No Acts & Articles mentioned in this case
AFR
Reserved on 29.05.2019
Delivered on 31.10.2019
Court No. - 34
Case :- WRIT - C No. - 33740 of 2018
Petitioner :- Parsi Panchayat, Surat through its General Attorney &
Executor
Respondent :- State of U.P. And Another
Counsel for Petitioner :- Umesh Kumar Gupta,Sunil Dutt Kautilya
Counsel for Respondent :- C.S.C.,Ajit Kumar Singh (Addl. Advocate
General), Nimai Das & Sudhanshu Srivastava (Addl. C.S.C.)
Hon'ble Sudhir Agarwal,J.
Hon'ble Virendra Kumar Srivastava, J.
(Delivered by Hon'ble Sudhir Agarwal, J.)
1.This writ petition has been filed under Article 226 of Constitution
by Parsi Panchayat, Surat, through its General Attorney and Executor, Sri
V.S. Pandey being aggrieved by order dated 18.08.2018 passed by District
Magistrate, Allahabad (i.e. respondent-2) whereby he (respondent-2) has
informed petitioner and two others that State Government has approved
resumption/re-entry over land in dispute and therefore, it should be
vacated by petitioners within fifteen days, whereafter possession shall be
taken forcibly by respondents at the cost of petitioners.
2.Impugned order states that land in dispute is required by State for
development of 'Parking place' in view of fact that Allahabad has been
declared as 'Smart City' and has to be development accordingly and
therefore, right of re-entry/resumption has been exercised by State.
3.Dispute relates to Nazul land, Plot H-1, Civil Station, area 1 Acre
2576 Square Yards whereupon a house is also constructed numbered as
House No.24, Elgin Road, Allahabad.
4.A lease was executed by the Secretary of State for India in Council
in favour of 'Roberston Karr' on 01.04.1862 in respect of Nazul Plot-H-1,
Civil Station, area 3 acres, for a period of 50 years. After expiry of initial
period of lease, it was renewed in favour of 'Marry Augustus Woolston' on
2
01.04.1912 for a period of 50 years which expired on 31.03.1962.
Woolston transferred by sale, above plot in two parts, inasmuch as, vide
sale deed dated 11.12.1945, House No.24 constructed on Nazul Plot H-1,
Civil Station, area one acre and 2576 square yard, was transferred in
favour of Sri K. S. Gandhi and his wife Smt. Tahmenna. Sri K. S.
Gandhi applied for renewal of lease but no order was passed thereon. He
died on 31.01.1978. Thereafter his legal heirs filed Writ Petition
No.17616 of 1993 which came to be decided vide judgment dated
29.05.1998. As the case was covered by judgment of this Court in
Purshottam Dass Tandon and others vs, State of U.P. And others,
AIR 1987 All 56, a direction was issued by this Court to renew lease of
disputed land. However, application for renewal was rejected by District
Magistrate, Allahabad by order dated 11.07.1998. Petitioner filed Writ
Petition No.34324 of 1998 challenging order dated 11.07.1998 but the
same was dismissed on 29.11.2010 on the statement made by counsel for
petitioner-Parsi Panchayat that writ petition has become infructuous.
5.State Government, in the meantime, brought in policy of allowing
free hold of Nazul Land. Pursuant to Government Order (hereinafter
referred to as “G.O.”) dated 01.12.1998, petitioner deposited
Rs.6,19,980/- as requisite amount for claiming property in dispute to be
converted into free hold.
6.Petitioner's application for free hold was rejected by Additional
District Magistrate (Nazul), Allahabad by order dated 01.09.2003
observing that Nazul plot in dispute was given on lease on 24.07.1912 to
Marry Augustus Woolston for a period of 50 years and, therefore, sale
deed dated 11.12.1945 could have resulted in transferring only lease
rights and not title or ownership of property in dispute which belong to
State Government. Further lease expired on 31.03.1962 and erstwhile
lessee thereafter had no right to make “Will” of Nazul land in dispute,
vide Will Deed dated 09.10.1972, and that too by imposing conditions
3
upon State Government. No rights, therefore, could have flown from
'Will' dated 09.10.1972 in respect of Nazul plot in question to anyone.
Hence petitioner's claim for renewal of lease on the basis of above
“Will” was already rejected and for the same reason petitioner's claim
for making disputed land free hold, was also found not sustainable. This
order dated 01.09.2003 was challenged by petitioner in Writ Petition
No.4716 of 2004. It was disposed of vide judgment dated 29.11.2010
directing Collector, Allahabad to re-consider petitioner's application and
pass fresh order ignoring earlier order of rejection. Judgment dated
29.11.2010 reads as under :
“The grievance of the petitioners are that the petitioner have
applied for grant of free hold right of the land in dispute, though
the State has given no objection to declare it free hold. It has
further been submitted that similarly situated persons have been
granted free hold right.
Considering the facts and circumstances of the case we direct the
Collector, Allahabad to re-consider and decide the application of
the petitioner ignoring the earlier order of rejection, within a
period of three months in the light of observations made above.
With the aforesaid observations the writ petition is disposed of
finally.” (Emphasis added)
7.Petitioner then made representation dated 16.12.2010. District
Magistrate, Allahabad vide letter dated 28.07.2011 made certain queries,
i.e. :
(1) Whether Nazul land in dispute is being used as desired in Will
Deed dated 09.10.1972 as Nariman Home or is being used by
anyone else and in what manner it is being used, should be
informed?
(2) Whether D. F. Gandhi who has submitted various applications
on behalf of Parsi Panchayat claiming himself to be General
Attorney has got the said power of attorney registered, and if yes,
its copy should be made available?
4
(3) Whether Sri D. F. Gandhi son of F. S. Gandhi resident of
Gulista 18/30 Elgin Road, Lal Bahadur Shastri Marg, Allahabad is
alive and if not, his death certificate be produced?
8.Petitioner submitted reply dated 18.08.2011 through his counsel
wherein it was stated that building in question had several tenants and
income from rent is used by Parsi Panchayat for running 'Nariman
Home'; in the “Will” dated 09.10.1972 it is not mentioned anywhere that
building on the disputed Nazul land shall be run as 'Nariman Home';
Power of attorney of D. F. Gandhi was not registered and D. F. Gandhi
has died, whose death certificate was not available with petitioner but
must be available with legal heirs of D. F. Gandhi.
9.Since no further action was taken by respondent 2 with respect to
claim of petitioner for freehold of disputed Nazul land, Writ Petition
No.1305 of 2012 was filed wherein an interim order was passed
directing parties to maintain status quo on 10.01.2012. During pendency
of above writ petition, respondent 2 passed order dated 18.08.2018
which has been challenged on the ground that respondents have allowed
free hold in respect of several other properties and petitioners have been
discriminated; resumption of land is violative of petitioner's
constitutional right under Article 300 A of Constitution; without
acquiring land under the provisions of “The Right to Fair Compensation
and Transparency in Land Acquisition, Rehabilitation and Resettlement
Act, 2013” (hereinafter referred to as “Act, 2013), it could not have been
taken by respondent 2; resumption cannot be made forcibly; procedure
of Uttar Pradesh Public Premises (Eviction of Unauthorised Occupants)
Act, 1972 (hereinafter referred to as “U.P. Act, 1972”) has not been
followed; petitioner's right of free hold cannot be defeated by exercising
right of resumption and re-entry by respondents in a colourable manner;
petitioner was allowed to deposit requisite amount for freehold, now
respondents cannot turn otherwise; petitioner is entitled to freehold of
5
land in dispute in the light of various Government Orders issued from
time to time and the order impugned amounts to eviction of petitioner
from house, standing on land in dispute and demolition thereof where
they are residing for the last 30 years, it is arbitrary and illegal; similar
orders were passed earlier in case of M/s Madhu Colonisers Pvt. Ltd Vs
State of U. P. and others; and, Chintamani Ghose Trust and another Vs.
State of U.P. and others, which were challenged in Writ Petitions
No.31153 of 2009 and 35269 of 2009, and Division Bench of this Court
vide judgment dated 27.05.2010 allowed writ petitions and set aside
orders of District Magistrate and he was directed to pass fresh order with
respect to claim of petitioners in those cases for conversion of lease right
into free hold in accordance with law.
10. The writ petition has been contested by respondents and counter
affidavit has been filed on behalf of respondent 2, sworn by Sri Gore Lal
Shukla, Additional District Magistrate (Nazul), Prayagraj. It is said that
Nazul Plot H-1, Civil Station initially demised by an Indenture of Lease
dated 01.04.1862 to one Mr. Robert Carr. Disputed Nazul land, area 3
acres, was leased out for a period of 50 years for purpose of constructing
a dwelling house. Thereafter lease was renewed by lease deed dated
24.07.1912 for a period of 50 years commencing from 01.04.1912. Lease
was splitted into two parts comprising of Bungalow No.24, Elgin Road
and Bungalow No.3, Strachey Road. In respect of site H-1, Bungalow
No.24, Elgin Road, as desired by erstwhile lessee, in terms of earlier
lease, another lease was executed on 18.06.1937 by Secretary of State
for India in Council in favour of Mr. K.P. Modwell; period of lease
remained the same and lease deed dated 18.06.1937 was only to
recognize split of lease land; lease came to an end on 31.03.1962;
aforesaid lease was governed by provisions of Government Grants Act,
1895 (hereinafter referred to as “GG Act, 1895”); Lease deed contained
provision of re-entry and also obligation of surrender by lessee after
6
expiry of period of lease; land in question was required for development
as Parking Place and, therefore, a proposal was made to the Government
for its resumption which was approved vide order dated 16.08.2018 and
pursuant thereto, impugned order dated 18.08.2018 has been passed. It is
further said that over land in dispute, illegally, a banquet hall namely
'Gangotri Garden' is being run; Government has right of resumption, and
mere filing of application for free hold does not confer any right and in
any case, the same has already been rejected. It is also pointed out that in
respect of Nazul Plot 33 Civil Station, Allahabad land was resumed
which was challenged by “M/S Madhu Colonisers Private Limited” in
Writ Petition No.62588 of 2010 and reliance was placed on this Court's
judgment dated 27.05.2010 in Writ Petitions 35269 of 2009 and 31153
of 2009 but Division Bench of this Court held that policy decision taken
by Government for conversion of lease rights into free hold, will not
have any adverse effect on the power of government to resumption of
land under Clause 3 (c) of lease deed; this Court upheld the order of
resumption by order dated 02.04.2013 and operative part of judgment
reads as under :
“On a consideration of all the relevant materials, this Court finds
that the State Government through the District Magistrate has
committed no illegality in issuing the impugned notice and
passing the impugned order. It is not possible to hold that the
decision that the Multi Layer Parking facility is required to be
constructed for public purpose suffers from any error or that the
requirement is not for public purpose. It is also found that as
nominee of the lessee, the petitioner-Company cannot have any
larger rights that the lessee and once the order of the District
Magistrate for resumption the land in exercise of power under
Clause 3 (c) of the lease deed is held to be valid, the petitioner-
Company, as a nominee, cannot have any surviving right to
claim conversion of the lease hold rights into free hold. Infact,
on valid resumption order being passed, the lease hold rights
cease to exist and there can be no occasion for conversion of
lease hold rights into freehold rights in such circumstances.
