion of premises from lease hold to freehold. Thereafter, High
Court also dismissed DDA's second appeal holding that act of demand
and acceptance of rent tantamounts to renewal of lease of disputed
property. It is this judgment passed in second appeal which came to be
considered before Supreme Court in the aforesaid matter. One of the
contentions raised on behalf of DDA was that original lessee created
interest in the disputed property in favour of subsequent purchaser
during the period when original lessee itself was not a lease holder since
lease stood terminated by efflux of time. It was contended that original
lessee had no title or interest in property which could have been
transferred to subsequent purchaser and said transfer is void and not
binding on DDA. Next ground was that deposit of rent by original lessee
and acceptance by office of DDA is something administrative in nature
and would not be construed as estoppel or waiver on the part of DDA
with regard to property unless a specific intention to this effect is
communicated to original lessee. Supreme Court formulated following
two questions:-
“1. Whether original lessee has acquired any right in respect of
property in question after termination of lease by efflux of time
on 10.8.1968 and also by termination notice dated 1.9.1972, in
the absence of renewal of lease by DDA in writing as provided
under Clause iii(b) of lease deed, by virtue of payment of rent in
the office of the DDA?
2.Whether Respondent(subsequent purchaser) acquires any right
in respect of property in question by getting substituted in place of
original lessee by virtue of a compromise decree, between original
lessee and Respondent based on a sale deed dated 14.10.1998
executed by original lessee, by invoking Order 22 Rule 10 of CPC
during pendency of appeal before High Court?"
74
161.While answering question no.1, Court held that there was no
renewal of lease by DDA in favour of original lessee. Court also held
that a lease if has expired, it would not be necessary for lessor to
terminate the same since original lease stands terminated by efflux of
time after expiry of period of lease. Court said that Principle of "holding
over" under Section 116 of Act, 1882 would not be applicable since there
was no assent of landlord and mere acceptance of rent by lessor, in
absence of an agreement to the contrary, would not render possession of
lessee valid. In this regard, Court relied on its earlier decision in Shanti
Prasad Devi and Another vs. Shanker Mahto and others (supra) and
Sarup Singh Gupta vs. S. Jagdish Singh and others (2006) 4 SCC
205. There could not be an implied renewal to attract "holding over" on
mere acceptance of rent offered by lessee.
162.In Delhi Development Authority vs. Anant Raj Agencies Pvt.
Ltd. (supra) Court also held that land vested in DDA is a public
premises and that being so, it is governed by Act, 1971, which shall
prevail over Act, 1882, a general law governing landlord and tenant's
relationship. Referring to definition of "Public Premises", Court said, "It
can be concluded that Act, 1882 is not applicable in respect of Public
premises". Court held :-
"Therefore, in the instant case, as per Clause iii(b) of the lease
deed and Sections 21 and 22 of the DD Act read with Rule 43 of
the Nazul Land Rules and in the light of Shanti Prasad Devi,
Sarup Singh Gupta and Ashoka Marketing Ltd. Cases (supra),
there cannot be an automatic renewal of lease in favour of the
original lessee once it stands terminated by efflux of time and
also by issuing notice terminating the lease. Merely accepting the
amount towards the rent by the office of the DDA after expiry of
the lease period shall not be construed as renewal of lease of the
premises in question in favour of the original lessee, for another
period of 20 years as contended by the Respondent."
163.In Delhi Development Authority vs. Anant Raj Agencies Pvt.
Ltd. (supra) Court also considered that land vested in DDA was a
75
'Nazul land' and that being so, power has been conferred upon DDA to
grant lease which includes renewal of lease but in absence of said
renewal of lease of property as required in law, original lessee cannot
claim an automatic renewal in his favour. Court held as under:-
"Thus, it is abundantly clear from the aforesaid legal statutory
provisions of the DD Act and terms and conditions of the lease
deed and the case law referred supra that there is no automatic
renewal of lease of the property in question in favour of the
original lessee" (Emphasis added)
164.Having said so, Court held that in absence of renewal of lease,
status of original lessee in relation to disputed property was that of an
"unauthorized occupant" in terms of Section 2(g) of U.P. Act, 1972.
165.It also said that any act on the part of DDA in respect of other
communication would make no difference, since a "Public Premises" is
to be dealt with by relevant statutory provisions including Act, 1971,
Nazul Land Rules and DDA Act, 1957. Thus question-1 was answered
by Court as under:-
"30. Without examining the case in the proper perspective that the
property in question being a Public Premises in terms of Section
2(e) of the Public Premises (Eviction of Unauthorised Occupants)
Act, 1971 and that after expiry of lease period the original lessee
has become unauthorized occupant in terms of Section 2(g) of
the said Act in the light of relevant statutory provisions and Rules
referred to supra and law laid down by the Constitution Bench of
this Court in the Case of Ashoka Marketing Ltd. and Another
(supra), the concurrent findings of the courts below on the
contentious issue is not only erroneous but also suffers from error
in law and therefore, liable to be set aside.
31.The grant of perpetual injunction by the Trial Court in favour
of original lessee, restraining the DDA from taking any action
under the said termination notice dated 01.09.1972, on the ground
that the termination notice dated 01.09.1972 being illegal,
arbitrary and without jurisdiction and the affirmation of the same
by both the first appellate court, i.e. by the learned ADJ and
further by the High Court by its impugned judgment and order are
76
not only erroneous but also suffers from error in law. Thus, Point
No.1 is answered in favour of the Appellant."
