Mayur Continental v. Administrator, Nazul Land — 1989 DIGILAW 429 (ALL)

JUDGMENT K.C. Agrawal, J. - M/s. Mayur Continental, Dehradun, Petitioner No. 1, as well as petitioners 2 to 5, who are the partners of the said firm, have filed this petition under Article 226 of the Constitution for quashing the order of the Administrator, Nazul Land, Dehra Dun, dated 23-1-1987, by which the petitioners had been restrained from making constructions and had further been directed to remove those which stood over plot No. 280, measuring 10775 square feet. The petitioners have also sought quashing of the order of the Collector, dated 27-3-1986 making correction in the Nazul Register deleting "free hold". 2. The Petitioner No. 1 is a partnership concern constituted by a partnership deed dated 22-1-1986, of which the petitioners 2 to 5 are the partners. The partnership had been constituted for constructing and carrying on the business of Hotels, restaurants and other businesses. The petitioner No. 1 submitted a plan for construction of a Hotel on the land of property No. 2 (details of which have been given in Paragraphs 3 to 6 of the writ petition). The Mussoorie Dehra Development Authority sanctioned the plan for construction of the Hotel and communicated that same to the petitioners, by Annexure-`6' to the writ petition. The U. P. Financial Corporation sanctioned a loan of Rs. 30,00,000 to the petitioner No. 1, whereas Rs. 9,30,000 had been sanctioned under the Central Investment Subsidy Scheme through the U. P. Financial Corporation. The petitioner No. 1, started the constructions according to the plan sanctioned by the Mussoorie Dehra Development Authority. 3. During the process of construction, the Administrator, Nazul Land, Dehra Dun, gave a notice on 23-1-1987 to the petitioners 2, 3, 4 a copy of which has been filed as Annexure-111' to the writ petition, intimating that the land on which the constructions were being made was that of the Nazul and as no patta or lease have been obtained from the authority entitled to give the same, the possession of the land was unauthorised and, as such, the petitioners were not entitled to make any construction over the same. It was directed : " vr% vkidks vkns'k fn;k tkrk gS fd utwy Hkwfe ij fd;s tk jgs vukf/kd`r fuekZ.k dk;Z dks vfoyEc jksd nsa vkSj fd;s x;s vukf/kd`r fuekZ.k dks Hkwry ls gVk nsa] vU;Fkk vkids fo:) fu;ekuqlkj oS/kkfud dk;Zokgh dh tk;sxh vkSj mldh {kfr iwfrZ vkils yh tk;sxhA " By a letter of the U. P. Financial Corporation, dated 5-2-1987 addressed to the petitioner No. 1 it was gathered that the Mussoorie Dehra Development Authority has sent a communication, dated 3-2-1987 to the U. P. Financial Corporation alleging that the land of the hotel/restaurant was Nazul and the petitioner No. 1 had concealed the same, and, therefore, the respondent No. 3 had stopped the construction of the hotel/restaurant by the petitioner No. 1. The petitioner have alleged that respondents 1 to 4 on 7-2-1987 misused their authority and sent police to get the existing construction demolished. 4. Regarding the constructions, the case of the petitioners is that the land of the properties Nos. 1 and 2, over which the construction were being made was a part of old plot No. 280, and that it was free-hold. The area of the said plot originally was 53 Bighas and 88 Biswas and later on it was divided into several smaller plots. From the time immemorial the occupants of the aforesaid plot No. 280 and thereafter of the smaller plots carved out of it have considered themselves to be the absolute owners of the same. None of the respondents had, at any point of time, is any maimer, challenged, contradicted Or doubted the absolute ownership of the owners of the aforesaid plot No. 280. 5. In paragraphs 28 to 56 the petitioner have alleged that the land of the aforesaid properties Nos. 1 and 2 was pan of plot No. 280 and had always been recorded as "free-hold", and that it was never resumed, and the Nazul had no power either to stop the constructions over the land by petitioner No. 1 or to pass any order striking off the entry of "free-hold" from the records. 6. On the allegations made above, the petitioners challenged the validity of the notice, dated 23-1-1987 calling upon the petitioners to remove the constructions as well as the order of the Collector, dated 27-3-1986 striking the entry of "free-hold" relating to the said plot. The grounds taken by the petitioners are : 1. 6. On the allegations made above, the petitioners challenged the validity of the notice, dated 23-1-1987 calling upon the petitioners to remove the constructions as well as the order of the Collector, dated 27-3-1986 striking the entry of "free-hold" relating to the said plot. The grounds taken by the petitioners are : 1. That the respondent No. 1, i.e. Administrator Nazul Land, acted arbitrarily in passing the order, dated 23-1-1987 (Annexure-`11'). 