7
As a result, we find no merit in this petition. It is,
accordingly, dismissed, Interim order of stay shall stand vacated.
There shall be no order as to costs.”
(Emphasis added)
11.Respondents have also placed reliance on Chintamani Ghosh
and another vs. State of U. P. and others, 2001 (2) UPLBEC 1003,
Anand Kumar Sharam vs. State of U. P. and others, 2014 (2) ADJ
742, State of Andhra Pradesh vs. Kaithala Abhishekam, AIR 1964
AP 450, Union of India and others vs. Harish Chand Anand, AIR
1996 SC 203, Smt. Shakira Khatoon Kazmi and others vs. State of
U. P. and others, 202 (1) AWC 226 and Azim Ahmad Kazmi and
others vs. State of U. P. and others, 2012 (7) SCC 278.
12.In the rejoinder affidavit, petitioners have not stated anything new
but reiterated what they have already said in the writ petition, therefore,
we are not repeating the same.
13.We have heard Sri Satya Vrat Sahai, Advocate, holding brief of Sri
Sunil Dutt Kautilya, learned counsel for petitioner, and Sri Ajit Kumar
Singh, Additional Advocate General assisted by Sri Nimai Das,
Additional Chief Standing Counsel and Sri Sudhanshu Srivastava,
Additional Chief Standing Counsel for State Authorities.
14.Learned counsel for petitioner broadly advanced his submissions
as under :
i.It is true that lease expired on 31.03.1962 but before that
disputed premises was already transferred to Sri K.S.
Gandhi and his wife Smt. Tahmenna, therefore it has been
succeeded by Sri D.F.Gandhi and in terms of Will of
K.S.Gandhi, petitioner got possession and has applied for
conversion of freehold. Petitioner has right of conversion of
land in dispute as freehold, therefore, without taking any
decision on said aspect, respondents cannot re-enter/resume
8
land in dispute by means of impugned order.
ii.Petitioners' possession over property in dispute after expiry
of lease was never obstructed and no action was taken for
eviction or ejectment of petitioners from land in dispute.
Meaning thereby respondents by conduct admitted lease
rights of petitioners and valid possession over land in
dispute. That being so, land in dispute could not have been
resumed by exercising power with reference to GG Act,
1895 which was already repealed before impugned order
was passed.
iii.State Government framed policy of conversion of lease into
freehold and pursuant thereto petitioners submitted
application for freehold of lease land but the said
application was not decided for long. Petitioners are entitled
to have lease rights converted into freehold as per relevant
Government Orders.
iv.In any case, if petitioner's continuated possession after
expiry of lease on 31.03.1962 was unauthorized in view of
provisions of Uttar Pradesh Public Premises (Eviction of
Unauthorised Occupants) Act, 1972 (hereinafter referred to
as “U.P. Act, 1972”), he cannot be evicted or ejected from
disputed land without following procedure prescribed in the
said Act.
v.Right of resumption exercised by respondents under lease-
deed, which has expired long back is illegal since in 2018
no deed was operating and resumption by State vide
impugned order cannot be read in continuation with lease
deed which had already expired 31.03.1962.
vi.Impugned order has been passed without any show cause
9
notice or opportunity to petitioner, therefore, it is illegal.
15.Per contra, learned Additional Advocate General appearing for
State of U.P. and Senior Counsel appearing on behalf of A.D.A.
advanced argument virtually in the light of pleadings and objections
raised in the counter affidavit, which we have already given in detail
hereinabove and will further elaborate while discussing issues raised in
this writ petition.
16.Before going into merits of rival submissions, some glaring
important facts, we find necessary to recapitulate at this stage. Except
lease deed dated 18.06.1937, copy of other lease-deeds have not been
placed on record. Lease deed dated 18.6.1937 was executed to recognize
splitting of land in two parts, but, for remaining lease term, it is not
disputed that terms and conditions of said lease was same as contained in
lease deed dated 01.4.1862. Subsequent renewal was in continuation of
same terms and conditions. Some of the relevant terms and conditions of
lease deed, therefore, which govern relationship of Lessor and Lessee in
this case, are reproduced as under :
AND ALSO will not without the previous consent in writing of
the said Collector erect or set up or suffer to be erected or set up
on any part of the said premises hereby demised any messuage or
building other than and except the messuage and buildings
already erected and delineated upon the map hereto annexed.
AND THAT if in breach of the said preceding covenant any
messuage or building is erected or set up or suffered to be erected
or set up 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 buildings
10
and out buildings 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
AND ALSO will not without the previous consent in writing of the
said Collector grow any crops/ or keep any horses, cattle or other
animals for hire or profit or 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
AND ALSO upon the breach of any of the aforesaid covenant the
said lessee his Executors, Administrators 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 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 contain to the
contrary notwithstanding
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 constructed
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 tiles. And that if in breach of the said
lastly preceding convent 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
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
11
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
AND ALSO shall and will at the end, expiration or other sooner
determination of the said term peaceably and quietly leave
surrender and yield up to the said Secretary of State his
Successors or Assigns the said piece or parcel of land or ground
together with all such of the said erection or building and all
fixtures and things which at any time and during the said term
shall be affixed or set up within or upon the said demised premises
as the said Secretary of State, his Successors and Assigns shall
desire to take over at a valuation according to the option
hereinafter reserved to them subject however to the conditions
hereinafter contained.
PROVIDED ALWAYS and it is hereby understood and 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, erections or
fixtures or things which shall have at any time during the said
term granted under the lease dated 24
th
day of July, 1912 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 24
th
day of July, 1912 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, erections, fixtures and things or
any part thereof with the land, and in that case the said Secretary
of State, his Successors 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 arbitrators, the one to be named by the
12
Secretary of State, his Successors and Assigns and the other by the
said lessee his Executors, 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 appointed
by such other of the parties hereto which arbitration shall be final.
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 building, erections and fixtures shall rest
absolutely in the said Secretary of State, his Successors and
Assigns as his own property without any compensation or
payment in respect thereof.
PROVIDED FURTHER and it is hereby agreed that the said
lessee his Executors, Administrators or Assigns shall not assign
or underlet or otherwise part with the possession of the said
premises or any part thereof without the permission of the said
Secretary of State his Successors or Assigns (which permission
may be signified by the said Collector or by such other person as
the Government of the North-Western Provinces or the said
Secretary of State may appoint in that behalf) for that express
purpose had and obtained
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
13
registered in such manner as shall be appointed by the said
Secretary of State for the purpose of registering leases and other
instruments of or relating to lands situate within the local limits of
Allahabad (and for the registry of which assignments or subleases
a fee of not more than Rs. 16 shall be paid by the person or
persons tendering such assignments or sublease for registry) then
and not otherwise the liability of the said lessee his Heirs,
Executors and Administrators for the purpose or subsequent
observance and performance of the covenants on the lessee's part
therein 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 cease and determine, but without
prejudice however to the right of action of the said Secretary of
State his Successors or Assigns in respect or on account of any
previous breach of any covenant or covenants herein contained,
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 the said days whereon the same shall have become due
whether the same shall have been lawfully demanded or not or if
there 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 dwelling house and out buildings
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
but which entry if made shall not prejudice the right of the said
Secretary of State his Successors or Assigns to damages for the
previous breach of any covenant on the part of the said lessee his
Executors, Administrators or Assigns herein contained.
AND the said Secretary of State doth hereby for himself his
Successors and Assigns covenant with the said lessee his
Executors, Administrators or Assigns that he the said lessee his
Executors, Administrators or Assigns paying the rent hereinbefore
reserved at the times and in manner hereinbefore appointed, and
observing and performing all and singular the covenants,
14
conditions and agreements herein contained and on his 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.
PROVIDED also that if the Government shall at any time require
to re-enter on this site it can do so, on paying the value of all
buildings that may be on the site, plus 10 per cent, as recompence
for resumption of lease and that the lessee shall have no further
claim of any sort against the Government.”
(Emphasis added)
17.Some dates, which are relevant for adjudication of this case may
be stated in chronological manner, and, in brief, as under :
Date Events
01.04.1962
01.04.1912
18.06.1937
11.12.1945
31.03.1962
09.10.1972
Fifty years' lease was executed in favour of
Roberston Karr.
Fifty years lease was executed (renewed) in
favour of Marry Augustus Woolston.
Lease Deed for balance period was executed in
recognition of splitting of Nazul Plot No.H-1,
Civil Station, Area 1 acre 2576 square yards into
two i.e. Bungalow No.24, Elgin Road, and
Bangalow No.3 Stretchy Road.
Sale deed executed by Marry Augustum
Woolston in respect of Bangalow No.24, in
favour of K.S.Gandhi and his wife Smt.
Tahmenna
Lease expired in respect of entire plot H-1, Civil
Station i.e. Bungalow No.24, Elgin Road, and
Bangalow No.3 Stretchy Road.