166.Thereafter, question-2 was considered by Court. It was held that
compromise decree between original lessee and subsequent purchaser
was void ab initio in law for the reason that original lessee in absence of
renewal of lease in his favour himself has no right, title or interest at the
time of execution of sale deed in respect of disputed property. Court
said:
"It is well settled position of law that the person having no right,
title or interest in the property cannot transfer the same by way
of sale deed." (Emphasis added)
167.Thus, original lessee could not transfer a valid right to subsequent
purchaser since itself had no right whatsoever in respect of land in
dispute. Further, fact that subsequent purchaser deposited conversion
charges in the office of DDA, also would make no difference. Original
lessee in absence of renewal of lease, himself having become an
"unauthorized occupant" of property, a transaction between original
lessee and subsequent purchaser would have no legal consequence. Thus
anything done between DDA and original lessee will also have no
consequence. Court therefore, answered second question as under:-
"The instant case having peculiar facts and circumstances,
namely, after 10.08.1968 the lease stands terminated by efflux of
time, which is further evidently clear from the termination notice
dated 01.09.1972 and thereafter, the original lessee becomes an
unauthorised occupant in terms of Section 2(g) of the Public
Premises (Eviction of Unauthorised Occupants) Act, 1971 and
consequently, not entitled to deal with the property in question in
any manner. The very concept of conversion of leasehold rights
to freehold rights is not applicable to the fact situation."
(Emphasis added)
168.In the aforesaid backdrop, when we consider facts of present case,
we find that entry of petitioners over land in dispute was wholly
unauthorised. Therefore, their status is of 'rank trespassers'. It is true that
77
petitioners have raised certain constructions over land in dispute but
even that is without any authority and in violation of stiputations of lease
deed. Morever, raising of such constructions will not validate what is
illegal from very inception. Lessees under terms of lease were under an
obligation to surrender leased land to State after expiry of lease but such
obligation was not discharged by lessees. The mere fact that State
immediately after expiry of lease or within reasonable time did not take
any action for restoration of possession of leased land does not mean that
State's right of resumption and re-entry or that of taking possession of
land in dispute which is owned by State, in any manner would stand
hampered. It is also not the case of petitioners that their right with
respect to title over land in dispute would stand matured by 'Prescription'
i.e. by way of 'Adverse Possession'. Neither it is pleaded, nor any
material in support thereof has been placed on record, nor in the facts of
this case, doctrine of 'adverse possession' is attracted.
169.State, at no point of time, validated any action of petitioners in
respect of land in dispute. It is interesting to see that petitioners have
pleaded that they continuously paid rent of disputed Nazul land to Sri
Harihar Nath Dhar, but State, the real owner of land, stood deprived of
any payment even by way of lease rent or premium or otherwise, either
by earlier Lessee or petitioners. There is nothing on record to show that
any amount towards premium or lease rent has been paid to State after
expiry of lease on 01.04.1962. In effect, land has been enjoyed by
occupants including earlier lessees and then petitioners, free of any
payment to owner, not for a short period but almost half a century and
more. The land owned by State constitutes a 'public asset' in which
people in general have a right to ensure that custodian of public asset i.e.
State Government shall utilize such asset for maximum welfare and
benefit of public at large but that has not been done and private
individuals stood benefited in a most illegal manner.
170.So far as resumption is concerned, admittedly, State has sought to
78
resume land for 'public purpose' i.e. for developing 'Sports Complex' on
the land in dispute. It is not disputed by learned counsel for petitioners
that Allahabad City has been chosen to be developed as “Smart City” for
which land for developmental activities is required in large quantity.
State Government required huge land for making construction of various
establishments besides developing Green Area and places of other
activities. Therefore, purpose for which land is sought to be acquired is
undoubtedly a 'public purpose'. Mere fact that in case of some other
persons, land has been made freehold or some other Nazul land has not
been sought to be resumed, by itself, will not make resumption in
question, arbitrary or discriminatory for the reason that every land
situated in different location has its own identity, utility and suitability.
One land in a particular location cannot claim parity with another land.
Reasons may be hundred i.e. size of land, its topography and similar
other aspects. It is not the case of petitioners that land in question cannot
be developed as 'Sports Complex'. The mere fact that one 'Sports
Complex is already existing in the city of Allahabad, does not mean that
for developing Allahabad as 'Smart City', more than one Sports Complex
should not or cannot be developed and constructed. This assumption on
the part of petitioners is thoroughly unwarranted and misconceived.
171.Further, right of re-entry is not restricted under terms of lease, as
we have already quoted. Right of re-entry also does not prejudice right
of State to take appropriate steps for claiming damages for breach of
covenants of lease-deed and for recovery of rent/damages or other dues
in respect of actual use of land by unathorized occupants. State has not
chosen to take structure raised on land in dispute and opportunity has
been given to petitioners to remove such structure from land in dispute
and give vacant possession to respondent-State within fifteen days. It
thus cannot be said that resumption of land in dispute by State is illegal
or invalid or not in accordance with law.
