AFR

Reserved on 29.05.2019

Delivered on 31.10.2019

Court No. - 34

Case :- WRIT - C No. - 39769 of 2018

Petitioner :- M/S Amrit Bazar Patrika Pvt. Ltd. Allahabad

Respondent :- State Of U.P. And 4 Others

Counsel for Petitioner :- Amit Kumar Upadhyay

Counsel for Respondent :- Ajit Kumar Singh (Addl. A.G.), Devi Prasad

Mishra,Suresh C. Dwivedi,Amit Verma, Nimai Das & Sudhanshu Srivastava

(Addl.C.S.C.), M.D.Singh 'Shekhar' (Sr. Advocate)

With

Case :- WRIT - C No. - 40129 of 2018

Petitioner :- Girdhar Gopal Gulati And 3 Others

Respondent :- State Of U.P. And 5 Others

Counsel for Petitioner :- Ajay Kumar Singh,Ashish Kumar Singh

Counsel for Respondent :- C.S.C.,Ajeet Kumar Singh (Addl. A.G.),Devi

Prasad Mishra, Sunil Dutt Kautilya,Amit Verma, Nimai Das & Sudhanshu

Srivastava (Addl.C.S.C.), M.D.Singh 'Shekhar' (Sr. Advocate)

Hon'ble Sudhir Agarwal,J.

Hon'ble Virendra Kumar Srivastava,J.

(Delivered by Hon'ble Sudhir Agarwal,J.)

1.Both these writ petitions relate to Nazul Land i.e. Plot No.120-1/2

Civil Station, Allahabad. Total area of aforesaid plot is 12219.60

Sq.Meters and in both the matters, petitioners are claiming their rights

over half of said plot. Since they relate to same plot, therefore, have been

heard together and are being decided by this common judgment.

2.Writ Petition No. 39769 of 2018 (hereinafter referred to as

“WP-1”) has been filed by M/s Amrit Bazar Patrika Pvt. Ltd. Allahabad

having its registered office at 9, India Exchange Place, 7

th

Floor, Room

No.1A, Kolkata through its authorized Secretary, Ranen Chaterjee

(General Manager). State of Uttar Pradesh through Principal Secretary,

Housing and Urban Planning Development; District Magistrate,

Allahabad and Additional District Magistrate, Finance & Revenue

(Nazul) are impleaded as respondents 1, 2 and 3; Allahabad

Development Authority (Now Prayagraj Development Authority)

(hereinafter referred to as “PDA”) is respondent no.4 and Nagar Nigam

2

Allahabad (Now Nagar Nigam, Prayagraj), through Nagar Ayukt

(hereinafter referred to as “NNP”) is impleaded as respondent-5.

3.Petitioner in WP-1 has prayed for issue of a writ of certiorari for

quashing notice dated 18.08.2018 (Annexure 1 to writ petition) passed

by District Magistrate, Allahabad (respondent-2) informing petitioner

and others that land in dispute has been resumed by State Government

and therefore, the same be vacated within 15 days. Petitioners have also

prayed for issue of a writ of certiorari for quashing letter/order dated

13.11.2018 issued in respect of land in dispute. A writ petition No.36210

of 2018 was filed by Lal Ji Pandey and others and the same was

dismissed by this Court vide judgment dated 31.10.2018, therefore,

PDA, NNA and respondent-3 were directed by respondent-2, vide letter

dated 13.11.2018, to ensure take over possession of land in dispute and

hand over to respondent-5.

4.Facts in brief in respect of WP-1 are that a registered lease deed

dated 01.3.1862 was executed by Commissioner of Allahabad Division

in favour of “William Rowe” on yearly rent of Rs.30/- for the purpose of

building a dwelling house. Term of lease was 50 years with the condition

that lessee, if desirous of taking a new lease, should at lease six calendar

months before expiration, signify his intention or desire of a new lease

by a notice in writing to Secretary to the Government of North Western

Provinces, or to such person as shall be appointed in that behalf by

Government. The disputed land bear plot no.120 -1/2, had an area of 3

acres 45 sq.yards. A new lease deed subsequently was executed on

12.5.1915 in respect of disputed land i.e. Plot No.120-1/2, area 3 acres

45 Sq. Yards by Collector, Allahabad District on behalf of Secretary of

State in favour of Anandi Prasad Dube, son of Bal Mukund, resident of

10, Edmonstone Road, Allahabad, for a period of 50 years, commencing

from 15.3.1912, on yearly rent of Rs.40/-. Broadly, stipulations/terms of

lease, relevant for our purpose are as under :

“(i)that he will during the term hereby granted pay unto the

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Secretary of State the yearly rent hereby reserved on the days and

in manner herein before appointed

(ii)AND ALSO will from time to time and at all times during the

said term pay and discharge all rates, taxes, charges and

assessment of every description which are now or may at any time

hereafter during said term be assessed charged or imposed upon

the said premise hereby demised or the building erected thereupon

or the landlord or tenant in respect thereof

(iii)AND ALSO will not without the previous consent in writing

of the said Collector erect or setup or suffer to be erected or setup

on any part of the said premises hereby demised any messuage or

building other than and except the messuage and building already

erected and delincated upon the map here to annexed.

(iv)AND THAT if breach of the said proceeding covenant any

messuage or building is erected or setup or suffered to be erected

or setup without such permission as aforesaid it shall be lawful for

the Collector or for any person or persons duly deputed by him to

cause such messuage or building to be pulled down after the

expiration of fourteen days of his giving or causing to be given

notice to the said lessee his Executors, Administrators and

Assigns, to remove the same which notice may be given either

verbally or in writing upon the said premises. AND will not without

the previous consent in writing of the said Collector make any

alteration in the plan or elevation of the said dwelling house and

out building or carry or permit to be carried on the said premises

any trade or business whatsoever or use the same or permit the

same to be used for any purpose other than that of a dwelling

house

(v)AND ALSO will not without the previous consent in writing

of the said Collector grow any crops or keep any horse, cattle or

other animals for hire or profit allow the same to be done in or

upon the said demised premises but shall use the same for the

purposes of a garden or pleasure grounds attached to the said

dwelling house

(vi)AND ALSO upon the breach of any of the aforesaid

covenant the said lessee has Executors, Administrator or Assigns

shall and will on demand pay or cause to be paid to the Secretary

of State the sum of Rs. 500 by way of liquidated damages and not

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penalty and that on a second breach of the same it shall be lawful

for the said Secretary of State his Successors or Assigns into and

upon the same demised premises or any part thereof in the name

of the Whole to re-enter and the same to have again repossess

and enjoy as in their former estate anything herein contained to

the contrary notwithstanding.

(vii)AND ALSO that the said lessee his Executors,

Administrators and Assigns will not without the permission in

writing of the said Collector or of some person authorized by him

in that behalf construct, thatch or cover or cause or permit to be

instructed thatched or covered, with grass reeds or other

inflammable materials any building which shall or may be erected

or constructed upon the said piece or parcel of land or ground,

unless such thatch or roof or inflammable material shall be

protected by a covering of titles. And that if in breach of the said

lastly preceding covenant any building which shall or may be

erected or constructed upon the said piece or parcel of land or

ground be thatched or covered with grass reeds or other

inflammable materials without such permission as aforesaid and

aforesaid and without being protected by a covering of tiles, it shall

be lawful for the said Collector or for any person duly deputed by

him to cause such building, shed, roof, covering or other

inflammable material to be pulled down after the expiration of

twelve hours from the time of his giving or causing to be given

notice to the said lessee his Executors, Administrators or Assigns to

remove the same, which notice may be given either verbally or in

writing upon the said premises

(viii)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

Successor or Assign the said piece or parcel of land or ground

together with all such of the said erection or building and all

fixtures and things which at any time and during the said term

shall be affixed or setup within or upon the said demised premises

as the said Secretary of State, his Successor and Assigns shall

desire to takeover at a valuation according to the option

hereinafter reserved to them, subject however to the conditions

hereinafter contained,

(ix)PROVIDED ALWAYS and it is hereby understand and

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agreed, that in case the said Secretary of State shall not at the

expiration of the said term desire to take over the said buildings,

erection or fixtures or thing which shall have been at any time

during the said term granted under the lease dated 1

st

day of

March 1862 or during the said term hereby granted affixed to or

set up within or upon the said premises it shall be lawful for the

said lessee his Executors, Administrators or Assigns to remove

and take away the same as and for his and their absolute

property, but in case the said Collector shall at the expiration of

the said term hereby granted give notice to the said lessee his

Executors, Administrators or Assigns of his intention to take over

the buildings,erections, fixtures or things which shall have been at

any time during the said term granted under the lease dated 1st day

of March 1862 or during the said term hereby granted set up within

or upon the said premises or any part thereof, it shall be lawful for

the said Secretary of State, his Successors and Assigns to take over

the said buildings, erection, fixtures and things or any part thereof

with the land, and in that case the said Secretary of State, his

Successor and Assigns shall pay unto the said lessee his Executors,

Administrators or Assigns the value of such buildings, erections,

fixtures or other things or of such part thereof as they shall so take

over as aforesaid, such value to be ascertained in case the parties

themselves cannot agree, by the arbitration of two arbitration, the

one to be named by the Secretary of State, his Successor and

Assigns, and the other by said Lessee his Executor, Administrators

or Assigns and in case they shall differ by an umpire to be

appointed by the said two arbitrators, or in case either of the

parties hereto shall neglect to appoint an arbitrator for more than

one fortnight after notice has been served upon them or him by the

other party to appoint such arbitrator, then by the sole arbitration

of the arbitrator appoint by such other of the parties hereto which

arbitration shall be final.

