No Acts & Articles mentioned in this case
AFR
Reserved on 29.05.2019
Delivered on 31.10.2019
Court No. - 34
Case :- WRIT - C No. - 33630 of 2018
Petitioner :- The Allahabad Anglo Indian Association Branch Allahabad
Respondent :- State of U.P. and 2 Others
Counsel for Petitioner :- Subedar Mishra
Counsel for Respondent :- C.S.C.,Ajit Kumar Singh (Addl. Advocate
General), Nimai Das & Sudhanshu Srivastava (Addl. C.S.C.)
Hon'ble Sudhir Agarwal,J.
Hon'ble Virendra Kumar Srivastava, J.
(Delivered by Hon'ble Sudhir Agarwal, J.)
1.Allahabad Anglo Indian Association through its Secretary Mr. Larry
Adrian Michael French has filed this petition under Article 226 of
Constitution of India challenging order dated 31.08.2018 passed by
Collector, Allahabad (respondent 2) informing petitioner that State
Government has exercised right of resumption/re-entry over disputed
Nazul land, therefore, it should be vacated by petitioner within two
months failing which possession shall be taken forcibly at the cost of
petitioner.
2.Dispute relates to Plot no.131, Civil Station Allahabad, area 11
acres 1730 square yards, situate at 9
th
Thornhill Road.
3.Secretary of State for India in Council executed a lease deed dated
07.05.1921 in favour of Anglo Indian Association granting lease of
aforesaid Nazul Plot No.131 for a period of 50 years commencing from
12.06.1917. It was said in the lease deed that earlier lease was executed on
12.06.1867 in favour of one Robert Andrew Farhe for a period of 50 years
and after expiry of said period a new lease was to be executed, hence, said
lease was executed. Several bungalows were constructed over leased land
for residence of Anglo Indian persons. Last extension of lease was vide
renewal dated 07.03.1984 which commenced from 1967 and expired in
1997. Petitioner then made an application for renewal of lease but the
2
same remained pending and ultimately vide order dated 12.03.2012
respondent-2 cancelled lease granted to petitioner and matter was referred
to State Government. A meeting was held in the Office of Secretary,
Housing and Urban Planning on 26.11.2015 in which Representatives of
Petitioner-Association as also Additional District Magistrate (Nazul)
Allahabad and Special Officer on Duty, Allahabad Development Authority
(hereinafter referred to as “ADA”) participated. Following decision was
taken in the said meeting :
^^¼1½ fn vky bf.M;k ,Xyks bf.M;u ,lksfl,'ku] 'kk[kk bykgkckn dk
iV~Vk fujLr fd, tkus ls lEcfU/kr ftykf/kdkjh] bykgkckn ds vkns'k
fnukad 12-03-2012] tks rduhdh n`f"V ls lgh ugha ik;k x;k gS dks 'kklu
ds vkns'k ds ek/;e ls fujLr djus dh dk;Zokgh dh tk;A
¼2½ fn vky bf.M;k ,Xyks bf.M;u ,lksfl,'ku] 'kk[kk bykgkckn ¼iV~Vsnkj½
}kjk iV~Vs ds uohudj.k gsrq ftykf/kdkjh] bykgkckn dks fu;ekuqlkj
vkosnu i= izLrqr djsaxsA
¼3½ ftykf/kdkjh] bykgkckn bl izdj.k dk ijh{k.k dj rF;kRed fjiksVZ
viuh laLrqfr lfgr jkT; ljdkj dks miyC/k djk;saxsA jkT; ljdkj }kjk
bl laca/k esa esfjV ds vk/kkj ij lqlaxr fu;eksa ds vUrxZr l{ke Lrj ls
fu.kZ; ysdj vfxze dk;Zokgh dh tk;sxhA
“(1) Proceeding to be conducted through order of the
Government for cancellation of order dated 12.03.2012 of
District Magistrate, Allahabad pertaining to cancellation of
lease granted to All Indian Anglo Indian Association,
Branch Allahabad, which order has been found not to be
technically correct.
(2) An application shall be presented as per Rules to the
District Magistrate, Allahabad by All India Anglo Indian
Association, Allahabad Branch (Lease Holder) for renewal
of lease.
(3) District Magistrate, Allahabad after examining this
matter shall make available the factual report along with his
recommendation to State Government. Further action shall
be taken by State Government after ensuring decision at the
level of Competent Authority, on merits under the relevant
Rules.” (English translation by Court)
3
4.Thereafter respondent 2 has passed order dated 31.08.2018 pointing
out that lease expired on 11.06.1997 and now land in dispute is required
for “public purpose” in view of the fact that Allahabad has been selected
to be developed as “Smart City” and disputed land which has total area of
11 acres and 203 square yards i.e. 44683.69 square meter is required for
development of a 'Park', therefore, State Government has resumed/re-
entered upon the land in dispute. Aforesaid order has been challenged on
the ground that large number of families are residing in disputed land and
they cannot be evicted in such arbitrary manner; Collector has passed
order without giving any opportunity to show cause and in violation of
principles of natural justice; petitioner has right of free hold in view of
policy of State Government which cannot be defeated by exercising right
of re-entry/resumption and petitioner cannot be evicted without following
the procedure prescribed in law.
5.Respondents 2 and 3 have filed counter affidavit wherein it is
admitted that Nazul Plot-131 Civil Station, Allahbad was demised to
Petitioner-Association vide Indentures of lease dated 07.05.1921. The
term of lease was lastly renewed for the period upto 11.06.1997 vide lease
deed dated 07.03.1984 which commenced from 12.06.1967. Lease was
governed by the provisions of Government Grants Act, 1895 (hereinafter
referred to as “G. G. Act, 1895”) and exercising its right as per terms and
condition of lease read with G. G. Act, 1895, State Government has
resumed/re-entered disputed land of which lease has already expired. The
right of re-entry in the light of similar circumstances, has been upheld by
this Court in Chintamani Ghosh and another vs. State of U. P. and
others, 2001 (2) UPLBEC 1003. Respondents have also relied upon
Hajee S.V.M., Mohd. Jamaludeen Bros and Co. vs. Govt. of T. N.,
1997 (3) SCC 456, State of U. P. Vs. Zahoor Ahmad, (1973) 2 SCC
457, State of Andhra Pradesh vs. Kaithala Abhishekam, AIR 1964 AP
450, Union of India and others vs. Harish Chand Anand, AIR 1996
SC 203, Express Newspapers Private Limited vs. Union of India, 1986
4
(1) SCC 133, Smt. Shakira Khatoon Kazmi and others vs. State of U.
P. and others, 202 (1) AWC 226, Azim Ahmad Kazmi and others vs.
State of U. P. and others, 2012 (7) SCC 278 and Anand Kumar
Sharam vs. State of U. P. and others, 2014 (2) ADJ 742.
