No Acts & Articles mentioned in this case
AFR
Reserved on 29.05.2019
Delivered on 31.10.2019
Court No. - 34
1. Case :- WRIT - C No. - 29495 of 2018
Petitioner :- Prakati Rai And 6 Others
Respondent :- State Of U.P. And 20 Others
Counsel for Petitioner :- Kartikeya Saran,Anand Prakash Paul,Brij
Bhushan Paul,Pramod Kumar Srivastava,Tarun Agrawal,Ravi Kant
(Senior Advocate)
Counsel for Respondent :- C.S.C.,Ajit Kumar Singh (Addl.Advocate
General), Nimai Das & Sudhanshu Srivastava (Addl.C.S.C.), M.D.Singh
Shekhar (Senior Advocate), Amit Verma
2. Case :- WRIT - C No. - 29547 of 2018
Petitioner :- Lov Mandeshwari Saran Singh
Respondent :- State Of U.P. And 29 Others
Counsel for Petitioner :- Harihar Prasad Srivastava
Counsel for Respondent :- C.S.C.,Devi Prasad Mishra,Ram Chandra
Tripathi,Ajit Kumar Singh (Addl.Advocate General), Nimai Das &
Sudhanshu Srivastava (Addl.C.S.C.), M.D.Singh 'Shekhar' (Senior
Advocate), Amit Verma
3. Case :- WRIT - C No. - 30884 of 2018
Petitioner :- Kumud Singh
Respondent :- State Of U.P. And 29 Others
Counsel for Petitioner :- Harihar Prasad Srivastava
Counsel for Respondent :- C.S.C.,Devi Prasad Mishra,Ram Chandra
Tripathi, Ajit Kumar Singh (Addl.Advocate General), Nimai Das &
Sudhanshu Srivastava (Addl.C.S.C.), M.D.Singh 'Shekhar' (Senior
Advocate), Amit Verma
4. Case :- WRIT - C No. - 40395 of 2018
Petitioner :- Sandhya Singh
Respondent :- State Of U.P. And 29 Others
Counsel for Petitioner :- Harihar Prasad Srivastava
Counsel for Respondent :- C.S.C.,Devi Prasad Mishra,Rajmani Yadav
5. Case :- WRIT - C No. - 40399 of 2018
Petitioner :- Sarvesh Singh
Respondent :- State Of U.P. And 29 Others
Counsel for Petitioner :- Harihar Prasad Srivastava
Counsel for Respondent :- C.S.C.,Devi Prasad Mishra,Rajmani Yadav,
Ajit Kumar Singh (Addl.Advocate General), Nimai Das & Sudhanshu
Srivastava (Addl.C.S.C.), M.D.Singh 'Shekhar' (Senior Advocate), Amit
Verma
6. Case :- WRIT - C No. - 40401 of 2018
Petitioner :- Mandaleshwari Saran Singh
2
Respondent :- State Of U.P. And 29 Others
Counsel for Petitioner :- Harihar Prasad Srivastava
Counsel for Respondent :- C.S.C.,Devi Prasad Mishra,Rajmani Yadav,
Ajit Kumar Singh (Addl.Advocate General), Nimai Das & Sudhanshu
Srivastava (Addl.C.S.C.), M.D.Singh 'Shekhar' (Senior Advocate), Amit
Verma
Hon'ble Sudhir Agarwal,J.
Hon'ble Virendra Kumar Srivastava,J.
(Delivered by Hon'ble Sudhir Agarwal, J.)
1.All these writ petitions relate to Nazul Plot No. 21/17, Chikatpur,
Nasibpur Bakhtiyari, Allahabad, area 11906 square meter, and, therefore
they are being decided by this common judgment. However, for better
understanding, it would be appropriate to refer brief facts stated by
petitioners in different writ petitions, separately.
Writ Petition No. 29495 of 2018
2.Writ Petition No. 29495 of 2018 (hereinafter referred to as “WP-
1”) has been filed by seven petitioners, namely, Smt. Prakati Rai, Smt.
Sangita Shukla, Smt. Vandana Rai, Smt. Rachna Rai, Km. Shakti Saran
Singh, Km. Samapika Saran Singh and Km. Shivangi Saran Singh,
daughters of late Sureshwari Saran Singh, praying for issue of a writ of
certiorari quashing notice/ order dated 14.08.2018 (Annexure-13 to writ
petition) passed by District Magistrate, Allahabad and also State
Government's order dated 19.06.2018, published in official gazette dated
09.08.2018. Petitioners have also sought a writ of mandamus
commanding respondent-authorities to consider petitioners' application
dated 30.01.1999 for grant of freehold rights over property in dispute in
accordance with law and to restrain Respondents-1, 2 and 3 from
evicting petitioners from property in dispute.
3.A lease in respect of Nazul land, Bungalow No. 17, Thornhill
Road, area 2 acres and 4561 sq. yards was executed by Governor of
United Provinces in favour of Rai Bahadur Bindeshwari Saran Singh on
22.04.1890 with effect from 01.10.1886, for a period of 50 years, on
3
monthly rent of Rs. 90/-. A renewal Lease Instrument was executed for a
further period of 50 years commencing from 01.10.1936 in favour of
Sureshwari Saran Singh, Jagdambika Saran Singh, Brijeshwari Saran
Singh and Badreshawari Saran Singh on the same terms as stated in
original lease deed dated 22.04.1890. Sri Bindeshwari Saran Singh died
in 1942. After his death, property in dispute devolved upon his four sons
namely, Maheshwari Saran Singh, Jagdishwari Saran Singh, Bisheshwari
Saran Singh and Jagdambika Saran Singh and each got 1/4 share.
Maheshwari Saran Singh died on 15.2.1960 and his son Sureshwari
Saran Singh died on 28.05.1979. His wife Smt. Smriti Saran Singh
moved an application on 06.02.1995 for mutation of her name in place of
late Sureshwari Saran Singh in respect of plot in dispute alongwith her
daughters, i.e., petitioners. Reminders were given on 01.05.1995,
05.07.1995, 06.07.1995, 14.07.1995, 03.08.1995, 19.04.1996 and
09.06.1998. District Magistrate, Allahabad made an inquiry and found
family tree of Sri Bindeshwari Saran Singh as under:
Siddh Narain Singh
|
Bindeshwari Sharan Singh
(Died on 27.10.42)
____________________________________________|_______________________________________
| | | | |
Maheshwari Saran Singh Bhuvneshwari Saran Singh Bishweshari Saran Singh Jagdishwari Saran Singh Jagdambika Saran Singh
(Died on 15.02.60) (Died in 1929) (Died on 18.11.43) (Died on 01.03.44) (Died on 03.10.84)
(Wife Smt. Ratenshwari ) (Wife Smt. Rukmani) (Wife Smt. Lalita Kunwari) (Wife Smt. Annapurna) (Wife Smt. Maheshwari)
(Issueless) (Issueless)
______________________________________
Sureshwari Saran Singh | | |
(died on 28.05.79) Shanker Prasad Prakash Narain Chandrashekhar
(Wife Smt. Smriti Saran Singh) _________________
| |
Brijeshwari Saran Singh Badreswari Saran Singh
(Wife Smt. Pushpa Devi) (Died on 14.09.07)
(Daughter Sandya Singh) (P in WP-4) (Wife Kumud Singh) (P in WP-3)
|
Akash Saran Singh alias Lov Mandeshwari Saran Singh (P in WP-2)
__________________________________________________________________
| | | | |
Mandleshwari Saran Singh Sarveshwari Saran Singh Bireshwari Saran Singh Amreshwari Saran Singh
(P in WP 5 & 6)
____________________________________________________________________________________________
| | | | | | |
Smt. Prakrati Rai Smt. Sangita Shukla Smt. Vandana Rai Smt. Rachna Rai Km Shakti Km. Samapika Km Shivangi
(Wife Shivji Rai) (Wife Akhilesh Shukla) (Wife Shashi Rai) (Wife Alok Rai) Saran Singh Saran Singh Saran Singh
P in WP-1 P in WP-1 P in WP-1 P in WP-1 P in WP-1 P in WP-1 P in WP-1
4
4.Collector passed an order dated 21.01.1999 directing to delete
names of Smt. Annapurna Devi, Sri Jagdishwari Saran Singh, Sri
Jagdambika Saran Singh and Sri Sureshwari Saran Singh and enter
names of Smt. Smriti Saran Singh wife of late Sureshwari Saran Singh
and her daughters, namely, Smt. Prakati Rai, Smt. Sangita Shukla, Smt.
Vandana Rai, Smt. Rachana Rai, Km. Shakti Saran Singh, Km.
Samapika Saran Singh, Km. Shivangi Saran Singh; and, Smt.
Maheshwari Devi wife of late Jagdambika Saran Singh and Shanker
Prasad, Prakash Narain and Chandra Shekhar, all sons of late
Jagdambika Saran Singh.
5.Petitioners also alleged to have applied for renewal of lease in
1985 but nothing was done by respondents. It is also said that there was a
family settlement in 1942 between heirs of Bindeshwari Saran Singh
which was reduced in writing as a family settlement deed dated
01.08.2015 dividing disputed land amongst the parties as per said
settlement.
6.State Government came out with a policy to convert Nazul land
into freehold and issued various Government Orders dated 23.05.1992,
02.12.1992, 03.10.1994, 17.02.1996, 29.03.1996, 02.4.1996, 29.8.1996,
25.10.1996, 28.02.1997 and 26.09.1997. All these Government Orders
were reviewed and thereafter modifications and amendments were made
in earlier policy vide Government Orders dated 01.12.1998, 10.12.2002,
31.12.2002, 04.08.2006, 21.10.2008, 26.05.2009, 29.01.2010,
17.02.2011, 01.08.2011 and 28.09.2011. Comprehensive amendments
again were made vide Government Order (hereinafter referred to as
“G.O.”) dated 04.03.2014 and 15.01.2015. Petitioners have placed on
record G.Os. dated 01.12.1998, 04.03.2014 and 15.01.2015 as
Annexures-5, 6 and 7 to WP-1. Petitioners applied for conversion of
their leasehold right into freehold vide application dated 30.01.1999
before District Magistrate, Allahabad which was in accordance with
G.O. dated 01.12.1998. A similar application is said to have been
5
submitted by Smt. Kumud Singh wife of Sri Badreshwari Saran Singh on
16.09.1999. In para 19 of writ petition, the said applicant is referred as
respondent 3
rd
set but we find that in the array of parties there are no
respondent(s) 3
rd
set.
7.One more application is said to have been filed by Sri Brijeshwari
Saran Singh but no date or other details are given in para 20 of writ
petition.
8.Petitioners, after waiting for some time, i.e., about 16 years,
regarding disposal of their application for conversion of lease right into
freehold, came to this Court in Writ Petition No. 18068 of 2015 which
was disposed of vide judgment dated 02.04.2015, directing District
Magistrate, Allahabad to take a decision within six months. The order
reads as under:
“The petitioners claim to have filed an application on 30 January
1999 for grant of freehold rights in respect of a land
admeasuring 3968.97 sq. mts. on a portion of Nazul Plot
No.21/17, Nasib Pur Bakhtiyari, Allahabad. The grievance of the
petitioners is that till date the District Magistrate, Allahabad has
not taken any decision on the said application.
Learned Standing Counsel appearing for the respondents states
that the District Magistrate, Allahabad shall take a decision
expeditiously after hearing the parties.
This writ petition is, accordingly, disposed of with a direction to
the District Magistrate, Allahabad to take a decision on the
application filed by the petitioners after hearing the parties
concerned expeditiously and preferably within a period of six
months from the date a certified copy of this order is filed by the
petitioners.
It is made clear that the Court has not adjudicated on the merits of
the case which shall be examined by the District Magistrate in
accordance with law.” (Emphasis added)
9.The application was rejected by District Magistrate, Allahabad
vide order dated 23.05.2015. It is said that a recall application was filed
by petitioners on 15.07.2015 which is pending.
6
10.Another writ petition was filed by co-sharers, i.e., Writ Petition
No. 64059 of 2014 seeking direction to District Magistrate, Allahabad to
implement orders and instructions issued by Government for conversion
of lease rights into freehold on Nazul land. The said petition is pending.
11.Suddenly District Magistrate, Allahabad has served upon
petitioners notice dated 14.08.2018 informing that State Government has
exercised right of resumption/ re-entry over land in dispute and
petitioners should handover the same within 15 days whereafter
possession shall be taken forcibly. It has been stated in the order dated
14.08.2018 that land in dispute is required for public purpose for erection
of buildings for Group Housing by Allahabad Development Authority
(hereinafter referred to as “A.D.A.”).
12.This notice dated 14.08.2018 has been challenged on the ground
that Government Grants Act, 1895 (hereinafter referred to as “GG Act,
1895”) has been repealed by Government of India vide notification
dated 05.01.2018 and thereafter rights of petitioners, who are in
possession of property in dispute, would be governed by provisions
available in common law and no forcible possession can be taken;
Government cannot evict petitioners without following procedure laid
down in Transfer of Property Act, 1882 (hereinafter referred to as “TP
Act, 1882”); Government already took a decision for grant of freehold
rights over Nazul land and applications were submitted by petitioners in
1999 but no decision was taken, matter was kept pending for almost one
and half decade and now abruptly, by impugned notice, without deciding
petitioners' right of freehold, Government cannot exercise power of
resumption/ re-entry; lease expired in 1986 and Government treated
petitioners continuously as “lessees” over land in dispute; in similar
circumstances State Government has granted freehold rights to some
others, namely, Sri Subhash and Sri Vikas Chandra on 03.05.2018 but
petitioners have been discriminated; exercise of right to resumption/ re-
entry is nothing but a colourable exercise on the part of State and is
7
wholly arbitrary; and lastly, after repeal of GG Act, 1895, unfettered
right of Government for resumption/ re-entry is now under check and
eviction is permissible only in accordance with law and State
Government and its authorities cannot forcibly evict petitioners.
13.A counter affidavit has been filed on behalf of Respondents-2 and
3, collectively, which has been sworn by Sri Gore Lal Shukla, Additional
District Magistrate (Nazul), Allahabad. It is stated therein that Nazul Plot
No. 21 (Bungalow No. 17), Thornhill Road, situated in Mauja Nasirpur
Bakhtiyari, Paragana Chail, Allahabad was initially demised by an
Indenture of lease, dated 22.04.1890 (with effect from 01.10.1886);
subsequently renewing the lease, a fresh lease was executed for a period
of 50 years on 01.10.1936; lease was governed by provisions of GG Act,
1895 hence provisions of TP Act, 1882 were /are not applicable to such
leases in view of Sections 2 and 3 of GG Act, 1895, as amended by U.P.
Act 13 of 1960; the renewed lease deed gives an option to Government
to take over land, buildings, erections etc. upon expiration of period of
lease; there was a clause for re-entry and forfeiture and it was also
provided that no compensation or payment shall be claimable by lessee,
his executors, administrators or assigns etc; it is true that in terms of
Repealing and Amending (Second) Act, 2017 (hereinafter referred to as
“Repeal Act, 2017), GG Act, 1895, has been repealed but Section 4 has
provided for savings of rights, consequences etc. under the instruments
governed by Act, 1895 and they are not affected; in view thereof, right of
resumption/ re-entry vested in Government by virtue of earlier lease
deed read with GG Act, 1895 remained unaffected and can be exercised
despite repeal of GG Act, 1895 due to saving clause contained in Section
4 of Repeal Act, 2017; lease in the case in hand expired on 30.09.1986
and petitioners and occupants on the land in dispute thereafter have no
authority to continue possession over property in dispute; for public
purpose of planned development, land in dispute is needed by A.D.A.;
proposal was submitted to State Government on 19.06.2018 and
8
approved by Government on 09.08.2018 and accordingly notice for
resumption/ re-entry was issued by District Magistrate on 14.08.2018; a
supplementary notice was also issued on 24.08.2018 giving reference of
different clauses of lease deed dated 01.10.1936 which provide forfeiture
in terms whereof Government can resume land in dispute and no
compensation would be payable to lessee, his executors, administrators
or assigns etc.; repeal of GG Act, 1895 does not affect right of
resumption/ re-entry of Government, as the consequences has to be
considered in the light of Section 6 of General Clauses Act, 1897
(hereinafter referred to as “GC Act, 1897”) read with Section 4 of
Repeal Act, 2017; the portion of Nazul land of disputed property over
which petitioners are claiming possession, in fact, is lying vacant and
petitioners are not residing thereat; mere filing of application for
freehold did not confer any vested right upon petitioners; in any case,
application for freehold was already rejected vide order dated 23.05.2015
and the same has attained finality as having not been challenged in the
present writ petition or before any other forum; order/ notice dated
14.08.2018 for resumption/ re-entry over land in dispute is perfectly
valid and in accordance with law; resumption of a particular land is
based on utility and requirement of State and different land cannot be
equated in order to make allegations of arbitrariness and discrimination,
inasmuch as, different land have different utility and cannot be treated to
be similarly placed for all purposes including need of development for
particular purposes.
Writ Petition No. 29547 of 2018
14.Writ Petition No. 29547 of 2018 (hereinafter referred to as “WP-
2”) has been filed by sole petitioner, Lov Mandeshwari Saran Singh son
of late Badreshwari Saran Singh. Family tree of Sri Badreshwari Saran
Singh has already been given while narrating facts relating to WP-1. This
petitioner has relied on the family arrangement for division of property
in dispute among the heirs of family tree of late Bindeshwari Saran
9
Singh. This petitioner has also challenged notice dated 14.08.2018 issued
by District Magistrate, Allahabad exercising right of resumption/ re-entry
over land in dispute but here some more facts with regard to inter se
dispute of family members have been stated and we find it necessary to
mention the same in brief.