(x)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 presents shall be determined by re-entry for forfeiture in

which case the buildings, erections and fixtures shall rest

absolutely in the said Security of State his Successors and

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Assigns as his own property without any compensation or

payment in respect thereof

(xi)PROVIDED FUTURES as it is hereby agreed that the said

Lessee his Executors, Administrators or Assigns or underlet of

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 Assign (which permission may be signified by the

said Collector or by such other person as the Government of the

North Western Provinces or the said Secretary of State may

appoint in that behalf) for that express purpose had any obtained

(xii)PROVIDED ALWAYS that if the said Lessee his 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 his 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,

(xiii)PROVIDED ALWAYS and it is hereby desired that if the said

yearly rents hereby reserved or any part thereof shall at any time

be in arrears and unpaid for the space of 21 days next after any of

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the said days whereon the same shall have become due whether the

same shall have been lawfully demanded or not or if their shall be

any breach or non observance by the lessee of any of the covenants

hereinbefore contained on his part to be observed and performed

then and in any such case it shall be lawful for the Secretary of

State notwithstanding the waiver of any previous cause or right of

the re-entry to enter into and upon the said demised premises and

the Willam Rome and out building erected as aforesaid or any

part thereof in the name of the whole and thereupon the same

shall remain to the use of and be vested in the Secretary of State

and this demise shall absolutely determine out which entry if

made shall not prejudice the right of the said Secretary of state

his Successors or Assigns to damage for the previous breach of

any covenant on the part of the said Lessee his Executors,

Administrators, or Assigns herein contained.

(xiv)AND the said Secretary of State doth hereby for himself his

Successors and Assigns covenant with the said lessee his

Executors, Administrators and Assigns that the said lessee his

Executors, Administrators and Assigns paying the rent hereinbefore

reserved at the times and in manner hereinbefore appointed, and

observing and performing all and singular the covenants,

conditions and agreements herein contained, and on and their parts

to be observed and performed according to the true intent and

meaning of these presents, shall and may peaceably and quietly

hold, use occupy, possess and enjoy the said piece and parcel of

land and ground and premises hereby demised during the said term

of fifty years hereby granted without any let, suit, denial, eviction

or disturbance of or by the said Secretary of State his Successors or

Assigns, or of or by any person or persons claiming or to claim

through or under them.”

5.Lessee transferred disputed land to Krishna Chandra Mukarjee and

subsequently, vide registered sale deed dated 23.03.1945 disputed land

was transferred to petitioner of WP-1, M/s Amrit Bazar Patrika Pvt. Ltd..

Vide letter dated 02.5.1951, Collector, Allahabad permitted use of

disputed land for press/business purpose. In terms of lease deed, lease

expired on 28.2.1962. After 18 years, petitioner applied for renewal of

lease vide application dated 14.10.1980. On the ground that petitioner

has violated terms and conditions of lease in a major way, a show cause

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notice was issued to petitioner on 14.5.1999 which was replied on

28.5.1999. Thereafter Collector Allahabad, vide order dated 09.05.2005,

rejected application for renewal of lease and resumed disputed land in

favour of Government. Order dated 09.5.2005 was challenged in Writ

Petition No. 44629 of 2005 wherein an interim order was passed on

07.6.2005 staying aforesaid order of Collector/ District Magistrate,

Allahabad. Thereafter Collector, Allahabad has passed order dated

18.08.2018 resuming/ reentering upon disputed land for “public

purpose” i.e., for development of “Sports Field”.

6.Lease deed dated 12.5.1915 was to be construed as per the

provisions of Government Grants Act, 1895 (hereinafter referred to as

“GG Act, 1895”). Petitioner of W.P.-1 claimed that it did not have any

clause permitting resumption of land for public purpose by lessor.

Moreover, GG Act, 1895 was repealed by Repealing and Amending

(Second) Act, 2017 (hereinafter referred to as “Repeal Act, 2017”)

notified on 05.01.2018.

7.Order dated 18.8.2018 has been challenged on the ground that

there is no provision for re-entry/resumption in lease deed hence

question of resumption does not arise, particularly when GG Act, 1895

has been repealed; State Government cannot forcibly evict a person from

immovable property which is leased out to him, without following due

procedure of law and reliance is placed on a Constitution Bench

Judgment in Express Newspaper Pvt. Ltd. and others vs. Union of

India and others, (1986) 1 SCC 133; Judgment and provisions relied by

District Magistrate/ Collector, Allahabad in the impugned order are in

respect of different land, which are not applicable to the land in dispute;

Petitioner sent a letter dated 30.8.2018 after receiving resumption notice

dated 18.8.2018 but no decision has been taken thereon; Impugned

notice has been given after approval of resumption granted vide order

dated 16.8.2018 by State Government which is in utter violation of

Principles of Natural Justice i.e. without giving opportunity to petitioner;

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Writ petition filed by Lalji Pandey and five others i.e. Writ Petition No.

36210 of 2018, dismissed on 31.10.2018, would not affect rights of

petitioner, inasmuch as, they were employees of Northern India Patrika

Press, residing in the premises of petitioner i.e. disputed land and writ

petition was dismissed on the ground that they could not establish any

legal right in respect of land in dispute; Impugned notice has been issued

to frustrate interim order passed by this Court in Writ Petition No. 44629

of 2005 and, therefore, is a gross abuse of process of law; impugned

order has been passed without application of mind and on incorrect facts;

the property in dispute is said to be required for public purpose i.e. to

develop as a play ground; the area of land is only 3 acres and 45 sq.

yards i.e. 12219 sq. meters, which is a very small area for developing as

“Playground”; there already exists a big garden namely 'Alfred Park'

within a radius of 300 meter, which is a huge vacant area for

development as 'Playground' and there also exists a Cricket Stadium,

which can be used for the said purpose; the grounds taken in the

impugned notice with regard to alleged violation of condition of lease

are same on which earlier order dated 09.5.2005 was passed and which is

subject matter of challenge in Writ Petition No. 44629 of 2005, wherein

an interim order has been passed but the same has been ignored while

passing the impugned order; after repeal of GG Act, 1895, power of

resumption under terms of lease, if any, read with provisions of GG Act,

1895 cannot be exercised by Government; Resumption clause, if any, is

violative of Article 14 of Constitution of India; there are various other

leases, period whereof has already expired but respondents have not

chosen to resume such land and, therefore, notice in question is illegal

having been passed by adopting pick and choose policy; when an

objection is raised that land required for 'public purpose' is not suitable

for particular purpose and no suitable areas are available, Executive

Authorities are under an obligation to examine this aspect and thereafter

take decision by a reasoned order; State may not execute freehold sale

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deed/ lease deed in respect of Nazul land under GG Act, 1895 but can

execute freehold sale deed/ lease deed in respect of Nazul land under

Article 299 of Constitution of India read with Transfer of Property Act,

1882 (hereinafter referred to as “Act, 1882”) and Indian Contract Act,

1872 (hereinafter referred to as “Act, 1872”); petitioner has invested a

huge amount in raising constructions etc. and cannot be deprived of

benefit thereof by such illegal resumption; respondents cannot, merely

by giving notice, forcibly re-enter the property in dispute and throw out

petitioner from possession of land in dispute forcibly; and notice has

been issued in a hurried manner without any force of law, hence, liable to

be set aside.