6.Heard Sri Subedar Mishra, learned counsel for petitioner and Sri
Ajit Kumar Singh, Additional Advocate General assisted by Sri Nimai
Das, Additional Chief Standing Counsel and Sri Sudhanshu Srivastava,
Additional Chief Standing Counsel for State Authorities.
7.Before proceeding to discuss rival issues raised in the matter, we
find it appropriate to reproduce some relevant stipulations from last lease
deed dated 07.3.1984, copy whereof has been filed as Annexure 5 to the
writ petition, which read as under :
^^1-og mDr vof/k esa ,rn~}kjk fu.khZr okf"kZd fdjk;s dk Åij fu;r fnuksa
ij ,oa jhfr ls Hkqxrku djsxkA
2-og ,sls izR;sd izdkj dh njksa] djks] ifjO;;ksa vkSj fu/kkZfjr fd;s tkus okys
Hkou ij vFkok mlds Lokeh ;k fdjk;snkj ij] bl le; vFkok blds i'pkr~] fdlh
le; vo/kkfjr] Hkkfjr vFkok vkjksfir fd;s tk;A
3-og mDr Hkw[k.M dk Hkw foHkktu vFkok LFkkukarj.k ugha djsxk rFkk mDr
Hkw[k.M rFkk ml ij fufeZr Hkouksa dk iz;ksx ,sXyks bfUM;u ,slksfl;s'ku]
bykgkckn }kjk dsoy nkrO; dk;Z ds fy, fd;k tk;sxkA
4-mDr Hkw[k.M ij vofLFkr Hkouksa rFkk ckg~; Hkouksa ds ckg~; mf){ksi ;k
js[kk&fp= ds fdlh Hkkx esa fdlh Hkh le; mDr ftyk/kh'k @ uxj egkikfydk dh
fyf[kr vuqefr ds fcuk mlds ewy js[kk&fp= rFkk mf){ksi ls fHkUu dksbZ ifjorZu
vFkok ifjo/kZu u fd;k tk;sxk vkSj u mldh bl izdkj dh vuqefr fcuk fdlh
vU; Hkou dk gh mDr Hkw[k.M ij fuekZ.k fd;k tk;sxkA
+---------------
7-og iV~Vknkrk dh iwoZ fyf[kr Lohd`fr izkIr fd;s fcuk mDr Hkw&x`gkfn dks
dHkh Hkh u rks Lo;a fdlh izdkj dk okf.kT; O;kikj djsxk u fdlh nwljs dks djus
nsxk vkSj u mldks nkrO; dk;Z ds vfrfjDr fdlh vU; iz;kstu ds fy, dk;Z esa
yk;sxkA
----------
9-bl foys[k dh vof/k lekIr gksus ij vFkok mlds igys gh
lekIr dj fn;s tkus ij og mDr Hkw[k.M rFkk ml ij fufeZr
5
Hkouksa rFkk okg~; Hkouksa dk vf/kiR; iV~Vknkrk dks fcYdqy vPNh
voLFkk esa nsxkA
fdUrq lnk izfrcU/k ;g gS fd ;g foys[k bl Li"V 'krZ ij fu"ikfnr fd;k
tkrk gS fd vxj vkSj tc dHkh mi;qZDr fdjks; ;k yxku vFkok mlds fdlh Hkkx
dk fuf'pr frfFk ds i'pkr ,d ekg rd Hkqxrku u gksxk] pkgs og fof/kr% ekaxk
x;k gks ;k u ekaxk x;k gks] vFkok ;fn ml iV~Vs esa of.kZr leuqcU/kksa esa
ls fdlh ,d dks vFkok vf/kd dks iV~Vsnkj Hkax djsxk vFkok mudk
ikyu u djsxk rc vkSj ,slh fdlh Hkh n'kk esa iV~Vknkrk Hkys gh
mlus iqu% izos'k djus ds fdlh okn gsrq ;k vf/kdkj dks NksM+
fn;k tks] mDr Hkw&x`gkfn esa iqu% izos'k dj ldrk gS vkSj iV~Vsnkj
rFkk mlds leLr v/;kfl;ksa dks ogkWa ls fudky ldrk gS vkSj og
gLrkUrj.k fcYdqy fujLr gks tk;sxk rFkk mDr Hkw[k.M ij fufeZr Hkou dks gVkus
vFkok mlds laca/k esa izfrdj ikus ds iV~Vsnkj ds leLr vf/kdkj vig`r gks tk;saxsA
;g Hkh izfrcU/k gS fd blesa Åij tks dqN vafdr gS mlds vfrfjDr
iV~Vknkrk dks ;g vf/kdkj gksxk fd og bl foys[k ds v/khu ns; leLr /kujkf'k
dks lfpo vkokl ,oa uxj fodkl foHkkx] m0iz0 ds izek.k i= ij tks vfUre
fu'pk;d rFkk iV~Vsnkj ij ck/;dkjh gksxk] ekyxqtkjh dh cdk;k ds :i esa olwy
dj ysaA
;g Hkh izfrcU/k gS fd ;fn gLrkUrfjr Hkw[k.M dh iV~Vknkrk dks
fdlh Hkh le; vius ;k fdlh lkoZtfud dk;Z ds fy, vko';drk
gksxh rks mldks ;g vf/kdkj gks x;k fd iV~Vsnkj dks gLrkUrfjr
Hkw[k.M ij ml le; cuss fdlh Hkou dks gVkus dh ,d ekl dh
fyf[kr uksfVl ns vkSj ;g Hkh mDr uksfVl ds iV~Vsnkj }kjk izkIr
gksus ds fnukad ds i'pkr mDr vof/k ds lekfIr gksus ij nks ekl
ds Hkhrj ml Hkw[k.M ij viuk vf/kiR; izkIr dj ys] fdUrq 'krZ ;g gS
fd ;fn iV~Vsnkrk gLrkUrfjr Hkw[k.M ij [kM+s Hkouksa dk dz; djuk pkgs rks iV~Vsnkj
dks mu Hkouksa ds cnys esa ,slh /kujkf'k dk Hkqxrku dj fn;k tk;sxk tks jkT;
ljdkj ds vkokl ,oa uxj fodkl ds lfpo }kjk vo/kkfjr dh tk;sA
-----
vkSj bl foys[k ds nksuksa i{k ;g vuqcU/k djrs gSa fd%&
¼d½bl foys[k ds fu"iknu ,oa iath;u ds lEcU/k esa tks dqN Hkh O;; gksxk og
iV~Vsnkj lgu djsxkA
¼[k½iV~Vsnkj gLrkUrfjr Hkw[k.M vFkok ml ij fufeZr Hkou dks
iV~Vknkrk dh iwoZ vuqefr izkIr fd;s fcuk fdlh Hkh izdkj u rks
gLrkUrfjr djsxk vkSj u f'kdeh iV~Vs ;k fdjk;s ij mBk;sxkA*
“1.He shall, in the said period, pay annual rent hereby
determined, on the days and in the manner as above.