15.Total area of plot in dispute is 14241 sq. yards i.e., 11906.90 sq.
meters. The erstwhile lessee Bindeshwari Saran Singh constructed two
bungalows over disputed land, one is numbered as 17 Thornhill Road
and another as 11A Sarojini Naidu Marg, Allahabad. After death of Sri
Bindeshwari Saran Singh on 27.10.1942, his property and other rights
were succeeded by his four sons, Maheshwari Saran Singh, Jagdishwari
Saran Singh, Bisheshwari Saran Singh and Jagdambika Saran Singh. In
1948 all four sons separated through a family arrangement, executed
between them. Jagdambika Saran Singh, father of Respondents-11, 12
and 13, i.e., Sri Shanker Kumar Singh, Sri Prakash Chandra Sharma and
Sri Ashutosh Sinha got exclusive possession over part of Nazul land
occupied by Bungalow No. 11, Queens Road, Allahabad and land
appurtenant thereto in terms of family arrangement. In order to satisfy
decretal amount Jagdambika Saran Singh transferred his entire share in
Bungalow No. 11A, Queens Road, Allahabad and land appurtenant
thereto, to Smt. Lalita Devi, grandmother of petitioner through a
registered sale deed dated 20.12.1950. Consequently, name of Smt.
Lalita Devi was mutated in Revenue record with regard to Bungalow No.
11A, Queens Road, Allahabad. One Rameshwar Prasad Agrawal filed
Original Suit No. 74 of 1949 against Jagdambika Saran Singh for
recovery of money which was decreed on 07.11.1950 for Rs. 7579/-. An
Execution Case No. 43 of 1953 was filed by Rameshwar Prasad
Agrawal wherein Execution Court on 22.10.1953 passed order under
Order 21 Rule 54(2) C.P.C. for attachment of property in dispute. In
1959, property in dispute and Bungalow No. 11A, Queens Road,
Allahabad was auctioned and purchased by Munni Lal Bhargava,
10
predecessor of proforma respondents-6 and 7, namely, Master Dev Raj
Bhargava and Master Aditya Bhargava. Similarly, Bungalow No. 17
Thornhill Road, Allahabad was purchased by Sri Niwas Agrawal, father
of proforma respondents-8 to 10, namely, Indresh Kumar Agrawal,
Dinesh Agrawal and Naresh Agrawal. The above sale and purchase
through auction was a sham transaction being result of a fraud played
upon Court. Auction purchasers never got possession over property in
dispute. Jagdambika Saran Singh had only 1/4 share in total Nazul plot
measuring 11906.90 sq. meter, therefore, his share comes to 2976 sq.
meter. Share of Jagdambika Saran Singh stood transferred to Smt. Lalita
Devi, as already said, through registered sale deed dated 20.12.1950. The
auction purchaser claimed to have purchased 1/4 share of Sri
Jagdambika Saran Singh. Further, Smt. Annapurna Devi, one of the co-
sharer died in 1990 and her share upto 2976 sq. meter in Nazul plot
devolved upon remaining heirs, as a result whereof 992 sq. meter stood
devolved upon legal heirs of Jagdambika Saran Singh, who had already
died in 1986. Co-sharers, other than legal heirs of late Jagdambika Saran
Singh, applied for freehold rights, of land coming to their share, but legal
heirs of Jagdambika Saran Singh neither deposited any money nor
applied for freehold and they have permanently settled in Gaya (State of
Bihar). One of the auction purchaser, Munni Lal Bhargava filed a
partition suit in 1973 which was contested by Smt. Lalita Devi. The said
suit was dismissed in default on 09.08.2010. Proforma respondents-8, 9
and 10, i.e., Indresh Kumar Agrawal, Dinesh Agrawal and Naresh
Agrawal, all, sons of late Shriniwas Agrawal also filed suit for partition
being Original Suit No. 100 of 1973 in the Court of Civil Judge,
Allahabad in respect of Bungalow No. 17 Thornhill Road, without
disclosing the fact that said bungalow is standing on Nazul land and title
is vested in Government. Partition suit was decreed. Preliminary decree
was passed on 18.07.1984 and final decree in 2002. Proforma
respondents-8, 9 and 10 thereafter raised a boundary wall which has
11
been demolished by District Magistrate, Allahabad, treating said
respondents as Trespassers. State Government has also taken necessary
steps and filed application under Order 9 Rule 13 C.P.C. in the Court of
Civil Judge (Senior Division), Allahabad, for recall of ex parte decree in
Original Suit No. 100 of 1973 and said application is pending. Smt.
Lalita Devi, who purchased share of late Jagdambika Saran Singh, has
bequeathed her share in favour of Smt. Kumud Singh, mother of
petitioner through 'Will' dated 28.07.1994. Smt. Lalita Devi died on
30.09.1997. Father and mother of petitioner applied for freehold by
depositing 25% money in terms of G.O. dated 01.12.1998. No demand
notice has been issued to petitioner. On a representation made by
petitioner's father, State Government sent a letter dated 08.11.1995
directing District Magistrate, Allahabad to take appropriate steps on the
application of petitioner's father and reminders were also given by letters
dated 16.02.1996, 16.10.2001 and 17.01.2005. Petitioner's father, late
Badreshwari Saran Singh died on 14.09.2007 and thereafter petitioner
submitted representation dated 29.08.2011 for conversion of lease rights
into freehold. Bungalow No. 11A, Sarojini Naidu Marg, Allahabad, built
upon Nazul plot No. 21/17, Thornhill Road, Allahabad is in exclusive
possession of petitioner. Auction purchasers, Indresh Kumar Agrawal
and Munni Lal Bhargava filed Writ Petitions No. 66803 of 2006 and
14267 of 2007 seeking direction to District Magistrate to recognize their
rights. Aforesaid writ petitions were disposed vide order dated
20.08.2010 directing competent authority to pass appropriate order,
whereupon Additional District Magistrate (Nazul), Allahabad has passed
order on 25.08.2011. Petitioner also filed Writ Petition No. 64059 of
2014 seeking direction to Collector to give effect to policy of
Government of conversion of lease right into freehold wherein counter
was invited and the writ petition is pending. Relief prayed in Writ
Petition No. 64059 of 2014 reads as under:
“i. issue a writ, order in the nature of mandamus directing the
12
respondent Nos 2 and 3 to implement the order and instructions of
the respondent no. 1 (Annexure No. 6 and 7 to the writ petition)
and convert the share of the petitioner in the Nazul Plot No.
21/17, Naseebpur Bakityari, Allahabad into freehold in view of
the petitioner application No. 2882 pending before them.
ii. issue any other suitable writ, order or direction as this
Hon'ble Court may deem fit and proper in the circumstances of the
case.
iii.issue award cost of the petition to the petitioner.”
(Emphasis added)
16.District Magistrate vide letter dated 06.01.2018 made a
recommendation to Government proposing resumption/ re-entry on
Nazul land in dispute. Same has been accepted by State Government
whereafter impugned notice dated 14.08.2018 has been issued by District
Magistrate, Allahabad. It appears that a supplementary notice has also
been served by District Magistrate, Allahabad upon petitioner on
24.08.2018 and placing the same on record, a supplementary affidavit
has been filed by petitioner.
17. Rest of the pleadings are similar to WP-1, hence we are avoiding
repetition.
Writ Petition No. 30884 of 2018
18.Writ Petition No. 30884 of 2018 (hereinafter referred to as “WP-
3”) has been filed by Smt. Kumud Singh, wife of late Badreshwari Saran
Singh and the facts stated in writ petition are similar as stated in WP-1
and WP-2, therefore, the same are not being repeated. However, some
additional facts stated in the writ petition may be stated hereat. As
already said, auction purchasers filed Writ Petitions No. 14267 of 2007
and 6680 of 2006 which were disposed of on 20.08.2010, pursuant
whereto, Additional District Magistrate (Nazul), Allahabad passed order
on 25.08.2011. The same was challenged by petitioner-Smt. Kumud
Singh in Writ Petition No. 56367 of 2011 and it is pending. Further, in
13
order to consider demand of various authorities of land for development,
District Magistrate, Allahabad constituted a committee vide order dated
30.12.2017 constituting:
1. Vice Chairman, Allahabad Development Authority, Allahabad.
2. Nagar Ayukt, Nagar Nigam, Allahabad.
3. Additional District Magistrate (Nazul), Allahabad
4. City Magistrate, Allahabad
5. Sri Sat Shukla, Officer on Special Duty, A.D.A., Allahabad
19.The aforesaid Committee was required to examine Nazul land
available in Allahabad City, its suitability and applicability in the light of
demand made by various Government Departments and Institutions for
resumption. In respect of land in dispute, Committee submitted its
recommendation vide letter dated 06.01.2018 and the same was
forwarded by Collector, Allahabad to State Government for resumption
vide letter dated 06.01.2018.
Writ Petition No. 40395 of 2018
20.Writ Petition No. 40395 of 2018 (hereinafter referred to as “WP-
4”) has been filed by Smt. Sandhya Singh, daughter of (late) Brijeshwari
Saran Singh challenging order/ notice dated 14.08.2018/ 24.08.2018
issued by District Magistrate, Allahabad.
21.Facts stated in this writ petition are common to the facts stated in
WPs-1 and 2, therefore, we are not repeating the same. It is said that
application for freehold was filed by petitioner's father in 1994 and a
similar application for freehold was submitted by petitioner alongwith
others on 05.11.2011. It is also stated in paras 70 and 71 that an order has
been passed on 09.08.2018 rejecting the application but copy of order
has not been made available to petitioner.
14
Writ Petitions No. 40399 of 2018 & 40401 of 2018
22.Writ Petitions No. 40399 of 2018 and 40401 of 2018 (hereinafter
referred to as “WP-5” and “WP-6” respectively) have been filed by
Sarvesh Singh son of (late) Brijeshwari Saran Singh and Mandaleshwari
Saran Singh. Here also, facts are same as stated in WPs- 1 to 4, therefore
are not being repeated.
23.On behalf of Respondents-2 and 3 counter affidavits have been
filed in WPs-2 to 6 also with pleadings similar as stated in counter
affidavit filed by State-respondents in WP-1, therefore, we are not
repeating the same.
24.In WP-1 Sri Ravi Kant, learned Senior Advocate assisted by Sri
Tarun Agarwal, Advocate has advanced his submission on behalf of
petitioners while Sri Ajit Kumar Singh, Additional Advocate General
assisted by Sri Nimai Das and Sri Sudhanshu Srivastava, learned
Additional Chief Standing Counsels for State of U.P. and its authorities
and Sri M.D. Singh Shekhar, learned Senior Advocate assisted by Sri
Amit Verma, Advocate, for Prayagraj Development Authority have
advanced their submissions.
25.In WPs-2 to 6, Sri Harihar Prasad Srivastava, Advocate has put in
appearance on behalf of petitioners and adopted arguments advanced by
Sri Ravi Kant, learned Senior Advocate appearing for petitioners in WP-
1. Counsel for respondents are same as in WP-1 and their arguments are
also common.
26.Sri Ravi Kant, learned Senior Advocate, who has led arguments in
all these cases (since in other writ petitions counsel for petitioners have
adopted argument of Sri Ravi Kant), contended:
i.Lease deed which was going to expire in 1986 sought to be
renewed by petitioners by submitting application in 1985
but no order was passed therein and unless an order is
passed on petitioners' application for renewal of lease,
15
petitioners' rights could not have been affected otherwise
that too, by exercising right of resumption after more than
30 years.
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 G.Os.
iv.In any case, if petitioners continued possession after expiry
of lease in 1986 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”), petitioners 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 in 1986.
vi.State Government has granted approval for resumption of
16
land in dispute on proposal made by Collector without
giving any opportunity to petitioners, therefore, impugned
order including approval order granted by State Government
is in violation of principles of natural justice.
27.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
these writ petitions.
28.From rival submissions, issues which, in our view, required to be
adjudicated in these writ petitions are :
i.What is “Nazul”?
ii.What is/are Statute(s) governing Crown (late,
“Government”) Grant of land owned by Crown
(Government) i.e. Nazul? Its status and effect.
iii.Whether lease right governed by instruments of lease read
with GG Act, 1895 is transferrable and if so, whether it is
subject to any condition and any transfer made not
consistent with such conditions, whether would be valid and
confer an actionable right upon Transferree?
iv.What is the status of a person, in possession of Nazul land,
after expiry of period of lease, or of a person who is
transferred land by Lessee?
v.Whether right of resumption exercised by State is in
accordance with law?
vi.Whether petitioners can be evicted by State Government by
giving a notice and following the condition and procedure
prescribed in the lease deed or State should follow
17
procedure laid down under U.P. Act, 1972?
vii.Whether impugned notice and order of approval of State
Government for resumption/re-entry over land in dispute is
invalid on account of lack of opportunity to petitioners. In
other words, whether principles of natural justice are
applicable when State Government chose to exercise right of
resumption/re-entry in respect of land owned by it?
29.We have framed above questions in the light of the fact that it is
admitted by all the parties that land in dispute is 'Nazul' and owned by
State Government.
30.Questions (i) and (ii), in our view, can be taken together hence we
proceed to discuss both these questions (i) and (ii) together.
31.Every land owned by State Government is not termed as 'Nazul'
and therefore it has become necessary to understand, what is 'Nazul', and
in this context we have framed question (i).
32.State Government may own land by having acquired and vested in
various ways, which includes vesting of land in the capacity of a
sovereign body and having right of bona vacantia. Property may also be
acquired and owned by State by way of acquisition under the Statute
relating to acquisition of land or by purchase through negotiation or gift
by an individual or in similar other 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.
33.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.
34.In Legal Glossary 1992, fifth edition, published by Legal
18
Department of Government of India, at page 589, meaning of the term
'Nazul' has been given as 'Rajbhoomi, i.e., Government land'.
35.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 the old record, when such land
was referred in Urdu, this kind of land was shown as 'Jaidad Munzabta'.
36.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.
37.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 heirs, 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
19
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.
38.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.
39.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 say :
'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)
40.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
20
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.
41.Supreme Court in Pierce Leslie and Co. Ltd. Vs. Miss Violet
Ouchterlony Wapsnare, AIR 1969 SC 843 has considered the above
principles in the context of 'Sovereign India' as it 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)
42.Court placed reliance on Collector of Masulipatam v. C. Vencata
Narainapah 8 MIA 500, 525; Ranee Sonet Kowar v. Mirza Himmut
Bahadoor (2) LR 3 IA 92, 101, Bombay Dyeing and Manufacturing
Co. Ltd. v. State of Bombay [1958] SCR 1122, 1146, Superintendent
and, Legal Remembrancer v. Corporation of Calcutta (1967) 2 SCR
170.
43.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)
44.This decision has been followed in Raja Rajinder Chand v. Mst.
Sukhi, AIR 1957 SC 286.
45.In Nayak Vajesingji Joravarsingji v. Secretary of State for
India in Council AIR 1924 PC 216, Lord Dunedin said :
21
“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.”
46.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)
47.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'.
48.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.”
49.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
22
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)
50.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 its earlier two 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.
51.In Promod Chandra Deb vs. State of Orissa AIR 1962 SC 1288
"act of the State" was explained in the following words :
“an "act of State" may be the taking over of sovereign powers
either by conquest or by treaty or by cession or otherwise. It may
have happened on a particular date by a public declaration or
proclamation, or it may have been the result of a historical
process spread over many years, and sovereign powers including
the right to legislate in that territory and to administer it may be
acquired without the territory itself merging in the new State.”
52.This decision has been followed later in Biswambhar Singh vs.
State of Orissa 1964 (1) SCJ 364.
“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
23
State already own it, hence there is no question of any
acquisition.” (Emphasis added)
53.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 etc.
54.Historical documents, records 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 otherwise remained faithful to British
regime and helped them for their continuation in ruling this country.
Sometimes land was given on lease without any condition and
sometimes restricted for certain period etc., but in every cases, lease was
given to those persons who were faithful and shown complete alliance to
British Ruler and their reign. The reason was that in respect of Nazul, no
predetermined objective was available as was the case in respect of land
acquired by State by way of acquisition under Statute of Acquisition
after paying compensation or purchase. Such allocation of land by
English Rulers used to be called “Grant”.
55.In other words, we can say that initially land owned by State used
to be allotted in the form of 'Grant' by the then British Government. No
24
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 any such alienation
or any insolvency of or attempted alienation by him.
56.Apprehending that above provisions of TP Act, 1882, may be
construed as a fetter upon discretion of the Crown in creation of
inalienable Jagirs in 'Grants', and acting upon that advice that it would
not be competent for Crown to create an inalienable and impartible estate
in the land comprised in the Crown Grant, unless such land has
heretofore descended by custom as an impartible Raj, it was sought to
make a separate statute to give supremacy to the provisions contained in
Crown's Grant, notwithstanding any other law including TP Act, 1882.
With this object, 'GG Act 1895' was enacted.
57.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.
58.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
25
passed.” (Emphasis added)
59.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
not been passed.” (Emphasis added)
60.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.”
61.In State of Uttar Pradesh, vide Government Grants (U.P.
Amendment) Act, 1960 (U.P. Act No.XIII of 1960) (hereinafter referred
to as “U.P. Amendment, 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.
26
Amendment) Act, 1960, by leases of land by, or on behalf of, the
Government in favour of any person; and every such creation,
conferment or grant shall be construed and take effect,
notwithstanding anything to the contrary contained in the U.P.
Tenancy Act, 1939, or the Agra Tenancy Act, 1926.
(3)Certain leases made by or on behalf of the Government to
take effect according to their tenor.- All provisions, restrictions,
conditions and limitations contained in any such creation,
conferment or grant referred to in Section 2, shall be valid and
take effect according to their tenor, any decree or direction of a
court of law or any rule of law, statute or enactment of the
Legislature, to the contrary notwithstanding :
Provided that nothing in this section shall prevent, or be
deemed ever to have prevented, the effect of any enactment
relating to the acquisition of property, land reforms or the
imposition of ceiling on agricultural land.” (Emphasis added)
62.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.