8.On behalf of respondents 2 and 3, a counter affidavit has been

filed which is sworn by Sri Gore Lal Shukla, Additional District

Magistrate (Nazul), Allahabad wherein basic facts of execution of lease

deed in respect of land in dispute initially on 01.3.1862 and thereafter on

12.5.1915 with effect from 15.3.1912 are not in dispute. It is said that

after expiry of lease, State is entitled to re-enter upon property in dispute

in terms of conditions of lease and provisions of GG Act, 1895.

9.Writ Petition No.40129 of 2018 (hereinafter referred to as “WP-

2”) has been filed by four petitioners namely Girdhar Gopal Gulati; his

son Vinkesh Gulati; M/s United Automobiles through its Partner Vinkesh

Gulati and Rishi Gulati; impleaded as petitioners 1 to 4. Dispute relates

to Nazul Plot No.120-1/2, Civil Station, Allahabad, area 3 Acres 45 Sq.

Yards, which also subject matter of WP-1.

10.Facts in brief, as stated in WP-2 is that Secretary of State of India

in Council executed a lease-deed in favour of Sri William Rome on

01.03.1862 for a period of 100 years (i.e. 50 + 50) i.e. till 28.02.1962 for

valuable consideration. The aforesaid lease was transferred in favour of

“Anandi Prasad Dube” vide registered extension of lease, dated

12.05.2015, copy whereof has been filed as Annexure 2 to WP-2. Lessee

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transferred aforesaid lease to Sri Krishna Chandra Mukherjee and

subsequently vide registered sale deed dated 23.03.1945, it was

transferred in favour of M/s Amrita Bazar Patrika Pvt. Ltd. Vide letter

dated 02.05.1951, Collector, Allahabad granted permission to M/s Amrit

Bazar Patrika Pvt. Ltd. to use Nazul Site 120-1/2, Civil Station,

Allahabad for press/business purpose. M/s Amrit Bazar Patrika Pvt. Ltd.

established another associate Company namely M/s Allahabad Patrika

Pvt. Ltd. having its registered office at Kolkata and it functioned as

subsidiary and associate Company. An agreement dated 23.06.1995 was

executed in favour of petitioner Girdhar Gopal Gulati in respect of a

portion of building, situated over Nazul Site No.120-1/2, Civil Station,

Allahabad. He got possession thereof in the capacity of tenant at the rate

of Rs.7,500/- per month. A partnership firm M/s United Automobiles

commenced its business thereon operating its showroom of Mahindra

and Bajaj. In the meantime, as per best knowledge of petitioner of W.P.

2, M/s Amrit Bazar Patrika Pvt. Ltd. applied for renewal of lease vide

application dated 14.10.1980, which was rejected by District Magistrate,

Allahabad vide order dated 09.05.2005. This order was challenged in

Writ Petition No.44629 of 2005 and this Court granted an interim order

dated 07.06.2005. Now, District Magistrate has issued impugned order

dated 18.08.2018 for resumption of land. Rest of the facts stated in writ

petition challenging order dated 18.08.2018 raise similar grounds, as are

taken in WP-1, therefore, we are not repeating the same. Respondents

have also taken similar defence as has been taken in WP-1, therefore, the

same is also not repeated.

11.We have heard Sri Aditya Bhushan, Advocate, holding brief of Sri

Amit Kumar Upadhyay, Advocate, for petitioners in WP-1 and Sri

Ashish Kumar Singh, Advocate, for petitioners in WP-2. Sri Ajit Kumar

Singh, Additional Advocate General assisted by Sri Nimai Das and Sri

Sudhanshu Srivastava, Additional Chief Standing Counsels for State of

U.P. and its Authorities and Sri M.D.Singh 'Shekhar', Senior Advocate,

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assisted by Sri Amit Verma appeared for Prayagraj Development

Authority (hereinafter referred to as “PDA”) have advanced their

submissions in the both WP-1 as well as WP-2.

12.In the light of submissions advanced by learned counsel for

petitioners, grounds mainly pressed, may be summerized as under:

i.There is no provision for resumption of land in lease-deed dated

12.05.2015.

ii.After repeal of GG Act, 1895, respondents could not have resorted

to provision of said Act and therefore, impugned order is patently

illegal.

iii.No opportunity was granted to petitioners before passing

impugned order.

iv.Petitioners cannot be ousted forcibly and either respondents must

file suit for recovery of possession, ejectment of petitioners, and

recovery of compensation or should avail procedure prescribed

under Uttar Pradesh Public Premises (Eviction of Unauthorised

Occupants) Act, 1972 (hereinafter referred to as “U.P. Act,

1972”).

v.There is no 'public purpose' involved justifying resumption of land

in question.

vi.Order rejecting renewal of lease has been stayed by this Court and

to frustrate the above writ petition, impugned order has been

passed.

vii.Impugned order has been passed arbitrarily, without application of

mind.

viii.Petitioners have invested huge amount in raising constructions and

therefore, in the garb of resumption, they cannot be deprived of

benefit of the same.

13.On behalf of respondents arguments are that land in question is

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Nazul, owned by State, terms and conditions of Grant, are governed by

provisions of GG Act, 1895; rights/obligations etc. thereunder have been

saved by Section 4 of Repeal Act, 2017, hence State Government has

power to resume/re-enter land in dispute for public purpose whenever it

is so required and that is what has been done; principles of natural justice

are not at all attracted; impugned order is nothing but a notice to

petitioners and in any case, petitioners not only have violated provisions

of conditions of lease-deed but petitioners in WP-2 are wholly

unauthorised occupants, hence have no right over land in dispute and

therefore, writ petitions are liable to be dismissed.

14.From the facts stated above and before proceeding further, we find

it appropriate to place certain dates and events borne out from record, in

a chronological manner for better understanding of dispute.

Date Events

01.03.1862Lease-deed for fifty years was executed in favour

of William Rome for the purpose of building

dwelling house.

12.05.1915Another lease-deed was executed in respect of

land in dispute by Secretary of State of India in

Council in favour of Anandi Prasad Dube in view

of desire expressed by William Rome to execute

renewal of lease in favour of Sri Dube and this

time also lease was for dwelling house and for a

period of fifty years with effect from 15.03.1912.

------ Lease was transferred by lessee, Anandi Prasad

Dube to Sri Krishna Chandra Mukherjee son of

Shyama Charan Mukherjee.

23.03.1945Sri Krishna Chandra Mukherjee vide sale deed

transferred entire lease land to M/s Amrit Bazar

Patrika Pvt. Ltd. and the name of M/s Amrit Bazar

Patrika Pvt. Ltd. was recorded in Nazul register.

02.05.1951Collector granted permission to M/s Amrit Bazar

Patrika (P) Ltd. to run Printing Press on disputed

land.

1959 M/s Amrit Bazar Patrika Pvt. Ltd. closed its

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Allahabad Branch and disputed land was given in

possession of “M/s Allahabad Patrika Pvt. Ltd.”

for publication of English Newspaper 'Northern

India Patrika' and Hindi Newspaper 'Amrit

Prabhat'.

28.02.1962Lease expired

14.03.1962M/s Amrit Bazar Patrika Pvt. Ltd. through its

Secretary Sri Tulsi Kanti Dey Vishwas submitted

application requesting for renewal of lease.

------ Collector sought report from Mukhya Nagar

Adhikari, Nagar Nigam, Allahabad.

11.11.1990Mukhya Nagar Adhikari informed that several

unauthorised constructions have been raised on

disputed land on an area of 3990 Sq.Yards.

30.06.1994Superintendent (Nazul), Nagar Mahapalika,

Allahabad informed Collector that on 100 ft. x 40

ft., part of disputed land, an unauthorised

commercial establishment, i.e. Service Center and

Workshop ofL.M.L.Vespa Scooter is being run in

which Sri V.K.Ghosh has 51% share and Girdhar

Gopal Gulati, petitioner-1 of WP-2 has 49% share.