172.Counsel for petitioners at this stage sought to argue that petitioners
79
if treated as 'unauthorized occupant' in view of definition of term
'unauthorized occupant' provided in Section 2(g) of U.P.Act, 1972, in
that case, they can be evicted from premises in question only in
accordance with procedure prescribed therein and not otherwise.
173.Here also we find no substance in the submission. Provisions of
lease-deed, as we have already said, provide a procedure for re-entry.
Besides relevant clauses of lease-deed which we have already quoted,
there is another provision in lease-deed providing for re-entry by
Government at any time and the said clause of lease deed reads as
under :
“PROVIDED also that if the Government shall at any time
require to re-enter on this site it can do so, on paying the value
of all buildings that may be on this site, plus 10 per cent, as
recompence for resumption of lease and that the lessee shall
have no further claim of any sort against the Government.”
(Emphasis added)
174.Supreme Court has already said that terms of lease shall govern
Nazul land in view of provisions of GG Act, 1895 and being a special
procedure prescribed in lease deed, it shall prevail over any other law
and no other procedure is required to be followed.
175.Therefore, State Government, when avail its right under terms of
lease, cannot be compelled to chose another procedure. Moreover, under
U.P.Act, 1972, State may proceed if it intends to recover the amount of
damage, compensation etc. for unauthorized possession over public
premises, which has to be ascertained by Prescribed Authority, which is
not the case in hand. Therefore, it cannot be said that State Government
is bound to follow procedure of U.P. Act, 1972 and cannot resort to the
procedure prescribed for re-entry provided in lease-deed itself. This
argument is contrary to what has been said by Supreme Court in Azim
Ahmad Kazmi and others (supra), hence rejected.
176.In this context and to justify possession of petitioners over land in
80
dispute, it is also contended that in 1992, policy of conversion of Nazul
land into freehold was adopted by Government and petitioners having
applied for freehold, were entitled to continue for possession till their
application is decided, hence State Government could not have re-
entered or resumed land in dispute, instead, petitioners are entitled for
conversion of lease into freehold. Reliance is placed on G.O. dated
23.05.1992 and subsequent ones.
177.The first such G.O. is dated 23.05.1992. The aforesaid G.O. was
applicable to permanent leases given for 'residential purposes' and
'current leases', given for residential purposes. Para 1 of aforesaid G.O.
reads as under :
^^eq>s ;g dgus dk funsZ'k gqvk gS fd lE;d fopkjksijkUr 'kklu }kjk
utwy Hkwfe ds izcU/k ,oa fuLrkj.k vkfn dh orZeku O;oLFkk esa ifjorZu djrs gq,
'kk'or ,oa pkyw iV~Vksa ds vUrxZr miyC/k utwy Hkwfe dk LoSfPNd
vk/kkj ij Qzh&gksYM ?kksf"kr djus ,oa 'ks"k fjDr utwy Hkwfe dk fuLrkj.k bl
'kklukns'k esa fu/kkZfjr izfdz;k ds vuqlkj djus dk fu.kZ; fy;k x;k gSA rn~uqlkj
utwy Hkwfe ds izcU/k ,oa fuLrkj.k vkfn ds lEcU/k esa fuEufyf[kr O;oLFkk
rkRdkfyd :i ls ykxw gksxhA^^
“I am directed to say that after due consideration the
government has while changing the extant policy of management
and disposal of the Nazul land, decided to declare Nazul land
available under the perpetual and current leases to be freehold
on voluntary basis and to dispose remaining vacant Nazul land as
per procedure prescribed in this Government Order. Accordingly,
in respect of the management and disposal, etc. of the Nazul land,
the following policy shall come into force with immediate effect.”
(English Translation by Court)
(Emphasis added)
178.Those, who are governed by aforesaid G.O., were directed to
submit their option for freehold within one year from the date of issue of
G.O. and only they would be entitled for benefit under the said G.O. It
also restrained any transfer of property if under lease deed, no transfer
was permissible without permission. It also directed that where
81
unauthorized possession is found, action for eviction shall be taken in
accordance with law. Paras 7 and 8 of said G.O. read as under :
^^¼7½ftu iV~Vksa es ;g 'krZ gS fd iV~Vkf/kdkjh fcuk iV~Vknkrk
dh vuqefr ds iV~Vkxr Hkwfe dk gLrkUrj.k dj ldrk gS] ogkWa
iV~Vs dh 'krZ ds foijhr dksbZ gLr{ksi ugh fd;k tk,xk] fdUrq tgkWa
fcuk iV~Vknkrk dh vuqefr ds iV~Vsnkj }kjk Hkwfe gLrkUrj.k djus dk fu"ks/k gS
ogkWa bl 'kklukns'k ds ykxw gksus dh frfFk ls fdlh Hkh izdkj ds gLrkUrj.k
ij ,d o"kZ rd ds fy, jksd yxk nh tk,xhA ;g ;kstuk 'kklukns'k tkjh gksus
dh frfFk ls ykxw gksxhA
¼8½bl ckr dk O;kid izpkj fd;k tk,xk fd mijksDr uhfr vuf/kd`r dCtks
ds ekeyksa esa ykxw ugha gksxh vkSj vuf/kd`r dCtksa ds ekeyksa esa fof/kd
izfdz;k ds vuqlkj csn[kyh vkfn dh dk;Zokgh dh tk,xhA**
“(7) In leases where leaseholder can transfer lease land
without permission of the lessor, in such a case no interference
shall be made contrary to the terms and conditions of the lease.