63.Thus, 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 and the second part of Section 2 clarifies 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.
64.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
27
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.
65.Sub-section (3) of Section 2 of GG Act, 1895 protect certain
leases, already made, declaring the same to be valid in the light of
insertion of sub-section(1) of Section 2 in the State of Uttar Pradesh and
that is why, notwithstanding any decree or direction of Court of law,
leases already made, were validated, which otherwise might have been
affected by the provisions of U.P. Tenancy Act, 1938 or Agra Tenancy
Act, 1926.
66.Proviso to sub-section (3) of Section 2 of GG Act, 1895 further
declare 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.
67.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 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.
68.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
28
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)
69.Again in Hajee S.V.M. Mohamed Jamaludeen Bros. & Co. vs.
Government of Tamil Nadu (1997) 3 SCC 466, Court said that
combined effect of two sections of GG Act, 1895 is that terms of any
Grant or terms of any transfer of land made by a Government would
stand insulated from tentacles of any statutory law. Section 3 places
terms of such Grant beyond reach of any restrictive provision contained
in any enacted law or even equitable principles of justice, equity and
good conscience adumbrated by common law, if such principles are
inconsistent with such terms. Court said :
“The two provisions are so framed as to confer unfettered
discretion on the government to enforce any condition or
limitation or restriction in all types of grants made by the
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)
70.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.
71.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)
72.Thus, a 'Grant' of a Nazul will be governed by terms and
29
conditions contained in the instrument/deed if Grant, wholly unaffected
by any Statute providing otherwise. It cannot be doubted that the lease
granted in the case in hand is/was a 'Grant' governed by GG Act, 1895.
Broadly, Grant includes lease.
73.The term “Grant” has not been defined in GG Act, 1895. What a
'Grant' would mean is of importance for the reason that GG Act, 1895
has used the term “Grant”. Therefore, it has to be seen “whether a lease
executed by State in respect of land owned by it and covered by the term
“Nazul”, through a lease deed or instrument of lease or indenture of
lease, whatever the term used, will constitute a “Grant” of State or it is
something else”.
74.In Black's Law Dictionary, Eighth Edition, at page 719, the
word “Grant” has been defined as under :
“Grant, n. 1. An agreement that creates a right of any description
other than the one held by the grantor. Examples include leases,
easements, charges, patents, franchises, powers,and licenses. 2.
The formal transfer of real property. 3. The document by which a
transfer is effectd; esp., DEED. 4. The property or property right
so transferred.”
75.Interestingly, in Black's Law Dictionary, 'Grant' has been said to
be of various kinds and it has enumerated seven types of 'Grant' as
under:
“Community grant. A grant of real property made by a
government (or sometimes by an individual) for communal use, to
be held in common with no right to sell. A community grant may
set out specific, communal uses for the p roperty, such as for
grazing animals or a playground. Cf. Private grant.
Escheat grant. A government's grant of escheated land to a new
owner. - Also termed escheat patent.
imperfect grant. 1. A grant that requires the grantee to do
something before the title passes to another. Cf. Perfect grant. 2. A
grant that does not convey all rights and complete title against
both private persons and government, so that the granting
30
person or political authority may later disavow the grant. See
Paschal v. Perex, 7 Tex. 368 (1851).
inclusive grant. A deed or grant that describes the boundaries of
the land conveyed and excepts certain parcels within those
boundaries from the conveyance, usu. Because those parcels of
land are owned or claimed by others.- Also termed inclusive deed.
office grant. A grant made by a legal officer because the owner is
either unwilling or unable to execute a deed to pass title, as in the
case of a tax deed. See tax deed under DEED.
Perfect grant. A grant for which the grantor has done everything
required to pass a complete title, and the grantee has done
everything required to receive and enjoy the property in fee. Cf.
Imperfect grant
private grant. A grant of real property made to an individual for
his or her private use, including the right to sell it. Private grants
made by a government are often found in the chains of title for
land outside the original 13 states, esp. in former Spanish and
Maxican possession.”
76.In Corpus Juris Secundum, A Complete Restatement of the
Entire American Law, as developed by All Reported Cases, Volume
XXXVIII, word “Grant” has been defined at page 1066-1070, as under :
“Grant – In General – A word which has a peculiar and
appropriate meaning in the law, and is to be construed and
understood according to such meaning; but its signification, in
particular cases is to be determined from its connection and the
manner of its use.
As a Noun
In General.The act of granting; a bestowing or conferring; a
boon, a concession, a gift; also the thing granted or bestowed. As
applied to grants by public authority, the word “grant” implies
the conferring by the sovereign power of some valuable privilege,
franchise, or other right of like character on a corporation,
person, or class of persons; an act evidenced by letters patent
under the great seal, granting something from the king to a
subject. In a somewhat different sense, an admission of something
as true.
31
As a Contract. A grant is said to be a contract executed, that
is, one in which the object of the contract is performed.
Ordinarily, the essential elements of a contract are necessary to
constitute a grant, such as competent parties and a subject matter,
a legal consideration, a mutuality of agreement and of obligation.
As in the case of other contracts in writing, it ordinarily
comprehends something more than the mere execution of the
instrument; it includes a delivery of it. It is not indispensable,
however, that technical words be used.
Transfer of Property.As a technical term, originally used to
signify a conveyance of an incorporeal hereditament whereof
livery could be had, but now of far more extended application, see
Deeds (1 c notes 54 – 63). While the term is commonly used to
denote private conveyances, it has been characterized as a nomen
generalissimum, applicable to all sorts of conveyances, and in this
sense has been defined as a transfer of property, real or personal,
by deed or writing. The following notes contain examples of what,
under particular circumstances and according to the subject
matter and the context, the term may be applied to, or be held to
include or what the term may be held not to include.
...
Transferring property.An operative word of transfer,
technically applicable to real estate, although not necessarily so.
It is made use of in deeds of conveyance of lands to import a
transfer; and in this application has been defined as meaning to
convey; to make conveyance of; to transfer property by an
instrument in writing.
As used in a will, to devise or to bequeath.”
77.In Words and Phrases, Permanent Edition, Volume 18A Gone-
Gyrotiller, word “Grant” has been defined at page 379, as under :
“ ...
To grant means to give over, to make conveyance of, to give
the possession or title to, to convey-usually in answer to
petitioner; to confer or bestow, with or without compensation,
particularly in answer to prayer or request; to admit as true when
disputed or not satisfactorily proved; to yield belief to; to allow;
to yield; to concede. Grant is usually regarded as synonymous
32
with give, confer, bestow, convey, transfer, admit, allow, concede.
As a noun, the term signifies: (1) The act of granting; a bestowing
or conferring; concession; admission of something as true. (2)
The thing granted or bestowed; a gift; a boon. (3) a transfer of
property by deed or writing, especially an appropriation or
conveyance made by the government, as a grant of land.”
78.In Jowitts Dictionary of English Law, Second Edition by John
Burke (Volume 1), word “Grant” has been defined at page 870, as
under:
“Grant :a common law conveyance.
This deed was originally confined to the transfer of incorporeal
hereditaments and expectant estates, of which livery of seisin
could not be given. But the distinction between property lying in
livery and in grant, as regards the conveyance of the immediate
freehold, was abolished by the Real Property Act, 1845, s. 2,
which provided that all corporeal hereditaments should, as
regards the conveyance of the immediate freehold thereof, be
deemed to lie in grant as well as in livery. The Law of Property
Act, 1925, s. 51, replacing the Real Property Act, 1845, s. 6,
enacts that all lands and interests therein shall lie in grant and not
in livery of seisin. The operative verb was “grant,” which, by the
Real Property Act, 1845, s. 4, replaced by the Law of Property
Act, 1925, s. 59, is not to imply any covenant in law in respect of
any hereditaments except by force of any Act of Parliament, and
by the Conveyancing Act, 1881, s. 49, replaced by the Law of
Property Act, 1925, s. 51, the use of the word “grant” it not
necessary to convey land or any interest in land.
…
The sovereign's grants are matters of record, and are either
letters patent or writs close.
“Grant” is the term commonly applied to rights created or
transferred by the Crown, e.g., grants of pensions, patents,
charters, franchises. It is also used in reference to public money
devoted to special purposes. See Exchequer Grants.”
79.In Biswas Encyclopedic Law Dictionary (Legal & Commercial)
Third Edition 2008, word “Grant” has been defined at page 737, as
33
under :
“GRANT. The act of granting; something granted, especially a
gift for a particular purpose; a transfer of property by deed or
writing; the instrument by which such a transfer is made; also
the property so transferred.
A grant may be defined generally as the transfer of
property by an instrument in writing without the deliverty of
possession of any subject-matter thereof. Mozley & Whiteley's
Law Dictionary, 8
th
edn.”
80.In P Ramanatha Aiyar's “The Law Lexicon”, Fourth Edition
2017, word “Grant” has been defined at page 762-763, as under :
“...
An operative word of conveyance, particularly appropriate to
deeds of grant, properly so called, but used in other conveyances
also, such as deeds of bargain and sale, and leases.
...
“This word is taken largely where any thing is granted or passed
from one to another, and in this sense it doth comprehend
feofments, bargains and sales, gifts, leases, charges, and the like;
for he that doth give, or sell, doth grant also and thus it is
sometimes in writing or by deed, and sometimes it is by word
without writing. But the word being taken more strictly and
properly, it is the grant, conveyance, or gift, by writing of such
an Incorporeal thing as lieth in grant, and not in livery, and
cannot be given or granted by word only without deed, or it is the
grant by such persons as cannot pass anything from them but by
deed, as the King, bodies corporate, &c. And this albeit it may be
made by other most proper to this purpose”
The word “grant” in sec. 5 connotes transfer of property and
mining leases are property. Biswanath Prasad v. Union of India,
AIR 1965 SC 821, 825. [Mines and Minerals (Regulation and
Developments) Act (67 of 1957), S. 5(1)]
The expression “grant” is wide enough to take within its sweep a
grant by the government to the Girasdar and is not limited to a
grant by the Girasdar to the tenant. Digvijaysingh Ji v. Manji
Savda, AIR 1969 SC 370, 372. [Saurashtra Land Reforms Act (25
34
of 1951), S. 18]
“GRANT, BESTOW, CONFER. Honours, distinctions, favours,
privileges are conferred. Goods, gifts, endowments are bestowed.
Requests, prayers, privileges, favours, gifts, allowances,
opportunities are granted. A peculiar sense attaches to the word
Grant as a legal term, as a piece of land granted to a noble or
religious house. So Blackstone speaks of “the transfer of property
by sale, grant, or conveyance.” (Smith. Syn. Dis.)”
81.Under Indian Easements Act, 1882, (hereinafter referred to as “IE
Act, 1882”), definition of “licence” in Section 52 says that it is the Grant
of a right made by the Grantor. Sections 53 and 54 of IE Act, 1882 also
refer to grant of licence. Thus, without a “Grant” in general sense,
licence cannot be created. This is how definition of “licence” under IE
Act, 1882 vis a vis the term “Grant” was considered by Supreme Court
in Hajee S.V.M. Mohamed Jamaludeen Bros. & Co. (supra).
82.Court also said that though the term “Grant” is not defined in GG
Act, 1895, but it is quite evident that this word has been used in GG Act,
1895 in its ethnological sense and therefore, it should get its widest
import.
83.In Mohsin Ali vs. State of M.P. AIR 1975 SC 1518, Court said :
“in the widest sense 'grant' may comprehend everything that is
granted or passed from one to another by deed. But commonly
the term is applied to rights created or transferred by the Crown
e.g. grants of pensions, patents, charters, franchise.”
(Emphasis added)
84.Court in Hajee S.V.M. Mohamed Jamaludeen Bros. & Co.
(supra), in para 16, said that word “Grant” used in GG Act, 1895 could
envelop within it, everything granted by the government to any person. A
licence obtained by a person by virtue of agreement would also fall
within the ambit of “Grant” envisaged in GG Act, 1895.
85.In Pradeep Oil Corporation vs. Municipal Corporation of
Delhi and others (2011) 5 SCC 270, Court said that GG Act, 1895 is a
35
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)
86.Therefore, where 'Nazul' is let out to a person by Government
under agreement of lease i.e. Grant, it is governed by GG Act, 1895 and
rights of parties therefore have to be seen in the light of stipulations
contained in the document of 'Grant'. 'Grant' includes a property
transferred on lease though in some cases, 'Grant' may result in wider
interest i.e. transfer of title etc. Whatever may be nature of document of
transfer i.e. instrument of 'Grant', the fact remains that terms and
conditions of 'Grant' shall be governed by such document and it shall
prevail over any other law including TP Act 1882. One cannot take resort
to TP Act, 1882 to wriggle out of any condition or limitation etc.
imposed in terms of document of 'Grant'.
87.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.
88.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
36
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 the stipulations in "lease deed" shall prevail and
govern the entire relations of State Government and lessee.
89.Superiority of the stipulations of Grant to deal the relations
between Grantor and Grantee has been reinforced in Azim Ahmad
Kazmi and others (Supra). Therein dispute related to Plot No. 59, Civil
Station, Allahabad, area 1 acre and 4272 sq. yard, i.e., 9112 sq. yard or
7618 sq. meter. Initially a lease deed was executed on 11.01.1868 by
Secretary of State for India in Council in favour of one, Thomas Crowby,
for a period of 50 years and it was signed by Commissioner, Allahabad
Division on behalf of Secretary of State for India in Council. After
expiry of lease, a fresh lease was executed for another period of 50 years
on 12.04.1923 w.e.f. 01.01.1918. Lease holder with permission of
Collector, Allahabad transferred lease rights to Purshottam Das in 1945.
The legal heirs of Sri Purshottam Das, on 31.10.1958, transferred
leasehold rights in favour of Smt. Shakira Khatoon Kazmi, Smt. Sabira
Khatoon Kazmi and Smt. Maimoona Khatoon Kazmi. After the death of
Smt. Maimoona Khatoon Kazmi her legal heirs, namely, Azim Ahmad
Kazmi, Omar Ahmad Kazmi, Shamim Ahmad Kazmi, Alim Ahmad
Kazmi and Maaz Ahmad Kazmi also claimed lease rights by succession.
Lease granted on 12.04.1923 w.e.f. 01.01.1918 expired on 31.12.1967. It
was renewed on 19.03.1996 for a period of 30 years w.e.f. 01.01.1968
which period expired on 31.12.1997. Again on 17.07.1998 it was
37
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 in view of State Government's order dated
15.12.2000 cancelling lease and resuming possession of land in question,
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
objection against notice 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
passed by this Court in Supreme Court to the extent they failed. State
Government filed appeal against part of order of this Court wherein an
observation was made that State Government is not entitled to take
forcible possession though it may take possession of demised premises
in accordance with procedure established by law. After considering
Clause 3(c) of lease deed which provides for resumption of land for
public purpose after giving a month's clear notice to lessee to remove
any building standing at the time on demised premises and within two
months of receipt of notice to take possession thereof on expiry of that
period, and Sections 2 and 3 of GG Act, 1895, Court said that Clause
3(c) of lease deed confers power upon State Government that plot in
question, if required by State Government for its own purpose or for any
38
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 and under the
terms of Grant it is absolute, therefore, order of resumption is perfectly
valid and cannot be said to be illegal. It also refers to an earlier occasion
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. Resumption in that case
was also challenged in Writ Petition No. 44517 of 1998, Sayed Shah
Khursheed Ahmad Kashmi vs. State of U.P. and said writ petition was
dismissed on 16.12.1999 by a Division Bench of this Court,
whereagainst Special Leave Petition No. 4329 of 2000 was dismissed by
Supreme Court on 07.09.2001. First question, therefore, was answered in
negative and in favour of Government.
90.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 Land Acquisition Act, 1894, Government can take
possession in accordance with provisions of said Act and in case of
urgency, Collector can take possession after publication of notice under
Section 9 and no separate procedure is required to be followed. Court
said that similarly where a lease has been granted under the terms of GG
Act, 1895, then what procedure has to be followed is provided by
Section 3 of GG Act, 1895 which says that all provisions, restrictions,
conditions and limitations contained in any such creation, conferment or
Grant referred to in Section 2, shall be valid and take effect according to
their tenor; any decree or direction of a Court of Law or any rule of law,
statute or enactments of the Legislature, to the contrary. It relied on its
39
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)
91.Having said so, Court said,
“we are of the view that there is no other procedure or law
required to be followed, as a special procedure for resumption of
land has been laid down under the lease deed.”
92.Supreme Court then set aside direction of this Court that State will
not take possession forcibly except in accordance with procedure
40
established by any other law, by holding, that since special procedure for
resumption is prescribed under lease deed, no direction otherwise could
have been issued to State Government.
93.The above discussion makes it clear that 'Nazul' is a land owned
and vested in State. It is such land which has vested in State by virtue of
its 'Sovereignty' and incidence of 'Sovereignty' i.e. annexation, lapse and
bona vacantia. Further, 'Grant' means transfer of property by a deed in
writing and includes within its ambit, an instrument of lease/lease deed.
Such 'Grant' is governed by provision of GG Act, 1895, which were
applicable to 'Grants' executed on and after enforcement of GG Act,
1895 and rights and entitlement of private parties in respect of land,
which was transferred to such person under such 'Grant' would be
governed by terms and conditions contained in such 'Grant' and not by
provisions of TP Act, 1882 or any other Statute. Moreover, in State of
U.P., wherever applicable, U.P. Tenancy Act, 1939 and Agra Tenancy
Act, 1926 will also be inapplicable to such 'Grant'.
94.For the purpose of resumption/ re-entry of land, State Government
can follow procedure prescribed in the terms of lease as it is a special
procedure for such purpose and it is not necessary to look into any other
procedure prescribed in law.