23.06.1995An agreement was executed by Tamal Kanti

Ghosh, K.B.Mathur, Directors, Allahabad

Patrika Pvt. Ltd. and Om Prakash Mall, all on

behalf of Allahabad Patrika Pvt. Ltd. and Sri

Girdhar Gopal Gulati, petitoner 1 of WP-2 stating

that they have 51% and 49% share-holding

respectively in M/s Allahabad Patrika Pvt. Ltd. and

Sri Gulati shall hand over possession of all

movable and immovable assets except building

mentioned in later part of said agreement and

thereon Sri Gulati was allowed to remain in

possession and enjoy premises 6-1, Patrika Marg,

where Show Room and Workshop is/ was existing,

on payment of rent of Rs.7,500/- per month till

advances/loans received by Sri Gulati are fully

paid. (This agreement is Annexure 4 to WP-2 and

shows a settlement of assets of M/s Allahabad

Patrika Pvt. Ltd. between the shareholders,

which included petitioner-1 of WP-2.

14.05.1999Show Case Notice was issued by Collector to M/s

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Amrit Bazar Patrika Pvt. Ltd. .

28.05.1999Sri B.P.Twari, Secretary, M/s Amrit Bazar Patrika

Pvt. Ltd. submitted reply admitting that said

Company has closed publication of its newspaper

at Allahabad in 1959. He further said that M/s

Allahabad Patrika Pvt. Ltd. is Associate

Company of M/s Amrit Bazar Patrika Pvt. Ltd.,

who is publishing two newspapers Northern India

Patrika and Amrit Prabhat.

09.05.2005District Magistrate rejected application for renewal

of lease.

07.06.2005Petitioner-1 of WP-1 filed Writ Petition No.44629

of 2005 wherein order dated 09.05.2005 was

stayed till next date of listing.

19.06.2018Proposal sent by Collector, Allahabad to State

Government for resumption of land so as to

develop it as “Sports Field”.

16.08.2018State Government granted approval for

resumption.

18.08.2018Order of re-entry /resumption was passed by

Collector, Allahabad.

15.In the backdrop of aforesaid facts, we proceed to consider merits

of writ petition and relief claimed by petitioners.

16.It is not in dispute that land in question is 'Nazul' but interestingly

lease holder has sold out land by sale deed to third party and also it has

been subjected to Will for its user ignoring Lessor and its authority

altogether, hence, some serious questions have arisen in these matter.

17.The first question would be, "what is Nazul?”

18.Every land owned by State Government is not termed as 'Nazul'

and therefore it has become necessary to understand, what is 'Nazul'.

19.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

16

relating to acquisition of land or by purchase through negotiation or gift

by an individual or in similar other manners. All such land, which is

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.

20.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.

21.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'.

22.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'.

23.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.

17

24.Right of King to take property by 'escheat' or as 'bona vacantia'

was recognized by common law of England. Escheat of property was

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.

25.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.

26.The above provisions 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

continue above provision and says:

18

“Subject as hereinafter provided, any property in the territory of

India which, if this Constitution had not come into operation, 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)

27.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.

28.In Pierce Leslie and Co. Ltd. Vs. Miss Violet Ouchterlony

Wapsnare, AIR 1969 SC 843, Court has considered the above principle

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)

29.Court also 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

19

Calcutta [1967] 2 SCR 170, 204.

30.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)

31.This decision has been followed in Raja Rajinder Chand v. Mst.

Sukhi, AIR 1957 SC 286.

32.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)

33.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)

34.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.

35.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

20

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.”

(Emphasis added)

36.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)

37.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.

38.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.'

39.This decision has been followed later in Biswambhar Singh vs.

State of Orissa 1964 (1) SCJ 364 wherein Court said:

21

“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)

40.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 vacancia. 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 assets owned by State in trust for the people in general who are

entitled for its user in the most fair and beneficial manner for their

benefit. State cannot be allowed to distribute such largesse by pick and

choose manner or to some selected groups, or in a whimsical manner etc.

The first question is answered accordingly.

41.The second question up for consideration is "lease in question

whether governed by provision of Transfer of Property Act, 1882

(hereinafter referred to as “TP Act, 1882”) or GG Act, 1895 and what is

inter-relationship of the two?"

42.Historical documents, record as also authorities discussed above

22

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 those who remained faithful to Foreign

regime and 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

case, lease was given to those persons who were faithful and had 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. Further allocation of

Nazul land by English Rulers used to be called “Grant”.

43.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 - 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. 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.

23

44.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

land made by it or under its authority, hence to remove such doubts, GG

Act, 1895 was enacted.

45.Section 2 of GG Act, 1895, as it was initially enacted, 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 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)

46.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)

47.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.”

24

48.In the 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 :

“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)

49.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

25

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

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.

50.Thus GG Act, 1895 in fact was a declaratory statute. The 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.

51.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.

52.Sub-section (3) of Section 2 of GG Act, 1895 protects certain

leases, already made, declaring the 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.

53.Proviso to sub-section (3) of Section 2 of GG Act, 1895 further

declares that all provisions of 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

26

reforms or imposition of ceiling on agricultural land.

54.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.

55.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)

56.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 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

27

limitation or restriction in all types of grants made by the

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)

57.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.

58.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)

59.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.

60.It neither can be doubted nor actually so urged by petitioners that

the lease granted in the case in hand is/was a 'Grant' governed by GG

Act, 1895.

61.Broadly, 'Grant' includes 'lease'. In other words, 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

28

limitation etc. imposed in terms of document of 'Grant'.

62.In the 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.

63.Nature of orders compiled in “Nazul Manual” in the context of

'Nazul' have been considered recently in State of U.P. vs. United Bank

of India (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 the Legislature to the contrary,

notwithstanding. Thus stipulations in "lease deed" shall prevail and

govern the entire relation of State Government and lessee.

64.In Pradeep Oil Corporation vs. Municipal Corporation of

Delhi and others (2011) 5 SCC 270, Court said that GG Act, 1895 is a

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

29

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)

65.Superiority of the stipulations of Grant to deal the relations

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 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 Government Order 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

30

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 Government Order 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, and Sections 2 and 3 of GG Act, 1895, Court said that Clause

3(c) of lease deed confers power upon State Government that plot in

question, if required by Government for its own purpose or for any

public purpose, it shall have the 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. 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

31

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

“L.A. Act, 1894”). Resumption in that case was 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.

66.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 L.A. 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; any

decree or direction of a Court of Law or any rule of law, statute or

enactments of the Legislature, to the contrary notwithstanding. Court

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

32

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)

67.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

land has been laid down under the lease deed”.(Emphasis added)

68.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, holding that since special procedure for

resumption is prescribed under lease deed, no direction otherwise could

have been issued to State Government.

69.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

33

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 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. The terms and conditions of 'Grant' shall

override any statute providing otherwise. 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'.

70.Above discussion, therefore, leaves no manner of doubt that

Grant/Lease of Nazul land shall be exclusively governed by

stipulations/conditions/terms contained in Grant/Indenture of Lease and

no Statute can be resorted to govern rights of parties over Nazul land,

which will be governed by aforesaid Grant/Indenture of Lease. Second

question is answered accordingly.

71.The third question is, "Whether Lessee can transfer Nazul land

itself to anyone or transfer, if any, made will result only transfer of lease

rights or land itself; and, if transfer is not made in accordance with

conditions of Indenture of Lease/Grant, what will be its effect and

whether it will confer any valid right or interest on Nazul land, subjected

to transfer, upon such Transferree?”

72.We have reproduced contents of lease deed constituting terms and

conditions to govern land in dispute. In almost every aspect, some

restrictions on exercise of lease rights over Nazul land were imposed by

Grantor/Lessor i.e. State. Some such instances are :

(i)Without permission, no erection etc. of building etc., except

what was already existing and raised in accordance with map,

34

made part of lease deed dated 01.03.1862 and 12.05.1915, was

permissible.

(ii)Without permission, no growing of any crop or keeping of

horses, cattle or other animals for hire or profit is permissible.

(iii)Without permission, no construction of any thatched or

covered with grass reeds or other inflammable material etc was

permissible.

(iv)At the end of tenure of lease or termination at will or

determination, Lessee would peacefully and quietly leave,

surrender and yield to the Lessor, the land together with all such

erection etc., as were existing, if so desired by Lessor for taking

over such erection etc. for valuation but if it is not desired of

taking such erection etc., then the same shall be removed by

Lessee within such time, as directed by Lessor.

(v)No compensation was claimable by Lessee or his assign etc.

for any building etc. in case lease is determined by re-entry for

forfeiture and building etc. shall absolutely rest in Lessor as his

own property.

(vi)Lessee or his agents shall not assign or underlet or otherwise

part with the possession of the premises or any part thereof

without permission of Secretary of State or his authorized person.