2. The order, dated 23-1-1987 having been passed without issuing any show cause notice or giving any opportunity to the petitioners, was illegal. 3. The petitioners have acquired title by adverse possession, and that the Administrator, Nazul Land, could not take law to its hands by calling upon the petitioners to stop making constructions by the notice, dated 23-1-1987. 7. A counter-affidavit has been filed on behalf of the Mussoorie Dehra Development Authority contesting the writ petition of the ground that plot No. 280 was wrongly recorded as free-hold, and that the Collector was fully authorised to strike-off the entry of "Free-hold" from the Nazul. 8. The first question that may be examined is about the validity of the notice, dated 23-1-1987. This notice was given on two grounds. The first was that the land on which the constructions were being made by the petitioner No. 1 was that of the Nazul, and the petitioner No. 1 without any right, title or interest over the same from the requisite authority, could not make constructions thereon. The second ground was that the petitioner No. 1 had deviated from the sanctioned plan and, as such, the constructions made being in deviation of the same were liable to be demolished. 9. As against the notice, an appeal have been filed to the Commissioner under Section 27 of the U. P. Urban Planning and Development Act, 1973. By this appeal, the petitioners had challenged the notice, dated 23-1-1987, and the order passed in pursuance thereof on 24-2-1987, calling upon the petitioner No. 1 to demolish the constructions within fifteen days of the passing of that order. The appeal was allowed by the Commissioner on the grnund that the petitioner No. 1 was entitled to an opportunity and since opportunity was not given, the said order was liable to be quashed. The appeal was allowed by the Commissioner on the grnund that the petitioner No. 1 was entitled to an opportunity and since opportunity was not given, the said order was liable to be quashed. In this view of the matter, the Commissioner remanded the case for issuing of notice and passing of an order after hearing the petitioner No. 1. 10. Against the order of the Commissioner, the petitioner No. 1 preferred a revision under Section 41(3) of the U.P. Urban Planning and Development Act. Section 41(3) confers power on the State Government to call for the records of any case disposed of or order passed by the Authority or the Chairman for the purpose of satisfying itself as to the legality or propriety of any order passed or direction issued. The State Government allowed the revision by holding that it was indisputable that the land in question was not Nazul, and that it has always been treated to be owned by the private persons, and, as such, the Mussoorie Dehra Development Authority had no power under the law to treat possession of the petitioners as unauthorised and to restrain the petitioners from making constructions. The State Government, however, observed that in case the Development Authority found that the constructions were not in accordance with the sanctioned plan, it could take action against the petitioner No. 1 after serving a show cause notice. 11. The aforesaid order of the State Government became final, the effect of which was that the land was held not to be Nazul, and that possession of the petitioner No. 1 could not be held to be unauthorised on that basis. 12. So far as the' unauthorised constructions alleged to have been made against the sanctioned plan are concerned, it is found from the supplementary rejoinder-affidavit that the petitioner No. 1 paid Rs. 10,000 to the Development Authority on the assurance being given by the Vice-Chairman of the said Authority that the revised map would be issued to the petitioners to unable them to continue the constructions. The statement to that effect has been made in paragraph 17(d) of the supplementary rejoinder-affidavit. 13. From the above statement it appears that the dispute that the petitioners bad deviated from the sanctioned plan stood compounded, and that the same could not be a subject-matter of subsequent action by Respondent 3. The statement to that effect has been made in paragraph 17(d) of the supplementary rejoinder-affidavit. 13. From the above statement it appears that the dispute that the petitioners bad deviated from the sanctioned plan stood compounded, and that the same could not be a subject-matter of subsequent action by Respondent 3. Compounding a felony, i.e. the offence of agreeing for consideration, is not to prosecute the offender. As a result of compounding, the deviation of the petitioner No. 1 of having made the constructions against the sanctioned plan was compromised, and that could not remain a subject of controversy thereafter. 14. So far as the question as the whether the land was Nazul or not is concerned, it may be stated that in paragraph-26 of the counter-affidavit, it has been admitted: "The correct fact is that Nazul Plot No. 280 was recorded in the Nazul register of the year, 1933 as free-hold without any order passed by the Competent Authority and there was no basis for the said entry." 