95.We, therefore, answer questions (i) and (ii) and hold that Nazul is
land owned by Government having vested by escheat, bona vacantia or
lapse. Further the terms and conditions of 'Grant' a Nazul would govern
relation of lessor and lessee and any other statute providing otherwise
has no application.
96.The answer to questions (i) and (ii), in effect, gives answer to
question (iii) also, inasmuch as, Grantee cannot transfer property, which
was transferred to it by way of 'Grant' except the manner in which it is
permitted by such 'Grant' and any transfer otherwise will be illegal and
would not confer any right upon Transferree.
41
97.Here, we remind ourselves with the principle that a person can
transfer only such rights and interest which he or she possess and not
beyond that. If a Grantee 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 the transfer shall be illegal
and will not result in bestowing any legal right upon the Transferee. In
other words, any otherwise transfer by such Grantee, of land subjected to
Grant, will not confer any valid right or interest upon the person to
whom Grantee had transferred property under 'Grant' in violation of
stipulations contained in Grant.
98.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.”
99.In State of U.P. and others vs. United Bank of India and others
(supra) considering a similar situation, Court held that any transfer
without sanction of lessor will be invalid. In paras 39 and 40 of the
judgment Court said as under :
“39. This "within written lease" is the original lease deed as
mentioned in the Form 2 of the Nazul Manual. Form 2 of lease of
Nazul land for building purposes it is one of the condition between
the lessor and the lessee that " the lessee will not in any way
transfer or sublet the demised premises or buildings erected
thereon without the previous sanction in writing of the lessor".
40. In the present case there was nothing on the record to show
that the lessee i.e. (ABP) has obtained any written sanction from
the lessor i.e. Government before mortgaging his leasehold
interest in the Nazul Land. Meaning thereby the mortgage done
by the lessee in favour of the Bank itself is bad in law, which was
done in clear violation of the terms of the lease deed i.e.
42
mortgage of the Nazul land without previous sanction in writing
of the State.” (Emphasis added)
100.Further, any such invalid transfer can also be construed as breach
of terms of Grant and would empower and enable principal Grantor i.e.
State, owner of property, to take such steps including resumption/re-
entry to the property under Grant, to itself, besides claiming damages,
compensation, as the case may be, and law permits.
101.Applying above principles to the facts of writ petitions in question,
we find that two Indentures of leases were executed :
(i)Dated 22.4.1890 with effect from 01.10.1886 for a period of
50 years in favour of Rai Bahadur Bindeshwari Saran Singh.
(ii)Deed executed with effect from 01.10.1936 for a period of
50 years in favour of Sureshwari Saran Singh (Grandson of
Bindeshwari Sharan Singh and son of Maheshwari Saran Singh),
Jagdambika Saran Singh, Brijeshwari Saran Singh (grandson of
Bindeshwari Saran Singh and son of Bishweshari Saran Singh)
and Badreshwari Saran Singh (grandson of Bindeshwari Saran
Singh and son of Bishweshwari Saran Singh).
102.The second deed was executed in favour of three grand sons of
Bindeshwari Sharan Singh, (original Lessee), though sons of
Bindeshwari Sharan Singh and father of subsequent Lessees were alive
but second lease contain name of only one son of Bindeshwari Sharan
Singh i.e. Jagdambika Sharan Singh.
103.We may notice that other two sons of Bindeshwari Sharan Singh
died issueless i.e. Bhuvneshwari Saran Singh died in 1929 i.e. before
second deed was executed and Jagdishwari Saran Singh died on
01.03.1944. Bindeshwari Sharan Singh died on 27.10.1942, prior
whereto lease was executed w.e.f. 01.10.1936 hence Bindeshwari Sharan
Singh ceased to be Lessee and at the time of his death on 27.10.1942
there was no lease existing in his favour in respect of land in dispute.
43
Therefore, question of devolution of any right in respect of disputed
Nazul land upon all legal heirs of Bindeshwari Sharan Singh, on and
after 27.10.1942 would not have arisen. His other property may have
devolved upon his legal heirs but disputed Nazul land went out thereof in
view of lease deed executed with effect from 01.10.1936 in favour of
three grandsons and one son of Bindeshwari Sharan Singh, which was
never objected by anybody. This lease, which commenced on 01.10.1936
was for a period of 50 years, thus expired, by efflux of time, on
30.09.1986. In the meantime, one of the Lessees i.e. Sureshwari Sharan
Singh died on 28.5.1979 and another, Jagdambika Sharan Singh died on
03.10.1984.
104.Though, it is stated in WP-1 that an application for renewal of
lease was submitted in 1985 by petitioners, but, neither any such
document has been placed on record nor any exact date has been given
nor we could appreciate as to how petitioners of WP-1 could have
submitted such an application since they were offshoots of one of the
four Lessees only, and, other co-lessees have not stated anywhere that
they also filed an application in 1985 for renewal of lease though
daughter of Brijeshwari Sharan Singh is petitioner in WP-4, wife of
Badreswari Sharan Singh is petitioner in WP-3 and son of Badreswari
Sharan Singh is petitioner in WP-2. They have also not placed any such
document on record.
105.In WP-2, there is reference of family arrangement between four
sons of Bindeshwari Sharan Singh, since fifth son had already died in
1929. It is said that in 1948, all four sons separated through a family
arrangement executed between them, but this fact is patently false for the
reason that in 1948, two sons of Bindeshwari Sharan Singh i.e.
Bishweshari Sharan Singh and Jagdishwari Sharan Singh had died and
hence they could not have been a party to family arrangement in 1948.
Therefore, facts stated in WP-2 with respect to alleged family
arrangement in 1948 between four sons of Bindeshwari Sharan Singh is
44
patently incorrect.
106.Moreover, even if in respect of Nazul property in dispute, any
private arrangement may have been made by Lessees or their offshoots,
they could have confined only to the lease rights over land in dispute and
not title of land. Land never belong either to Bindeshwari Sharan Singh
or his sons or grandsons as it being a 'Nazul property', owned by State
Government and title vested in State. Lessees could have only lease
rights and that too till lease rights subsist and not beyond that.
107.Thus, as stated in WP-2 that Jagdambika Sharan Singh transferred
his share in Bungalow No.11A, Queens Road, Allahabad and land
appurtenant thereto to Smt. Lalita Devi, grandmother of petitioner
through a registered sale deed dated 20.12.1950 in order to satisfy a
decretal amount could have been read only to extent of transfer of lease
rights and not land and its title itself and that too only for the period lease
subsists. However, there is nothing to show that transfer was made after
taking permission of Lessor, which is condition in lease-deed. The above
transfer was illegal.
108.Similarly, subsequent litigation comprising of Original Suit No.74
of 1949 filed by Rameshwar Prasad Agrawal against Jagdambika Saran
Singh for recovery of money and auction of property of Bungalow
No.11A, Queens Road, Allahabad could have been confined only to
building standing on disputed Nazul land since building could have been
owned by Lessee who constructed it but it will not include within its
ambit “disputed Nazul land” as it was not owned by Lessees/ Judgement
Debtor. Therefore, whatever could have been purchased by Decree
Holder, pursuant to decree passed in Original Suit No.74 of 1949, would
have confined to the structure standing on 'disputed Nazul land' and not
'Nazul land' itself.
109.Even if we assume that lease rights in disputed Nazul land also
could have been auctioned and purchased by Decree Holder still that will
45
not result in transfer of title in the land itself since land did not belong
either to Judgment Debtor or Grantees or other Transferors. Moreover, in
entire petition wherever such transfer has been referred to in one or the
other way, we do not find any reference of consent or permission granted
by lessor i.e. State Government or its authority for such transfer.
Therefore, every alleged transfer was/is illegal and would not result in
transferring right to transferee.
110.Petitioners have placed on record Lease-deed dated 22.4.1890
(w.e.f. 01.10.1886) as Annexure 1 to WP-1, Annexure-4 to WP-2 and
Annexure-10 to WP-3, WP-4, WP-5 and WP-6. On page 95 of WP-6,
Form of Renewal of lease submitted in 1936 has also been placed on
record showing that renewal of lease was prayed in the same terms and
conditions as contained in earlier lease dated 22.04.1890, which was
with effect from 01.10.1886 and 50 years expired on 30.09.1936. Thus, it
is not in dispute that renewal of lease was granted in the same terms. The
two terms and conditions of lease, relevant for present said of writ
petitions, are as under :
“PROVIDED FURTHER and it is hereby agreed that the said
lessee, his Executors, Administrators and Assigns shall not
assign or underlet or otherwise part with the possession of the
said premises or any part thereof without the permission of the
said Governor United Provinces 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 Governor United Provinces 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 any bind themselves to
observe all the conditions, agreements and provisions of these
46
presents in respect of such portion of the said term or of the said
premises as shall have been so assigned or underlet to him as
aforesaid and shall procure such assignments or sublease to be
registered in such manner as shall be appointed by the said
Governor United Provinces 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 of
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 herein contained, so far as relates to
the portion of the said term or of the said premises so assigned or
underlet as aforesaid, but not further or otherwise, shall cease
and determine, but without prejudice however to the right of
auction of the said Governor United Provinces his Successors or
Assigns in respect or on account of any previous breach of any
covenant or covenants herein contained.” (Emphasis added)
111.Above conditions clearly show that no transfer without permission
was permissible. Any violation of such conditions would result in
cessation and determination of lease without any further notice etc. Thus,
rights claimed by petitioners on the basis of transfer of original lease
without permission of Lessor i.e. State Government or its authorities,
competent for said purpose, was void ab initio and would confer no right
or interest in property in dispute to such transfer.
112.In taking above view, we are fortified by judgment of Supreme
Court in Azim Ahmad Kazmi and others (supra) and State of U.P.
and others vs. United Bank of India and others (supra) wherein Court
has said that as per terms and conditions contained in lease-deed, when
procedure is prescribed for seizure of land, that will prevail and no other
procedure or law is required to be followed. Only, transfer after
permission is protected but where such permission is not obtained, it is
clearly provided that part of Nazul land, transferred without permission,
will cause lease ceased and determined.
47
113.Question (iii) is answered accordingly against petitioners and it
is held that transfer made without permission of lessor i.e. State
Government or its authorities namely Collector or Commissioner, as the
case may be, would not confer any right upon transferee and will cause
lease of transferred Nazul land ceased and determined.
114.Now, we proceed to answer question (iv). This question again has
to be considered in the light of stipulations contained in 'Grant'. If the
'Grant' itself does not contemplate any continuance of 'Grantee' over land
subjected to 'Grant' and requires Grantee to hand over or surrender
possession on expiry of period of 'Grant', Grantee is obliged to do so and
mere fact that he/she had continued possession over land subjected to
'Grant', will not confer any legal status upon him/her or legality to such
possession after expiry of period of Grant.
115.Lot of argument at this stage has been made that despite expiry of
lease right on 30.9.1986, since Lessee(s) did not hand over possession of
'disputed Nazul land' and State Government and its authorities did not
take any action for taking possession of land in dispute, therefore,
petitioners' possession had implied sanction of Lessor. However, no
such law has been placed before us. When lease deed itself contemplate
sanction, it is actual and not fictional.
116.We are informed that with regard to renewal of lease, Government
circulated its policy through various G.Os. as stated in detail in
Purushottam Dass Tandon and others vs. State of U.P., Lucknow and
others AIR 1987 All 56. The first being G.O. issued in March, 1958
whereby Chief Minister directed that case for renewal of leases may be
taken individually and possession may be taken only if lessee surrender
or lease stood terminated in absence of any request from lessee for grant
of fresh lease. Thereafter, on 23.04.1959, a G.O. was issued to grant
fresh lease in cases where lease has already expired but has not been
renewed so far, or which is likely to expire within the next 5 or 6 years,
48
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 the Government. Some house-owners met the then Prime
Minister Late Pt. Jawahar Lal Nehru, who had visited Allahabad in
November or December, 1959. It resulted in issue of G.O. dated
07.07.1960 whereby rate of premium on first three acres was reduced to
Rs.2,000/- in each slab. It also permitted payment of premium in five
instalments and reduced ground rent to Rs.100/- per acre. In the earlier
G.O., there was an insistence on construction of Community latrines till
sewer lines were laid but this insistence was given up in G.O. dated
07.07.1960. Lessees were granted further three months' time to get leases
renewed. Still lease-holders did not comply and made representations to
Government. On 21.03.1963, again a G.O. was issued declaring rates of
premium for commercial sites. On 3.12.1965 a G.O. was issued
indicating terms and conditions for renewal of leases for commercial and
residential purposes and it was said that rates of premium and annual
rent shall be as fixed by G.O. dated 07.07.1960. Payment in five equal
yearly instalments was continued but in special cases, Commissioner,
Allahabad Division, Allahabad, was authorized to make
recommendations to Government for enhancing number of instalments.
This G.O. further insisted for renewal of existing leases on payment of at
least one instalment, within one month of receipt of intimation by
Lessee from Collector, or within three months of the date of expiry of
lease, whichever is earlier. Deposit was to be deemed to be proper step
on the part of Lessee to get a fresh lease executed by the Lessor. The
G.O. of 1965 itself made a distinction between those whose leases had
expired and others by describing them as sitting and existing lessees.
117.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
49
house 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 that where steps have been
taken for renewal of leases, as stated in earlier G.Os., fresh leases shall
be sanctioned according to terms offered by Competent Authority.
118.In March, 1970, a G.O. was issued banning grant of renewal of
leases all over the State, since Government was contemplating to bring
out legislation on Urban Ceiling. This ban was lifted on 12.01.1972 but
leases henceforth were to be sanctioned by State Government only.
Commissioner and Collector could make recommendations only.
Aforesaid G.O., however, provided that in all those cases where
Government had sanctioned grant of leases but it could not be executed
or registered because of ban imposed in 1970, steps may be taken
immediately for its execution. Clause (ii) of G.O. provided that all those
cases in which Collector or Commissioner had approved renewal but it
could not be executed because of 1970 order, should be sent to
Government immediately for acceptance. On 09.05.1972 Urban Building
Ceiling Bill was introduced and on 11.07.1972 Uttar Pradesh Ceiling of
Property (Temporary Restriction on Transfer), Ordinance, 1972 was
promulgated in pursuance of Article 398 of Constitution of India. The
Ordinance continued till it was replaced by Urban Land (Ceiling and
Regulation) Act, 1976 (hereinafter referred to as “Act, 1976”). The said
Act was enacted to prevent concentration of Urban Property and
discourage construction of luxurious houses. On 19.12.1972, provisions
50
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.
119.Here leases were to be renewed in the light of Sections 2 and 4 of
U.P. Act, 1976 and while doing so, all residents in one house were to be
treated as one unit. This again resulted in representations of Lease-
Holders to Government requesting for reduction in rate of premium and
ground rent. A G.O. was issued on 17.09.1979 superseding all previous
orders and it provided for submission of details about extent and type of
construction, utilisation of vacant land etc. Again representations, which
culminated in G.O. dated 19.04.1981, which superseded all previous
Orders and provided for renewal of leases on fresh and new terms. It said
that Leaseholders and their heirs shall be treated as one Unit. They were
supposed to file details about land, constructed area, its user, time when
it was taken on lease etc. before 30.06.1981. List of residents including
out-houses dwellers was to be prepared by District Magistrate. Heirs of
deceased lease-holders were to be treated as one unit. Area for which
renewal could be made was reduced to building with 500 sq. metre of
land appurtenant and 500 sq. metre open land or 1500 sq. metre
whichever was more. Area of building for commercial purpose was fixed
at 2000 sq. metres. Premium was fixed at 50 paisa per sq. metre. Thus,
from 1976 onwards for the purpose of renewal, area was reduced from
acre to square metre and unit for premium and ground rent became
square feet instead of acre. All heirs of Lessees became one unit for
renewal. Land covered by outhouses were to be excluded. Lessees could
not even opt for it.
51
120.However, there is nothing on record to show that petitioners ever
applied and sought renewal or fresh lease either before actual expiry of
lease term or thereafter, hence petitioners cannot claim any benefit under
the above mentioned Government Orders.
121.Lease Holders, whose lease had already expired or those who were
sitting Lease Holders and leases were going to expire in a short period,
came to this Court in various writ petitions. This entire bunch was
decided in Purushottam Dass Tandon and others vs. State of U.P.,
Lucknow and others (supra). In this bunch of writ petitions, facts, we
have noted above with respect to various Government Orders, have been
given in detail.
122.There were two categories of writ petitioners, before this Court, in
Purushottam Dass Tandon and others (supra) as under :
(i)Those, to whom notices were given by Collector and who
had complied with terms and conditions as laid down in various
G.Os. 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.
123.Court held :
(I)A Lessor may, after expiry of period for which lease is
granted, renew the same or resume i.e. re-enter. But if out of the
two i.e. re-entry or resumption, the two divergent courses, he
chooses to grant fresh lease or at least creates that impression by
his conduct spread over long time, it results in abandonment.
(II)If the land is needed or building has to be demolished in
public interest for general welfare, probably no exception can be
taken as the interest of individual has to be sacrificed for the
society. But asking Lessee to vacate land or remove Malba for no
52
rhyme or reason but because State is the owner, cannot be
accepted to be in consonance with present day philosophy and
thinking about role of State.
(III)After Act, 1976, no person can successfully or validly claim
to hold land more than the Ceiling limit.
(IV)Some part of G.O. of 1981 was not consistent with Act,
1976. The rules contained in Nazul Manual are set of
Administrative Orders or collections of guidelines issued by
Government for the authorities to deal with Government property.
(V)When a G.O. was issued and its conditions are complied
with, mere for bureaucratic delay, performance under the said G.O.
cannot be denied. Therefore, Lessee, who had deposited first
instalment, as directed in G.O. of 1965, were entitled for renewal
of their lease.
(VI)After enactment of ceiling law, a Lessee cannot hold land
more than the provided limit.