6
2.He shall pay all rates, taxes, expenditures that may be
determined, charged or levied on building or its owner or its
tenants, at present or hereafter or at any time.
3.He shall not go for partition or transfer of the land; and the
aforesaid plot or the buildings constructed thereon, shall be used
only by Anglo Indian Association, Allahabad only for the charitable
purposes.
4.There shall be no change or alteration in the layout plan or
site map of the buildings and appended constructions situated on
the said plot of land at any time without written approval of the
aforesaid District Magistrate/City Municipality (Nagar
Mahapalika); nor shall any construction be made on the aforesaid
plot shall be undertaken without such approval.
….
7.Without obtaining the approval of lessor, he himself shall
never trade on the land and buildings etc.; nor shall he allow
others to do the same; and nor shall he allow the land to be used
for any purpose other than charitable one.
….
9.On the expiration of the period mentioned in the deed or
termination thereof even prior thereto, he shall hand over the
possession of the said plot and other buildings and appended
buildings constructed thereon to the lessor.
But it is a standing condition that this deed is being executed
on this clear terms that if and whenever the aforesaid rent or
revenue or any part thereof is not paid in a month after the fixed
date, whether demanded legally or otherwise, or if the lease holder
violates any or more terms or does not comply therewith, then in
such a condition, the lessor, even if he has given up the right of
re-entry for any purpose, can re-enter the aforesaid land and
buildings etc. and may expel the lease holder or its all occupants
there-from and then the transfer shall be terminated completely,
and all rights of the lease holder to remove the buildings
constructed on the aforesaid plot or to receive the compensation in
relation to it shall be forfeited.
It is also stipulated that in addition to the facts mentioned
above, the lessor shall have a right to realize as revenue dues all
the amount payable under this deed upon a certificate of the
Secretary, Housing and Urban Planning Department, U.P. that
shall be final, conclusive and binding on lease-holder.
7
It is also stipulated that if the lessor is in need of the
transferred plot for personal or public use, he shall be entitled to
give a written notice for demolishing within a month any such
building constructed at the time and for taking possession of the
said plot within two months from the expiry of the aforesaid
period after the date of receipt of the said notice ; subject to the
condition that if the lessor wants to purchase the constructions
made on the transferred plot, the lease-holder shall be paid such an
amount that is determined by the Secretary, Housing and Urban
Development of the state government.
...
Both the parties to this deed enter into an agreement:
a)That the lessee shall bear all the expenses related to the
execution and registration of this deed.
b)That the lessee shall, without prior permission of the lessor,
neither transfer in any way the transferred plot or the building
constructed thereon nor subject the same to sub-lease or rent.”
(Emphasis added)
(English Translation by Court)
8.The terms and conditions thus clearly show that whenever land in
dispute is required by Lessor for 'public purpose', it can require Lessee to
remove constructions existing on disputed land by giving a month's notice
and after expiry of one month, can take possession of disputed land within
two months. If Lessor intends to purchase constructions existing on
disputed land, it shall make payment of such amount, as determined by
Secretary of U.P. Government, Department of Housing and Urban
Development.
9.It is in terms of aforesaid stipulation of lease-deed that notice in
question has been given for resumption/re-entry over land in dispute.
10.Counsel for petitioner has challenged impugned notice broadly on
the ground that :
i.Issue of renewal of lease was already in progress and a
meeting in this regard had already been held on 26.11.2015
wherein it was decided that petitioner shall submit
8
application for renewal of lease in accordance with relevant
provisions and thereafter District Magistrate shall examine
the matter and submit report but without proceeding in the
light of aforesaid decision, in an arbitrary and abrupt manner,
impugned order has been passed.
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.In any case, if petitioner's continuation in 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.
iv.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
has already expired in 1997.
v.State Government has granted approval for resumption of
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.
9
11.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
further elaborate while discussing issues raised in these writ petitions.
12.From rival submissions, issues which, in our view, require to be
adjudicated in these writ petitions are :
i.What is “Nazul”?
ii.What is/are Statute(s) governing Crown (late, “Government”)
Grant of land owned by Crown (Government) i.e. Nazul? Its
status and effect.
iii.Whether right of resumption exercised by State is in
accordance with law?
iv.Whether petitioners can be evicted by State Government by
giving a notice and following the condition prescribing
procedure in the lease deed or State has to follow procedure
laid down under U.P. Act, 1972?
v.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 granted 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”?
13.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.
14.Questions (i) and (ii), in our view, can be taken together.
15.Every land owned by State Government is not termed as 'Nazul' and
10
therefore it has become necessary to understand, what is 'Nazul'. 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.
16.It is only such land which is owned and vested in the State on
account of its capacity of Sovereign, and application of right of bona
vacantia, which is covered by the term 'Nazul', as the term is known for
the last more than one and half century. In Legal Glossary 1992, fifth
edition, published by Legal Department of Government of India, at page
589, meaning of the term 'Nazul' has been given as 'Rajbhoomi, i.e.,
Government land'.
17.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'.
18.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
11
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.
19.Right of King to take property by 'escheat' or as 'bona vacantia' was
recognized by common law of England. Escheat of property was Lord's
right of re-entry on real property held by a tenant, dying intestate, without
lawful heirs. It was an incident of Feudal Tenure and based on the want of
a tenant to perform Feudal services. On the tenant dying intestate without
leaving any lawful heir, his estate came to an end and Lord, by his own
right and not by way of succession or inheritance from the tenant, re-
entered real property as owner. In most cases, land escheated to Crown as
the 'Lord Paramount', in view of gradual elimination of Intermediate or
Mesne lords since 1290 AD. Crown takes as 'bona vacantia' goods in
which no one else can claim property. In Dyke v. Walford 5 Moore PC
434= 496-13 ER 557 (580) it was said 'it is the right of the Crown to bona
vacantia to property which has no other owner'. Right of the Crown to
take as “bona vacantia” extends to personal property of every kind. The
escheat of real property of an intestate dying without heirs was abolished
in 1925 and Crown thereafter could not take such property as bona
vacantia. The principle of acquisition of property by escheat, i.e., right of
Government to take on property by 'escheat' or 'bona vacantia' for want of
a rightful owner was enforced in Indian territory during the period of East
India Company by virtue of Statute 16 and 17 Victoria, C. 95, section 27.
20.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.