(vii)Any transfer without prior permission will cause lease-deed,

ceased and determined, but without prejudice however to the right

or action of Lessor in respect or on account of any previous

breach of any covenant or covenants.

(viii)If Government, at any time require to re-enter on site, it can

do so on, on paying value of all buildings that may be on the site,

plus 10 per cent for recompense for resumption of lease and

Lessee shall have no further claim of any sort against the Lessor. If

building etc. is not taken by Lessor, it has to be removed by

35

Lessee.

73.Above conditions show that any transfer by Lessee in any manner

without prior permission of Lessor i.e. Government or its Authorized

Agent will result in determination of lease without any further notice.

Meaning thereby, transfer of lease was clearly prohibited under terms of

lease unless permission of Government has been obtained.

74.In the present case, lease was executed on 12.05.1915 w.e.f

15.03.1915 in favour of Anandi Prasad Dube wherefrom it was

transferred to Krishna Chandra Mukherjee and then to M/s Amrit Bazar

Patrika Pvt. Ltd. through sale deed dated 23.03.1945. The land,

obviously was not owned either by Anandi Prasad Dube or his

transferree Krishna Chandra Mukherjee. Therefore, sale deed could not

have resulted in conferment or transfer of ownership or title over land in

dispute, upon transferee. At the best, aforesaid transfer by sale deed

would have confined to transfer of lease rights on land and title over

constructions/buildings, if any, existing at that point over land in dispute.

Transfer of land however has to abide by terms and conditions of lease

deed dated 12.05.1915.

75.M/s Amrit Bazar Patrika Pvt. Ltd., Allahabad closed its business,

as admitted by its representative in reply dated 28.05.1999 in 1959. It

also admitted that thereafter land in dispute was given in possession of

M/s Allahabad Patrika Pvt. Ltd. Though it is said that M/s Allahabad

Patrika Pvt. Ltd. is an Associate Company of M/s Amrit Bazar Patrika

Pvt. Ltd. but no material in this regard has been shown or placed on

record in both these writ petitions. Even otherwise, the two are

independent Companies. Both the Companies were incorporated and

registered separately. Both are independent legal person. Lease was

transferred by M/s Amrit Bazar Patrika Pvt. Ltd., which is an

independent legal person and incorporated under the Provision of Indian

Companies Act, 1913 (hereinafter referred to as “Act, 1913”). M/s

36

Allahabad Patrika Pvt. Ltd. is also a Company registered and

incorporated under Act, 1913 and a separate legal personality. Therefore,

transfer and possession of land by M/s Amrit Bazar Patrika Pvt. Ltd. to

M/s Allahabad Patrika Pvt. Ltd. amounts to transfer from one legal

person to another. However before such transfer, no permission of Lessor

i.e. State Government or its authorized agent i.e. Collector was obtained.

There was clear bar in lease-deed and relevant clause we have already

quoted and at the pain of repetition, we reproduce herein also:

“...the said Lessee his Executors, Administrators or Assigns or

underlet of 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 Assign” (Emphasis added)

76.There is nothing on record and no claim has been made that such

transfer was made with permission of State or its authorities. Therefore,

transfer of disputed land by M/s Amrit Bazar Patrika Pvt. Ltd. to M/s

Allahabad Patrika Pvt. Ltd. was wholly illegal and in the teeth of the

terms of Grant. Effect of such transfer has been considered in State of

U.P. and others vs. United Bank of India and others (supra). Court

has held that any transfer without sanction of Lessor will be invalid and

would not confer any valid right upon Transferee. In paras 39 and 40 of

judgment, Court said :

“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. mortgage of the Nazul

land without previous sanction in writing of the State.”

(Emphasis added)

37

77.Further transfer of any part of disputed land to petitioner-1 of WP-

2 founded on agreement dated 23.06.1995 executed between Directors of

Allahabad Patrika Pvt. Ltd. and petitioner-1 of WP-2 is also of no

consequence and legal sanction since none of the parties to the said

agreement had any right or interest in law, over land in dispute. Lease

having expired on 14.03.1962, all lease rights possessed by erstwhile

Lessee came to an end, and thereafter when Lessee itself did not have

any legal right or interest over property in dispute, others or so called

transferrees also cannot claim anything more than that.

78.Here, we remind ourselves with the principle that a person can

transfer only such rights and interest which he or she possesses and not

beyond that. If a Sub-Grantor did not possess any right of transfer or

such right is subject to any restriction, like prior permission of owner

etc., it means that Sub-Grantor himself 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 a transfer, else transfer being

illegal, will not result in bestowing any legal right upon Transferee. In

other words, any otherwise transfer by Sub-Grantor, of land subjected to

Grant, will not confer any valid right or interest upon the person to

whom Sub Grantee had transferred property under 'Grant' in violation of

stipulations contained in Grant.

79.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.”

80.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,

38

compensation, as the case may be, as law permits.

81.We need not go into question whether order passed by District

Magistrate on 09.05.2005 is correct or not since it is subject matter of

dispute in another writ petition but for our purpose, suffice it to mention

that State Government, owner of land has a right vested in lease deed to

re-enter and resume land after cessation, determination or expiry of

lease. Such right is not deterred, diluted or stand deprived at any point of

time, in any manner, particularly due to any illegal act of Grantee.

82.Here we may again refer to judgment in State of U.P. vs. United

Bank of India (supra), which was a case in which petitioner-1 of WP-1

was also a party in relation of Bungalow no.19, Clive Road, Allahabad,

lease whereof was transferred by original Lessee to petitioner-1 of WP-1

on 22.10.1945 by registered sale deed. Petitioner-1 of WP-1 in respect of

some business transaction (loan/advances) mortgaged aforesaid

leasehold property by deposit of title deeds to United Bank of India.

Castigating the same, Supreme Court held it patently illegal and

conferring no right upon Bank. In para 35 of judgment, Court said that

petitioner-1 of WP-1 mortgaged Nazul land in favour of Bank and since

it had no leasehold interest in the property, nothing more could have

been mortgaged to Bank. Moreover, since under lease-deed, no transfer

without permission of Lessor was permissible, hence, transfer in favour

of Bank was in violation of terms of lease deed and mortgage was bad in

law. In Para 40 of judgment, Court said as under :

“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. mortgage of

the Nazul land without previous sanction in writing of the

State.” (Emphasis added)

83.Similar observations are reiterated in para 41. In operative part of

39

judgment, in para 48.5, Court has said:

“The mortgage so created by the Company in favour of the Bank

in respect of nazul land without the sanction of the State of Uttar

Pradesh in terms of the lease, is ab initio void, hence no right was

created in favour of the Bank by reason of the said mortgage.”

(Emphasis added)

84.Therefore, aforesaid transfer by petitioner-1 of W.P. 1 was patently

illegal and confers no right upon Transferree i.e. Allahabad Patrika (P)

Ltd. Since petitioners of W.P. 2 are deriving their claim from Allahabad

Patrika (P) Ltd., they also had no right over land in dispute. Third

question, therefore is answered against petitioners.

85.The forth question is, “whether petitioners of W.P. 1 were entitled

for renewal of lease in view of judgment in Purshottam Dass Tandon

and others vs, State of U.P. And others, AIR 1987 All 56, whereupon

heavy reliance has been placed.

86.Submission is that possession has continued with petitioners and

petitioner-1 of WP-1 itself applied for renewal of lease on 14.10.1980,

therefore, it was entitled for renewal of lease in view of judgment

rendered in Purshottam Dass Tandon and others vs, State of U.P.

And others (supra). This requires us to examine aforesiad judgment in

detail.

87.In Purshottam Dass Tandon and others vs, State of U.P. And

others, (supra) question of renewal of lease came up for consideration

in the light of Government Orders dated 23.4.1959, 02.07.1960 and

03.12.1965. Therein historical backdrop of various Government Orders

dealing with policy of renewal of lease has been given in detail. 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

40

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 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.

88.There was a second phase which covered period from 1966 to

41

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

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, 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.

89.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 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

42

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

conditions for renewal of leases.

90.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 were

made 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

43

for renewal. Land covered by outhouses were to be excluded. Lessees

could not even opt for it.

91.When we considered the claim of petitioners in reference to above

G.Os., nothing is on record to show that petitioner ever applied and

sought renewal or fresh lease, either before actual expiry of lease term or

immediately thereafter, in terms of above G.Os., hence petitioners cannot

claim any benefit under the above mentioned G.Os.

92.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 was

decided in Purushottam Dass Tandon and others vs. State of U.P.,

Lucknow and others (supra). In this case, there were two categories of

writ petitioners, 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.