(VII)If leases were renewed in respect of those, who had acquired
social or political status, whose names are given in para 15 of
judgment, which includes, Dr. K. N. Katju, ex-Central Law
Minister, Chief Minister and Governor, Dr. S. K. Verma, ex-Chief
Justice and Governor, Sri B.L. Gupta, ex-Judge High Court, J. D.
Shukla, I.C.S., O. N. Misra, I.A.S., when there was no justification
not to give same benefit to others, similar benefit must be given
since most of them were also distinguished persons namely S.N.
Kacker, ex-Central Law Minister, Solicitor General of India and
Advocate General of the State, Sri S. S. Dhavan, ex-Judge, High
Court and Governor and High Commissioner, Sri Lal Ratnakar
Singh I.A.S. Ex-Member of Board of Revenue, M.L.Chaturvedi,
ex-Judge, High Court and member of Union Public Service
Commission, W. Broome, I.C.S. etc.
53
124.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 Act, 1976 and High Court's judgment shall apply to
all the leases to whom G.O. dated 23.04.1959, 02.07.1960 and
03.12.1965 were applicable and all those claiming under them. The order
of Supreme Court reads as under :
“We have heard the learned counsel for both the parties at
length. We do not find any infirmity in the judgment and order
passed by the High Court against which these special leave
petitions are preferred. We, however, make it clear that the leases
that are going to be granted pursuant to the writ issued by the
High Court will be subject to the provisions of the Urban Land
(Ceiling and Regulation) Act, 1976. On the leases being granted,
the Competent Authority under the Act shall be at liberty to apply
the provisions of the Act and in particular section 15 thereof to all
the leases and take away all the surplus lands in their hands after
determining the surplus lands in accordance with law. The
directions issued by the High Court can be availed of by all the
lessees to whom the G.O. dated 23
rd
April, 1959, 2
nd
July, 1960
and 3
rd
December, 1965 were applicable and all those claiming
under them.
All the Special Leave Petitions are dismissed accordingly
with these observations. If any further directions are needed, the
persons interested may approach the High Court.”
(Emphasis added)
125.Though, in the present case also reliance has been placed on the
aforesaid judgment, but, we do not find that aforesaid judgment is
applicable to petitioners or that petitioners have applied for renewal of
lease in terms of relevant G.O., applicable at the relevant point of time.
Hence, their status is of 'occupant' without any authority, inasmuch as,
lease having already expired, possession over disputed Nazul land of
petitioners or anybody else under them is without any authority of law.
54
126.It is contended that even if lease expired on 30.09.1986,
possession of petitioners having continued on disputed Nazul land and
State has not taken any step for their eviction or dispossession, it
amounts to 'tacit approval' or 'sanction' by Government or Lessor
recognizing petitioners' aforesaid possession to be valid and for this
purpose reference is made to Section 116 of TP Act, 1882. It is also said
that even if aforesaid right under Section 116 TP Act, 1882 could not
have been made applicable in 1986 since at that time GG Act, 1895 was
operating but the time at which impugned notice has been issued, GG
Act, 1895 has already been repealed and thereafter petitioners' right are
entitled to be considered in terms of TP Act, 1882 and they are entitled to
take recourse to Section 116 of Act, 1882.
127.We will discuss effect of Repeal Act, 2017 at a later stage but at
this stage, suffice it to mention that Section 116 TP Act, 1882 is wholly
inapplicable in the case in hand. In order to attract Section 116 of TP
Act, 1882, it is necessary to obtain assent of landlord for continuation of
lease after expiry of lease period. Mere acceptance of rent by Lessor, in
absence of any agreement to the contrary, for subsequent months where
Lessee continued to occupy lease premises, has been held that it cannot
be treated to be a conduct signifying 'assent' on its part. This has been
held in Shanti Prasad Devi and others vs. Shankar Mahto and others
(2005) 5 SCC 543 and followed in Delhi Development Authority vs.
Anant Raj Agencies Pvt. Ltd. (supra).
128.In the present case, even this fact is missing that petitioners while
continuing in possession, paid lease rent and premium etc. to Lessor.
Section 116 of TP Act, 1882, therefore, has no application either
immediately after expiry of lease merely on the ground that petitioners
continued in possession over disputed Nazul land or thereafter or even
after repeal of GG Act, 1895 by Repeal Act, 2017.
129.We may further notice that on account of provision of 'Savings'
55
made in Section 4 of Repeal Act, 2017, the effect of expiry of lease
continued. However, this aspect in further detail we shall deal, in a bit
later, in the judgment.
130. There is one more aspect which may be considered at this stage. In
State of U.P., a special Statute was enacted in 1972 i.e. U.P. Act, 1972. It
also deals with a situation where a person has continued in possession
over Government owned land after expiry of period for which he was
authorized to remain in possession of such land and thereunder he is
declared as 'Unauthorized Occupant'. We find that similar provision was
also made by Parliament in Public Premises (Eviction of Unauthorised
Occupants) Act, 1971 (hereinafter referred to as “Act, 1971”).
131.In U.P. Act, 1972, Section 2(g) and 2(e) define “unauthorised
occupation” and “public premises”, and the same read as under :-
"2(g) "unauthorised occupation", in relation to any public
premises, means the occupation by any person of the public
premises without authority for such occupation, and includes the
continuance in occupation by any person of the public premises
after the authority (whether by way of grant or any other mode of
transfer) under which or the capacity in which he was allowed to
hold or occupy the premises has expired or has been determined
for any reason whatsoever and also includes continuance in
occupation in the circumstances specified in sub-section (1) of
Section 7 and a person shall not, merely by reason of the fact that
he had paid any amount as rent, be deemed to be in authorised
occupation."
"2(e) "public premises" means any premises belonging to or
taken on lease or requisitioned by or on behalf of the State
Government, and includes any premises belonging to or taken on
lease by or on behalf of-.
(i) any company as defined in Section 3 of the Companies Act,
1956, in which not less than fifty-one per cent of the paid-up share
capitals held by the State Government: or
(ii) any local authority; or
(iii) any Corporation (not being a company as defied in Section 3
56
of the Companies Act, 1956 or a local authority) owned or
controlled by the State Government: or
(iv) any society registered under the Societies Registration Act,
1860, the governing body whereof consists, under the rules or
regulations of the society, wholly of public officers or nominees of
the State Government or both:
and also includes-
(i) Nazul land or any other premises entrusted to the
management of local authority (including any building built with
Government funds on land belonging to the State Government
after the entrustment of the land to that local authority, not being
land vested in or entrusted to the management of a Gaon Sabha or
any other local authority, under any law relating to land tenures):
(ii) any premises acquired under the Land Acquisition Act, 1894
with the consent of the State Government for a company (as
defined in that Act) and held by that company under an agreement
executed under Section 41 of that Act providing for re-entry by the
State Government in certain conditions:" (Emphasis added)
132.Definition of "unauthorized occupation" clearly includes
occupation of a public premises by a person after expiry of authority to
occupy such land which includes a person whose period of lease has
expired and still he or she is continuing in possession. "Public Premises"
includes any premises belonging to or taken on lease including "nazul
land".
133.Considering provisions of U.P. Act, 1972, in Ashoka Marketing
Ltd. And another vs. Punjab National Bank and others, (1990) 4
SCC 406, a Constitution Bench held that U.P.Act, 1972 being a special
Act will override a general statute and a person who may have entered
tenancy legally may become "unauthorized occupant" subsequently, after
expiry of lease period.
134.A similar issue in the context of 'Nazul', managed by Delhi
Development Authority and Government under provisions of Act, 1971
was considered in Delhi Development Authority Vs. Anant Raj
Agencies Pvt. Ltd. (supra). In that case land belonged to Delhi
57
Improvement Trust. It had executed a lease deed dated 6.1.1951 in
favour of Balraj Virmani (hereinafter referred to a "original lessee").
After enactment of Delhi Development Act, 1957, Development
Authority was constituted thereunder, namely, Delhi Development
Authority(hereinafter referred to as "DDA"). Lease was initially for a
period of 20 years i.e. from 11.8.1948 to 10.8.1968, liable for
extension/renewal for further period of 20 years at the option of lessee.
Original lessee on 23.2.1967 approached DDA for renewal of lease.
DDA served notice on 16.2.1968 alleging breach of terms and conditions
of lease deed. DDA vide notice dated 1.9.1972 terminated lease which
was challenged by original lessee in Original Suit No. 47 of 1975 before
Sub Judge, Delhi seeking restraint order against DDA. Suit was decreed
by Sub Judge holding that notice dated 1.9.1972 terminating lease was
illegal. DDA preferred appeal which was dismissed by Additional
District Judge vide judgment dated 29.9.1982. DDA preferred Second
Appeal in Delhi High Court, being RSA No. 06 of 1983. During
pendency of second appeal, an application under Order 22 Rule 10 of
Code of Civil Procedure (hereinafter referred to as "CPC") was filed
alleging that original lessee has sold disputed property through sale deed
to M/s. Anant Raj Agencies Pvt. Ltd.(hereinafter referred to as
"subsequent purchaser"). This sale deed was claimed to have been
executed between original lessee and subsequent purchaser pursuant to
some compromise decree dated 22.6.1988 passed by High Court in a
matter between original lessee and subsequent purchaser. The application
of subsequent purchaser for substituting as respondent in second appeal
filed by DDA was allowed by High Court. Further subsequent purchaser
also applied to DDA for conversion of lease land to freehold and
deposited a sum of Rs.96,41,892/- towards conversion charges. DDA
rejected the said application of subsequent purchaser. Aggrieved thereof,
subsequent purchaser preferred writ petition no. 10015 of 2005 in Delhi
High which was disposed of vide order dated 19.7.2007, directing DDA
58
to decide subsequent purchase's request for conversion of premises from
lease hold to freehold. Thereafter, High Court also dismissed DDA's
second appeal holding that act of demand and acceptance of rent
tantamounts to renewal of lease of disputed property. It is this judgment
passed in second appeal which came to be considered before Supreme
Court in the aforesaid matter. One of the contentions raised on behalf of
DDA was that original lessee created interest in the disputed property in
favour of subsequent purchaser during the period when original lessee
itself was not a lease holder since lease stood terminated by efflux of
time. It was contended that original lessee had no title or interest in
property which could have been transferred to subsequent purchaser and
said transfer is void and not binding on DDA. Next ground was that
deposit of rent by original lessee and acceptance by office of DDA is
something administrative in nature and would not be construed as
estoppel or waiver on the part of DDA with regard to property unless a
specific intention to this effect is communicated to original lessee.
Supreme Court formulated following two questions:-
“1. Whether original lessee has acquired any right in respect of
property in question after termination of lease by efflux of time
on 10.8.1968 and also by termination notice dated 1.9.1972, in the
absence of renewal of lease by DDA in writing as provided under
Clause iii(b) of lease deed, by virtue of payment of rent in the
office of the DDA?
2.Whether Respondent(subsequent purchaser) acquires any right
in respect of property in question by getting substituted in place of
original lessee by virtue of a compromise decree, between original
lessee and Respondent based on a sale deed dated 14.10.1998
executed by original lessee, by invoking Order 22 Rule 10 of CPC
during pendency of appeal before High Court?"
135.While answering question no.1, Court held that there was no
renewal of lease by DDA in favour of original lessee. Court also held
that a lease if has expired, it would not be necessary for lessor to
terminate the same since original lease stands terminated by efflux of
59
time after expiry of period of lease. Court said that Principle of "holding
over" under Section 116 of Act, 1882 would not be applicable since there
was no assent of landlord and mere acceptance of rent by lessor, in
absence of an agreement to the contrary, would not render possession of
lessee valid. In this regard, Court relied on its earlier decision in Shanti
Prasad Devi and Another vs. Shanker Mahto and others (supra) and
Sarup Singh Gupta vs. S. Jagdish Singh and others (2006) 4 SCC
205. There could not be an implied renewal to attract "holding over" on
mere acceptance of rent offered by lessee.
136.In Delhi Development Authority vs. Anant Raj Agencies Pvt.
Ltd. (supra) Court also held that land vested in DDA is a public
premises and that being so, it is governed by Act, 1971, which shall
prevail over TP Act, 1882, a general law governing landlord and tenant's
relationship. Referring to definition of "Public Premises", Court said, "It
can be concluded that Act, 1882 is not applicable in respect of Public
premises". Court held :-
"Therefore, in the instant case, as per Clause iii(b) of the lease
deed and Sections 21 and 22 of the DD Act read with Rule 43 of
the Nazul Land Rules and in the light of Shanti Prasad Devi,
Sarup Singh Gupta and Ashoka Marketing Ltd. Cases (supra),
there cannot be an automatic renewal of lease in favour of the
original lessee once it stands terminated by efflux of time and
also by issuing notice terminating the lease. Merely accepting the
amount towards the rent by the office of the DDA after expiry of
the lease period shall not be construed as renewal of lease of the
premises in question in favour of the original lessee, for another
period of 20 years as contended by the Respondent."
(Emphasis added)
137.In Delhi Development Authority vs. Anant Raj Agencies Pvt.
Ltd. (supra) Court also considered that land vested in DDA was a 'Nazul
land' and that being so, power has been conferred upon DDA to grant
lease which includes renewal of lease but in absence of said renewal of
lease of property as required in law, original lessee cannot claim an
60
automatic renewal in his favour. Court held as under:-
"Thus, it is abundantly clear from the aforesaid legal statutory
provisions of the DD Act and terms and conditions of the lease
deed and the case law referred supra that there is no automatic
renewal of lease of the property in question in favour of the
original lessee" (Emphasis added)
138.Having said so, Court held that in absence of renewal of lease,
status of original lessee in relation to disputed property was that of an
"unauthorized occupant" in terms of Section 2(g) of U.P. Act, 1972.
139.It also said that any act on the part of DDA in respect of other
communication would make no difference, since a "Public Premises" is
to be dealt with by relevant statutory provisions including Act, 1971,
Nazul Land Rules and DDA Act, 1957. Thus question-1 was answered
by Court as under:-
"30. Without examining the case in the proper perspective that the
property in question being a Public Premises in terms of Section
2(e) of the Public Premises (Eviction of Unauthorised Occupants)
Act, 1971 and that after expiry of lease period the original lessee
has become unauthorized occupant in terms of Section 2(g) of the
said Act in the light of relevant statutory provisions and Rules
referred to supra and law laid down by the Constitution Bench of
this Court in the Case of Ashoka Marketing Ltd. and Another
(supra), the concurrent findings of the courts below on the
contentious issue is not only erroneous but also suffers from error
in law and therefore, liable to be set aside.
31.The grant of perpetual injunction by the Trial Court in favour
of original lessee, restraining the DDA from taking any action
under the said termination notice dated 01.09.1972, on the ground
that the termination notice dated 01.09.1972 being illegal,
arbitrary and without jurisdiction and the affirmation of the same
by both the first appellate court, i.e. by the learned ADJ and
further by the High Court by its impugned judgment and order are
not only erroneous but also suffers from error in law. Thus, Point
No.1 is answered in favour of the Appellant."
140.Thereafter, question-2 was considered by Court. It was held that
61
compromise decree between original lessee and subsequent purchaser
was void ab initio in law for the reason that original lessee in absence of
renewal of lease in his favour himself has no right, title or interest at the
time of execution of sale deed in respect of disputed property. Court said:
"It is well settled position of law that the person having no right,
title or interest in the property cannot transfer the same by way
of sale deed." (Emphasis added)
141.Thus, original lessee could not transfer a valid right to subsequent
purchaser since itself had no right whatsoever in respect of land in
dispute. Further, fact that subsequent purchaser deposited conversion
charges in the office of DDA, also would make no difference. Original
lessee in absence of renewal of lease, himself having become an
"unauthorized occupant" of property, a transaction between original
lessee and subsequent purchaser would have no legal consequence. Thus
anything done between DDA and original lessee will also have no
consequence. Court therefore, answered second question as under:-
"The instant case having peculiar facts and circumstances,
namely, after 10.08.1968 the lease stands terminated by efflux of
time, which is further evidently clear from the termination notice
dated 01.09.1972 and thereafter, the original lessee becomes an
unauthorised occupant in terms of Section 2(g) of the Public
Premises (Eviction of Unauthorised Occupants) Act, 1971 and
consequently, not entitled to deal with the property in question in
any manner. The very concept of conversion of leasehold rights
to freehold rights is not applicable to the fact situation."
(Emphasis added)
142.In the backdrop of above discussion and relevant Statute, we may
now examine status of present petitioners vis-a-vis land in dispute.
143.The lease in respect of disputed Nazul land i.e. Nazul Plot
Bungalow No.17, Thornhill Road, area 2 acres and 4561 sq. yards (about
11906 sq.meters) was executed on 22.4.1890 with effect from
01.10.1886 for a period of 50 years on a monthly rent of Rs.90/-. An
instrument of renewal of lease was executed on 01.10.1936 for a period
62
of 50 years on the same terms and conditions, as stated in lease deed
dated 22.4.1890. Admittedly, lease expired on 30.09.1986.
144.There is no document and it is also not the case of petitioners that
lease was renewed or any fresh Grant was made on and after 30.09.1986.
Though it is stated in WP-1 that petitioners applied for renewal of lease
in 1985 but this fact has been denied by respondents and petitioners have
not placed any document on record to support their averment that they
applied for renewal of their lease in 1985. It is also not the case of
petitioners that after expiry of lease, while they continued in possession,
they also paid lease rent to respondents in respect of disputed land. Thus,
status of original Lessee or their legal heirs became that of occupant
without any authority or unauthorised occupants after expiry of term of
lease and they ceased to have any valid right or interest in property in
dispute. Consequently, no right was available to them to be transferred to
any third party.