Sri K.S.Gandhi authored 'Will' stating that his
15
31.01.1978
14.02.1978
29.06.1981
27.8.1987
13.7.1998
29.10.1998
.....
01.9.2003
….....
29.11.2010
29.11.2010
wife Smt. Tahmenna K.Gandhi has died therefore
Bungalow No.24 Elgin Road (New No.38, Lal
Bahadur Shastri Road) be given for running a
Montassory School at the expense of
U.P.Government in the name of his wife and if
Government is not willing to run the School,
Bungalow will go to Parsi Panchayat, Surat i.e.
petitioner for running Nariman Home
Sri K.S.Gandhi died
Will dated 09.10.1972 was got registered in the
office of Sub-Registrar, Chail, Allahabad
D.F.Gandhi resident of 18, A, Elgin Road
claiming himself to be Executor of Will and
representative of Parsi Panchayat, applied for
renewal of lease of Nazul Plot H-1, area 1 acre
2576 sq.yard.
Power of Attorney was executed by Parsi
Panchayat, Surat in favour of D.F.Gandhi.
Application for renewal of lease was rejected by
District Magistrate, Allahabad.
District Magistrate's order dated 13.7.1998 was
challenged in WP 34324 of 1998. Court stayed.
D.F. Gandhi applied for conversion of disputed
land into freehold in view of Government Order
dated 01.12.1998 and deposited himself
Rs.6,19,980/-
Application for freehold was rejected by
Additional District Magistrate (Nazul) Allahabad.
Writ Petition No. 4716 of 2004 was filed
challenging order dated 01.09.2003
Writ Petition 34324 of 1998 was dismissed.
Writ Petition 4716 of 2004 was disposed of
directing Collector, Allahabad to reconsider
application for freehold and pass fresh order
ignoring earlier order.
16
10.01.2012
19.6.2018
16.8.2018
18.8.2018
No order was passed on freehold hence writ
petition No. 1305 of 2012 was filed for seeking
direction for conversion of disputed land into
freehold.
Interim order passed by District Magistrate
directing parties to maintain status quo.
Proposal sent to State Government for
resumption of disputed land for development as
'Parking place'.
State Government approved aforesaid proposal.
Impugned order by District Magistrate,
Allahabad for resumption of land and directing
petitioners to vacate disputed land.
18.In the backdrop of aforesaid facts, we proceed to consider merits
of writ petition and relief claimed by petitioner.
19.It is not in dispute that land in question is 'Nazul' but interestingly
lease holder had sold out land by sale deed to third party and also
subjected it to 'Will' ignoring Lessor and its authority, altogether. The
entire transfer was made illegally i.e. sale without permission of lessor,
and 'Will', not only without permission but after 10 years of expiry of
lease. In these circumstances, some questions relating to 'Nazul Land'
and also the terms and conditions of Lease, having importance, have
arisen.
20.The first question would be, "what is Nazul?”
21.Every land owned by State Government is not termed as 'Nazul'
and therefore it has become necessary to understand, what is 'Nazul'.
22.State Government may own land by having acquired and vested in
various ways, which includes vesting of land in the capacity of a
Sovereign body and having right of bona vacantia. Property may also be
acquired and owned by State by way of acquisition under the Statute
17
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.
23.It is only such land which is owned and vested in the State on
account of its capacity of Sovereign, and application of right of bona
vacantia, which is covered by the term 'Nazul', as the term is known for
the last more than one and half century.
24.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'.
25.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'.
26.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.
18
27.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.
28.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.
29.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
continues above provision and says :
19
'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)
30.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.
31.In Pierce Leslie and Co. Ltd. Vs. Miss Violet Ouchterlony
Wapsnare, AIR 1969 SC 843 Court has considered the above principles
in the context of 'Sovereign India' as stands under Constitution after
independence, and, has observed :
“....in this country the Government takes by escheat immoveable
as well as moveable property for want of an heir or successor. In
this country escheat is not based on artificial rules of common law
and is not an incident of feudal tenure. It is an incident of
sovereignty and rests on the principle of ultimate ownership by
the State of all property within its jurisdiction”.
(Emphasis added)
32.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,
20
Superintendent and, Legal Remembrancer v. Corporation of
Calcutta [1967] 2 SCR 170.
33.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)
34.This decision has been followed in Raja Rajinder Chand v. Mst.
Sukhi, AIR 1957 SC 286.
35.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.”
36.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)
37.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.
21
38.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
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)
39.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)
40.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.
41.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
22
acquired without the territory itself merging in the new State.”
(Emphasis added)
42.This decision has been followed later in Biswambhar Singh vs.
State of Orissa 1964 (1) SCJ 364, wherein Court said:
“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)
43.Thus the land in question which is admittedly 'Nazul', belonged to
the category as discussed above i.e. it came to be vested and owned by
State in its capacity of Sovereign and right of bona vacantia. When
acquisition is made under the provisions of a Statute, purpose of
acquisition is already known and State pay its price but when land is
owned by State, which is Nazul, objective of use of such land is not
predetermined but it can be utilized by State for larger public welfare
and its benefit, as necessitated from time to time. In other words 'Nazul'
land forms the 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.
23
44.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?"
45.Historical documents, record as also authorities discussed above
show that earlier Government i.e. East India Company upto 1858 and
thereafter British Government used to allot “Nazul land” to various
persons, who had shown their alliance to such Government in various
ways, sometimes by deceiving their Indian counter parts who had raised
voice against British Ruler, or those who remained faithful to British
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”.
46.In other words, we can say that initially land owned by State was
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 consequent 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
24
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
objective, 'GG Act 1895' was enacted.
47.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.
48.Section 2 of GG Act, 1895, as it was initially enacted, read as
under :
“Transfer of Property Act, 1882, not to apply to Government
grants.- Nothing in the Transfer of Property Act, 1882, contained
shall apply or be deemed ever to have applied to any grant or
other transfer of land or of any interest therein heretoforce made
or hereafter to be made by or on behalf of Her Majesty the Queen
Empress, Her heirs or successors, or by or on behalf of the
Secretary of State for India in Council to, or in favour of, any
person whomsoever; but every such grant and transfer shall be
construed and take effect as if the said Act had not been
passed.” (Emphasis added)
49.The above provision was amended in 1937 and 1950 and 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
25
not been passed.” (Emphasis added)
50.Section 3 of GG Act, 1895 read as under :
“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.”
51.In State of Uttar Pradesh, vide Government Grants (U.P.
Amendment) Act, 1960 (U.P. Act No.XIII of 1960), Sections 2 and 3 of
GG Act, 1895, were substituted by Section 2, as under :
“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
26
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)
52.A perusal of Section 2 of GG Act, 1895 shows two things :
i. A declaration is made that any grant or other transfer of land or
of any interest therein, made by or on behalf of Government, in
favour of any person, on and after enactment of GG Act, 1895,
would not be governed by provisions of TP Act, 1882 i.e. nothing
contained in TP Act, 1882 shall apply to such Grant, transfer or
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.
53.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.
The 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.
54.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.
55.Sub-section (3) of Section 2 of GG Act, 1895 protect certain
27
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.
56.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
reforms or imposition of ceiling on agricultural land.
57.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.
58.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)
59.Again in Hajee S.V.M. Mohamed Jamaludeen Bros. & Co. vs.
28
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
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)
60.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.
61.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)
62.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.
63.It neither can be doubted nor actually so urged by petitioner that
the lease granted in the case in hand is/was a 'Grant' governed by GG
Act, 1895. Broadly, 'Grant' includes 'lease'. In other words, where 'Nazul'
29
is let out to a person by Government under agreement of lease i.e. Grant,
it is governed by GG Act, 1895 and rights of parties therefore have to be
seen in the light of stipulations contained in the document of 'Grant'.
'Grant' includes a property transferred on lease though in some cases,
'Grant' may result in wider interest i.e. transfer of title etc. Whatever may
be nature of document of transfer, i.e. instrument of 'Grant', the fact
remains that terms and conditions of 'Grant' shall be governed by such
document and it shall prevail over any other law including TP Act 1882.
One cannot take resort to TP Act, 1882 to wriggle out of any condition or
limitation etc. imposed in terms of document of 'Grant'.
64.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.
65.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.
30
66.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
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)
67.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
31
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
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)
32
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
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.
68.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
33
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
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)
69.Having said so, Court said, “we are of the view that there is no
34
other procedure or law required to be followed, as a special procedure
for resumption of land has been laid down under the lease deed”.
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.
70.The above discussion makes it clear that 'Nazul' is a land owned
and vested in State. It is such land which has vested in State by virtue of
its 'Sovereignty' and incidence of 'Sovereignty' i.e. annexation, lapse and
bona vacantia. Further, 'Grant' means transfer of property by a deed in
writing and includes within its ambit, an instrument of lease/lease deed.
Such 'Grant' is governed by provision of GG Act, 1895, which were
applicable to 'Grants' executed on and after enforcement of GG Act,
1895. 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'.
71.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.
72.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
35
whether it will confer any valid right or interest in respect of Nazul land,
subjected to transfer, upon such Transferree?”
73.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 and some of such instances are :
(i)Without permission, no erection etc. of building etc., except
what was already existing and raised in accordance with map
made part of lease deed dated 18.06.1937.
(ii)Without permission, no growing of any crop or keeping of
horses, cattle or other animals for hire or profit was allowed.
(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.
36
(vii)Any transfer without prior permission will cause lease-deed
cease and determine but without prejudice however to the right of
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 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 is not required by Lessor, it has to be removed by Lessor
74.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 already been obtained.
75.Herein, it is not stated anywhere that on 11.12.1945, when sale
deed was executed by Marry Augustum Woolston in favour of Sri
K.S.Gandhi and his wife Smt. Tahmenna, any such permission was
obtained from Government or his Authorized Authority namely
Collector, Allahabad.
76.What is effect of such transfer has been considered in State of
U.P. and others vs. United Bank of India and others (2016) 2 SCC
757. 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".
37
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)
77.Further, Lessee i.e. Marry Augustum Woolston did not have any
title or ownership over land in dispute. She had only lease rights over
disputed land, therefore, she could have transferred only lease rights to
Sri K.S.Gandhi and his wife Smt. Tahmenna and nothing more than that.