21.The above provisions had continued by virtue of section 54 of
12
Government of India Act, 1858, section 20(3)(iii) of Government of India
Act, 1915 and section 174 of Government of India Act, 1935. After
enactment of Constitution of independent India, Article 296 now continue
above provision and says:
'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)
22.Article 296, therefore, has retained power of State to get ownership
of such land, in respect whereof principle of 'escheat', 'lapse' or 'bona
vacantia' would have been applicable prior to enforcement of Constitution
of India. The above power continued to apply after enactment of
Constitution with the only modification that if such land is situate within
the territory of State Government, it will vest in State and in other cases, it
will vest in Union of India. Vesting of land and giving ownership to State
Government or Union of India under Article 296 is clearly in respect of a
land, which will come to it by way of 'escheat', 'lapse' or 'bona vacantia'
and not by way of acquisition of land under some Statute or purchase etc.
23.In Pierce Leslie and Co. Ltd. Vs. Miss Violet Ouchterlony
Wapsnare, AIR 1969 SC 843, Court has considered above principles in
the context of 'Sovereign India' as stands under Constitution after
independence, and, has observed :
“....in this country the Government takes by escheat immoveable
as well as moveable property for want of an heir or successor. In
this country escheat is not based on artificial rules of common law
and is not an incident of feudal tenure. It is an incident of
sovereignty and rests on the principle of ultimate ownership by
the State of all property within its jurisdiction”. (Emphasis added)
24.Court also placed reliance on Collector of Masulipatam v. C.
Vencata Narainapah 8 MIA 500, 525; Ranee Sonet Kowar v. Mirza
13
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, 204.
25.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)
26.This decision has been followed in Raja Rajinder Chand v. Mst.
Sukhi, AIR 1957 SC 286.
27.In Nayak Vajesingji Joravarsingji v. Secretary of State for India
in Council AIR 1924 PC 216, Lord Dunedin said :
“When a territory is acquired by a sovereign State for the first
time, that is an act of State. It matters not how the acquisition has
been brought about. It may be by conquest, it may be by cession
following on treaty, it may be by occupation of territory hitherto
unoccupied by a recognised ruler. In all cases the result is the
same. Any inhabitant of the territory can make good in the
municipal courts established by the new sovereign only such rights
as that sovereign has, through his officers, recognised. Such rights
as he had under the rule of predecessors avail him nothing.”
28.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)
29.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.
14
30.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.”
31.In Thakur Amar Singhji v. State of Rajasthan AIR 1955 SC 504,
in para 40, Court said :
“The status of a person must be either that of a sovereign or a
subject. There is no tedium quid. The law does not recognise an
intermediate status of a person being partly a sovereign and partly
a subject and when once it is admitted that the Bhomicharas had
acknowledged the sovereignty of Jodhpur their status can only be
that of a subject. A subject might occupy an exalted position and
enjoy special privileges, but he is none the less a subject...”
(Emphasis added)
32.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 Constitution. Court relied on
earlier decisions in Director of Endowments, Govt. of Hyderabad vs.
Akram Ali, AIR 1956 SC 60, and Sarwarlal vs. State of Hyderabad,
AIR 1960 SC 862.
33.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.'
34.This decision has been followed later in Biswambhar Singh vs.
15
State of Orissa 1964 (1) SCJ 364, wherein Court said:
16.Thus, a territory acquired by a sovereign State is an Act of
State but the land comprising territory does not become the land
owned by State. The land owned by State may come to it in
various ways, like confiscation, purchase, escheat or bona
vacantia, gift, etc. In such a case the ownership vests in State, like
any other individual and State is free to deal with the same in a
manner like any other owner may do so.
17.Thus 'Nazul' is a land vested in State for any reason
whatsoever that is cession or escheat or bona vacantia, for want
of rightful owner or for any other reasons and once land belong
to State, it will be difficult to assume that State would acquire its
own land. It is per se impermissible to acquire such land by forcible
acquisition under Act, 1894, since there is no question of any
transfer of ownership from one person to another but here State
already own it, hence there is no question of any acquisition.
(Emphasis added)
35.Thus the land in question which is admittedly 'Nazul', belonged to
the category as discussed above i.e. it came to be vested and owned by
State in its capacity of Sovereign and right of bona vacancia. When
acquisition is made under the provisions of a Statute, purpose of
acquisition is already known and State pay its price but when land is
owned by State, which is Nazul, objective of use of such land is not
predetermined but it can be utilized by State for larger public welfare and
its benefit, as necessitated from time to time. In other words 'Nazul' land
forms the asset owned by State in trust for the people in general who are
entitled for its use in the most fair and beneficial manner for their benefit.
State cannot be allowed to distribute such largesse by pick and choose or
to some selected groups etc.
36.Historical documents, record as also authorities discussed above
show that earlier Government i.e. East India Company upto 1858 and
thereafter British Government used to allot “Nazul land” to various
persons, who had shown their alliance to such Government in various
16
ways, sometimes by deceiving their Indian counter parts who had raised
voice against British Rule, or otherwise remained faithful to Foreign
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
Rule. The reason was that in respect of Nazul, no predetermined objective
was available as was the case in respect of land acquired by State by way
of acquisition under Statute of Acquisition after paying compensation or
purchase. Such allocation of land by English Rulers used to be called
“Grant”.
37.In other words, we can say that initially land owned by State used
to be allotted in the form of 'Grant' by British Government. No specific
statutory provisions were available to govern it. TP Act, 1882 was enacted
to govern transfer of immovable property. Sections 10 to 12 of TP Act,
1882 made provisions invalidating, with certain exceptions, all conditions
for forfeiture of transferred property on alienation by transferee and all
limitations over consequent upon any such alienation or any insolvency of
or attempted alienation by him.
38.Apprehending that above provisions of TP Act, 1882, may be
construed as a fetter upon discretion of Crown in creation of inalienable
Jagirs in 'Grants', acting upon advice that it would not be competent for
Crown to create an inalienable and impartible Estate in the land
comprised in Crown Grant, unless such land has heretofore descended by
custom as an impartible Raj, it sought to make a separate Statute to give
supremacy to the provisions contained in Crown's Grant, notwithstanding
any other law including TP Act, 1882. With this objective, 'GG Act 1895'
was enacted.
39.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
17
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.
40.Section 2 of GG Act, 1895, as it was initially enacted, read as
under:
“2. Transfer of Property Act, 1882, not to apply to Government
grants.- Nothing in the Transfer of Property Act, 1882, contained
shall apply or be deemed ever to have applied to any grant or
other transfer of land or of any interest therein heretoforce made
or hereafter to be made by or on behalf of Her Majesty the Queen
Empress, Her heirs or successors, or by or on behalf of the
Secretary of State for India in Council to, or in favour of, any
person whomsoever; but every such grant and transfer shall be
construed and take effect as if the said Act had not been passed.”