145.We also find that lease land i.e. Nazul land, which is owned by
State has been dealt with by Lessees and others including petitioners as
if it was their own property and they had title though it was not. Original
Lessee was Rai Bahadur Bindeshwari Saran Singh son of Siddh Narain
Singh. He was granted lease vide lease deed dated 22.04.1890 with effect
from 01.10.1886 for a period of 50 years. While he was alive, a renewal
lease deed was executed for a further period of 50 years with effect from
01.10.1936. This time lessees were Jagdambika Saran Singh son of
Bindeshwari Saran Singh and Sureshwari Saran Singh, Brijeshwari
Saran Singh and Badreshawari Saran Singh, all grandsons of
Bindeshwari Saran Singh. Brijeshwari Saran Singh and Badreshawari
Saran Singh were real brothers and sons of Vishweshari Saran Singh,
who died on 18.11.1943 while Bindeshwari Saran Singh died on
27.10.1942. Bindeshwari Sharan Singh had five sons but only one of
them i.e. Jagdambika Saran Singh joined lease deed executed with effect
from 01.10.1936, as Lessee and other three were grandsons of
63
Bindeshwari Saran Singh though Maheshwari Saran Singh father of
Sureshwari Saran Singh was alive. Similarly, Bishweshari Saran Singh
father of Brijeshwari Saran Singh and Badreswari Saran Singh was also
alive.
146.We need not go into the question why all legal heirs of
Bindeshwari Sharan Singh did not join, but the fact remains, that lease
deed, which was renewed with effect from 01.10.1936 had four lessees,
as named above. All the petitioners in WP-1 are daughters of one of the
Lessee Sureshwari Saran Singh while other petitioners are offshoots,
and, from the line of Brijeshwari Saran Singh and Badreswari Saran
Singh.
147.Lease was granted for a period of fifty years to the above Lessees.
They had only tenancy rights over land since land continued to be owned
by State Government. Lessees and their other legal heirs however treated
land as their own and made it subject to Will, family settlement and even
sale-deed. These kinds of conveyance at the best can be treated as if
lease rights were subjected to such conveyance since land was not owned
by lessees. The land itself could not have been subjected to such
conveyance by transferring title to the beneficiaries or transferees. So
long as lease was subsisting and lease rights were available to lessees,
any instrument of Conveyance whether sale-deed or Will or even alleged
family settlement can be said to be valid only to the extent of transferring
lease rights over land in dispute and nothing more than that.
148.However, any transfer of even lease right would have been valid
only if made in accordance with procedure provided in lease-deed. It
says that no transfer shall be made without permission of Lessor. No
such permission was obtained. Thus, even aforesaid transfer is not
consistent with stipulations of lease-deed, which require prior sanction of
Lessor hence all such transfer were invalid.
149.Where transfer is made contrary to conditions provided in lease-
64
deed requiring sanction of Lessor, transfer is bad and this is what has
been said by Supreme Court in State of U.P. and others vs, United
Bank of India and others (supra) observing as under :
“The mortgage so created by the Company in favour of the
Bank in respect of nazul land without the sanction of the State of
Uttar Pradesh in terms of the lease, is ab initio void, hence, no
right was created in favour of the Bank by reason of the said
mortgage.”
150.Thus, any transfer made by Lessees without following procedure
i.e. terms and conditions of lease-deed was illegal, invalid and as said by
Supreme Court in State of U.P. and others vs, United Bank of India
and others (supra), void ab initio. Moreover, at the best transfer could
have resulted in transferring any such right or interest as possessed by
Lessee i.e. lease rights and no title of land in dispute. Since land was
owned by State of U.P. and there was no transfer of title by owner to
anyone.
151.Counsel for petitioners at this stage sought to argue that if
petitioners are to be treated as 'unauthorized occupant' in view of
definition of term 'unauthorized occupant' provided in Section 2(g) of
U.P.Act, 1972, in that case they can be evicted from premises in question
only in accordance with procedure prescribed therein and not otherwise.
152.Here also we find no substance in the submission. Provisions of
lease-deed, as we have already said, provide a procedure for re-entry.
Besides relevant clauses of lease-deed which we have already quoted,
there is another provision in lease-deed providing for re-entry by
Government at any time and the said clause of lease deed reads as
under :
“PROVIDED also that if the Government shall at any time
require to re-enter on this site it can do so, on paying the value
of all buildings that may be on this site, plus 10 per cent, as
recompence for resumption of lease and that the lessee shall
have no further claim of any sort against the Government.”
(Emphasis added)
65
153.Supreme Court has already said that terms of lease shall govern
Nazul land in view of provisions of GG Act, 1895 and being a special
procedure prescribed in lease deed, it shall prevail over any other law
and no other procedure is required to be followed.
154.Therefore, State Government, when avail its right under terms of
lease, cannot be compelled to chose another procedure. Moreover, under
U.P.Act, 1972, State may proceed if it also has to recover the amount of
damage, compensation etc. for unauthorized possession over public
premises, which has to be ascertained by Prescribed Authority, which is
not the case in hand. Therefore, it cannot be said that State Government
is bound to follow procedure of U.P. Act, 1972 and cannot resort to the
procedure prescribed for re-entry provided in lease-deed itself. This
argument is contrary to what has been said by Supreme Court in Azim
Ahmad Kazmi and others (supra), hence rejected.
155.In this context and to justify possession of petitioners over land in
dispute, it is also contended that in 1992, policy of conversion of Nazul
land into freehold was adopted by Government and petitioners having
applied for freehold, were entitled to continue for possession till their
application is decided, hence State Government could not have re-
entered or resumed land in dispute. Instead, petitioners are entitled for
conversion of lease into freehold. Reliance is placed on G.O. dated
23.05.1992 and subsequent ones.
156.The first such G.O. is dated 23.05.1992. The aforesaid G.O. was
applicable to permanent leases given for 'residential purposes' and
'current leases', given for residential purposes. Para 1 of aforesaid G.O.
reads as under :
^^eq>s ;g dgus dk funsZ'k gqvk gS fd lE;d fopkjksijkUr 'kklu }kjk
utwy Hkwfe ds izcU/k ,oa fuLrkj.k vkfn dh orZeku O;oLFkk esa ifjorZu djrs gq,
'kk'or ,oa pkyw iV~Vksa ds vUrxZr miyC/k utwy Hkwfe dk LoSfPNd
vk/kkj ij Qzh&gksYM ?kksf"kr djus ,oa 'ks"k fjDr utwy Hkwfe dk fuLrkj.k bl
'kklukns'k esa fu/kkZfjr izfdz;k ds vuqlkj djus dk fu.kZ; fy;k x;k gSA rn~uqlkj
66
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)
157.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 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
67
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)
158.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, are 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
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
68
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)
159.The third is G.O. dated 03.10.1994 again 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 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)
160.Para 8 of aforesaid G.O. further provides that policy for freehold
will be effective only upto 31.03.1995.
161.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
69
persons whose monthly income is Rs.1,250/- or less, unauthorized
possession of such persons on vacant Nazul land upto 01.01.1992 or
prior thereto for residential purposes, shall be allowed freehold on
payment of 25 percent premium and Rs.60/- annual rent for the said area
upto 45 Sq. Meter and for more than 45 Sq.Meter but upto 100 Sq.Meter,
40 percent and Rs.120 annual rent. It clearly says that no regularization
of unauthorized possession shall be made beyond 100 Sq.Meter and
amount of premium shall be allowed to be paid in 10 years' interest free
6 monthly installments. Such unauthorized possession shall be
regularized by approving 30 years' lease. Clauses 1, 2, 3 and 4 of
aforesaid G.O. reads as under :
^^¼1½fdlh Hkh n'kk esa 100 oxZ ehVj ls vf/kd {ks=Qy ij fd;s x;s
voS/k dCtksa dk fofu;ferhdj.k ugha fd;k tk;sxk rFkk fnukad 30-11-
1991 dh lfdZy jsV ij vkadfyr lEiw.kZ ewY; ij fu/kkZfjr ;FkkfLFkfr 25% ;k
40% utjkus dh /kujkf'k 10 o"khZ; C;kt jfgr Nekgh fdLrksa esa fy;k tk;sxk]
ijUrq ;fn dksbZ O;fDr lEiw.kZ /kujkf'k ;k cdk;k fdLrksa dh /kujkf'k ,deq'r tek
djuk pkgrk gS rks og ns; /kujkf'k tek dj ldrk gSA
¼2½mijksDr izdkj ds ekeys esa fofu;ferhdj.k dh dk;Zokgh 30 o"khZ; iV~Vk
Lohd`r djds dh tk;sxhA Lohd`r iV~Vs esa 30&30 o"khZ; nks uohuhdj.k ds
izkfo/kku lfgr lEiw.kZ iV~Vs dh dqy vof/k nks uohuhdj.k ds izkfo/kku lfgr
lEiw.kZ iV~Vs dh dqy vof/k vf/kdre 90 o"kZ dh gksxhA ftlesa ;g 'krZ gksxh
fd lEcfU/kr O;fDr Hkwfe dk iV~Vkf/kdkj 30 o"kZ rd fdlh O;fDr
dks gLrkukUrfjr ugha dj ldrk gS iV~Vk 'kklu }kjk fu/kkZfjr
izk:i ij tkjh fd;k tk;sxkA
¼3½vukf/kd`r dCtksa ds fofu;ferhdj.k dh leLr dk;Zokgh
ftykf/kdkjh] dh v/;{krk esa xfBr lfefr dh laLrqfr ij
ftykf/kdkjh }kjk dh tk;sxhA y[kuÅ ,oa nsgjknwu esa leLr dk;Zokgh
mik/;{k] fodkl izkf/kdj.k dh v/;{krk esa xfBr lfefr dh laLrqfr ij mik/;{k
}kjk dh tk;sxhA
¼4½fofu;ferhdj.k gsrq ifjokj dks ,d bdkbZ ds :i esa ekuk
tk;sxk rFkk iV~Vk ifjokj ds eqf[k;k ds i{k esa Lohd`r fd;k tk;sxkA**
“(1)Under no circumstances, illegal possessions over an area
measuring over 100 square metres shall be regularised and an
amount of earnest money, 25% or 40% as the case may be, on the
entire amount calculated as per the circle rate as on 30.11.1991
70
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)
162.Then vide G.O. dated 17.02.1996 again some amendments were
made in respect of amount payable for freehold but earlier policy of
categories of persons, who can claim freehold, was not changed. Vide
G.O. dated 29.03.1996, period for giving benefit of freehold was
extended from 01.4.1996 to 30.09.1996. G.O. dated 02.04.1996 only
made some corrigendum in earlier G.O. dated 17.02.1996.
163.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.
164.We find that G.O. dated 17.02.1996 nowhere permits conversion
of Nazul land into freehold in favour of Nominees of Lessee and thus we
71
have no manner of doubt that G.O. dated 29.08.1996, insofar as it refers
to G.O. dated 17.02.1996, has erred in law and it is a clear misreading. If
G.O. dated 17.02.1996 itself had not permitted freehold rights to
Nominee(s) of Lessee, question of rights determined by G.O. dated
29.08.1996 is of no legal consequence and would remain inoperative.
165.Then vide G.O. dated 25.10.1996, implementation of freehold
policy was extended upto 31.12.1996. Then G.O. dated 31.12.1996 was
issued to clarify G.O. dated 17.02.1996 in respect of applicability of rate,
where land use at the time of grant of lease was changed in Master plan.
166.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.
167.Then comes G.O. dated 01.12.1998. Thereunder only two
categories were made i.e. residential and non-residential. Restriction was
also imposed on certain Nazul land in respect whereto conversion of
freehold shall not be allowed.
168.Vide G.O. dated 10.12.2002, it was clarified that freehold
conversion shall not be allowed to nominee of Lessee or his legal heirs.
G.O. dated 31.12.2002 relates to rates and clarification hence are not
relevant for the purpose of present case.
169.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
72
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.
170.Vide G.O. dated 21.10.2008, Clause 3 of G.O. dated 10.10.2002,
whereby provision for conversion of freehold to Nominee of Lessee or
his legal heirs was ceased, was restored. It was also clarified that
decision to convert freehold of Nazul land will apply only when such
land is not found necessary for Government use.
171.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**
“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)
172.Further time for conversion into freehold was extended upto
31.12.2009.
173.G.Os. dated 29.01.2010, 17.02.2011 and 01.8.2011 were issued
making minor amendments hence not discussed further.
174.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
73
their construction and using land prior to 01.12.1998. However, land of
public places, park, side-lanes of road and other Government uses was
excluded and maximum area for such freehold was confined to 300
Sq.Meter. The incumbent had to apply within three months whereafter
they have to be evicted. With respect to 'Nominees of Lessees', para 5 of
said G.O. reads as under :
^^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&152&,u@2002] Vh-lh- fnukad 10&12&2002 ds izLrj 3
}kjk mDr O;oLFkk lekIr dj nh x;h rFkk 'kklukns'k la[;k %
1956@vkB&4&08&266,u@08] fnukad 21&10&2008 ds izLrj& 2 ¼4½ }kjk
mDr O;oLFkk iqu% cgky dj nh x;h gSA bl O;oLFkk ds lEcU/k esa ek0 mPPk
U;k;ky; esa fopkjk/khu fjV ;kfpdk ¼tufgr ;kfpdk½ la[;k %
35248@2010&t;flag cuke mRrj izns'k jkT; o vU; esa ikfjr vUrfje vkns'k
fnukad 16&07&2010 esas fn;s x;s funsZ'kksa ds n`f"Vxr mi;qZDr 'kklukns'k
fnukad 21&10&2008 dk izLrj 2 ¼4½ ftlds }kjk ukfeuh ds i{k
esa utwy Hkwfe dks QzhgksYM fd;s tkus dh O;oLFkk cgky dh x;h
gS] dks lekIr djrs gq, vc ,sls O;fDr ftuds i{k esa dz; dh tk
jgh lEifRr ¼utwy Hkwfe½ dks iV~Vsnkj }kjk jftLVMZ ,xzhesaV Vw
lsy fd;k x;k gks vkSj iw.kZ LVkEi 'kqYd vnk fd;k x;k gks] mlh
O;fDr ds i{k esa gh utwy Hkwfe dks QzhgksYM fd;k tk;sxkA**
“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
74
pending, the provision of para 2(4) made in the aforesaid
Government Order dated 21.10.2008 through which converting
nazul land into freehold in favour of the nominee was restored,
is being annulled; and the nazul land shall be converted in
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)
175.Aforesaid G.Os. thus clearly show that eligibility of leases of
Nazul land, as initially laid down in G.O. of 1992 underwent some
changes but in respect of land found suitable or needed by Government,
no freehold was permissible. With respect to violation of terms and
conditions of lease etc., some relaxation has been given.
176.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.
177.It is no doubt true that Government has promulgated policy of
conversion of lease land into freehold even in those cases where lease
has expired, but then question is “whether mere submission of
application for freehold will confer a vested right upon petitioners to get
Nazul land converted into freehold, which will override even power of
re-entry of Lessor. A Full Bench of this Court in Anand Kumar Sharma
vs. State of U.P. and others 2014(2) ADJ 742 has considered this aspect
and held in para 42 of judgment that merely by making an application for
grant of freehold right, petitioner did not acquire a vested right. Para 42
of the judgment reads as under :
“We after considering the relevant Government Orders on the
subject and pronouncements of the Apex Court as noted above,
are of the view that merely by making an application for grant of
right, petitioner did not acquire a vested right.”(Emphasis added)
178.A Division Bench of this Court in Writ Petition No.62588 of
2010, M/s Madhu Colonizers Pvt. Ltd. vs. State of U.P. & Ors.,
decided on 02.04.2013 has held that if Government exercises right of re-
75
entry, question of a person to claim freehold would not arise and where
such a right cannot be claimed by Lessee, right of nominee cannot
survive over such lessee. Court has said as under :
“It is also found that as nominee of the lessee, the petitioner-
Company cannot have any larger rights than the lessee and once
the order of the District Magistrate for resumption the land in
exercise of power under Clause 3(c) of the lease deed is held to
be valid, the petitioner-Company, as a nominee, cannot have any
surviving right to claim conversion of the lease hold rights into
freehold. 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.” (Emphasis added)
179.Moreover, it is also evident from record that application of
petitioner in WP-1 for conversion of leasehold right into freehold has
been rejected vide order dated 23.5.2015 and that order is not under
challenge. Lastly, scheme of G.Os. makes it clear wherever Nazul is
required by Government for public purposes or own use, freehold shall
not be allowed. Thus, claim set up on the basis of aforesaid G.Os. also
have no force and is rejected.
180.Question (iv), therefore, is answered accordingly and we hold
that after expiry of period of lease, none of the petitioners had any legal,
contractual or otherwise right in respect of land in dispute and they were
not holding possession of land validly. Further once State exercise right
of re-entry, question of conversion of lease right into freehold would not
arise.
181.Before proceeding further, we find it difficult to desist from
observing that freehold policy, commenced in 1992, took care of a
limited category of occupants of Nazul land i.e. Lessees, who had
perpetual lease or where lease was continuing and there was no violation
of conditions of lease. Meaning thereby, Leaseholders, who had
faithfully abided to the terms and conditions of lease, were chosen as a
class by themselves and provision was made to convert lease rights into
76
freehold in such cases. One may not dispute about such policy in the
light of fact that these leases are several decades old and people holding
such leases had developed some kind of possessory right in property and
recognizing such interest of Lessees, howsoever weak it was, if State
Government chose to confer upon them benefit of conversion of lease
right into freehold, one may not validly object to that and probably such
policy may satisfy constitutional test of fairness, non-discrimination,
non-arbitrariness etc.