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 Grantee 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 such 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 Grantor had
transferred property under 'Grant' in violation of stipulations contained
in Grant.
78.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.”
79.Further, such invalid transfer can also be construed as breach of
terms of Grant and would empower and enable Principal Grantor i.e.
38
State, owner of property, to take such steps including resumption/re-
entry upon the property under Grant, to itself, besides claiming damages,
compensation, as the case may be, as law permits.
80.Therefore, firstly transfer of land in dispute to Sri K.S.Gandhi and
Smt. Tahmenna vide sale deed dated 11.12.1945 had no legal
consequence of transferring any title or other right or interest to said
Transferree since aforesaid sale deed was clearly in breach of terms and
conditions of lease deed. Secondly, it could have resulted in transfer of
only lease rights, and that too, for remaining period of lease and not
beyond that. Thus, whatever right, even if, could have been transferred
by Marry Augustum Woolston to K.S.Gandhi and Smt. Tahmenna, that
ceased on 31.03.1962 when term of lease expired. Thereafter transferrees
had no valid right or interest over property in dispute.
81.When Sri Gandhi and his wife themselves had no valid right,
question of transferring any right or interest through Will dated
09.10.1972 to petitioner also does not arise. It was not open to Sri
K.S.Gandhi to execute 'Will' in respect of disputed land, which was
owned by State Government as Sri K.S.Gandhi had no right or interest
over property in dispute in 1972 to bequeath to anyone. Will dated
09.10.1972, insofar as disputed land is concerned, is nothing but a sheer
waste paper and a nullity in the eyes of law resulting in transfer of no
legal right or interest to petitioner Parsi Panchayat, Surat in respect of
land in dispute.
82.Though, it is said that Sri K.S.Gandhi applied for renewal of lease
before his death on 31.01.1978, but, no copy of such application has
been placed on record. There is nothing on record to show that any such
application was submitted by Sri K.S.Gandhi. On the contrary, impugned
order shows that an application for renewal of lease was submitted by
Sri D.F.Gandhi on 29.6.1981 claiming himself to be Executor of 'Will'
and representative of petitioner, Parsi Panchyat, Surat. Sri D.F.Gandhi
39
has no right or interest in respect of land in dispute in any manner. He
was a stranger, a rank trespasser. His application therefore, was rightly
rejected by Collector, Allahabad vide order dated 13.7.1998.
83.It is also on record that aforesaid order was challenged in Writ
Petition No.34324 of 1998 which ultimately stood dismissed as
infructuous on a statement made by counsel for petitioner. The fact
remains that order dated 13.7.1998 remained intact and has not been set
aside, nullified or made inoperative by any competent authority or Court
till date. It therefore maintain all its legal consequences rendering
petitioner a stranger having no right or interest, whatsoever in disputed
land.
84.It is then contended that renewal was wrongly denied though in
the light of law laid down in Purshottam Dass Tandon and others vs,
State of U.P. And others (supra) renewal of lease ought to have been
granted.
85.We have already said that neither petitioner nor Sri D.F.Gandhi
had any right whatsoever, legal or otherwise, to seek renewal of lease in
respect of land in dispute. We have also examined judgment in detail
rendered by this Court in Purshottam Dass Tandon and others vs,
State of U.P. And others (supra) which has become final after
dismissal of appeal by Supreme Court and find that the same has no
application in respect of land in dispute as also qua petitioner and Sri
D.F.Gandhi.
86.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
40
be taken only if lessee surrender or lease stood terminated in absence of
any request from lessee for grant of fresh lease. Thereafter, on
23.04.1959, a G.O. was issued to grant fresh lease in cases where lease
has already expired but has not been renewed so far, or which is likely to
expire within the next 5 or 6 years, on the terms and conditions given in
the said G.O. The proposed premium in the said G.O. was objected by
Lease Holders, whose leases were already expired or likely to expire.
Several representations were sent to Government. Some house-owners
met the then Prime Minister Late Pt. Jawahar Lal Nehru, who had visited
Allahabad in November or December, 1959. It resulted in issue of G.O.
dated 07.07.1960 whereby rate of premium on first three acres was
reduced to Rs.2,000/- in each 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
41
leases had expired and others by describing them as sitting and existing
lessees.
87.There was a second phase which covered period from 1966 to
1981. On 16.02.1966, U.P. Awas Vikas Parishad Adhiniyam, 1965
(hereinafter referred to as “U.P.Act, 1965”) was enacted for providing
housing sites and construction of building. G.O. dated 03.12.1965, thus
was modified by G.O. dated 04.11.1968, and it was directed that leases
of joint lessees should be renewed as far as possible for one acre only.
Sub-division was permitted only where sub-divided plot was not less
than 800 sq. yards. Concession in payment of lease money and ground
rent was allowed on same terms and conditions as it was in G.O. dated
03.12.1965 but time was extended for payment of first instalment for
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.
88.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
42
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 “Act, 1976”). The said
Act was enacted to prevent concentration of Urban Property and
discourage construction of luxurious houses. On 19.12.1972, provisions
pertaining to Nazul were amended providing for maximum area
permissible for renewal of leases of 2000 sq. yards plus land on which
building was constructed. Remaining area was to be surrendered to
Housing Board and Lessees were prohibited from sub-dividing or
transferring any land. On 10.12.1976, Government issued an order
superseding all previous orders in respect of renewal of leases of Civil
Lines, Allahabad in view of Act, 1976 and laid down fresh terms and
conditions for renewal of leases.
89.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 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
43
1500 sq. metre whichever was more. Area of building for commercial
purpose was fixed at 2000 sq. metres. Premium was fixed at 50 paisa per
sq. metre. Thus, from 1976 onwards for the purpose of renewal, area was
reduced from acre to square metre and unit for premium and ground rent
became square feet instead of acre. All heirs of Lessees became one unit
for renewal. Land covered by outhouses were to be excluded. Lessees
could not even opt for it.
90.When we consider the claim of petitioner 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 G.Os. hence petitioner cannot claim
any benefit under the above mentioned G.Os. In fact, neither K.S.
Gandhi nor D.F. Gandhi nor petitioner was eligible or entitled to seek
renewal of lease since they were neither valid lessee nor legal heirs of
valid lessee. They were unauthorized trespassers having no valid claim
over disputed Land and above G.Os. were inapplicable to them.
91.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).
92.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 :
44
(I)A Lessor may, after expiry of period for which lease is
granted, renew the same or resume i.e. re-enter. But if out of the
two i.e. re-entry or resumption, the two divergent courses, he
chooses to grant fresh lease or at least creates that impression by
his conduct spread over long time, it results in abandonment.
(II)If the land is needed or building has to be demolished in
public interest for general welfare, probably no exception can be
taken as the interest of individual has to be sacrificed for the
society. But asking Lessee to vacate land or remove Malba for no
rhyme or reason but because State is the owner, cannot be
accepted to be in consonance with present day philosophy and
thinking about role of State.
(III)After Act, 1976, no person can successfully or validly claim
to hold land, more than the Ceiling limit.
(IV)Some part of G.O. of 1981 was not consistent with Act,
1976. The rules contained in Nazul Manual are set of
Administrative Orders or collections of guidelines issued by
Government for the authorities to deal with Government property.
(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
45
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.
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
46
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 petitioner at
all since neither petitioner comes within the category of eligible person
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 petitioner has shown
any provision, whether statutory or executive, including G.Os., which
may confer entitlement upon petitioner to seek renewal of lease at all.
96.We therefore, find that transfer made by original Lessee Marry
Augustum Woolston was wholly illegal, contrary to terms of lease deed
and therefore, it did not confer any right or interest in property in dispute
upon transferree Sri K.S.Gandhi and his wife Smt. Tahmenna and further
transfer through Will by Sri K.S.Gandhi is also equally bad, illegal and,
in fact, a nullity in the eyes of law so far as land in dispute is concerned.
This denies any valid status to D.F. Gandhi and petitioner. We, therefore,
answer Question-3 against petitioner.
97.The forth question is “whether petitioner or anyone else is/was
entitled to ask for conversion to freehold of land in dispute in terms of
policy of State Government for conversion of lease land into freehold
and obstruct right of re-entry exercised by Lessor.?”
98.Though in the light of our answer to third question, we can
straight-away hold that petitioner has no such right whatsoever but to
further satisfy ourselves, we proceed to examine relevant G.Os. dealing
with issue of conversion of lease land into freehold to find out whether
there is any justification or legality in the claim of petitioner.
99.The first G.O. issued by State Government in order to execute its
policy of conversion of lease land into freehold was issued on 23.5.1992.
The aforesaid G.O. was applicable to permanent leases given for
47
'residential purposes' and 'current leases', given for residential
purposes. Para 1 of aforesaid G.O. reads as under :
^^eq>s ;g dgus dk funsZ'k gqvk gS fd lE;d fopkjksijkUr 'kklu }kjk
utwy Hkwfe ds izcU/k ,oa fuLrkj.k vkfn dh orZeku O;oLFkk esa ifjorZu djrs gq,
'kk'or ,oa pkyw iV~Vksa ds vUrxZr miyC/k utwy Hkwfe dk LoSfPNd
vk/kkj ij Qzh&gksYM ?kksf"kr djus ,oa 'ks"k fjDr utwy Hkwfe dk fuLrkj.k bl
'kklukns'k esa fu/kkZfjr izfdz;k ds vuqlkj djus dk fu.kZ; fy;k x;k gSA rn~uqlkj
utwy Hkwfe ds izcU/k ,oa fuLrkj.k vkfn ds lEcU/k esa fuEufyf[kr O;oLFkk
rkRdkfyd :i ls ykxw gksxhA^^
“I am directed to say that after due consideration the
government has while changing the extant policy of management
and disposal of the Nazul land, decided to declare Nazul land
available under the perpetual and current leases to be freehold
on voluntary basis and to dispose remaining vacant Nazul land as
per procedure prescribed in this Government Order. Accordingly,
in respect of the management and disposal, etc. of the Nazul land,
the following policy shall come into force with immediate effect.”