93.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

44

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.

(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., when there was no justification

not to give same benefit to others. Similar benefits 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.

45

94.Aforesaid judgment was confirmed by Supreme Court by

dismissing appeals preferred by State of U.P. and others i.e. State of U.P.

and others vs. Purshottam Das Tandon and others 1989 Supp.(2)

SCC 412. Supreme 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

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)

95.Aforesaid judgment has no application to the case of petitioners at

all since neither petitioners come within the category of eligible persons

to apply for renewal of lease under Government Orders which were

considered in Purushottam Dass Tandon and others vs. State of U.P.,

Lucknow and others (supra) nor even otherwise petitioners have

shown any provision, whether statutory or executive, including G.O.,

which may confer entitlement upon petitioner to seek renewal of lease at

46

all.

96.Aforesaid fourth question, therefore, is answered against

petitioners.

97.The fifth question is, “whether Repeal Act, 2017 has effect of

denying to State, right of resumption/re-entry due to repeal of GG Act,

1895.”

98.It is contended that Section 4 of Repeal Act, 2017 only protects

right, title, obligation or liability already acquired, accrued or incurred by

State of U.P. under GG Act, 1895 to resume Nazul land according to

resumption clause of lease-deed prior to repeal of GG Act, 1895 and

nothing more than that. Since no right, title, obligation or liability was

already acquired or incurred or accrued by/to State Government for the

purpose of resumption under resumption clause before repeal of GG Act,

1895, therefore resumption with reference to GG Act, 1895 is wholly

illegal.

99.Meaning of words 'accrued', 'acquired' and 'incurred' has been

given in various paragraphs of writ petitions but we find that basic aspect

has been ignored and missed by petitioners. Terms of lease as soon as

lease was executed caused in creating rights, obligations, duties and

interest of both the parties i.e. Lessor and Lessee. Their relations are to

be governed in accordance with terms and conditions of lease. Relevant

clause says that it shall be lawful for the Secretary of State,

notwithstanding waiver of any previous cause or right of re-entry, to

enter into and upon said demised premises whereupon the same shall

remain to the use of and vested in Secretary of State and said demise

shall absolutely determine out. The Lessee, who agreed with the said

term incurred duty to allow such re-entry to State whenever Government

exercises its right of re-entry. Here lies the right of State to re-enter,

which was acquired by State by virtue of execution of lease deed and

accepted by Lessee i.e. it incurred liability not to obstruct the said right

47

of State i.e. Lessor.

100.Petitioners, in our view, have misconstrued Section 4 vis-a-vis

terms of lease and therefore, entire argument in this respect is devoid of

merit, hence rejected. This question is also returned against petitioners.

101.Sixth question is “whether resumption clause is arbitrary?”

102.The argument is clearly misconceived. In fact, it is an attempt to

extend the argument advanced on question five. Once benefits and rights

of parties are in terms of lease, it is not open to a party to challenge one

of the conditions of whole document whereupon some right or interest in

some property has been transferred. In other words, an act is subject to

certain conditions as a whole, and parties to the transaction have

accepted all the conditions together, then subsequently it is not open to

retain some or leave another. It cannot chose some and leave other. This

principle is based on doctrine of election, which postulates that no party

can accept and reject the same instrument. A person cannot say at one

time that a transaction is valid and thereby obtain some advantage to

which he could only be entitled on the condition that it is valid and then

turn round and say that it is void for the purpose of securing some other

advantage.

103.As per Halsbury's Laws of England (4th Edition) Vol. 16

(Paragraph 1508), after taking an advantage under an order a party may

be precluded from saying that it is invalid and asking to set it aside.

104.Section 116 of Indian Evidence Act, 1872 (hereinafter referred to

as “Act, 1872”), provides for 'estoppel' of tenant to deny title of landlord

to immovable property. It reads under :

“116. Estoppel of tenant; and of licensee of person in

possession-

"No tenant of immovable property, or person claiming through

such tenant, shall, during the continuance of the tenancy, be

permitted to deny that the landlord of such tenant had, at the

48

beginning of the tenancy, a title to such immovable property, and

no person who came upon any immovable property by the license

of the person in possession thereof, shall be permitted to deny that

such person had a title to such possession at the time when such

license was given."

105.In Mt. Bilas Kunwar v. Desraj Ranjit Singh and others, A.I.R.

1915 P.C. 96, Privy Council explained provisions of Section 116 of Act,

1872 and held as under:

"Section 116 is perfectly clear on the point, and rests on the

principle well established by many English cases, that a tenant

who has been let into possession cannot deny his landlord's title,

however defective it may be, so long as he has not openly restored

possession by surrender to his landlord."

106.In Joint Action Committee of Air Line Pilots' Association of

India (ALPAI) and others v. Director General of Civil Aviation and

others, (2001) 5 SCC 435 (Paragraph-12), Court referred to its earlier

judgments in Babu Ram alias Durga Prasad v. Indra Pal Singh,

1998(6) SCC 358, P.R. Deshpande v. Maruti Balaram Haibatti,

1998(6) SCC 507 and Mumbai International Airport Private Limited

v. Golden Chariot Airport and another, 2010 (10) SCC 422 and held

that doctrine of election is based on the rule of estoppel. The doctrine of

estoppel by election is one of the species of estoppel in pais (or equitable

estoppel) which is a rule in equity. By that rule, a person may be

precluded by his action or conduct or silence when it is his duty to speak,

from asserting a right which he otherwise would have had. However,

taking inconsistent pleas by a party makes its conduct far from

satisfactory. Further, parties should not blow hot and cold by taking

inconsistent stands and prolong proceedings.

107.In Cauvery Coffee Traders, Mangalore v. Hornor Resources

(International Company Limited), (2011) 10 SCC 420 (Paragraph

34), Court referred to its decision in Nagubai Ammal v. B. Shama Rao,

AIR 1956 SC 593, CIT v. V. MR.P. Firm Muar AIR 1965 SC 1216,

49

NTPC Ltd. v. Reshmi constructions, Builders & Contractors, (2004)

2 SCC 663, Ramesh Chandra Sankla v. Vikram Cement (2008)14

SCC 58 and Pradeep Oil Corpn. v. MCD (2011) 5 SCC 270, and held,

that a party cannot be permitted to "blow hot and cold", "fast and loose"

or "approbate and reprobate". Where one knowingly accepts benefits of a

contract or conveyance or an order, he is estopped to deny validity or

binding effect on him of such contract or conveyance or order. This rule

is applied to do equity. However, it must not be applied in a manner as to

violate the principles of right and good conscience.

108.In V. Chandrasekaran and another v. Administrative Officer

and others, (2012) 12 SCC 133, Court followed the law laid down in

Cauvery Coffee Traders, Mangalore (supra).

109.In Rajasthan State Industrial Development and Investment

Corporation and another v. Diamond & Gem Development

Corporation Limited and another (2013) 5 SCC 470, Court again

reiterated the law laid down in Cauvery Coffee Traders, Mangalore

(supra) and held, in paragraph 23, as under :

"A party cannot claim anything more than what is covered by the

terms of contract, for the reason that contract is a transaction

between the two parties and has been entered into with open eyes

and understanding the nature of contract. Thus, contract being a

creature of an agreement between two or more parties, has to be

interpreted giving literal meanings unless, there is some ambiguity

therein. The contract is to be interpreted giving the actual

meaning to the words contained in the contract and it is not

permissible for the court to make a new contract, however

reasonable, if the parties have not made it themselves. It is to be

interpreted in such a way that its terms may not be varied. The

contract has to be interpreted without any outside aid. The terms

of the contract have to be construed strictly without altering the

nature of the contract, as it may affect the interest of either of the

parties adversely". (Emphasis added)

110.In State of Punjab and others v. Dhanjit Singh Sandhu (2014)

15 SCC 144 (Paragraph Nos. 21, 22, 23, 24, 25 and 26) Court

50

reiterated the law laid down in CIT v. MR. P. Firm Muar (supra),

Maharashtra SRTC v. Balwant Regular Motor Service, AIR 1969 SC

329; R.N. Gosain v. Yashpal Dhir, (1992) 4 SCC 683 (Paragraph 10);

and P.R. Deshpande v. Maruti Balaram Haibatti, (1998) 6 SCC 507

and held that defaulting allottees cannot be allowed to approbate and

reprobate by first agreeing to abide by the terms and conditions of

allotment and later seeking to deny their liability as per agreed terms.