But where transfer of land without permission of the lessor is
prohibited, any transfer of land shall be stopped for a year from
the date of enforcement of this Government Order. This policy
shall come into force from the date of issue of the Government
Order.
(8) It shall be widely circulated that the aforesaid policy shall
not be applicable to the cases related to unauthorized possessions
and eviction proceedings, etc. in relation to the unauthorized
possessions shall be held in accordance with the legal
procedure.” (English Transaction by Court)
(Emphasis added)
179.The second G.O. was issued on 02.12.1992 dividing Lease-
Holders in two categories. One, who had not violated conditions of
lease, and, another, who had violated conditions of lease. Those, who
had not violated conditions were required to pay for conversion to
freehold an amount equal to 50 percent of Circle Rate for residential
purpose while those who had violated conditions of lease, were to pay
100 percent. Same was in respect of Group Housing and Commercial
use with the difference of amount to be paid for freehold. Para 4 thereof
also provided that such current leases where 90 years period had
82
expired, if Lease-holder had not violated any condition of lease and
wants freehold, that can be allowed as per aforesaid G.O.. However, if he
wants fresh lease, that can also be allowed for 30 years on payment of 20
percent of Circle rate as premium and 1/60
th
part of premium towards
annual rent. Clause 4 of aforesaid G.O. reads as under :
^^4-,sls pkyw iV~Vs ftuds 90 o"kZ dh lEiw.kZ vof/k lekIr gks
xbZ gS ;fn dksbZ iwoZ iV~Vk/kkjd ftUgkasus iV~Vs dh 'krksZa dk mYya?ku
ugha fd;k gS] Hkwfe Qzh&gksYM djkuk pkgrk gS rks ,slh n'kk esa fu/kkZfjr njksa
ds vuqlkj Qzh&gksYM dj fn;k tk,xkA ;fn og Qzh&gksYM ugh djkuk pkgrs gS
cfYd u;k iV~Vk ysuk pkgrs gS rks ,slh n'kk esa 30 o"kZ ds fy, ,d u;k iV~Vk
orZeku 'krksZa ds vk/kkj ij fn;k tk ldrk gS ftlds fy, izhfe;e dh /kujkf'k
izPkfyr lfdZy jsV dh fu/kkZfjr nj dh 20 izfr'kr gksxh vkSj okf"kZd fdjk;k]
izhfe;e dk 1@60oka Òkx izfro"kZ ds fglkc ls Òh fy;k tk,xkA^^
“4 . In case of those current leases whose entire lease period of
90 years has expired, if any previous leaseholder who has not
violated lease conditions, wants to get the land converted into
freehold, in such a circumstance it shall be converted into freehold
against the payment of the prescribed rates. If he does not want to
convert it into freehold and wants to get a new lease, in such a
circumstance a new lease may be awarded for 30 years under the
extant terms and conditions, for which premium amount @ 20
percent of the existing circle rates and annual rent @ 1/60 of the
premium shall be paid.” (English Translation by Court)
(Emphasis added)
180.The third G.O. dated 03.10.1994 again made amendment in earlier
two G.Os. Relevant aspect is that vide para 2, provision made for
execution of 30 years lease, where 90 years period had expired, was
deleted. Para 2 of G.O. dated 03.10.1994 reads as under :
^^2-'kklukns'k la[;k 3632@9&vk&4&92&293&,u@90] 2&12&1992 esa ,sls
pkyw iV~Vs ftuds 90 o"kZ dh lEiw.kZ vof/k lekIr gks pqdh gS rFkk iwoZ
iV~Vk/kkjd }kjk iV~Vs dh 'krksZa dk mYya?ku ugha fd;k x;k gS] ds lEcU/k esa 30
o"khZ; iV~Vk Lohd`r fd;s tkus dh O;oLFkk dh xbZ FkhA bl O;oLFkk dks
rkRdkfyd izHkko ls lekIr fd;k tkrk gSA vc ,sls ekeys esa u;k
iV~Vk Lohd`r ugha fd;k tk,xk cfYd ,sls ekeys esa ftuesa iV~Vs
dh lEiw.kZ vof/k lekIr gks pqdh gS mldks mijksDr fu/kkZfjr njksa
ij iwoZ iV~Vsnkj ds i{k esa Qzh&gksYM esa ifjofrZr djus dh
83
dk;Zokgh dh tk,xhA**
“2.A provision had been made in Government Order No.
3632/9-Aa-4-92-293-N/90, dated 02.12.1992 for grant of lease for
30 years for the current leases; where 90 years' tenure has expired
and the terms and conditions of the lease have not been violated
by the former lease holder. This provision is annulled with
immediate effect. Now in such cases, no new lease shall be
granted; rather, in cases where entire period of lease has
expired, proceedings shall be taken for converting such leases
into freehold in favour of the former lease holders at the
aforesaid prescribed rates.” (English Translation
by Court)
(Emphasis added)
181.Para 8 of aforesaid G.O. further provides that policy for freehold
will be effective only upto 31.03.1995.