(English Translation by Court)
(Emphasis added)
100.Those, who are governed by aforesaid G.O., were directed to
submit their option for freehold within one year from the date of issue of
G.O. and only they would be entitled for benefit under the said G.O. It
also restrained any transfer of property if under lease deed, no transfer
was permissible without permission. It also directed that where
unauthorized possession is found, action for eviction shall be taken in
accordance with law. Paras 7 and 8 of said G.O. read as under :
^^¼7½ftu iV~Vksa es ;g 'krZ gS fd iV~Vkf/kdkjh fcuk iV~Vknkrk dh
vuqefr ds iV~Vkxr Hkwfe dk gLrkUrj.k dj ldrk gS] ogkWa iV~Vs dh
'krZ ds foijhr dksbZ gLr{ksi ugh fd;k tk,xk] fdUrq tgkWa fcuk iV~Vknkrk
dh vuqefr ds iV~Vsnkj }kjk Hkwfe gLrkUrj.k djus dk fu"ks/k gS ogkWa bl 'kklukns'k
ds ykxw gksus dh frfFk ls fdlh Hkh izdkj ds gLrkUrj.k ij ,d o"kZ rd ds fy, jksd
yxk nh tk,xhA ;g ;kstuk 'kklukns'k tkjh gksus dh frfFk ls ykxw gksxhA
¼8½bl ckr dk O;kid izpkj fd;k tk,xk fd mijksDr uhfr vuf/kd`r dCtks ds
ekeyksa esa ykxw ugha gksxh vkSj vuf/kd`r dCtksa ds ekeyksa esa fof/kd izfdz;k
48
ds vuqlkj csn[kyh vkfn dh dk;Zokgh dh tk,xhA**
“(7) In leases where leaseholder can transfer lease land
without permission of the lessor, in such a case no interference
shall be made contrary to the terms and conditions of the lease.
But where transfer of land without permission of the lessor is
prohibited, any transfer of land shall be stopped for a year from
the date of enforcement of this Government Order. This policy
shall come into force from the date of issue of the Government
Order.
(8) It shall be widely circulated that the aforesaid policy shall
not be applicable to the cases related to unauthorized possessions
and eviction proceedings, etc. in relation to the unauthorized
possessions shall be held in accordance with the legal
procedure.” (English Transaction by Court)
(Emphasis added)
101.The second G.O. was issued on 02.12.1992 dividing Lease-
Holders in two categories. One, who had not violated conditions of
lease, and, another, who had violated conditions of lease. Those, who
had not violated conditions, were required to pay for conversion to
freehold an amount equal to 50 percent of Circle Rate for residential
purpose while those who had violated conditions of lease, were to pay
100 percent. Same was in respect of Group Housing and Commercial
use with the difference of amount to be paid for freehold. Para 4 thereof
also provided that such current leases where 90 years period had
expired, if Lease-holder had not violated any conditions of lease and
wants freehold, that can be allowed as per aforesaid G.O.. However, if he
wants fresh lease, that can also be allowed for 30 years on payment of 20
percent of Circle rate as premium and 1/60
th
part of premium towards
annual rent. Clause 4 of aforesaid G.O. reads as under :
^^4-,sls pkyw iV~Vs ftuds 90 o"kZ dh lEiw.kZ vof/k lekIr gks
xbZ gS ;fn dksbZ iwoZ iV~Vk/kkjd ftUgkasus iV~Vs dh 'krksZa dk mYya?ku
ugha fd;k gS] Hkwfe Qzh&gksYM djkuk pkgrk gS rks ,slh n'kk esa fu/kkZfjr njksa
ds vuqlkj Qzh&gksYM dj fn;k tk,xkA ;fn og Qzh&gksYM ugh djkuk pkgrs gS
cfYd u;k iV~Vk ysuk pkgrs gS rks ,slh n'kk esa 30 o"kZ ds fy, ,d u;k iV~Vk
49
orZeku 'krksZa ds vk/kkj ij fn;k tk ldrk gS ftlds fy, izhfe;e dh /kujkf'k
izPkfyr lfdZy jsV dh fu/kkZfjr nj dh 20 izfr'kr gksxh vkSj okf"kZd fdjk;k]
izhfe;e dk 1@60oka Òkx izfro"kZ ds fglkc ls Òh fy;k tk,xkA^^
“4 . In case of those current leases whose entire lease period of
90 years has expired, if any previous leaseholder who has not
violated lease conditions, wants to get the land converted into
freehold, in such a circumstance it shall be converted into freehold
against the payment of the prescribed rates. If he does not want to
convert it into freehold and wants to get a new lease, in such a
circumstance a new lease may be awarded for 30 years under the
extant terms and conditions, for which premium amount @ 20
percent of the existing circle rates and annual rent @ 1/60 of the
premium shall be paid.” (English Translation by Court)
(Emphasis added)
102.The third is G.O. dated 03.10.1994, making amendment in earlier
two G.Os. Relevant aspect is that vide para 2, provision made for
execution of 30 years lease, where 90 years period had expired, was
deleted. Para 2 of G.O. dated 03.10.1994 reads as under :
^^2-'kklukns'k la[;k 3632@9&vk&4&92&293&,u@90] 2&12&1992 esa ,sls
pkyw iV~Vs ftuds 90 o"kZ dh lEiw.kZ vof/k lekIr gks pqdh gS rFkk iwoZ
iV~Vk/kkjd }kjk iV~Vs dh 'krksZa dk mYya?ku ugha fd;k x;k gS] ds lEcU/k esa 30
o"khZ; iV~Vk Lohd`r fd;s tkus dh O;oLFkk dh xbZ FkhA bl O;oLFkk dks
rkRdkfyd izHkko ls lekIr fd;k tkrk gSA vc ,sls ekeys esa u;k
iV~Vk Lohd`r ugha fd;k tk,xk cfYd ,sls ekeys esa ftuesa iV~Vs
dh lEiw.kZ vof/k lekIr gks pqdh gS mldks mijksDr fu/kkZfjr njksa
ij iwoZ iV~Vsnkj ds i{k esa Qzh&gksYM esa ifjofrZr djus dh
dk;Zokgh dh tk,xhA**
“2.A provision had been made in Government Order No.
3632/9-Aa-4-92-293-N/90, dated 02.12.1992 for grant of lease for
30 years for the current leases; where 90 years' tenure has expired
and the terms and conditions of the lease have not been violated
by the former lease holder. This provision is annulled with
immediate effect. Now in such cases, no new lease shall be
granted; rather, in cases where entire period of lease has
expired, proceedings shall be taken for converting such leases
into freehold in favour of the former lease holders at the
aforesaid prescribed rates.” (English Translation by Court)
(Emphasis added)
50
103.Para 8 of aforesaid G.O. further provides that policy for freehold
will be effective only upto 31.03.1995.
104.Considering that some very poor persons were also in occupation
of 'Nazul land' and their eviction may result in serious problem of
accommodation to such persons, another G.O. dated 01.01.1996 was
issued making amendments in earlier three G.Os. stating that those
persons whose monthly income is Rs.1,250/- or less, and in unauthorized
possession of vacant Nazul land upto 01.01.1992 or prior thereto for
residential purposes, they shall be allowed freehold on payment of 25
percent premium and Rs.60/- annual rent for the area upto 45 Sq. Meter
and for more than 45 Sq.Meter but upto 100 Sq.Meter, 40 percent and
Rs.120 annual rent. It clearly says that no regularization of unauthorized
possession shall be made beyond 100 Sq.Meter and amount of premium
shall be allowed to be paid in 10 years' interest free 6 monthly
installments. Such unauthorized possession shall be regularized by
approving 30 years' lease. Clauses 1, 2, 3 and 4 of aforesaid G.O. read as
under :
^^¼1½fdlh Hkh n'kk esa 100 oxZ ehVj ls vf/kd {ks=Qy ij fd;s x;s
voS/k dCtksa dk fofu;ferhdj.k ugha fd;k tk;sxk rFkk fnukad 30-11-
1991 dh lfdZy jsV ij vkadfyr lEiw.kZ ewY; ij fu/kkZfjr ;FkkfLFkfr 25% ;k
40% utjkus dh /kujkf'k 10 o"khZ; C;kt jfgr Nekgh fdLrksa esa fy;k tk;sxk]
ijUrq ;fn dksbZ O;fDr lEiw.kZ /kujkf'k ;k cdk;k fdLrksa dh /kujkf'k ,deq'r tek
djuk pkgrk gS rks og ns; /kujkf'k tek dj ldrk gSA
¼2½mijksDr izdkj ds ekeys esa fofu;ferhdj.k dh dk;Zokgh 30 o"khZ; iV~Vk
Lohd`r djds dh tk;sxhA Lohd`r iV~Vs esa 30&30 o"khZ; nks uohuhdj.k ds
izkfo/kku lfgr lEiw.kZ iV~Vs dh dqy vof/k nks uohuhdj.k ds izkfo/kku lfgr
lEiw.kZ iV~Vs dh dqy vof/k vf/kdre 90 o"kZ dh gksxhA ftlesa ;g 'krZ gksxh
fd lEcfU/kr O;fDr Hkwfe dk iV~Vkf/kdkj 30 o"kZ rd fdlh O;fDr
dks gLrkukUrfjr ugha dj ldrk gS iV~Vk 'kklu }kjk fu/kkZfjr
izk:i ij tkjh fd;k tk;sxkA
¼3½vukf/kd`r dCtksa ds fofu;ferhdj.k dh leLr dk;Zokgh
ftykf/kdkjh] dh v/;{krk esa xfBr lfefr dh laLrqfr ij
ftykf/kdkjh }kjk dh tk;sxhA y[kuÅ ,oa nsgjknwu esa leLr dk;Zokgh
51
mik/;{k] fodkl izkf/kdj.k dh v/;{krk esa xfBr lfefr dh laLrqfr ij mik/;
{k }kjk dh tk;sxhA
¼4½fofu;ferhdj.k gsrq ifjokj dks ,d bdkbZ ds :i esa ekuk
tk;sxk rFkk iV~Vk ifjokj ds eqf[k;k ds i{k esa Lohd`r fd;k tk;sxkA**
“(1)Under no circumstances, illegal possessions over an area
measuring over 100 square metres shall be regularised and an
amount of earnest money, 25% or 40% as the case may be, on the
entire amount calculated as per the circle rate as on 30.11.1991
shall be taken in half yearly interest free instalments over the
period of 10 years. However, if any person wishes to deposit entire
money or the amount of remaining instalments in lump sum,
he/she may deposit the payable amount.