(Emphasis added)
41.The above provision was amended in 1937 and 1950. The amended
provision read as under :
“2. Transfer of Property Act, 1882, not to apply to Government
grants.- Nothing in the Transfer of Property Act, 1882, contained
shall apply or be deemed ever to have applied to any grant or
other transfer of land or of any interest therein heretoforce made
or hereafter to be made by or on behalf of the Government to, or in
favour of, any person whomsoever; but every such grant and
transfer shall be construed and take effect as if the said Act had
not been passed.” (Emphasis added)
42.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.”
(Emphasis added)
43.In the State of Uttar Pradesh, vide Government Grants (U.P.
18
Amendment) Act, 1960 (U.P. Act No.XIII of 1960), Sections 2 and 3 of
GG Act, 1895, were substituted by Section 2, as under :
“2. (1) Transfer of Property Act, 1882, not to apply to Government
Grants.- Nothing contained in the Transfer of Property Act, 1882,
shall apply or be deemed ever to have applied to any grant or
other transfer of land or of any interest therein, heretoforce made
or hereafter to be made, by or on behalf of the Government to or in
favour of any person whomsoever; and every such grant and
transfer shall be construed and take effect as if the said Act had
not been passed.”
(2)U.P. Tenancy Act, 1939 and Agra Tenancy Act, 1926 not to
affect certain leases made by or on behalf of the Government.-
Nothing contained in the U.P. Tenancy Act, 1938, or the Agra
Tenancy Act, 1926, shall affect, or be deemed to have ever
affected any rights, created, conferred or granted, whether before
or after the date of the passing of the Government Grants (U.P.
Amendment) Act, 1960, by leases of land by, or on behalf of, the
Government in favour of any person; and every such creation,
conferment or grant shall be construed and take effect,
notwithstanding anything to the contrary contained in the U.P.
Tenancy Act, 1939, or the Agra Tenancy Act, 1926.
(3)Certain leases made by or on behalf of the Government to
take effect according to their tenor.- All provisions, restrictions,
conditions and limitations contained in any such creation,
conferment or grant referred to in Section 2, shall be valid and take
effect according to their tenor, any decree or direction of a court
of law or any rule of law, statute or enactment of the Legislature,
to the contrary notwithstanding :
Provided that nothing in this section shall prevent, or be
deemed ever to have prevented, the effect of any enactment
relating to the acquisition of property, land reforms or the
imposition of ceiling on agricultural land.” (Emphasis added)
44.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,
19
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.
45.Thus, GG Act, 1895, in fact, was a declaratory Statute. First
declaration is in respect of Grant or transfer of land or creation of any
interest, as the case may be, to exclude TP Act, 1882 for all purposes.
Second part of Section 2 clarified that while construing and giving effect
to a Grant or Transfer, referred to in Section 2, it will be presumed that TP
Act, 1882 has not been passed at all.
54.In Section 2(1) of GG Act, 1895, as amended in Uttar Pradesh, we
do not find any distinction vis a vis what has been said in Section 2 of GG
Act, 1895. There is an addition in GG Act, 1895 in its application to Uttar
Pradesh, by inserting sub-section (2) in Section 2, a provision in respect
of U.P. Tenancy Act, 1939 and Agra Tenancy Act, 1926 also, making a
similar declaration, as made in sub section (1) in respect of TP Act, 1882.
47.Sub-section (3) of Section 2 of GG Act, 1895 protected 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.
48.Proviso to sub-section (3) of Section 2 of GG Act, 1895 further
declares that all provisions of Section 2 of GG Act, 1895 will have no
effect when land is sought to be acquired under the provisions of Statute
relating to acquisition or for giving effect to a Statute relating to land
reforms or imposition of ceiling on agricultural land.
20
49.Section 3 of GG Act, 1895 is not available in State of U.P. after U.P.
Amendment Act, 1960 since Sections 2 and 3 of Principal Act virtually
got amalgamated in the form of Section 2, by Government Grants (U.P.
Amendment) Act, 1960. However, intent, effect and declaration by
legislature is almost pari materia with the only addition that in State of
U.P., U.P. Tenancy Act, 1939 and Agra Tenancy Act, 1926 are also
excluded in the same manner as was done in respect of TP Act, 1882.
50.Sections 2 and 3 of GG Act, 1895 were considered in State of U.P.
vs. Zahoor Ahmad, 1973(2) SCC 547 and in para 16, Court said :
“Section 3 of the Government Grants Act declares the unfettered
discretion of the Government to impose such conditions and
limitations as it thinks fit, no matter what the general law of the
land be. The meaning of Sections 2 and 3 of the Government
Grants is that the scope of that Act is not limited to affecting the
provisions of the Transfer of Property Act only. The Government
has unfettered discretion to impose any conditions, limitations, or
restrictions in its grants, and the right, privileges and obligations
of the grantee would be regulated according to the terms of the
grant, notwithstanding any provisions of any statutory or
common law.” (Emphasis added)
51.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 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
21
are inconsistent with the provisions of any other law.”
(Emphasis added)
52In 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.
53.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)
54.Thus, a 'Grant' of a Nazul will be governed by terms and conditions
contained in the instrument/deed of Grant, wholly unaffected by any
Statute providing otherwise. It cannot be doubted that the lease granted in
the case in hand is/was a 'Grant' governed by GG Act, 1895. Broadly,
'Grant' includes 'lease'.
55.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.
56.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.”
22
57.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 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.”
58.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
23
understood according to such meaning; but its signification, in
particular cases is to be determined from its connection and the
manner of its use.
As a Noun
In General.The act of granting; a bestowing or conferring; a
boon, a concession, a gift; also the thing granted or bestowed. As
applied to grants by public authority, the word “grant” implies the
conferring by the sovereign power of some valuable privilege,
franchise, or other right of like character on a corporation, person,
or class of persons; an act evidenced by letters patent under the
great seal, granting something from the king to a subject. In a
somewhat different sense, an admission of something as true.
As a Contract. A grant is said to be a contract executed, that is,
one in which the object of the contract is performed. Ordinarily, the
essential elements of a contract are necessary to constitute a grant,
such as competent parties and a subject matter, a legal
consideration, a mutuality of agreement and of obligation. As in the
case of other contracts in writing, it ordinarily comprehends
something more than the mere execution of the instrument; it
includes a delivery of it. It is not indispensable, however, that
technical words be used.
Transfer of Property.As a technical term, originally used to
signify a conveyance of an incorporeal hereditament whereof livery
could be had, but now of far more extended application, see Deeds
(1 c notes 54 – 63). While the term is commonly used to denote
private conveyances, it has been characterized as a nomen
generalissimum, applicable to all sorts of conveyances, and in this
sense has been defined as a transfer of property, real or personal,
by deed or writing. The following notes contain examples of what,
under particular circumstances and according to the subject matter
and the context, the term may be applied to, or be held to include
or what the term may be held not to include.