182.Considering that some very poor persons were also in occupation
of 'Nazul land' and their eviction may result in serious problem of
accommodation to such persons, another G.O. dated 01.01.1996 was
issued making amendments in earlier three G.Os. stating that those
persons whose monthly income is Rs.1,250/- or less, unauthorized
possession of such persons on vacant Nazul land upto 01.01.1992 or
prior thereto for residential purposes, shall be allowed freehold on
payment of 25 percent premium and Rs.60/- annual rent for the said area
upto 45 Sq. Meter and for more than 45 Sq.Meter but upto 100 Sq.Meter,
40 percent and Rs.120 annual rent. It clearly says that no regularization
of unauthorized possession shall be made beyond 100 Sq.Meter and
amount of premium shall be allowed to be paid in 10 years' interest free
6 monthly installments. Such unauthorized possession shall be
regularized by approving 30 years' lease. Clauses 1, 2, 3 and 4 of
aforesaid G.O. reads as under :
^^¼1½fdlh Hkh n'kk esa 100 oxZ ehVj ls vf/kd {ks=Qy ij fd;s x;s
voS/k dCtksa dk fofu;ferhdj.k ugha fd;k tk;sxk rFkk fnukad 30-11-
1991 dh lfdZy jsV ij vkadfyr lEiw.kZ ewY; ij fu/kkZfjr ;FkkfLFkfr 25% ;k
84
40% utjkus dh /kujkf'k 10 o"khZ; C;kt jfgr Nekgh fdLrksa esa fy;k tk;sxk]
ijUrq ;fn dksbZ O;fDr lEiw.kZ /kujkf'k ;k cdk;k fdLrksa dh /kujkf'k ,deq'r tek
djuk pkgrk gS rks og ns; /kujkf'k tek dj ldrk gSA
¼2½mijksDr izdkj ds ekeys esa fofu;ferhdj.k dh dk;Zokgh 30 o"khZ; iV~Vk
Lohd`r djds dh tk;sxhA Lohd`r iV~Vs esa 30&30 o"khZ; nks uohuhdj.k ds
izkfo/kku lfgr lEiw.kZ iV~Vs dh dqy vof/k nks uohuhdj.k ds izkfo/kku lfgr
lEiw.kZ iV~Vs dh dqy vof/k vf/kdre 90 o"kZ dh gksxhA ftlesa ;g 'krZ gksxh
fd lEcfU/kr O;fDr Hkwfe dk iV~Vkf/kdkj 30 o"kZ rd fdlh O;fDr
dks gLrkukUrfjr ugha dj ldrk gS iV~Vk 'kklu }kjk fu/kkZfjr
izk:i ij tkjh fd;k tk;sxkA
¼3½vukf/kd`r dCtksa ds fofu;ferhdj.k dh leLr dk;Zokgh
ftykf/kdkjh] dh v/;{krk esa xfBr lfefr dh laLrqfr ij
ftykf/kdkjh }kjk dh tk;sxhA y[kuÅ ,oa nsgjknwu esa leLr dk;Zokgh
mik/;{k] fodkl izkf/kdj.k dh v/;{krk esa xfBr lfefr dh laLrqfr ij mik/;
{k }kjk dh tk;sxhA
¼4½fofu;ferhdj.k gsrq ifjokj dks ,d bdkbZ ds :i esa ekuk
tk;sxk rFkk iV~Vk ifjokj ds eqf[k;k ds i{k esa Lohd`r fd;k tk;sxkA**
“(1)Under no circumstances, illegal possessions over an area
measuring over 100 square metres shall be regularised and an
amount of earnest money, 25% or 40% as the case may be, on the
entire amount calculated as per the circle rate as on 30.11.1991
shall be taken in half yearly interest free instalments over the
period of 10 years. However, if any person wishes to deposit entire
money or the amount of remaining instalments in lump sum,
he/she may deposit the payable amount.
(2)In the aforesaid type of cases, regularisation proceedings
shall be done by granting a lease for a period of 30 years. The
total period of the entire lease shall at most be 90 years with
provision of two renewals, for 30 years each, in the lease so
granted, subject to a restriction that the person concerned cannot
transfer the lease rights to anybody until 30 years. The lease
shall be issued on a format prescribed by the government.
(3)All the proceedings of regularisation of unauthorised
possessions shall be done by the District Magistrate on
recommendation of a committee constituted under his/her
chairmanship. All the proceedings in Lucknow and Dehradun
shall be done by the Vice Chairman, Development Authority, on
85
recommendation of a committee constituted under his/her
chairmanship.
(4)For the purpose of regularisation, a family shall be
deemed to be a unit and lease shall be granted in the name of the
head of the family.” (English Translation by Court)
(Emphasis added)
183.Then vide G.O. dated 17.02.1996 again some amendments were
made in respect of amount payable for freehold but earlier policy of
categories of persons, who can claim freehold, was not changed. Vide
G.O. dated 29.03.1996, period for giving benefit of freehold was
extended from 01.4.1996 to 30.09.1996. G.O. dated 02.04.1996 only
made some corrigendum in earlier G.O. dated 17.02.1996.
184.On 29.08.1996, G.O. was issued in furtherance of G.O. dated
17.02.1996 stating that under G.O. dated 17.02.1996, freehold rights to
Nominees of Lease-Holders were allowed and in reference thereto, rates
on which such Nominees shall be allowed freehold, were mentioned.