(2)In the aforesaid type of cases, regularisation proceedings
shall be done by granting a lease for a period of 30 years. The
total period of the entire lease shall at most be 90 years with
provision of two renewals, for 30 years each, in the lease so
granted, subject to a restriction that the person concerned cannot
transfer the lease rights to anybody until 30 years. The lease
shall be issued on a format prescribed by the government.
(3)All the proceedings of regularisation of unauthorised
possessions shall be done by the District Magistrate on
recommendation of a committee constituted under his/her
chairmanship. All the proceedings in Lucknow and Dehradun
shall be done by the Vice Chairman, Development Authority, on
recommendation of a committee constituted under his/her
chairmanship.
(4)For the purpose of regularisation, a family shall be
deemed to be a unit and lease shall be granted in the name of the
head of the family.” (English Translation by Court)
(Emphasis added)
105.Then vide G.O. dated 17.02.1996 again some amendments were
made in respect of amount payable for freehold but earlier policy of
categories of persons, who can claim freehold, was not changed. Vide
G.O. dated 29.03.1996, period for giving benefit of freehold was
extended from 01.4.1996 to 30.09.1996. G.O. dated 02.04.1996 only
52
made some corrigendum in earlier G.O. dated 17.02.1996.
106.On 29.08.1996, G.O. was issued in furtherance of G.O. dated
17.02.1996 stating that under G.O. dated 17.02.1996, freehold rights to
Nominees of Lease-Holders were allowed and in reference thereto, rates
on which such Nominees shall be allowed freehold, were mentioned.
107.We find that G.O. dated 17.02.1996 nowhere permits conversion
of Nazul land into freehold in favour of Nominees of Lessee. Thus we
have no manner of doubt that G.O. dated 29.08.1996, insofar as it refers
to G.O. dated 17.02.1996, above Nominees had erred in law and it is a
clear misreading. If G.O. dated 17.02.1996 itself had not permitted
freehold rights to Nominee(s) of Lessee, question of such rights to be
determined by G.O. dated 29.08.1996 is non est of no legal consequence
and inoperative.
108.Then vide G.O. dated 25.10.1996, implementation of freehold
policy was extended upto 31.12.1996. G.O. dated 31.12.1996 was issued
to clarify G.O. dated 17.02.1996 in respect of applicability of rate, where
land use at the time of grant of lease was changed in Master plan.
109.G.O. dated 26.09.1997 made amendments in all earlier G.Os. in
respect of rates for Nazul land being used for hospital and other
charitable purposes. It also clarifies as to which contravention of lease
deed will be treated as violation to attract higher rate. It also provides in
para 6(2) that Government has got right of re-entry due to violation of
any conditions of lease and lease had already expired, and such Lease-
Holder may be informed of Nazul policy and be given an opportunity to
apply for freehold whereafter action for dispossession will be taken. The
policy of conversion of freehold was extended upto 25.12.1997.
110.Then comes G.O. dated 01.12.1998. Thereunder only two
categories were made i.e. residential and non-residential. Restriction was
also imposed on certain Nazul land in respect whereto conversion of
53
freehold was not to be allowed. Vide G.O. dated 10.12.2002, it was
clarified that freehold conversion shall not be allowed to Nominee of
Lessee or his legal heirs. G.O. dated 31.12.2002 relates to rates and
clarification, hence, not relevant for the purpose of present case.
111.The application of petitioner for free hold was rejected vide order
dated 01.09.2003 when above G.Os. including G.O. dated 10.12.2002
was holding the field. Petitioner is neither lessee nor legal heir of
lessees. Petitioner is an unauthorised transferee of the land in dispute. It
could not have been considered even nominee of lessee. Hence petitioner
was not entitled for free hold and its application was rightly rejected.
112.Vide G.O. dated 04.08.2006, provision for regularization of Nazul
land which was in unauthorized possession, was deleted. It is also said
that in all the matters, where freehold document has not been registered,
application shall be cancelled. Vide G.O. dated 15.02.2008 clarification
was given in respect of G.O. dated 04.08.2006 and it was reiterated that
in all those matters where freehold document has not been registered,
application shall be rejected.
113.Vide G.O. dated 21.10.2008, Clause 3 of G.O. dated 10.10.2002,
whereby provision for conversion of freehold to Nominee of Lessee or
his legal heirs, ceased, was restored. It was also clarified that decision to
convert freehold of Nazul land will apply only when such land is not
found necessary for Government use.
114.G.O. dated 26.05.2009 made an amendment in para 2(6) of G.O.
dated 21.10.2008 and substituted following paras therein :
^^,sls utwy Hkwfe;ka tks Hkw&/kkjd ;k iV~Vk/kkjd ;k muds fof/kd mRrjkf/kdkjh
@ ukfer dh Hkwfe ds lkFk fLFkr gS rFkk muds fy, mi;ksxh fl)
gks ldrh gSa rFkk fdlh vU; ds mi;ksx dh lEHkkouk ugha izrhr
gksrh gSA ,slh Hkwfe dk fofu;ferhdj.k Hkw&/kkjd ;k iV~Vk/kkjd ;k muds fof/kd
mRrjkf/kdkjh @ ukfer ds i{k esa orZeku lfdZy jsV 'kr izfr'kr izkIr dj
Qzh&gksYM dj fn;k tk;sxkA ,sls ekeyksa esa 'kklu dh vuqefr vko';d
gksxhA**
54
“Those nazul lands which are lying adjacent to the land of land
holder or lease holder or his legal successor/his nominee, and
which can be of utility to them and do not appear to have the
potential of being used by any other person, shall be regularised
and converted into freehold in favour of the land holder or lease
holder or his legal successor/nominee after receiving cent percent
current circle rate. In such matters, the permission of the
government shall be necessary.” (English Translation by Court)
(Emphasis added)
115.Further time for conversion into freehold was extended upto
31.12.2009.
116.G.Os. dated 29.01.2010, 17.02.2011 and 01.8.2011 were issued
with amendments of minor nature hence not discussed further.
117.Then comes G.O. dated 28.09.2011. It talks of policy of
conversion of Nazul land into freehold, which was not listed at any point
of time but has been occupied unauthorizedly and occupants have raised
their construction, using land prior to 01.12.1998. However, land of
public places, park, side-lanes of road and other Government use was
excluded and maximum area for such freehold was confined to 300
Sq.Meter. The incumbents had to apply within three months whereafter
they have to be evicted. With respect to 'Nominees of Lessees', para 5 of
said G.O. reads as under :
^^5-ukfer O;fDr ds i{k esa utwy Hkwfe dks QzhgksYM fd;s tkus dh O;oLFkk dks
lekIr fd;k tkuk& utwy Hkwfe ds iV~Vsnkj }kjk ukfer O;fDRk ds i{k esa
utwy Hkwfe dks QzhgksYM fd;s tkus dh O;oLFkk loZizFke 'kklukns'k
la[;k % 1300@9&vk&4&96&629,u@95] Vh-lh- fnukad 29&8&1996 ds izLrj&1
¼3½ ¼4½ esa dh x;h Fkh vkSj 'kklukns'k la[;k 2873@9&vk&4&2002&1
52&,u@2002] Vh-lh- fnukad 10&12&2002 ds izLrj 3 }kjk mDr O;oLFkk
lekIr dj nh x;h rFkk 'kklukns'k la[;k % 1956@vkB&4&08&266,u@08]
fnukad 21&10&2008 ds izLrj& 2 ¼4½ }kjk mDr O;oLFkk iqu% cgky dj
nh x;h gSA bl O;oLFkk ds lEcU/k esa ek0 mPPk U;k;ky; esa fopkjk/khu fjV
;kfpdk ¼tufgr ;kfpdk½ la[;k % 35248@2010&t;flag cuke mRrj izns'k jkT;
o vU; esa ikfjr vUrfje vkns'k fnukad 16&07&2010 esas fn;s x;s funsZ'kksa ds
n`f"Vxr mi;qZDr 'kklukns'k fnukad 21&10&2008 dk izLrj 2 ¼4½
55
ftlds }kjk ukfeuh ds i{k esa utwy Hkwfe dks QzhgksYM fd;s tkus
dh O;oLFkk cgky dh x;h gS] dks lekIr djrs gq, vc ,sls O;fDr
ftuds i{k esa dz; dh tk jgh lEifRr ¼utwy Hkwfe½ dks iV~Vsnkj }
kjk jftLVMZ ,xzhesaV Vw lsy fd;k x;k gks vkSj iw.kZ LVkEi 'kqYd
vnk fd;k x;k gks] mlh O;fDr ds i{k esa gh utwy Hkwfe dks
QzhgksYM fd;k tk;sxkA**
“5.Cessation of the provision of converting the nazul land into
freehold in favour of the nominee:- The provision of converting
nazul land into freehold in favour of nominee by the lease
holder of the land had first been provided in the para– 1 (3)(4) of
the Government Order No. 1300/9-Aa-4-96-629N/95, TC dated
29-08-1996; and by para 3 of the Government Order No. 2873/9-
Aa-4-2002-152-N/2002, TC dated 10.12.2002, the aforesaid
provision was annulled; and through para 2(4) of the
Government Order No.1956/VIII-4-08-266N/08, dated
21.10.2008, the afore-said provision has been restored again.