...
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
24
writing.
As used in a will, to devise or to bequeath.”
59.In Words and Phrases, Permanent Edition, Volume 18A Gone-
Gyrotiller, word “Grant” has been defined at page 379, as under :
“ ...
To grant means to give over, to make conveyance of, to give
the possession or title to, to convey-usually in answer to petitioner;
to confer or bestow, with or without compensation, particularly in
answer to prayer or request; to admit as true when disputed or not
satisfactorily proved; to yield belief to; to allow; to yield; to
concede. Grant is usually regarded as synonymous with give,
confer, bestow, convey, transfer, admit, allow, concede. As a noun,
the term signifies: (1) The act of granting; a bestowing or
conferring; concession; admission of something as true. (2) The
thing granted or bestowed; a gift; a boon. (3) a transfer of
property by deed or writing, especially an appropriation or
conveyance made by the government, as a grant of land.”
60.In Jowitts Dictionary of English Law, Second Edition by John
Burke (Volume 1), word “Grant” has been defined at page 870, as under:
“Grant :a common law conveyance.
… .
The sovereign's grants are matters of record, and are either
letters patent or writs close.
“Grant” is the term commonly applied to rights created or
transferred by the Crown, e.g., grants of pensions, patents,
charters, franchises. It is also used in reference to public money
devoted to special purposes. See Exchequer Grants.”
61.In Biswas Encyclopedic Law Dictionary (Legal & Commercial)
Third Edition 2008, word “Grant” has been defined at page 737, as
under:
“GRANT. The act of granting; something granted, especially a gift
for a particular purpose; a transfer of property by deed or writing;
the instrument by which such a transfer is made; also the
property so transferred.
25
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.”
62.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
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
26
religious house. So Blackstone speaks of “the transfer of property
by sale, grant, or conveyance.” (Smith. Syn. Dis.)”
63.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 in Hajee S.V.M. Mohamed
Jamaludeen Bros. & Co. (supra).
64.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.
65.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)
66.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.
67.In Pradeep Oil Corporation vs. Municipal Corporation of Delhi
and others (2011) 5 SCC 270, Court said that GG Act, 1895 is a special
Statute and will prevail over general Statute i.e. TP Act, 1882. It says:
“In the present case grant has been made by the President of
India in terms of Section 2 of the Government Grants Act, 1895
and the Transfer of Property Act, 1882 may have little bearing in
the instant case. The former, i.e. the Government Grants Act, 1895
27
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)
68.Therefore, where 'Nazul' land 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'.
69.In State of Uttar Pradesh, management of 'Nazul', in absence of
statutory provisions, is governed by various administrative orders
compiled in a Manual called “Nazul Manual”. Government has made
provisions for management of 'Nazul' through its own authorities namely
District Magistrate or Commissioner, and, in some cases, through local
bodies.
70.Nature of orders compiled in “Nazul Manual” in the context of
'Nazul' have been considered in State of U.P. vs. United Bank of India
(supra) where Court has said that land and building in question is "Nazul"
being property of Government maintained by State authorities in
accordance with 'Nazul Rules' but not administered as a 'State property'.
Court has also observed that lease of "Nazul" land is governed in
accordance with GG Act, 1895. Sections 2 and 3 thereto very specifically
provide that provisions of TP Act, 1882 do not apply to Government land.
28
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.
71.Superiority of the stipulations of Grant to deal with the relation
between Grantor and Grantee has been reinforced in Azim Ahmad
Kazmi and others (Supra). Therein dispute related to Plot No. 59, Civil
Station, Allahabad, area 1 acre and 4272 sq. yard, i.e., 9112 sq. yard or
7618 sq. meter. Initially a lease deed was executed on 11.01.1868 by
Secretary of State for India in Council in favour of one, Thomas Crowby,
for a period of 50 years and it was signed by Commissioner, Allahabad
Division on behalf of Secretary of State for India in Council. After expiry
of lease, a fresh lease was executed for another period of 50 years on
12.04.1923 w.e.f. 01.01.1918. Lease holder with permission of Collector,
Allahabad transferred lease rights to Purshottam Das in 1945. The legal
heirs of Sri Purshottam Das, on 31.10.1958, transferred leasehold rights in
favour of Smt. Shakira Khatoon Kazmi, Smt. Sabira Khatoon Kazmi and
Smt. Maimoona Khatoon Kazmi. After the death of Smt. Maimoona
Khatoon Kazmi, her legal heirs, namely, Azim Ahmad Kazmi, Omar
Ahmad Kazmi, Shamim Ahmad Kazmi, Alim Ahmad Kazmi and Maaz
Ahmad Kazmi also claimed lease rights by succession. Lease granted on
12.04.1923 w.e.f. 01.01.1918 expired on 31.12.1967. It was renewed on
19.03.1996 for a period of 30 years w.e.f. 01.01.1968 which period
expired on 31.12.1997. Again on 17.07.1998 it was renewed for a further
period of 30 years w.e.f. 01.01.1998. While lease was continuing, vide
Government Order dated 15.12.2000, right of resumption was exercised
by State Government. It directed resumption of possession of plot in
question and lease deed was cancelled. District Magistrate, Allahabad
served a notice dated 11.01.2001 to lease holders intimating them that
29
State Government's order dated 15.12.2000 has cancelled lease and
resumed possession of land in question as the same was required for
public purpose. Notice also directed lease holders to remove structures
standing on plot, failing which possession would be taken in accordance
with Clause 3(c) of lease deed. Lease holders filed objections against
notice to District Magistrate and also stated that they have sent
representation/ objection to Chief Minister praying for revocation of
Government Order dated 15.12.2000. District Magistrate passed order on
24.08.2001 rejecting objection of lease holders and sent a cheque of Rs.
10 lacs representing compensation for the building standing over plot.
State authorities claimed that they took possession of open land on
01.09.2001. Lease holders filed writ petition which was dismissed vide
judgment dated 07.12.2001, Shakira Khatoon Kazmi vs. State of U.P.,
AIR 2002 All 101. Lease holders challenged judgment dated 07.12.2001
in Supreme Court to the extent they failed. State Government filed appeal
against that 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
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 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
30
is perfectly valid and cannot be said to be illegal. It also refers to an
earlier instance where Nazul Plot No. 13, Civil Station, Allahabad situate
in Civil Lines area was resumed by State Government for the purpose of
construction of a 'Bus Stand' by exercising similar power, without
initiating any proceeding under Land Acquisition Act, 1894. 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, in Azim Ahmad
Kaxmi and others (supra), was answered in negative and in favour of
Government.