185.We find that G.O. dated 17.02.1996 nowhere permits conversion
of Nazul land into freehold in favour of Nominees of Lessee. Thus, G.O.
dated 29.08.1996, insofar as it refer to G.O. dated 17.02.1996, has erred
in law and it is a clear misreading. If G.O. dated 17.02.1996 itself had
not permitted freehold rights to Nominee(s) of Lessee, question of rights
determined by G.O. dated 29.08.1996 is of no legal consequence and
would remain inoperative.
186.Then vide G.O. dated 25.10.1996, implementation of freehold
policy was extended upto 31.12.1996. Then G.O. dated 31.12.1996 was
issued to clarify G.O. dated 17.02.1996 in respect of applicability of rate,
where land use at the time of grant of lease has changed in Master plan.
187.G.O. dated 26.09.1997 made amendments in all earlier G.Os. in
respect of rates for Nazul land being used for hospital and other
charitable purposes. It also clarifies as to which contravention of lease
86
deed will be treated as violation to attract higher rate. It also provided in
para 6(2) that Government has got right of re-entry due to violation of
any conditions of lease and lease has already expired, and such Lease-
Holder may be informed of Nazul policy and be given an opportunity to
apply for freehold whereafter action for dispossession will be taken. The
policy of conversion of freehold was extended upto 25.12.1997.
188.Then comes G.O. dated 01.12.1998. Thereunder only two
categories were made i.e. residential and non-residential. Restriction was
also imposed on certain Nazul land in respect whereto conversion of
freehold shall not be allowed.
189.Vide G.O. dated 10.12.2002, it was clarified that freehold
conversion shall not be allowed to nominee of Lessee or his legal heirs.
G.O. dated 31.12.2002 relates to rates and clarification hence are not
relevant for the purpose of present case.
190.Vide G.O. dated 04.08.2006, provision for regularization of Nazul
land which was in unauthorized possession, was deleted. It is also said
that in all the matters, where freehold document has not been registered,
application shall be cancelled. Vide G.O. dated 15.02.2008 clarification
was given in respect of G.O. dated 04.08.2006 and it was reiterated that
in all those matters where freehold document has not been registered,
application shall be rejected.
191.Vide G.O. dated 21.10.2008, Clause 3 of G.O. dated 10.10.2002,
whereby provision for conversion of freehold to Nominee of Lessee or
his legal heirs was ceased, was restored. It was also clarified that
decision to convert freehold of Nazul land will apply only when such
land is not found necessary for Government use.
192.G.O. dated 26.05.2009 made an amendment in para 2(6) of G.O.
dated 21.10.2008 and substituted following paras therein :
^^,sls utwy Hkwfe;ka tks Hkw&/kkjd ;k iV~Vk/kkjd ;k muds fof/kd mRrjkf/kdkjh
@ ukfer dh Hkwfe ds lkFk fLFkr gS rFkk muds fy, mi;ksxh fl)
87
gks ldrh gSa rFkk fdlh vU; ds mi;ksx dh lEHkkouk ugha izrhr
gksrh gSA ,slh Hkwfe dk fofu;ferhdj.k Hkw&/kkjd ;k iV~Vk/kkjd ;k muds fof/kd
mRrjkf/kdkjh @ ukfer ds i{k esa orZeku lfdZy jsV 'kr izfr'kr izkIr dj
Qzh&gksYM dj fn;k tk;sxkA ,sls ekeyksa esa 'kklu dh vuqefr vko';d
gksxhA**
“Those nazul lands which are lying adjacent to the land of land
holder or lease holder or his legal successor/his nominee, and
which can be of utility to them and do not appear to have the
potential of being used by any other person, shall be regularised
and converted into freehold in favour of the land holder or lease
holder or his legal successor/nominee after receiving cent percent
current circle rate. In such matters, the permission of the
government shall be necessary.” (English Translation by Court)
(Emphasis added)
193.Further time for conversion into freehold was extended upto
31.12.2009.
194.G.Os. dated 29.01.2010, 17.02.2011 and 01.8.2011 contain
amendments of minor nature hence not discussed further.