Pursuant to the instructions, with respect to this provision, given
in the interim order dated 16.07.2010 passed by the Hon'ble High
Court in Writ Petition (Public Interest Litigation) No. 35248/2010
titled as Jai Singh Vs State of Uttar Pradesh and others, which is
pending, the provision of para 2(4) made in the aforesaid
Government Order dated 21.10.2008 through which converting
nazul land into in favour of the nominee was restored, is being
annulled; and the nazul land shall be converted into freehold in
favour of the person with whom the lease holder has entered in
registered agreement of sale and who has paid the whole stamp
duty.” (English Translation by Court)
(Emphasis added)
118.Aforesaid G.Os. thus clearly show that eligibility of Lessees of
Nazul land, as initially laid down in G.O. of 1992 underwent some
changes but in respect of land, fount suitable or needed by Government,
no freehold was permissible. With respect to violation of terms and
conditions of lease etc., some relaxation was given.
119.Lastly there are two more G.Os. i.e. 04.03.2014 and 15.01.2015
wherein policy of freehold has been virtually given a relook and
substantial amendments have been made in earlier policy.
56
120.We repeatedly inquired from learned counsel for petitioner as to
which G.O. applies to the present case so as to entitle petitioner to claim
conversion of lease rights of land in dispute into freehold, particularly
when petitioner is virtually a rank-trespassor and is not covered by any
of aforesaid G.Os., none could be shown to us.
121.Moreover, as we have already said, petitioner's application was
rejected on 1.9.2003 as per G.Os. applicable till then and subsequent
G.Os. have no application in this case.
122.It is then contended that in view of judgment dated 29.11.2010
passed in W.P. 4716 of 2004, Collector is bound to reconsider petitioner's
application and hence it should be treated that his application for free
hold is still pending.
123.Even this submission that application for freehold, if submitted
and pending, whether would confer a vested right upon applicant, has
already been settled by a Full Bench of this Court in Anand Kumar
Sharma vs. State of U.P. and others 2014(2) ADJ 742 wherein this
Court has held that merely by making an application for grant of
freehold right, applicant did not acquire a vested right. Para 42 of
judgment reads as under :
“We after considering the relevant Government Orders on the
subject and pronouncements of the Apex Court as noted above,
are of the view that merely by making an application for grant of
freehold right, petitioner did not acquire a vested right.”
(Emphasis added)
124.Therefore, above question is also answered against petitioner
holding that petitioner had no right to resist claim of owner of land for
re-entery/resumption of land asking petitioner to vacate the same.
125.The fifth question is, “whether mere possession of petitioner over
land in dispute confers any right upon him to resist entry of owner of
land and can it insist upon owner to follow any particular procedure
57
before compelling petitioner to vacate land in dispute.”
126.In this respect, it is contended that even if petitioner is a rank
trespassor, the fact is that petitioner is in possession of land in dispute
and, therefore, by application of force, petitioner cannot be evicted.
Petitioner, at the best, is an unauthorized occupant in terms of U.P. Act,
1972 and therefore, atleast procedure prescribed in the said Act has to be
followed. Further continued possession of petitioner over land in dispute
entitles petitioner a notice under Section 106 read with Section 116 TP
Act, 1882, since principle of 'holding over' will apply and in any case,
State can evict petitioner 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.
127.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 petitioner
and cannot be resorted to.
128.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
58
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.
129.So far as application of Section 116 of TP Act, 1882 is concerned
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 following in Delhi Development
Authority Vs. Anant Raj Agencies Pvt. Ltd. (supra).
130.Now, we come to the question of applicability of UP Act, 1972.
131.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'.
132.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
describe 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
59
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
or restricted use of land that belongs to other person such as easementary
rights. Non-possessory interest do not constitute ownership of land itself.
Holders of a non-possessory interest in real property does 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.
133.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.
134.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
60
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
possession of an article depends on various factors namely nature of
article itself and attitudes and activities of other persons.
135.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
61
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.
136.A person having juridical possession though illegal and unlawful,
by a sheer executive fiat cannot 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), when Lessor follows such procedure, it cannot be said that
eviction is being resorted to illegally or without following lawful
method.
137.It is in this backdrop we find that authorities relied by petitioner
are inapplicable to the facts of this case and will not help petitioner at all.
138.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 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
62
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.
139.Dharmasala was constructed in 1909 and inscription on the stone
to the following effect was made:
"Dharmasala Lala Faquir Chand Bhagwan Das, mahajan, 1909."
140.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
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
63
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
fundamental rights enshrined under Articles 14, 19 and 31 of the
Constitution.
141.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.
64
142.Supreme Court observed in Para-10 that even if it is assumed that
the property is trust property, no authority of law authorised 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
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:
65
“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)
143.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)
144.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)
145.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
guarantees to its citizens against arbitrary invasion by the executive of
peaceful possession of property. Supreme Court reiterated what was said
in its earlier judgment in Wazir Chand Vs. The State of Himachal
66
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.”
146.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.
147.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, 4 and 5, namely, Sri Ram Nath Goenka was Chairman
of the Board of Directors, Nihal Singh was the Editor-in-chief of the
67
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
68
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?
148.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
69
of Article 19(1)(a) read with Article 14 of the Constitution.”
149.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)
150.Court in Express Newspapers Pvt. Ltd. and others Vs. Union of
India (supra) 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)
151.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.
70
152.Court then noted some contradictions in Constitution Bench
judgment in Bishan Das and others Vs. State of Punjab and others
(supra) and State of Orissa Vs. Ram Chandra Dev AIR 1964 SC 685.
153.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)
154. It was observed that existence of a right is the foundation for a
petition under Article 226 of the Constitution. In Para-84 Court said that
in cases involving purely contractual issues, the settled law is, where
statutory provisions of public law are involved, writs will be issued and
referred to its earlier judgment in Mohammed Hanif Vs. State of
Assam (1969) 2 SCC 782. Thereafter it also considered the provisions
of Public Premises (Eviction of Unauthorized Occupants) Act, 1971
(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.
155.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.
71
156.One aspect we may notice hereat that detailed judgment has been
written by Hon'ble A.P. Sen, J. Justice E.S. Venkataramiah has agreed
with the judgment of Hon'ble A.P. Sen, J in relation to the aspect that Lt.
Governor of Delhi, Sri Jagmohan, has taken undue interest in getting
notices issued to Express Newspapers and this action is not consistent
with normal standards of administration. Notices were issued under
pressure of Lt. Governor of Delhi, notices were violative of Article 14,
suffers with arbitrariness and non application of mind. His Lordship said
that it was not necessary to express any opinion on the contention based
on Article 19(1)(a) of Constitution. Hon'ble Venkataramiah further said
that question relating to civil rights of the parties flowing from 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.”
157.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)
158.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
72
involved in the case are based upon contractual obligations between the
parties and can be satisfactorily and effectively dealt with in a properly
instituted suit and not by way of writ petition on the basis of affidavits
which are so discrepant and contradictory in 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)
159.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.
160. In Yar Mohammad and another vs. Lakshmi Das and others
AIR 1959 Allahabad 1, a Full Bench of this Court considered following
73
question :
"Whether the jurisdiction of the Civil Court is barred by virtue of
Section 242 of the U. P. Tenancy Act in respect of suit filed under
Section 9 of the Specific Relief Act for obtaining possession over
agricultural land from which the plaintiff alleged his illegal
dispossession within six months of the date of the-suit".
161.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.
162.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
74
and Revenue Court will have no jurisdiction to entertain the action.
163.Then construing the cases, which may resort to Section 9 of Act,
1877, Court said that Section 9 gives a special privilege to persons in
possession who take action promptly. In case they are dispossessed,
Section 9 entitles them to succeed simply by proving:
(1) that they were in possession,
(2) that they have been dispossessed by the defendant,
(3) that dispossession is not in accordance with law, and
(4) that dispossession took place within six months of the suit.
164.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
75
own unjustified act. Section 9, infact, provides for a summary and quick
remedy for a person who is in possession but illegally ousted therefrom
without his consent. Court observed that 'Possession' is prima facie
evidence of title and if a person who is in possession is dispossessed, he
has a right to claim back possession from the person who dispossesses
him. In an ordinary common law proceedings, a person who has a title,
is entitled to possession and cannot be deprived of his right of possession
by a person, who has no title or inferior to the former. Court said that for
Section 9, claim of title is not allowed to be set up and possession
wrongfully taken, has to be restored. Full Bench therefore, answered
question formulated above in negative.
165.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 petitioner that land in dispute is 'Nazul', hence it is
owned and vested in Government. It is also not in dispute that petitioner
got possession of land in dispute vide a 'Will' executed by a person who
had no valid claim over disputed land.
166.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.
167.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.
168.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
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under Qanoon Mal Riyasat Gwalior Samvat, 1983 (hereinafter referred
to as “Qanoon Mal”) that is from Madhya Pradesh. Under Section 326
of Qanoon Mal, a suit was filed by Yeshwant Singh and others i.e.
plaintiffs against Rao Jagdish Singh and others (defendants) in the Court
of Tehsildar for possession of some agricultural land. Plaintiffs set up a
case that they were in possession of land and forcibly dispossessed by
defendants, therefore, should be restored their possession. Tehsildar
decreed the suit and order was affirmed in appeal by Collector as well as
Commissioner. Revision was also dismissed by Board of Revenue and
decree passed by Tehsildar was maintained. Section 326 of Qanoon Mal
broadly provided summary remedy as is provided in Section 9 of Act,
1877. In para 7 of the judgment, Supreme Court has referred to both the
provisions and said that both are broadly similar. High Court took a
different view holding that it was not necessary for a Lessor to resort to
Court for obtaining possession and if there is default by plaintiff, it could
have been dispossessed by defendants. Supreme Court said that no
person can take law in its own hand and in such matter, where provisions
providing summary procedure for restoration of illegal dispossession of
land have been made, the same can be resorted to by the person who has
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).