The doctrine of "approbate and reprobate" is only a species of estoppel.

It is settled proposition of law that once an order has been passed, it is

complied with, accepted by other party and he derived benefit out of it,

he cannot challenge it on any ground.

111.In Bansraj Lalta Prasad Mishra v. Stanley Parker Jones,

(2006) 3 SCC 91 (Paragraph Nos. 13,14, 15 and 16), Court considered

Section 116 of Act, 1872 and held:

"13.The underlying policy of Section 116 is that where a person

has been brought into possession as a tenant by the landlord and

if that tenant is permitted to question the title of the landlord at

the time of the settlement, then that will give rise to extreme

confusion in the matter of relationship of the landlord and

tenant and so the equitable principle of estoppel has been

incorporated by the legislature in the said section.

14.The principle of estoppel arising from the contract of tenancy

is based upon a healthy and salutary principle of law and justice

that a tenant who could not have got possession but for his

contract of tenancy admitting the right of the landlord should

not be allowed to launch his landlord in some inequitable

situation taking undue advantage of the possession that he got

and any probable defect in the title of his landlord. It is on

account of such a contract of tenancy and as a result of the

tenant's entry into possession on the admission of the landlord's

title that the principle of estoppel is attracted.

15.Section 116 enumerates the principle of estoppel which is

merely an extension of the principle that no person is allowed to

approbate and reprobate at the same time.

51

16.As laid down by the Privy Council in Kumar Krishna Prasad

Lal Singha Deo v. Baraboni Coal Concern Ltd. : (IA p.318)-

It [Section 116] deals with one cardinal and simple estoppel,

and states it first as applicable between landlord and tenant

and then as between licensor and lincensee, a distinction

which corresponds to that between the parties to an action for

rent and the parties to an action for use and occupation."

(Emphasis supplied)

112.Even otherwise, we find nothing arbitrary or illegal in resumption

clause. State is the owner of land. If for public purpose, it wants to take

back its land by way of resumption, there is nothing per se arbitrary.

Secondly, condition of resumption is a part of contract between the

parties and having accepted the same and contract has been carried out

and completed its term, it order to wriggle out the rights, obligations and

liabilities incurred and acquired thereunder, one of the parties cannot

wriggle out by contending that one of the conditions of such agreement

is bad.

113.Aforesaid argument therefore, has no merit and we also did not

find that repeal of GG Act, 1895 by Repeal Act, 2017 takes away right of

State of resumption, which has already acquired long back under the

terms of lease and is attracted by Section 4 thereof. Sixth question is

thus answered holding that neither Clause 3(c) of lease deed is arbitirary

nor can be assailed by petitioners-lessees after enjoying other conditions

of lease-deed.

114.Seventh question is “whether mere possession of petitioners over

land in dispute confers any right upon them to resist entry of owner of

land and can it insist upon owner to follow any particular procedure

before compelling petitioner to vacate land in dispute.”

115.In this respect, it is contended that even if petitioners are rank

trespassor, the fact is that petitioners are in possession of land in dispute

and therefore by application of force, petitioners cannot be evicted.

52

Petitioners, at the best, are unauthorized occupants in terms of U.P. Act,

1972 and therefore, atleast procedure prescribed in the said Act has to be

followed. Further continued possession of petitioners over land in

dispute entitles petitioners notice under Section 106 read with Section

116 TP Act, 1882, since principle of 'holding over' will apply, or in any

case, State can evict petitioners by filing a suit for eviction, which is a

remedy available in common law. In this regard, reliance is placed on

certain authorities namely 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.

116.It is also contended that terms of lease read with GG Act, 1895

cannot be resorted to by respondents since GG Act, 1895 has already

been repealed by Repealing and Amending (Second) Act, 2017

(hereinafter referred to as “Repeal Act, 2017) and therefore, provisions

of GG Act, 1895 are not available to respondents to dispossess

petitioners and cannot be resorted to.

117.With regard to applicability of TP Act, 1882 we have already

discussed the matter in the light of GG Act, 1895. Law laid down in

Azim Ahmad Kazmi and others vs. State of U.P. and Another (2012)

7 SCC 278 is very clear and holds the field. At the pain of repetition, we

may observe that Supreme Court has clearly held that in the matter of

Government Grant, it is governed by provisions of GG Act, 1895 and no

other Statute including TP Act, 1882 will have any application. Court has

also said that procedure prescribed under lease deed for re-entry /

resumption of land is a special procedure and that can be followed for re-

entry and no other Statute and no other procedure is to be observed.

118.So far as application of Section 116 of TP Act, 1882 is concerned

53

we find nothing to show that Section 116 of TP Act, 1882 has any

application in the case in hand. It is attracted only when an assent of

landlord has been obtained for continuation of lease after expiry of lease

period, which is not the case in hand. These aspects have been dealt with

in Shanti Prasad Devi and others vs. Shankar Mahto and others

(2005) 5 SCC 543, which has been followed in Delhi Development

Authority Vs. Anant Raj Agencies Pvt. Ltd. (supra).

119.Now, we come to the question of applicability of UP Act, 1972.

120.As we have already said that in view of declaration made under

Section 2 of GG Act, 1895, as amended in Uttar Pradesh, no Statute will

govern conditions of Government Grant and instead it will specifically

be governed only by terms of Government Grant. Therefore, it is not

necessary for State to follow procedure of U.P. Act, 1972, though it is

also available and under the provisions thereof admittedly petitioner is

'unauthorized occupant'.

121.Above contention can be examined from another angle.

Petitioner's possession at the best can be juridical possession though it is

admittedly unlawful and illegal. Property is a legal concept that grants

and protects a person's exclusive right to own, possess, use and dispose

of a thing. The term property does not suggest a physical item but

describes a legal relationship of a person to a thing. Real property

consists of lands, tenements and hereditaments. Land refers to ground,

the air above, the area below the Earth's surface and everything that is

erected on it. Tenements include land and certain intangible rights

recognized by municipal laws related to lands. A hereditaments embraces

every tangible or intangible interest in real property that can be inherited.

An interest describes any right, claim or privilege that an individual has

towards real property. Law recognizes various types of interests in real

property which may justify possession over property of person

concerned. A non-possessory interest in land is right of one person to use

54

or restricted use of land that belongs to other person such as easementary

rights. Non-possessory interest does not constitute ownership of land

itself. Holders of a non-possessory interest in real property do not have

title and owner of land continues to enjoy full right of ownership, subject

to any encumbrances. An encumbrance is a burden, claim or charge on

real property that can affect the quality of title and value and/or use of

property. Encumbrances can represent non-possessory interests in real

property.

122.Possession is also of two kinds namely, (a) de facto possession,

and (b) de jure possession. De facto possession is when a person being in

actual physical possession and de jure possession is possession in law.

Constructive possession would be a possession through a representative,

agent, tenant or a trustee. A person in de facto possession could be in

adverse possession. In a civilized society some protection of possession

is essential. The methods of protection recognized are :

(i)Possessor can be given certain legal rights, such as a right to

continue in possession free from interference by others; and

(ii)Protective possession by prescribing criminal penalties for

wrongful interference and wrongful dispossession.

123.When certain legal right are given to a person, one of the mode is

that possessory right in rem are supported by various rights in personam

against those who violate possessor's right; he can be given a right to

recover compensation for interference and for dispossession, and a right

to have his possession restored to him. But, whenever such a person

invoked such remedies, one of the question would be, whether a person

invoking them actually has any possession to be protected. In other

words, it has to be examined whether a person is in possession of an

object? However, legal concept of possession is not restricted to

commonsense concept of possession, namely physical control.

Possession in fact is not a simple notion. Whether a person is in

55

possession of an article, depends on various factors namely nature of

article itself and attitudes and activities of other persons.

124.Possession may be 'lawful' or 'unlawful' or even 'legal' or 'illegal'.