72.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 (hereinafter referred to as
“L.A. Act, 1894”), Government can take possession in accordance with
provisions of said Act and in case of urgency, Collector can take
possession after publication of notice under Section 9 and no separate
procedure is required to be followed. Court said that similarly where a
lease has been granted under the terms of GG Act, 1895, then what
procedure has to be followed is provided by Section 3 of GG Act, 1895
which says that all provisions, restrictions, conditions and limitations
contained in any such creation, conferment or Grant referred to in Section
2, shall be valid and take effect according to their tenor; any decree or
direction of a Court of Law or any rule of law, statute or enactments of the
Legislature, to the contrary notwithstanding. It relied on 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
31
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)
73.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”.
74.Supreme Court then set aside direction of this Court that State will
not take possession forcibly except in accordance with procedure
established by any other law, by holding, that since special procedure for
resumption is prescribed under lease deed, no direction otherwise could
have been issued to State Government.
75.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
32
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'.
76.Thus, 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.
77.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.
78.Now we deal with questions (iii), (iv) and (v) together.
79.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. 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 placed reliance
on The State of U.P. vs. Zahoor Ahmad and another (supra). He also
said that even if possession is unauthorized, petitioner cannot be evicted
33
arbitrarily but State is bound to follow procedure consistent with law and
principles of natural justice and for this purpose, reliance is placed on
Supreme Court's judgments in Bishan Das and others Vs. State of
Punjab and others AIR 1961 SC 1570, Express Newspapers Pvt. Ltd.
and others Vs. Union of India (1986) 1 SCC 133, Yar Mohammad and
another vs. Lakshmi Das and others AIR 1959 Allahabad 1 and Lallu
Yeshwant Singh (dead) by his legal representative vs. Rao Jagdish
Singh and others, AIR 1968 SC 620.
80.First we propose to consider argument advanced in the light of
Repealing and Amending (Second) Act, 2017 (hereinafter referred to as
“Repeal Act, 2017) and thereafter shall proceed to consider other aspects.
81.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.
34
82.Section 4 of Repeal Act, 2017 clearly protects effect or
consequences or anything already done or suffered, which includes effect
of expiry of lease and obligation of Lessee to surrender possession of
leased land to State. Further, Lessee had already agreed that State can re-
enter land at any point of time. They are bound by said clause of lease-
deed. This is an obligation as also liability of petitioners and right of State
incurred, acquired and accrued in view of terms of lease-deed. Mere fact
that it has been exercised after repeal of GG Act, 1895 would make no
difference since all earlier situations/ aspects have been protected by
Section 4 of Repeal Act, 2017. Therefore, it cannot be said that after
repeal of GG Act, 1895 by Repeal Act, 2017, petitioners' status would
stood changed vis-a-vis disputed Nazul land in respect whereof State is
entitled to re-entry and resume land in terms of conditions of lease.
83.Therefore, Repeal Act, 2017 does not have any effect upon the
relationship of petitioner and respondents in respect of disputed land and
all rights, obligations etc. shall continue to be governed under the said
lease-deed.
84.So far as the application of principle of natural justice is concerned,
lease is a matter of contract where principles of natural justice are not
applicable. In State of Gujarat and Ors. vs. Meghji Pethraj Shah
Charitable Trust and Ors., 1994(3) SCC 552, it has been held:
"We are unable to see any substance in the argument that the
termination of arrangement without observing the principle of
natural justice (audi alteram partem) is void. The termination is not
a quasi-judicial act by any stretch of imagination; hence it was not
necessary to observe the principles of natural justice. It is not also
an executive or administrative act to attract the duty to act fairly. It
was - as has been repeatedly urged by Sri Ramaswamy - a matter
governed by a contract/agreement between the parties. If the matter
is governed by a contract, the writ petition is not maintainable
since it is a public law remedy and is not available in private law
field, e.g., where the matter is governed by a non-statutory
contract."
35
85. Following aforesaid decision in Pimpri Chinchwad Municipal
Corporation and Ors. vs. Gayatri Construction Company and Anr.,
2008(8) SCC 172 Court has held that in the matter of non-statutory
contract, High Court should not have entertained writ petition under
Article 226 of the Constitution.
86.The contention further is that despite expiry of lease, petitioner had
continued in possession over land in dispute, therefore, tacit
approval/validity of possession and status of petitioner as Lessee can be
assumed. He also said that once State has accepted in its meeting that
petitioner must apply renewal of lease, it was under an obligation to stick
to the said stand and could not take any otherwise view in the matter. In
this regard, reliance is placed on this Court's judgment in Purushottam
Dass Tandon and others vs. State of U.P., Lucknow and others AIR
1987 All. 56.
87.We propose to examine the aforesaid judgment in the backdrop of
various Government Orders, which were up for consideration therein and
facts of that case. We are informed that with regard to renewal of lease,
Government circulated its policy through various G.Os. 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 surrenders or lease stood terminated in absence of any
request from lessee for grant of fresh lease. Thereafter, on 23.04.1959, a
G.O. was issued to grant fresh lease in cases where lease has already
expired but has not been renewed so far, or which is likely to expire
within the next 5 or 6 years, on the terms and conditions given in the said
G.O. The proposed premium in the said G.O. was objected by Lease
Holders, whose leases had 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 another
G.O. dated 07.07.1960 whereby rate of premium on first three acres was
36
reduced to Rs.2,000/- in each slab. It also permitted payment of premium
in five instalments and reduced ground rent to Rs.100/- per acre. In the
earlier G.O., there was an insistence on construction of Community
latrines till sewer lines were laid but this insistence was given up in G.O.
dated 07.07.1960. Lessees were granted further three months' time to get
leases renewed. Still lease-holders did not comply and made
representations to Government. On 21.03.1963, again a G.O. was issued
declaring rates of premium for commercial sites. On 3.12.1965 a G.O.
was issued indicating terms and conditions for renewal of leases for
commercial and residential purposes and it was said that rates of
premium and annual rent shall be as fixed by G.O. dated 07.07.1960.
Payment in five equal yearly instalments was continued but in special
cases, Commissioner, Allahabad Division, Allahabad, was authorized to
make recommendations to Government for enhancing number of
instalments. This G.O. further insisted for renewal of existing leases on
payment of at least one instalment, within one month of receipt of
intimation by Lessee from Collector, or within three months of the date of
expiry of lease, whichever is earlier. Deposit was to be deemed to be
proper step on the part of Lessee to get a fresh lease executed by the
Lessor. The G.O. of 1965 itself made a distinction between those whose
leases had expired and others by describing them as sitting and existing
lessees.
88.There was a second phase which covered period from 1966 to 1981.
On 16.02.1966, U.P. Awas Vikas Parishad Adhiniyam, 1965 (hereinafter
referred to as “U.P.Act, 1965”) was enacted for providing 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
37
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.