182.But with the passage of time, in the garb of improvement in the
policy, amendments were made by numerous Government Orders issued
from time to time, which we have referred hereinabove and that opened
on unrestricted area of beneficiaries, i.e. wholly strangers namely mere
Nominees of Lessee, who had no prior interest in property in question;
and flagrant defaulters and violators of terms of lease etc. Such
provisions, in our view, are difficult to sustain as to satisfy constitutional
validity of policy of freehold under aforesaid Government Orders. In our
view, it is ex facie arbitrary and violative of Article 14 of Constitution of
India.One cannot lose sight and ignore historical backdrop of allotment
of Nazul land. Persons who were sympathetic to Britishers and for
services rendered by individuals in the interest of Colonial Forces,
helping them in their administration; or some otherwise highly
resourceful people, were given such allotment. After independence, if
State wanted to distribute its largesse/assets, we can understand, if a
scheme would have been evolved to distribute Nazul land, by
terminating lease, to weaker and poor people or landless people or if
objective was to augment revenue, then State largesse/assets instead of
distributing in a clandestine manner by confining such benefit to certain
individuals, appropriate mode of auction of land to general public should
have been adopted. We do not know what prevailed with State
Government in making policy, which was initially not so apparently
erratic, to become a boon to defaulters and also give opportunity to
77
certain individuals in trading of land after getting land freehold on much
lesser amount than what actually market value of land is. In the present
case itself, petitioners have said that they paid money to Harihar Nath
Dhar and therefore, Harihar Nath Dhar actually benefited himself of the
property owned by State without giving any return to State and this had
continued for decades together. Thus, Prima facie, we are satisfied that
policy of freehold, as it stands today, helps scrupulous, resourceful land
dealers, Land Mafias and similar other persons. It is neither in public
interest nor satisfies test of public policy nor consistent with
constitutional test, in particular, Article 14 of Constitution of India.
183.However, we are not expressing any final opinion on this aspect
but this Court desires that it is high time and sooner is the better, that
State Government must re-examine entire policy and if purpose is only
to augment revenue, Government should sell public land by auction so
that it may get best price or policy should be confined for the benefit of
have-nots i.e. poor landless and weaker sections of the Society.
184.Now we deal with questions (v), (vi) and (vii) together.
185.Learned Senior Counsel has founded his submissions on the basis
of Section 106 read with 116 TP Act, 1882 that petitioners having
continued in possession after expiry of period of lease, are entitled to be
treated as 'holding over' and could not have been evicted without
following procedure prescribed under TP Act, 1882 since when
impugned order was passed, GG Act, 1895 stood already repealed as a
result whereof TP Act, 1882 would apply and for this purpose he also
placed reliance on Supreme Court's judgment in The State of U.P. vs.
Zahoor Ahmad and another (supra). He also said that even if
possession is unauthorized, petitioner cannot be evicted arbitrarily but
State is bound to follow procedure consistent with law and principles of
natural justice and for this purpose, reliance is placed on Supreme
Court's judgments in Bishan Das and others Vs. State of Punjab and
others AIR 1961 SC 1570, Express Newspapers Pvt. Ltd. and others
78
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.
186.On this aspect, we have already considered the matter substantially
while considering issues (iii) and (iv). Here we will consider the matter
further in the light of Repeal Act, 2017 and authorities cited and relied
by petitioners, as noted above.
187.It is not in dispute that GG Act, 1895 has been repealed by Repeal
Act, 2017. However, Section 4 thereof provides for saving of certain
aspect and read as under :
“4.Savings.- The repeal by this Act of any enactment shall not
affect any other enactment in which the repealed enactment has
been applied, incorporated or referred to;
and this Act shall not affect the validity, invalidity, effect or
consequences or anything already done or suffered, or any right,
title, obligation or liability already acquired, accrued or incurred,
or any remedy or proceeding in respect thereof, or any release or
discharge of or from any debt, penalty, obligation, liability, claim
or demand, or any indemnity already granted, or the proof of any
past act or thing;
nor shall this Act affect any principle or rule of law, or
established jurisdiction, form or course of pleading, practice or
procedure, or existing usage, custom, privilege, restriction,
exemption, office or appointment, notwithstanding that the same
respectively may have been in any manner affirmed or recognized
or derived by, in or from any enactment hereby repealed;
nor shall the repeal by this Act of any enactment revive or
restore any jurisdiction, office, custom, liability, right, tittle,
privilege, restriction, exemption, usage, practice, procedure or
other matter or thing not now existing or any force.”
188.Section 4 of Repeal Act, 2017 clearly protects effect or
consequences or anything already done or suffered, which includes effect
of expiry of lease and obligation of Lessee to surrender possession of
79
leased land to State. Further, Lessee had already agreed that State can re-
enter land at any point of time. They are bound by said clause of lease-
deed. This is an obligation as also liability of petitioners and right of
State incurred, acquired and accrued in view of terms of lease-deed.
Mere fact that it has been exercised after repeal of GG Act, 1895 would
make no difference since all earlier situations/aspect have been protected
by Section 4 of Repeal Act, 2017. Therefore, it cannot be said that after
repeal of GG Act, 1895 by Repeal Act, 2017, petitioners' status would
stood changed vis-a-vis disputed Nazul land in respect whereof State is
entitled to re-entry and resume land in terms of conditions of lease.
189.The judgment cited by learned counsel for petitioners, in our view,
are not at all applicable to the facts of this case as demonstrated
hereinafter.
190.In Bishan Das and others Vs. State of Punjab and others AIR
1961 SC 1570, a Constitution Bench had an occasion to consider
fundamental right of property vis-a-vis infringement therewith by
executive orders. Therein, one Lala Ramji Das , carrying on a joint
family business in the name and style of Faquir Chand Bhagwan Das,
desired to construct a Dharmasala on a Nazul property of the then State
of Patiala. In 1909, he sought permission of Government to construct a
Dharmasala on the said land, since it situate near Barnala Railway
Station, and therefore would have been convenient to Travellers who
come to that place. It appears that initially for the same purpose, Patiala
Government had granted permission to Choudhuris of Barnala bazar, but
they could not do so for want of funds. Therefore when Ramji Das
sought permission in the name of firm Faquir Chand Bhagwan Das in
May, 1909, same was granted and communicated by Assistant Surgeon
in-charge of Barnala Hospital, who was presumably in-charge of public
health arrangements at Barnala. The sanction was subject to certain
conditions, namely, no tax shall be taken for the land; shopkeepers will
arrange 'Piao' for the passengers; plans of the building shall be presented
80
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.
191.Dharmasala was constructed in 1909 and inscription on the stone
to the following effect was made:
"Dharmasala Lala Faquir Chand Bhagwan Das, mahajan, 1909."
192.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. Some further inquiry were also made and it appears that
Ramji Das was given permission to make a raised platform and other
extensions etc. On 10.09.1954, one Gopal Das, Secretary, Congress
Committee, Barnala, filed a petition to the Revenue Minister, Patiala,
making various allegations against Ramji Das. Thereupon an inquiry was
conducted by Tahsildar, who found that Dharmasala was constructed by
Ramji Das on Government lands, that Dharmasala was for public
benefit; and, that Ramji Das had been its Manager throughout. He,
however, said that Ramji Das was bound to render accounts which he
81
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 the management of Dharmasala. This recommendation was
affirmed by the Deputy Commissioner, Sangrur, and pursuant to the said
order, Kanungo presumably dispossessed Bishan Das and others from
part of Dharmasala on 07.01.1958 and charge thereof was given to
Municipal Committee, Barnala. These orders were challenged by
petitioners alleging that the same were without any authority of law and
violative of fundamental rights enshrined under Articles 14, 19 and 31 of
the Constitution.
193.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.
194.Supreme Court observed in Para-10 that even if it is assumed that
the property is trust property, no authority of law authorizing State or its
Executive Officers to take action against Bishan Das and others in
respect of Dharmasala was shown. Government counsel sought to argue
82
that Bishan Das and others were trespassers and land on which
Dharmasala situate belong to Government, hence Government was
entitled to use minimum of force to eject trespassers. But this defence
was also rejected by Supreme Court holding that it is a clear case of
violation of fundamental right of Bishan Das and others. Supreme Court
said that nature of sanction granted in 1909 in respect of land whether it
was a lease or licence, with a Grant or an irrevocable licence are
questions of fact, need not be gone into by it but admitted position is that
land belonged to the Government who granted permission to Ramji Das
on behalf of joint family firm to build a Dharmasala, Temple and Shops
and manage the same during his life time. After his death his family
members continued with management. Thus, they were not trespassers at
all in respect of Dharmasala, Temple and Shops; nor could it be held that
Dharmasala, Temple and Shops belong to the State. The question
whether trust created was public or private is irrelevant. Court said that a
Trustee, even of a public trust, can be removed only by procedure known
to law. He cannot be removed by an executive fiat. The maxim, what is
annexed to the soil goes with the soil, has not been accepted as an
absolute rule of law in India and in this regard, Supreme Court referred
to decision in Thakoor Chunder Parmanick Vs. Ramdhone
Bhuttacharjee (1866) 6 W.R. 228; Lala Beni Ram Vs. Kundan Lall
(1899) L.R. 26 I.A. 58 and Narayan Das Khettry Vs. Jatindranath
(1927) L.R. 54 I.A. 218. Court said that a person who bona fide puts up
constructions on land belonging to others with their permission would
not be a trespasser, nor would the buildings so constructed vest in the
owner of the land by application of maxim quicquid plantatur solo, solo
credit. It said:
“It is, therefore, impossible to hold that in respect of the
dharmasala, temples and shops, the State has acquired any
rights whatsoever merely by reason of their being on the land
belonging to the State. If the State thought that the constructions
should be removed or that the condition as to resumption of the
83
land should be invoked, it was open to the State to take
appropriate legal action for the purpose.” (Emphasis added)
195.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)
196.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.”
197.Court passed serious stricture against State authorities holding that
the executive action taken by State and its Officers is destructive of the
basic principle of the rule of law. Hence action of Government in taking
law into their hands and dispossessing petitioners by display of force,
exhibits a callous disregard of normal requirements of rule of law, apart
from what might legitimately and reasonably be expected from a
Government functioning in a society governed by a Constitution which
guarantees to its citizens against arbitrary invasion by Executive of
peaceful possession of property. Supreme Court reiterated what was said
in its earlier judgment in Wazir Chand Vs. The State of Himachal
Pradesh AIR 1954 SC 415 that State or its executive officers cannot
interfere with the rights of others unless they can point out some specific
rule of law which authorizes their acts. Supreme Court seriously
deprecated State and said:
“We have here a highly discriminatory and autocratic act which
deprives a person of the possession of property without reference
84
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.” (Emphasis added)
198.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 itself, 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.
199.Express Newspapers Pvt. Ltd. and others Vs. Union of
India (1986) 1 SCC 133 is a matter which was decided in a Writ Petition
filed under Article 32 of Constitution by the aforesaid Newspaper
Company having its Establishment in Express Buildings at 9-10,
Bahadurshah Zafar Marg, New Delhi, which was a land on perpetual
lease from Union of India, under a registered Indenture of Lease, dated
17.03.1958. Five petitioners, who filed above Writ Petition before
Supreme Court included Indian Express Newspaper (Bombay) Private
Limited of which Express Newspapers Private Limited was a subsidiary
and petitioners-3, 4 and 5, namely, Sri Ram Nath Goenka was Chairman
of the Board of Directors, Nihal Singh was the Editor-in-chief of the
Indian Express and Romesh Thapar was the Editor of the Seminar
published from the Express Buildings. Union of India; Lt. Governor of
Delhi, Sri Jagmohan; Municipal Corporation of Delhi; Zonal Engineer
(Buildings) and Land and Development Officer were impleaded as
respondents-1 to 5. The validity of notice of re-entry upon forfeiture of
lease issued by Engineer Officer, Land and Development Office, New
Delhi on 10.03.1980 was challenged. The notice required petitioners to
85
show cause why Union of India should not re-enter upon and take
possession of the demised premises i.e. plots nos. 9 and 10, Bahadurshah
Zafar Marg, together with Buildings built thereon under Clause 5 of
Indenture of Lease, dated 17.03.1958, for committing breach of Clauses
2(14) and 2(5) of lease-deed. Another notice was issued earlier on
01.03.1980 by Zonal Engineer (Buildings), Municipal Corporation, City
Zone, Delhi requiring Express Newspapers Pvt. Ltd., New Delhi to show
cause why aforesaid buildings being unauthorized be not demolished
under Sections 343 and 344 of the Delhi Municipal Corporation Act,
1957 (hereinafter referred to as “DMC Act, 1957”). A challenge was
made, besides others, on the ground of personal vendetta against Express
Group of Newspapers and also being violative of Articles 14, 19(1)(a)
and 19(1)(g) of the Constitution. The questions posed by Supreme Court,
to be of far reaching consequence for maintenance of federal structure of
Government, were:
(1) Whether the Lt. Governor of Delhi could usurp the functions of
the Union of India, Ministry of Works and Housing and direct an
investigation into the affairs of the Union of India i.e. question the
legality and propriety of the action of the then Minister for Works
and Housing in the previous Government at the center in granting
permission to Express Newspapers Pvt. Ltd. to construct new
Express Building with an increased FAR of 360 with a double
basement for installation of a printing press for publication of a
Hindi Newspaper on the western portion of the demised premises
i.e. Plots No. 9 and 10, Bahadurshah Zafar Marg, New Delhi with
the Express Buildings built thereon?
(2) Whether the grant of sanction by the then Minister for Works
and Housing and the consequential sanction of building plans by
him of the new Express Building was contrary to the Master Plan
and the Zonal Development Plans framed under the Delhi
Development Act, 1957 and the municipal bye-laws, 1959 made
under the DMC Act, 1957 and therefore the lessor i.e. the Union
of India had the power to issue a notice of re-entry upon forfeiture
of lease under Clause 5 of the indenture of lease dated March 17,
1958 and take possession of the demised premises together with
86
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?
200.Thereafter Court analyzed the facts of case in detail and respective
arguments and from Para-45 to 47 we find that Government of India and
Lt. Governor of Delhi were head on to each other and even Council's
role was not appreciated by Court. In the light of arguments advanced by
parties, in para-59 of judgment, Court formulated eight questions. The
issue of maintainability of writ petition under Article 32 was also raised
and it was considered by Supreme Court in the judgment from para-66
onwards and it was held that building in question was necessary for
running press. Any statutory or executive action to pull it down or forfeit
the lease, would directly impinge on the right of freedom of speech and
expression under Article 19(1)(a) and therefore, writ petition was
maintainable. Court said:
“... impugned notices of re-entry upon forfeiture of lease and of
the threatened demolition of the Express Buildings are intended
and meant to silence the voice of the Indian Express. It must
logically follow that the impugned notices constitute a direct and
immediate threat to the freedom of the press and are thus violative
of Article 19(1)(a) read with Article 14 of the Constitution.”
201.Since, land in dispute was Government land, provisions of 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
87
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)
202.In Express Newspapers Pvt. Ltd. and others Vs. Union of
India (supra) Court further said:
“It is plain upon the terms that Section 2 excludes the operation of
the Transfer of Property Act, 1882 to Government grants. While
Section 3 declares that all provisions, restrictions, conditions and
limitations contained over any such grant or transfer as aforesaid
shall be valid and shall take effect according to their tenor,
notwithstanding any rule of law, statute or enactment of the
Legislature to the contrary. A series of judicial decisions have
determined the overriding effect of Section 3 making it amply
clear that a grant of property by the Government partakes of the
nature of law since it overrides even legal provisions which are
contrary to the tenor of the document. ” (Emphasis added)
203.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.
204.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.
205.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)
206. It was observed that existence of a right is the foundation for a
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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
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.
207.Court then considered other provisions of power of Lt. Governor,
and Central Government and factual aspects involved in the matter, and,
in our view, the same are not relevant for the purpose of this Case. Court
also examined applicability of doctrine of estoppel but that has also not
been raised in these matters, hence it is not necessary to examine them.
208.One aspect we may notice hereat that detailed judgment has been
written by Hon'ble A.P. Sen, J. Justice E.S. Venkataramiah has agreed
with the judgment of Hon'ble A.P. Sen, J in relation to the aspect that Lt.
Governor of Delhi, Sri Jagmohan, has taken undue interest in getting
notices issued to Express Newspapers and this action is not consistent
with normal standards of administration and issued under pressure of Lt.
Governor of Delhi, notices were violative of Article 14, suffers with
arbitrariness and non application of mind. His Lordship said that it was
not necessary to express any opinion on the contention based on Article
19(1)(a) of Constitution. Hon'ble Venkataramiah further said that
question relating to civil rights of the parties flowing from the lease deed
cannot be disposed of in a petition under Article 32 of the Constitution
since questions whether there has been breach of the covenants under the
lease, whether lease can be forfeited, whether relief against forfeiture can
be granted etc. are foreign to the scope of Article 32 of the Constitution
which should be tried in a regular civil proceeding. His Lordship further
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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.”
209.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)
210.Hon'ble R.B. Misra, J. also agreed with Hon'ble A.P. Sen and E.S.
Venkataramiah, JJ that the notice challenged in writ petition is invalid,
having no legal consequences and must be quashed for reasons detailed
in both the judgments. His Lordship, however, said that other questions
involved in the case are based upon contractual obligations between the
parties and can be satisfactorily and effectively dealt with in a properly
instituted suit and not by way of writ petition on the basis of affidavits
which are so discrepant and contradictory in this case. Hon'ble R.B.
Misra, J. in para 207 of judgment said:
“207. The right to the land and to construct buildings thereon for
running a business is not derived from Article 19(1)(a) or 19(1)(g)
of the Constitution but springs from terms of contract between
the parties regulated by other laws governing the subject, viz., the
Delhi Development Act, 1957, the Master Plan, the Zonal
Development Plan framed under the Delhi Municipal Corporation
Act and the Delhi Municipal Bye-laws, 1959 irrespective of the
purpose for which the buildings are constructed. Whether there
has been a breach of the contract of lease or whether there has
been a breach of the other statutes regulating the construction of
buildings are the questions which can be properly decided by
taking detailed evidence involving examination and cross-
examination of witnesses.” (Emphasis added)
211.The above judgment also has no application to the facts of present
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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.