Acquisition of legal possession would obviously be lawful and would, of

necessity, involve occurrence of some event recognized by law whereby

subject matter falls under the control of the possessor. Problem, however,

arises where duration for which possession recognized is limited by

Grantor or law. Continuance of possession beyond prescribed period is

not treated as a 'lawful possession'. If a landlord does not consent to

lease being continued, possession of tenant would not be lawful unless

there is some Statute providing otherwise. Nature of possession being

not lawful, would entitle landlord to regain possession. Thus, a lawful

possession is state of being a possessor in the eyes of law. Possession

must be warranted or authorized by law; having qualifications prescribed

by law and neither contrary to nor forbidden by the law. However, law

recognizes possession as a substantive right or an interest. Continued

possession of a person is recognized by law as a sufficient interest

capable of being protected by possessor, right being founded on mere

fact of possession. Possession is a good title of right against anyone who

cannot show a better title. However, when a person in possession may

not be lawful, recovery of possession by owner must have sanction of

law and it cannot proceed to dispossess the other in a forcible manner not

recognized in law. In some authorities, possession of a person, who has

entered therein initially, validly, but subsequently become unlawful, has

been given a different meaning i.e. juridical possession. A tenant holding

over without consent of landlord would be a juridical possession though

his possession is not lawful. It is said that possession of tenant, post

efflux of lease period, would not be treated as lawful possession still he

would not be treated as a rank trespasser. Thus, here concept of

possession as juridical possession has been introduced.

125.A person having juridical possession though illegal and unlawful,

56

by a sheer executive fiat may not be thrown out of possession of the

land. But where terms of lease, which is the genesis of claim of such

person provides manner in which Lessor can re-enter land and such

procedure has been recognized by Statute and also upheld by Supreme

Court in Azim Ahmad Kazmi and others vs. State of U.P. and

Another (supra), and Lessor follow such procedure, it cannot be said

that eviction is being resorted to illegally or without following lawful

method.

126.Now, coming to question of applicability of Section 106 TP Act,

1882, we find that there is no necessity of any quit notice in this case. It

is an admitted case that lease stood expired on 14.03.1962 and thereafter

it has not been renewed. In such circumstances, status of even valid

lessee would be that of “Tenant at sufference” while petitioners position

is even worst to that.

127.In case of a lessee, who has entered into possession of a land

validly in terms of lease deed, after expiry of period of lease or

determination thereof, status of such lessee, if possession continued,

would be that of “Tenant at sufference”, therefore, even a quit notice is

not necessary to be given and Section 106 TP Act, 1882 is not at all

attracted. 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.”

(Emphasis added)

128.In the above authority, Court held that after expiry of period of

57

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

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.

129.It is in this backdrop we find that authorities relied by petitioners

are inapplicable to the facts of this case and will not help petitioners at

all.

130.The first authority cited is Bishan Das and others Vs. State of

Punjab and others (supra) in which 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

58

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

passengers; plans of 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.

131.Dharmasala was constructed in 1909 and inscription on the stone

to the following effect was made:

"Dharmasala Lala Faquir Chand Bhagwan Das, mahajan, 1909."

132.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

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

59

will escheat. Further inquiry was 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 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 land, 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

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 management of Dharmasala. This recommendation was

affirmed by 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 alleging

that the same were without any authority of law and violative of

60

fundamental rights enshrined under Articles 14, 19 and 31 of the

Constitution.

133.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.

134.Supreme Court observed in Para-10 that even if it is assumed that

the property is Trust property, no authority of law authorized State or its

Executive Officers to take action against Bishan Das and others in

respect of Dharmasala. 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 rejected by 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 Government who granted

permission to Ramji Das on behalf of joint family firm to build a

Dharmasala, Temple and Shops 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 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 the decisions 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

61

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)

135.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)

136.Court concluded its findings in Para-14 of the judgment as under:

“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.” (Emphasis

added)

137.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 rule of law. Hence action of Government in taking law

into their hands and dispossessing petitioners by sheer 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

62

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.”

138.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

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.

139.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 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,

63

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 Paper published from 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 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

Delhi Municipal Corporation Act, 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

64

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?

140.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 Counsel's

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. It 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.”

65

141.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)

142.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 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)

143.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.

144.Court then noted some contradictions in Constitution Bench

judgment in Bishan Das and others Vs. State of Punjab and others

66

(supra) and State of Orissa Vs. Ram Chandra Dev AIR 1964 SC 685.

145.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)

146. 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 provisions of

Public Premises (Eviction of Unauthorized Occupants) Act, 1971

(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' belonging to

the Central Government under Section 2(e). That being so, Act, 1971 has

no application.

147.Court then considered other provisions relating to power of Lt.

Governor, and Central Government and factual aspects involved in the

matter, which, in our view, 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

it.

148.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

67

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. Notices were issued under

pressure of Lt. Governor of Delhi, hence 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 lease deed

cannot be disposed of in a petition under Article 32 of 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 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

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.”

149.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)

150.Hon'ble R.B. Misra, J. also agreed with Hon'ble A.P. Sen and E.S.

Venkataramiah, JJ that the notices challenged in writ petition are 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

68

instituted suit and not by way of writ petition on the basis of affidavits

which are so discrepant and contradictory in that 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)

151.Thus 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)(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. In the

present case, the right of re-entry is being enforced as per terms of Grant

which prevailed over any other law.

152. 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

69

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".

153.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 upon Revenue

Court and takes away jurisdiction of Civil Court only in respect of two

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.

154.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.

155.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

70

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.

156.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

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

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, 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

71

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.

157.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

petitioner-1 of W.P. 1 got possession of land in dispute on transfer with

permission of Lessor. However petitioner-1 further transferred land

without such permission. This is illegal. Hence petitioner-1 of W.P.-1 has

no actual possession over land in dispute and possession of others is

illegal.

158.In the present case right of re-entry is being exercised by

respondent-State in terms of lease-deed whereunder even original lessee

was obliged to surrender/hand over possession to State Government.

159.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 is of no consequence.

160.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

72

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

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).

161.The decision in State of U.P. Vs. Zahoor Ahmad and another

(supra), we find, instead of helping petitioners, supports the view which

we have taken hereinabove. 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

which fell 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

73

of U.P. is the proprietor. Lease was granted for one year commencing

from 18.03.1947. It was renewed on 10.06.1948 with effect from

18.03.1948 for one year and again in 1949 for further 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 do 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 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

74

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

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

75

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)

162.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

TP Act, 1882 was rightly applied.

163.In the present case, it is not the case of any of the petitioners that

after expiry of lease on 14.03.1962, they have been permitted to remain

in possession of disputed Nazul land and rent has been accepted by

respondents or they have paid rent.

164.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. 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.”

165.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 assent to his

76

continuing in possession; and

(ii)Lessee or under-lessee has remained in possession.

166.Both the above conditions are absent in this case. Hence Section

116 of T.P. Act, 1882 has no application at all.

167.The last question up for consideration is “whether re-

entry/resumption of land by Lessor i.e. State Government is valid?”

168.So far as validity of resumption of land for 'public purpose' is

concerned, it could not be disputed that land has been sought to be

required by State in 'public purpose'. Allahabad City has been selected

for development as a Smart City and respondents have pleaded that

demand of lot of land has been made by various Government

departments since various Offices, Workshops, Parks, Parking places etc.

have to be constructed. The land in dispute has been found suitable for

'Sports Field'. Development of 'Sports Field' is a public purpose. In fact,

on this aspect, no substantial argument has been made and in our view,

resumption of land by State is for 'public purpose'.

169.Having answered all the above issues, we may also observe that

litigation initiated by petitioners on the one hand has given enough time

to continue to hold and enjoy land in dispute and simultaneously denied

opportunity to respondent authorities to take possession of land in

question for the purpose of carrying out developmental activities where

time is a matter of essence. Impugned notice was issued on 18.08.2018

and for more than fifteen months petitioners have already availed benefit

of possession of land in dispute and enjoyed the same without spending

even a single penny towards rent, damages, compensation etc. for such

enjoyment. Land in question is required for developmental activities, in

furtherance of developing Prayagraj City as “Smart City”.

Developmental activities required an early action, but, by indulging in

litigation, petitioners have already delayed it sufficiently, therefore, even

if what petitioners' claim that they should have been given notice or

77

sufficient time to vacate, the same has already been achieved as

petitioners had already enough time with them. It is, thus, a fit case

where we do not find that any other technicality should be allowed to

intervene and, earliest is the better that possession of land is transferred

to respondents so that developmental activities may proceed without any

further delay.

170.However, considering the facts and circumstances and also the fact

that petitioners have already enjoyed interim order passed by this Court

and continued in possession over land in dispute for the last almost more

than a year, we direct petitioners to vacate disputed land within one

month from the date of delivery of judgment.

171.In view of above discussion, we do not find any merit in both the

petitions. Subject to above direction about vacation of land in dispute,

the writ petitions are dismissed.

172.No costs.

Order Date :- 31.10.2019

KA