195.Then comes G.O. dated 28.09.2011. It talks of policy of
conversion of Nazul land into freehold, which was not listed at any point
of time but has been occupied unauthorizedly and occupants have raised
their construction using land prior to 01.12.1998. However, land of
public places, park, side-lanes of road and other Government uses was
excluded and maximum area for such freehold was confined to 300
Sq.Meter. The incumbent had to apply within three months whereafter
they have to be evicted. With respect to 'Nominees of Lessees', para 5 of
said G.O. reads as under :
^^ukfer O;fDr ds i{k esa utwy Hkwfe dks QzhgksYM fd;s tkus dh O;oLFkk dks lekIr
fd;k tkuk& utwy Hkwfe ds iV~Vsnkj }kjk ukfer O;fDRk ds i{k esa utwy
Hkwfe dks QzhgksYM fd;s tkus dh O;oLFkk loZizFke 'kklukns'k la[;k %
1300@9&vk&4&96&629,u@95] Vh-lh- fnukad 29&8&1996 ds izLrj&1 ¼3½ ¼4½
esa dh x;h Fkh vkSj 'kklukns'k la[;k 2873@9&vk&4&2002&152&,u @2002]
Vh-lh- fnukad 10&12&2002 ds izLrj 3 }kjk mDr O;oLFkk lekIr dj nh
x;h rFkk 'kklukns'k la[;k % 1956@vkB&4&08&266,u@08] fnukad
88
21&10&2008 ds izLrj& 2 ¼4½ }kjk mDr O;oLFkk iqu% cgky dj nh x;h
gSA bl O;oLFkk ds lEcU/k esa ek0 mPPk U;k;ky; esa fopkjk/khu fjV ;kfpdk
¼tufgr ;kfpdk½ la[;k % 35248@2010&t;flag cuke mRrj izns'k jkT; o vU;
esa ikfjr vUrfje vkns'k fnukad 16&07&2010 esas fn;s x;s funsZ'kksa ds n`f"Vxr
mi;qZDr 'kklukns'k fnukad 21&10&2008 dk izLrj 2 ¼4½ ftlds }
kjk ukfeuh ds i{k esa utwy Hkwfe dks QzhgksYM fd;s tkus dh
O;oLFkk cgky dh x;h gS] dks lekIr djrs gq, vc ,sls O;fDr
ftuds i{k esa dz; dh tk jgh lEifRr ¼utwy Hkwfe½ dks iV~Vsnkj }
kjk jftLVMZ ,xzhesaV Vw lsy fd;k x;k gks vkSj iw.kZ LVkEi 'kqYd
vnk fd;k x;k gks] mlh O;fDr ds i{k esa gh utwy Hkwfe dks
QzhgksYM fd;k tk;sxkA**
“Cessation of the provision of converting the nazul land into
freehold in favour of the nominee:- The provision of converting
nazul land into freehold in favour of nominee by the lease
holder of the land had first been provided in the para– 1 (3)(4) of
the Government Order No. 1300/9-Aa-4-96-629N/95, TC dated
29-08-1996; and by para 3 of the Government Order No. 2873/9-
Aa-4-2002-152-N/2002, TC dated 10.12.2002, the aforesaid
provision was annulled; and through para 2(4) of Government
Order No. 1956/VIII-4-08-266N/08, dated 21.10.2008, the
aforesaid provision has been restored again. Pursuant to the
instructions, with respect to this provision, given in the interim
order dated 16.07.2010 passed by the Hon'ble High Court in Writ
Petition (Public Interest Litigation) No. 35248/2010 titled as Jai
Singh Vs State of Uttar Pradesh and others, which is pending, the
provision of para 2(4) made in the aforesaid Government Order
dated 21.10.2008 through which converting nazul land into in
favour of the nominee was restored, is being annulled; and the
nazul land shall be converted into freehold in favour of the
person with whom the lease holder has entered in registered
agreement to sale and who has paid the whole stamp duty.”
(Emphasis added)
(English Translation by Court)
196.Aforesaid G.Os. thus clearly show that eligibility of leases of
Nazul land, as initially laid down in G.O. of 1992 remained some
changed but in respect of land found suitable or needed by Government,
no freehold was permissible. With respect to violation of terms and
conditions of lease etc., some relaxation was given.
89
197.Lastly there are two more G.Os. i.e. 04.03.2014 and 15.01.2015
wherein policy of freehold has been virtually given a relook and
substantial amendments have been made in earlier policy.
198.It is no doubt true that Government has promulgated policy of
conversion of lease land into freehold even in those cases where lease
has expired, but then question is “whether mere submission of
application for freehold will confer a vested right upon petitioners to get
Nazul land converted into freehold, which will override even power of
re-entry of Lessor.
199.A Full Bench of this Court in Anand Kumar Sharma vs. State of
U.P. and others 2014(2) ADJ 742 has considered this aspect and held in
para 42 of judgment that merely by making an application for grant of
freehold right, a petitioner did not acquire a vested right. Para 42 of the
judgment reads as under :
“We after considering the relevant Government Orders on the
subject and pronouncements of the Apex Court as noted above,
are of the view that merely by making an application for grant of
freehold right, petitioner did not acquire a vested right.”
(Emphasis added)
200.A Division Bench of this Court in Writ Petition No.62588 of
2010, M/s Madhu Colonizers Pvt. Ltd. vs. State of U.P. & Ors.,
decided on 02.04.2013 has held that if Government exercises right of re-
entry, question of lessees to claim freehold would not arise and where
such a right cannot be claimed by Lessee, right of nominee also cannot
survive over such lessee. Court has said :
“It is also found that as nominee of the lessee, the petitioner-
Company cannot have any larger rights than the lessee and once
the order of the District Magistrate for resumption the land in
exercise of power under Clause 3(c) of the lease deed is held to
be valid, the petitioner-Company, as a nominee, cannot have any
surviving right to claim conversion of the lease hold rights into .
Infact, on valid resumption order being passed, the lease hold
rights cease to exist and there can be no occasion for conversion
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of lease hold rights into freehold rights in such circumstances.”
(Emphasis added)
201.The discussion made above leaves no manner of doubt that
resumption of land in question is in accordance with law and petitioners
have no right whatsoever to claim continued possession over land in
dispute. Even scheme of freehold as governed by various Government
Orders shows, wherever land is required by State Government for 'public
purpose' for own use, it shall not allow freehold.
202.We, therefore, answer questions (v) and (vi) against petitioners
and hold that petitioners had no right, legal, contractual or otherwise in
respect of possession of land in dispute; they were not holding
possession of land validly; once State exercises right of re-entry,
question of conversion of freehold also would not arise, hence notice in
question warrants no interference.