169.The decision in State of U.P. Vs. Zahoor Ahmad and another
(supra), we find, instead of helping petitioner, 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,
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Sonaripur Range in North Kheri Forest Division for an annual rent of
Rs.100/-. The aforesaid land was part of Reserved Forest of which State
of U.P. is the proprietor. Lease was granted for one year commencing
from 18.03.1947 for industrial purpose. It was renewed on 10.06.1948
with effect from 18.03.1948 for further one year and again in 1949 for
one year. Ultimately lease expired on 18.03.1950. State of U.P., after
termination of lease, allowed Zahoor Ahmad to continue in possession of
land on condition settled between the parties that Licensee i.e. Zahoor
Ahmad would pay Rs.1,000/- as annual rent for occupation till
15.07.1950. Even after determination of lease on 15.7.1950, Zahoor
Ahmad i.e. Licensee continued in possession and State of U.P. allowed
him to remain in possession for three years beyond 15.07.1950 though
for this period Zahoor Ahmad did not agree to give any undertaking of
making payment of annual rent of Rs.1,000/-. A letter dated 04.12.1951
was issued to Zahoor Ahmad asking him to pay Rs.3,000/- for the year
1950-51. Letter further provided that if Zahoor Ahmad 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
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granted for industrial purposes. Under Section 106 of TP Act, 1882, such
lease is for year to year basis. The lease could have been terminated by
six months notice and since no such notice was given, therefore, tenancy
was not validly terminated. With respect to amount of rent, Court took
the view that under Section 116, renewal would mean the same terms
and conditions as made applicable in previous lease. High Court
therefore decreed the suit for payment of rent of Rs.3,000/-. Possession
was allowed by State with its consent. Thus, High Court took the view
that 'holding over' was applicable under Section 116. State Government
bye-passing provision of TP Act, 1882 sought to rely on GG Act, 1895.
Whether the kind of above lease, granted by State could have been
brought within the purview of GG Act, 1895, Supreme Court examined
this issue by referring to two judgments. In one, lease of forest land of
Sunderbans was held to be a 'Grant' while, in another, Grant of Khas
Mahal was not held to be as 'Grant'. In Jnanendra Nath Nanda vs.
Jadu Nath Banerji AIR 1938 Cal 211 two leases of two lots were
granted by Sunderban Commissioner on behalf of Secretary of State.
The land comprised in the lots were 'waste lands' of the Government.
'Waste lands' of Sunderbans were not property of any subject.
Sunderbans was vast impenetrable forest. It was the property of East
India Company and later on vested in Crown by virtue of an Imperial
Statute. Court found that history of legislation showed that grants of
Sunderbans lands were treated to be 'Crown Grants' within 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
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Grant' within the meaning of GG Act, 1895. We may reproduce para 13
of the judgment in State of U.P. vs. Zahoor Ahmad (supra) as under :
“The lease in the present case was for the purpose of erecting a
temporary rice mill and for no other purpose. The mere fact that
the State is the lessor will not by itself make it a Government
grant within the meaning of the Government Grants Act. There
is no evidence in the present case in the character of the land or
in the making of the lease or in the content of the lease to
support the plea on behalf of the State that it was a grant within
the meaning of the Government Grants Act.”
(Emphasis added)
170.When a question arose whether High Court has rightly applied
Section 116 of TP Act, 1882, Supreme Court, in this context, referred to
a judgment of this Court in Lala Kishun Chand vs. Sheo Dutta, AIR
1958 All. 879 wherein after expiry of lease of Nazul land, Licensee was
permitted by Board of Revenue to continue in occupation as tenant and
rent was also realized from him and held that in these facts, Section 116
of TP Act, 1882 was rightly applied.
171.In the present case, it is not the case of petitioner that after expiry
of lease on 31.3.1962, it has been permitted to remain in possession of
disputed Nazul land and rent has been accepted by respondents or
petitioner has paid rent. Even if what is said by petitioner 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.”
172.Twin conditions to attract principle of 'holding over' vide Section
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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 assented to his
continuing in possession; and
(ii)Lessee or under-lessee has remained in possession.
173.Both the above conditions are absent in this case. Here Section
116 of T.P. Act, 1882 has no application at all.
174.In Bhawanji Lakhanishi vs. Himatlal Jamnadas AIR 1972 SC
819, Court said that basis of Section 116 is a bilateral contract between
erstwhile landlord and erstwhile tenant. It has been held that assent of
lessor cannot be inferred merely from his delay in taking steps to evict
lessee. We may also refer to Calcutta High Court decision in Ratan Lal
vs. Farshi Bibi (1907) ILR 34 Cal 396; Madras High in
Govindaswami vs. Ramaswami (1916) 30 Mad LJ 492; Patna High
Court in Christian vs. Hari Prasad AIR 1955 Pat 158 and Pritilata
Devi vs. Banke Bihari Lal AIR 1962 Pat 446; and Rajsthan High Court
in Gordhan vs. Ali Bux AIR 1981 Raj 206, holding that to attract
Section 116, therefore, it has to be shown that there was a bilateral act
creating a new tenancy. There is no implication of holding over. In our
view, there is neither any material nor pleading to attract Section 116 and
therefore, judgment in Zahoor Ahmad (supra) on this aspect does not
help petitioners. On the contrary, what has been said in para 16 of the
judgment, quoted above, the conditions of 'Grant' would prevail over
every law including TP Act, 1882.
175.An argument was also advanced that resumption/re-entry amounts
to acquisition of land without paying any compensation and in violation
of Act, 2013.
176.This argument we have to reject for the simple reason that the
State own the land in question, hence there is no occasion for its
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acquisition. At the time when re-entry/resumption is being made by
State, petitioners neither had any title or ownership over land in dispute
nor any existing lease rights, therefore, nothing has been acquisitioned
by State. It is settled law that land, which is owned by State, cannot be
acquired by it.
177.In Secretary of State Vs. Narain Khanna AIR 1942 Privy
Council 35, it was held:
"where Government acquires any property consisting of land and
buildings, and where land was the subject matter of Government
grant, subject to power of resumption by Government at any time
on giving one month's notice, then compensation was payable
only in respect of such buildings as may have been authorized to
be erected and not in respect of land."
(Emphasis added)
178.A Division Bench of Judicial Commissioner in Md. Wajeeh
Mirza vs. Secretary of State for India in Council, AIR 1921 Oudh 31,
said as under:
"when Government itself claims to be owner of the land, there can
be no question of its acquisition and the provisions of the Land
Acquisition Act cannot be applicable. This opinion expressed by
Judicial Commissioner has been approved in Sharda Devi vs.
State of Bihar and another (supra). Court reiterate in Sharda
Devi vs. State of Bihar and another (supra) that land or an
interest in land pre-owned by State cannot be subject-matter of
acquisition by State. If the land in question is Government land,
there is no question of initiating proceedings of acquisition at
all. Government would not acquire the land, which already vests
in it."
(Emphasis added)
179.In Sharda Devi Vs. State of Bihar and another, 2003 (3) SCC
128, Court has said as under:
"the State does not acquire its own land for it is futile to exercise the
power of eminent domain for acquiring rights in the land, which had
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already vests in the State. It would be absurdity to comprehend the
provisions of Land Acquisition Act being applicable to such land
wherein ownership or the entirety of rights already vests in State. In
other words, land owned by State on which there are no private
rights or encumbrances is beyond the preview of provisions of
Land Acquisition Act." (Emphasis added)
180.In Collector of Bombay Vs. Nusserwanji Rattanji Mistri (1996)
10 SCC 150, it was held:
"under the provision of Land Acquisition Act, Government
acquires the sum total of all private interests subsisting in them. If
Government has itself an interest in land, it has only to acquire
other interest outstanding thereof so that it might be in a
position to pass it on absolutely for public user."
(Emphasis added)
181.In State of U.P. and another Vs. Lalji Tandon (dead) through
Legal Representatives (2004) 1 SCC 1 referring to the decision in
Sharda Devi vs. State of Bihar (supra), court said as under:
"the notification and declaration under Sections 4 and 6 of the
Land Acquisition Act for acquisition of the land i.e. the site below
the bungalow are meaningless. It would have been different if the
State would have proposed the acquisition of lease hold rights
and/or the superstructure standing thereon, as the case may. But
that has not been done."
182.In view thereof, this submission is also rejected.
183.One more aspect was pressed that even if lease expired, petitioners
being in possession of land in dispute, their tenancy will be governed by
provisions of Section 106 of TP Act, 1882 and without quit notice,
petitioner cannot be evicted.
184.This submission is also misconceived. Once period of lease has
expired or determined and this is admitted fact, status of Lessee becomes
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
83
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)
185.In the above authority, Court held that after expiry of period of
lease, status of Lessee becomes that of 'Tenant at sufferance'. 'Tenant at
sufference' is one who comes into possession of land by lawful title, but
who holds it by wrong after termination of term or expiry of lease by
efflux of time. The tenant at sufferance is one who wrongfully continues
in possession after extinction of a lawful title. There is little difference
between him and a trespasser. Quoting from Mulla's Transfer of Property
Act (7th Edn.) at page 633, Court observed that tenancy at sufferance is
merely a fiction to avoid continuance in possession operating as a
trespass. It has been described as the least and lowest interest which can
subsist in reality. It, therefore, cannot be created by contract and arises
only by implication of law when a person who has been in possession
under a lawful title continues in possession after that title has been
determined, without consent of person entitled. A “tenancy at
sufferance” does not create relationship of landlord and tenant. Court
further quoted from page 769 of Mulla's transfer of Property Act (7
th
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. The fifth question is answered accordingly.
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186.The sixth and last question up for consideration is “whether re-
entry/resumption of land by Lessor i.e. State Government is valid?”
187.So far as validity of resumption of land for 'public purpose', it
could not be disputed that land has been sought to be required by State in
'public interest'. 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 by A.D.A. for 'Parking Place' and
development of 'Parking Place' 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'. Hence resumption/re-
entry by respondents is valid and legal.
188.Having answered 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
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
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intervene and, earliest is the better that possession of land is transferred
to respondents so that developmental activities may proceed without any
further delay.
189.However, considering the facts and circumstances and also the fact
that petitioner has 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 the petitioner to vacate disputed land within one
month from the date of delivery of judgment.
190.In view of above discussion, we do not find any merit in the
petition. Subject to observations about vacation of land in dispute, the
writ petition is dismissed.
191.No costs.
Order date :-31.10.2019
PS/KA
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