89.In March, 1970, a G.O. was issued banning grant of renewal of
leases all over the State, since Government was contemplating to bring
out legislation on Urban Ceiling. This ban was lifted on 12.01.1972 but
leases henceforth were to be sanctioned by State Government only.
Commissioner and Collector could make recommendations only.
Aforesaid G.O., however, provided that in all those cases where
Government had sanctioned grant of leases but it could not be executed or
registered because of ban imposed in 1970, steps may be taken
immediately for its execution. Clause (ii) of G.O. provided that all those
cases in which Collector or Commissioner had approved renewal but it
could not be executed because of 1970 order, should be sent to
Government immediately for acceptance. On 09.05.1972 Urban Building
Ceiling Bill was introduced and on 11.07.1972 Uttar Pradesh Ceiling of
Property (Temporary Restriction on Transfer), Ordinance, 1972 was
promulgated in pursuance of Article 398 of Constitution of India. The
Ordinance continued till it was replaced by Urban Land (Ceiling and
Regulation) Act, 1976 (hereinafter referred to as “U.P. Act, 1976”). The
said Act was enacted to prevent concentration of Urban Property and
discourage construction of luxurious houses. On 19.12.1972, provisions
pertaining to Nazul were amended providing for maximum area
permissible for renewal of leases of 2000 sq. yards plus land on which
building was constructed. Remaining area was to be surrendered to
Housing Board and Lessees were prohibited from sub-dividing or
transferring any land. On 10.12.1976, Government issued an order
superseding all previous orders in respect of renewal of leases of Civil
38
Lines, Allahabad in view of Act, 1976 and laid down fresh terms and
conditions for renewal of leases.
90.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 AIR 1987 All 56. In this bunch of writ petitions, facts, we
have noted above with respect to various Government Orders, have been
given in detail.
91.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.
92.Court held :
(I)A Lessor may, after expiry of period for which lease is
granted, renew the same or resume i.e. re-enter. But if out of the
two i.e. re-entry or resumption, the two divergent courses, he
chooses to grant fresh lease or at least creates that impression by his
conduct spread over long time, it results in abandonment.
(II)If the land is needed or building has to be demolished in
public interest for general welfare, probably no exception can be
taken as the interest of individual has to be sacrificed for the
society. But asking Lessee to vacate land or remove Malba for no
rhyme or reason but because State is the owner, cannot be accepted
to be in consonance with present day philosophy and thinking about
39
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. is issued and its conditions are complied with,
mere for bureaucratic delay, performance under the said G.O.
cannot be denied. Therefore, Lessees, who had deposited first
instalment, as directed in G.O. of 1965, were entitled to 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 have been
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.
93.Aforesaid judgment was confirmed by Supreme Court by
dismissing appeals preferred by State of U.P. and others i.e. State of U.P.
40
and others vs. Purshottam Das Tandon and others 1989 Supp.(2) SCC
412. Supreme Court clarified that renewal of leases shall be subject to the
provisions of U.P.Act, 1976 and High Court'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)
94.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.
95.We may also notice at this stage that as per own showing of
petitioner, it is said that in the meeting held on 26.11.2015, Government
41
directed Collector to consider issue of renewal of lease but there is no
pleading and material on record that pursuant to aforesaid decision,
petitioner submitted any application for renewal of lease in accordance
with provision available and applicable in this regard. On the contrary,
matter has been examined by State in the light of fact that Allahabad has
been selected for development as "Smart City" and now huge land is
required for development of various kinds of constructions and other
establishments and various departments have made demand of huge land.
Land in question has been found suitable for development of 'Park' and
cannot be doubted that it is a 'Public Purpose', hence State Government
has exercised its right in terms of lease deed for re-entry over land in
dispute. The procedure for resumption/re-entry and eviction of petitioners
is provided specifically in terms of lease deed and relevant clause we have
already quoted hereinabove. The said procedure will override upon any
other law.
96.After expiry of lease, status of lessee, who has continued in
possession, is that of 'Tenant at sufferance', therefore, even a quit notice is
not necessary to be given and Section 106 TP Act, 1882 is not at all
attracted. Relying on earlier decision in R.V. Bhupal Prasad vs. State of
A.P. (1995) 5 SCC 698 in a recent decision in Sevoke Properties Ltd. vs.
West Bengal State Electricity Distribution Company Ltd. AIR 2019
SC 2664, Court held that once it is admitted by lessee that term of lease
has expired, lease stood determined by efflux of time and in such case, a
quit notice under Section 106 is not required to be given. Court has said as
under :
“Once the lease stood determined by efflux of time, there was no
necessity for a notice of termination Under Section 106.”
(Emphasis added)
97.In the above authority, Court held that after expiry of period of
lease, status of Lessee becomes that of 'Tenant at sufferance'. 'Tenant at
sufference' is one who comes into possession of land by lawful title, but
42
who holds it by wrong after termination of term or expiry of lease by
efflux of time. The tenant at sufferance is one who wrongfully continues
in possession after extinction of a lawful title. There is little difference
between him and a trespasser. Quoting from Mulla's Transfer of Property
Act (7th Edn.) at page 633, Court observed that tenancy at sufferance is
merely a fiction to avoid continuance in possession operating as a
trespass. It has been described as the least and lowest interest which can
subsist in reality. It, therefore, cannot be created by contract and arises
only by implication of law when a person who has been in possession
under a lawful title continues in possession after that title has been
determined, without consent of person entitled. A “tenancy at sufferance”
does not create relationship of landlord and tenant. Court further quoted
from page 769 of Mulla's transfer of Property Act (7
th
Edition), that act of
holding over after expiration of term does not necessarily create a tenancy
of any kind. If lessee remains in possession after determination of term,
the common law Rule is that he is a tenant at sufferance.
98.Further, so far as applicability of UP Act, 1972 is concerned, when
a procedure for re-entry/resumption is provided under lease-deed itself,
State is justified in following the said procedure and if any other
procedure is also provided, it is not necessary to resort thereto since State
has right of election and follow procedure, which is a part of agreement,
which has been given overriding effect over any other law by GG Act,
1895.
99.In fact, we find that issues in this regard raised in writ petition are
squarely covered by judgment in Azim Ahmad Kazmi and others vs.
State of U.P. and Another (2012) 7 SCC 278. The matter is also covered
by a Division Bench judgment 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.
100.The questions (iii), (iv) and (v) therefore, are answered against
petitioner.
43
101.We, therefore, find no merit in the writ petition and it is accordingly
dismissed.
102.However, considering the facts and circumstances and also the fact
that petitioner already enjoyed interim order passed by this Court and
continued in possession over land in dispute for the last almost more than
a year, we direct petitioner to vacate disputed land within one month from
the date of delivery of judgment.
103.No costs.
Order date :-31.10.2019
PS/KA
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