203.Before proceeding further, we find it difficult to desist from
observing that freehold policy, commenced in 1992, took care of a
limited category of occupants of Nazul land i.e. Lessees, who had
perpetual lease or where lease was continuing and there was no violation
of conditions of lease. Meaning thereby, Leaseholders, who had
faithfully abided the terms and conditions of lease, were chosen as a
class by themselves and provision was made to convert lease rights into
freehold in such cases. One may not dispute about such policy in the
light of the fact that these leases were several decades old and people
holding such leases had developed some kind of possessory interest in
property and recognizing such interest of Lessees, howsoever weak it
was, if State Government chose to confer upon them benefit of
conversion of lease right into freehold, one may not validly object to that
and probably such policy may satisfy constitutional test of fairness, non-
discrimination, non-arbitrariness etc. But with the passage of time, in the
garb of improvement in the policy, amendments were made by numerous
Government Orders issued from time to time, which we have referred
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hereinabove and that opened an unrestricted area of beneficiaries, i.e.
wholly strangers namely mere Nominees of Lessee, who had no prior
interest in property in question, flagrant defaulters and violators of terms
of lease etc. Such provisions, in our view, are difficult to be sustained as
to satisfy constitutional validity of policy of freehold under aforesaid
Government Orders. In our view, such G.Os. are ex facie arbitrary and
violative of Article 14 of Constitution of India. One cannot lose sight and
ignore historical backdrop of allotment of Nazul land. Persons who were
sympathetic to Britishers and for services rendered by individuals in the
interest of Colonial Forces, helping them in their administration; or some
otherwise highly resourceful people, were given such Leases/Grants.
After independence, if State wanted to distribute its largesse/assets, we
can understand, if a scheme would have been evolved to distribute Nazul
land, by terminating lease, to weaker and poor people or landless people
or if objective was to augment revenue, then State largesse/assets,
instead of distributing in a clandestine manner by confining such benefit
to certain individuals, appropriate mode of auction of land to general
public should have been adopted. We do not know what prevailed with
State Government in making policy, which was initially not so
apparently erratic, to become a boon to defaulters and also give
opportunity to certain individuals in trading of land after getting land
freehold on much lessor amount than what actually market value of land
is. In the present case itself, petitioners have said that they paid money to
Harihar Nath Dhar and therefore, Harihar Nath Dhar actually benefited
himself of the property owned by State without any return to State and
this had continued for decades together. Thus, Prima facie, we are
satisfied that policy of freehold, as it stand today, helps scrupulous,
resourceful land dealers, Land Mafias and similar other persons. It is
neither in public interest nor satisfies test of fairness and reasonableness
of public policy nor consistent with constitutional provisions, in
particular, Article 14 of Constitution of India. However, we are not
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expressing any final opinion on this aspect but this Court desires that it is
high time and sooner is the better, that State Government must re-
examine entire policy and if purpose is only to augment revenue,
Government should opt for public auction so that it may get best price or
policy should be confined for the benefit of have-nots i.e. poor landless
and weaker sections of the Society.
204.Now, we come to question (vii).
205.Petitioners are rank-trespassers, as we have already said.
Therefore, they have no right over land in dispute. Still respondent's
authority has given opportunity to petitioners by means of notice in
question. Even otherwise, if petitioners would have been a valid
leaseholder, their rights under lease would have been contractual and in
the matter of contract, it has been repeatedly held that principles of
natural justice are not applicable.
206.In State of Gujarat and Ors. vs. Meghji Pethraj Shah
Charitable Trust and Ors., 1994(3) SCC 552, Court held:
"We are unable to see any substance in the argument that the
termination of arrangement without observing the principle of
natural justice (audi alteram partem) is void. The termination is
not a quasi-judicial act by any stretch of imagination; hence it
was not necessary to observe the principles of natural justice. It is
not also an executive or administrative act to attract the duty to
act fairly. It was- as has been repeatedly urged by Sri Ramaswamy
- a matter governed by a contract/agreement between the parties.
If the matter is governed by a contract, the writ petition is not
maintainable since it is a public law remedy and is not available
in private law field, e.g., where the matter is governed by a non-
statutory contract."
(Emphasis added)
207. Following aforesaid decision in Pimpri Chinchwad Municipal
Corporation and Ors. vs. Gayatri Construction Company and Anr.,
2008(8) SCC 172 Court has held that in the matter of non-statutory
contract, High Court should not have entertained writ petition under
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Article 226 of the Constitution.
208.No provision could be shown by counsel for petitioners which
requires an opportunity of hearing to petitioners before resumption of
land. In any case, by means of impugned notice, petitioners have been
given enough time to vacate the land and thereafter only State shall take
steps for possession, if vacant possession is not given by petitioners.
209.In the circumstances, question (vii) is answered against
petitioners.
210.In view of above discussion, we do not find any merit in the
petition. It is accordingly dismissed.
211.However, considering the facts and circumstances and also the fact
that petitioners already enjoyed interim order passed by this Court and
continued in possession over land in dispute for last almost more than a
year, we direct petitioners to vacate disputed land within one month from
the date of delivery of judgment.
212.No costs.
Order Date: 31.10.2019
KA
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