212. In Yar Mohammad and another vs. Lakshmi Das and others
AIR 1959 Allahabad 1, a Full Bench of this Court considered following
question :
"Whether the jurisdiction of the Civil Court is barred by virtue of
Section 242 of the U. P. Tenancy Act in respect of suit filed under
Section 9 of the Specific Relief Act for obtaining possession over
agricultural land from which the plaintiff alleged his illegal
dispossession within six months of the date of the-suit".
213.Therein plaintiffs instituted suit on 30.11.1948 for possession
under Section 9 of Specific Relief Act, 1877 (hereinafter referred to as
“Act, 1877”) alleging that they were in actual possession of land in
dispute (land was admittedly an agricultural land) but wrongfully
dispossessed by defendants in November 1948. Defendants contested the
suit and disputed correctness of above allegations of plaintiffs and
pleaded that they were in possession of land as tenants of plaintiffs for
more than 12 years, hence, plaintiffs cannot eject them. They also
pleaded that suit was filed under Section 9 of Act, 1877 only to evade
jurisdiction of Revenue Court. Trial Court i.e. learned Munsif rejected
plea of lack of jurisdiction raised by defendants, accepted the case set up
by plaintiffs and decreed the suit. Defendants then filed revision no.461
of 1952, which resulted in Reference, to a Larger Bench. The issue was
with respect to applicability of Section 242 of U. P. Tenancy Act, 1939.
Court said that Section 242 confers exclusive jurisdiction on Revenue
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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.
214.It was held that in order to attract Section 242, one has to
demonstrate that action would fall under either of the above-mentioned
two categories and if does not, jurisdiction of Civil Court is not ousted
and Revenue Court will have no jurisdiction to entertain the action.
215.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.
216.No question of title either of plaintiffs or of defendants can be
raised or gone into in an action brought under Section 9 of Act, 1877.
Plaintiffs will be entitled to succeed without proving any title on which
he can fall back upon and defendant cannot succeed even though he may
be in a position to establish the best of all titles. Restoration of
possession under Section 9 is however subject to a regular suit and
person who has real title or even better title cannot be prejudiced in any
way by a decree of a suit under Section 9. A person having real or better
title always has a right to establish his title in a regular suit and get the
possession back. The objective and idea behind Section 9, as the Court
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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 that self-help is not permitted so far as possession over Immovable
property is concerned, Section 9 is intended to discourage and prevent
proceedings which might lead to serious breaches of peace. It does not
allow a person who has acted high-handedly by wrongfully
dispossessing a person in possession from deriving any benefit from his
own unjustified act. Section 9, infact, provides for a summary and quick
remedy for a person who is in possession but illegally ousted therefrom
without his consent. Court observed that 'Possession' is prima facie
evidence of title and if a person who is in possession is dispossessed, he
has a right to claim back possession from the person who dispossesses
him. In an ordinary common law proceedings, a person who has a title, is
entitled to possession and cannot be deprived of his right of possession
by a person, who has no title or inferior to the former. Court said that for
Section 9, claim of title is not allowed to be set up and possession
wrongfully taken, has to be restored. Full Bench therefore, answered
question formulated above in negative.
217.In our view, above judgment has no application to the facts of this
case for the reason that title of land is not in dispute, inasmuch as, it is
admitted case of all the petitioners that land in dispute is 'Nazul', hence it
is owned and vested in Government. It is also not in dispute that
petitioners got possession of land in dispute being legal heirs of original
Lessees. Petitioners have not been evicted so far, hence Section 9 of Act,
1877 has no application. In the present case right of re-entry is being
exercised by respondent-State in terms of lease-deed, pursuant whereto
possession was given to Lessees and petitioners have derived their
interest from such Lessees, and now are bound to restore possession in
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terms of lease whereunder even original lessees were obliged to
surrender/hand over possession to State Government.
218.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 aforesaid judgment in
the case in hand is of no consequence.
219.Lallu Yeshwant Singh (dead) by his legal representative vs.
Rao Jagdish Singh and others, AIR 1968 SC 620 is a judgment which
came before two Judges Bench of Supreme Court from a dispute raised
under Qanoon Mal Riyasat Gwalior Samvat, 1983 (hereinafter referred
to as “Qanoon Mal”) that is from Madhya Pradesh. Under Section 326
of Qanoon Mal, a suit was filed by Yeshwant Singh and others i.e.
plaintiffs against Rao Jagdish Singh and others (defendants) in the Court
of Tehsildar for possession of some agricultural land. Plaintiffs set up a
case that they were in possession of land and forcibly dispossessed by
defendants, therefore, should be restored their possession. Tehsildar
decreed the suit and order was affirmed in appeal by Collector as well as
Commissioner. Revision was also dismissed by Board of Revenue and
decree passed by Tehsildar was maintained. Section 326 of Qanoon Mal
broadly provided summary remedy as is provided in Section 9 of Act,
1877. In para 7 of the judgment, Supreme Court has referred to both the
provisions and said that both are broadly similar. High Court took a
different view holding that it was not necessary for a Lessor to resort to
Court for obtaining possession and if there is default by plaintiff, it could
have been dispossessed by defendants. Supreme Court said that no
person can take law in its own hand and in such matter, where provisions
providing summary procedure for restoration of illegal dispossession of
land have been made, the same can be resorted to by the person who has
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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).
220.The State of U.P. vs. Zahoor Ahmad and another (supra) was a
matter which came up before two Judges Bench of Supreme Court
arising from action by State in respect of certain land falling within
Reserved Forest in State of Uttar Pradesh. Zahoor Ahmad was granted
lease of a plot of land at Chandan Chowki, Sonaripur Range in North
Kheri Forest Division for an annual rent of Rs.100/-. The aforesaid land
was part of reserved forest of which State of U.P. is the proprietor. Lease
for Industrial purpose was granted for one year commencing from
18.03.1947. It was renewed on 10.06.1948 with effect from 18.03.1948
for one year and again in 1949 for further one year. Ultimately lease
expired on 18.03.1950. State of U.P., after termination of lease, allowed
Zahoor Ahmad to continue in possession of land on condition settled
between the parties that Licensee i.e. Zahoor Ahmad would pay
Rs.1,000/- as annual rent for occupation till 15.07.1950. Even after
determination of lease on 15.7.1950, Zahoor Ahmad i.e. Licensee
continued in possession and State of U.P. allowed him to remain in
possession for three years beyond 15.07.1950 though for this period
Zahoor Ahmad did not agree to give any undertaking of making payment
of annual rent of Rs.1,000/-. A letter dated 04.12.1951 was issued to
Zahoor Ahmad asking him to pay Rs.3,000/- for the year 1950-51. Letter
further provided that if Zahoor Ahmad did not agree to pay Rs.3,000/-
for the year 1950-51, amount of rent would be reduced to Rs.1800/- but
he would not be allowed lease in future in any circumstance. The fact
remains that Zahoor Ahmad was allowed to continue in occupation of
land without any agreement as to the amount of rent payable for 1950-
51. On 29.10.1952, Conservator of Forests sent a letter that Zahoor
Ahmad can be allowed to run the mill beyond 15.07.1950 for three years
95
if he pays Rs.3,000/- per annum, and for one year only, if he is ready to
pay Rs.1,800/- but thereafter lease would not be renewed. Notice also
said that he was only Licensee and should remove his plant and vacate
the premises within one month and pay Rs.6,000/- as damages for use
and occupation. Zahoor Ahmad did not pay the amount hence a suit for
recovery of damages was filed by State of U.P. High Court came to the
conclusion that Licensee (Zahoor Ahmad) was allowed to continue with
the consent of State of U.P. though there was no written agreement about
rate of rent and lease was granted for industrial purposes. Under Section
106 of TP Act, 1882, such lease is for year to year basis. The lease could
have been terminated by six months notice and since no such notice was
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
96
meaning of 'Crown Grants Act'. In another matter i.e. Secretary of State
for India in Council vs. Lal Mohan Chaudhuri, AIR 1935 Cal 746 in
respect of Khas Mahal, lease was granted by Government. It was held
that lease of Khas Mahal does not come within the category of 'Grant' as
contemplated in GG Act, 1935. Having said so, in para 13 of judgment,
Court said that lease granted to Zahoor Ahmad was for the purpose of
erecting a temporary rice mill and for no other purpose. The mere fact
that State is the lessor will not by itself make above lease a 'Government
Grant' within the meaning of GG Act, 1895. We may reproduce para 13
of the judgment in State of U.P. vs. Zahoor Ahmad (supra) as under :
“The lease in the present case was for the purpose of erecting a
temporary rice mill and for no other purpose. The mere fact that
the State is the lessor will not by itself make it a Government
grant within the meaning of the Government Grants Act. There
is no evidence in the present case in the character of the land or
in the making of the lease or in the content of the lease to
support the plea on behalf of the State that it was a grant within
the meaning of the Government Grants Act.” (Emphasis added)
221.When a question arose whether High Court has rightly applied
Section 116 of TP Act, 1882, Supreme Court, in this context, referred to
a judgment of this Court in Lala Kishun Chand vs. Sheo Dutta, AIR
1958 All. 879 wherein after expiry of lease of Nazul land, Licensee was
permitted by Board of Revenue to continue in occupation as tenant and
rent was also realized from him and held that in these facts, Section 116
TP Act, 1882 was rightly applied. Then in paras 15 and 16, Court said as
under:
“15.In the present case the High Court correctly found on the
facts that the respondent after the determination of the lease held
over. Even if the Government Grants Act applied Section 116 of
the Transfer of Property Act was not rendered inapplicable. The
effect of Section 2 of the Government Grants Act is that in the
construction of an instrument governed by the Government Grants
Act the court shall construe such grant irrespective of the
provisions of the Transfer of Property Act. It does not mean that
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all the provisions of the Transfer of Property Act are inapplicable.
To illustrate, in the case of a grant under the Government Grants
Act Section 14 of the Transfer of Property Act will not apply
because Section 14 which provides what is known as the rule
against perpetuity will not apply by reason of the provisions in the
Government Grants Act. The grant shall be construed to take
effect as if the Transfer of Property Act does not apply.
16.Section 3 of the Government Grants Act declares the
unfettered discretion of the Government to impose such conditions
and limitations as it thinks fit, no matter what the general law of
the land be. The meaning of Sections 2 and 3 of the Government
Grants is that the scope of that Act is not limited to affecting the
provisions of the Transfer of Property Act only. The Government
has unfettered discretion to impose any conditions, limitations, or
restrictions in its grants, and the right, privileges and obligations
of the grantee would be regulated according to the terms of the
grant, notwithstanding any provisions of any statutory or common
law. ”
222.In the present case, it is not the case of any of the petitioners that
after expiry of lease in 1986, they have been permitted to remain in
possession of disputed Nazul land and rent has been accepted by
respondents or they have paid rent. Even if what is said by petitioners is
taken to be correct, we do not find that Section 116 is applicable in the
case in hand at all. 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.”
223.Twin conditions to attract principle of holding over vide Section
116 of TP Act, 1882, which need by satisfied are:
(i) After determination of lease, lessor or his representative has
accepted rent from lessee or under lessee or assented to his
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continuing in possession; and
(ii)Lessee or under-lessee has remained in possession.
224.In the present case, none of the above conditions are satisfied.
225.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.
226.Moreover, in respect of Section 116 TP Act, 1882, we have already
discussed the matter earlier to demonstrate that it is not attracted in the
present case.
227.So far as validity of resumption of land for 'public purpose' is
concerned, it could not be disputed that land has been sought to be
required by State for 'public purpose'. Allahabad City has been selected
for development as a 'Smart City' and respondents have pleaded that
demand of lot of land has been made by various Government
departments since various Offices, Workshops, Parks, Parking places etc.
have to be constructed. The land in dispute has been found suitable for
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erection of building for 'Group Housing' by A.D.A. and development of
'Group Housing' has also been held to be a public purpose in catena of
authorities dealing with acquisition of land under Land Acquisition Act,
1894 (hereinafter referred to as “Act, 1894”). In fact, on this aspect, no
substantial argument has been made and in our view, resumption of land
by State is in 'public interest'.
228.No provision could be shown by counsel for petitioners which
requires an opportunity of hearing to petitioners before resumption of
land. In any case, by means of impugned notice, petitioners have been
given enough time to vacate the land and thereafter only State shall take
steps for possession, if vacant possession is not given by petitioners.
229.One aspect, which has been pointed out by learned Additional
Advocate General as also learned Senior counsel appearing for ADA is
that most of petitioners are not in actual possession of disputed land but
they are residing elsewhere and only on the basis of 'constructive' or
'deemed possession' the present writ petition has been filed. Entire
litigation edifies petitioners' claim based on 'constructive' or 'deemed
possession' which cannot be assumed in favour of a person who has no
legal right over land in dispute against owner of land, in whose favour
presumption of possession always exists. He drew our attention to
address given by petitioners in WP-1 itself.
230.Petitioners in WP-1 are all residents of 23/47/48, North Allahpur,
Allahabad, as is evident from address given in description of petitioners.
Thus, so far as petitioners in WP-1 is concerned, we find substance in the
contention advanced by learned Additional Advocate General. The entire
claim of petitioners in WP-1 is founded on possession of land in dispute
even after expiry of lease-deed, while they were/are not in actual
possession. Thus, entire argument against alleged dispossession does not
stand, inasmuch as, all arguments which have been considered
hereinabove, and, in the facts of the case, have been answered
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considering petitioners in actual possession of land in dispute. If a person
is not in actual possession, there is no question of any 'constructive' or
'deemed possession' in his favour since land owner is always treated to
be in possession of property owned by him even if he has no actual
possession.
231.Argument was advanced that actual physical possession does not
mean that incumbent must keep the property in control but in the context
of immoveable property, it is described as legal relationship of a person
to a thing. If some of lease holders are in possession, they represent other
Lessees also and therefore, it cannot be said that petitioners of WP-1 are
not in possession. Property is a legal concept that grants and protects a
person's exclusive right to own, possess, use and dispose of a thing. The
term property does not suggest a physical item but describes a legal
relationship of a person to a thing. Real property consists of lands,
tenements and hereditaments. Land refers to ground, the air above, the
area below the Earth's surface and everything that is erected on it.
Tenements include land and certain intangible rights recognized by
municipal laws related to lands. A hereditaments embraces every
tangible or intangible interest in real property that can be inherited. An
interest describes any right, claim or privilege that an individual has
towards real property. Law recognizes various types of interests in real
property which may justify possession over property of person
concerned. A non-possessory interest in land is right of one person to use
or restrict use of land that belongs to other persons such as easementary
rights. Non-possessory interest do not constitute ownership of land itself.
Holders of a non-possessory interest in real property do not have title
and owner of land continues to enjoy full rights 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.
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232.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 a 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.
233.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 impugned question which has to be
examined would be whether a person invoking them actually has any
possession to be protected. In other words, it has to be examined whether
a person is in possession of an object? However, legal concept of
possession is not restricted to commonsense concept of possession,
namely physical control. Possession in fact is not a simple notion.
Whether a person is in possession of an article is dependent on various
factors namely nature of article itself and attitudes and activities of other
persons.
234.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 is recognized is limited by
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Grantor or law. Continuance of possession beyond prescribed period by
is not treated as a 'lawful possession'. If a landlord does not consent to
lease being continued, possession of tenant would not be a lawful unless
there is some Statute providing otherwise. Nature of possession being
not lawful would entitle the 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 the law; having qualifications
prescribed by law and not contrary to nor forbidden by the law.
However, law recognizes possession as a substantive right or an interest.
Continued possession of a person is recognized by law as a sufficient
interest capable of being protected by possessor, right being founded on
mere fact of possession. Possession is a good title of right against anyone
who cannot show a better title. However, when a person in possession
may not be lawful, recovery of possession by owner must have sanction
of law and it cannot proceed to dispossess the other in a forcible manner
not recognized in law. In some authorities, possession of a person, who
has entered therein initially validly but subsequently become unlawful
has been given a different meaning i.e. juridical possession. A tenant
holding over without consent of landlord would be a juridical possession
though his possession is not lawful. It is said that possession of tenant,
post efflux of lease period would not be treated as lawful possession still
he would not be treated as a rank trespasser. Thus, here possession is a
juridical possession which has been introduced.
235.The concept of possession, therefore, has various shades, but, in
the present case, where entire litigation is founded on possession over
property in dispute, if any of petitioners are not in actual possession of
property and had no otherwise legal right over property in dispute then
such petitioners cannot restrain respondents from resuming land in
dispute being owner of land. Therefore, petitioners in WP-1 have an
additional reason for non-suiting of their claim.
236.In the circumstances, questions (v), (vi) and (vii) are answered
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by holding that right of resumption exercised by State is in accordance
with law. State is not bound to follow procedure prescribed under U.P.
Act, 1972 in view of the fact that it is proceeding in accordance with
terms and conditions of lease-deed, which constitute a special procedure
and can be followed excluding requirement of any other procedure and
principles of natural justice are not attracted in the case in hand.
237.Before parting, we may also observe that litigation initiated by
petitioners on the one hand has given enough time to petitioners to
continue to hold and enjoy land in dispute and simultaneously has 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. The impugned notice was issued on
18.06.2018 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 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 intervene and, earliest is the better that possession of land is
transferred to respondents so that developmental activities may proceed
without any further delay.
238.In view of above discussion, we do not find any merit in all the
petitions. All the writ petitions are accordingly dismissed.
239.However, considering the facts and circumstances and also the fact
that petitioners already enjoyed interim order passed by this Court and
104
continued in possession over land in dispute for the last almost more
than a year, we direct petitioners to vacate disputed land within one
month from the date of delivery of judgment.
240.Let a copy of this judgment be forwarded to Chief Secretary, U.P.
Lucknow and Principal Secretary, Urban Development, U.P. Lucknow,
for considering policy of freehold in the light of observations made in
paras 181 to 183 of judgment and take appropriate decision.
Order Date :- 31.10.2019
AK/PS/KA
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