15. If the land was being recorded as "free-hold", the Authority could not arbitrarily expunge the entry, it may be mentioned that the order dated 27-3-1986 had been passed by the Collector without giving any notice'to the petitioners. The State Government on 26-10-1987 called upon the Collector : " bl ekeys ij vfUre fu.kZ; ysus ls igys d`i;k 'kklu dks iwoZ fLFkfr ls voxr djkrs gq, crkus dk d"V dj fd fdu ifjfLFkfr;ksa esa iz'uxr lEifRr ls lEcfU/kr utwy jftLV~j dh izfof"V;ksa dk la'kks/ku fd;k x;kA " 16. The argument advanced on behalf of the Respondent No 3 was that since the plot was Nazul and it belonged to the State Government there was no requirement of giving of notice to the petitioners and that the Collector had all the powers under the law admissible as the owner of the Nazul to take action against the petitioner No. 1, and for correcting the Nazul records. The submission is not correct. The submission is not correct. It may be that the State is the owner of the Nazul Land, but a matter like the present there for the last so many years the entry made in the Nazual register is that the same was free-hold, the petitioners were entitled to an opportunity of hearing being given, and that the Collector, Dehra Dun, could not arbitrarily and without giving opportunity to the petitioners pass the order correcting the entry in the register or direct the petitioners to hand over possession of the land. 17. The controversy about the right of the State Government in a matter where the Lucknow Development Authority cancelled a lease and wanted to take forcible possession as lessor came up for consideration before the Supreme Court in Lucknow Development Authority and others v. Maharani Raj Laxmi Kumari, 1989(1) Judgments Today, p. 118 : (1989) 2 UPLBEC 73 (SC). The Supreme Court held : "A lessor, with the best of title, has no right to resume possession extra-judicially by use of force, from a lessee, even after the expiry or earlier termination of the lease by forfeiture or otherwise. The use of the expression "reentry" in the lease deed does not authorise extra-judicial methods to resume possession. Under law, the possession of a lease, even after the expiry or its earlier termination is juridical possession and forcible dispossession is prohibited, a lease cannot be dispossessed otherwise than in the course of law. In the present case, the fact that the lessor is the State does not place it in any higher or better position. On the contrary, it is under on additional inhibition stemming from the requirement that all actions of Government and Governmental authorities should have a "legal pedigree.". In Bishandas v. State of Punjab, 1962(2) SCR 69 this Court said : "We must, therefore, repeal the argument based on the contention that the petitioners were trespassers and could be removed by an executive order. The argument is not only specious but highly dangerous by reason of its implications and impact on law and order". In Bishandas v. State of Punjab, 1962(2) SCR 69 this Court said : "We must, therefore, repeal the argument based on the contention that the petitioners were trespassers and could be removed by an executive order. The argument is not only specious but highly dangerous by reason of its implications and impact on law and order". "Before we part with this case, we feel it our duty to say that the executive action taken in this case by the State and its officers is destructive of the basic principle of the rule of law." "Therefore, there is no question in the present case of the Government thinking of appropriating to itself an extra-judicial right of re-entry. Possession can be resumed by Government only in a manner known to or recognised by law. It cannot resume possession otherwise than in accordance with law. Government is accordingly, prohibited from taking possession otherwise than in due course of law." 18. In the instant case, we have noticed above that the entry was corrected without any notice being served on the petitioners. If the State Government or the Administrator, Nazul Land, thought that the possession of the petitioners was unauthorised, in the fitness of things and in the background of the facts stated above, a civil suit should have been filed for dispossession of the petitioners. In the civil suit, the question of promissory estoppel could arise for decision. 19. The authorities have not observed the principles of natural justice in passing the impugned orders. One of the two principles generally thought to be necessary is that no one should be judged without a hearing. Hence, the orders impugned are liable to be quashed. 20. For the reasons given above, we allow the writ petition. The order of the Collector, Dehra Dun, correcting the Nazul papers, dated 27-3-1986, the notice of the Administrator, Nazul Land, dated 23-1-1987, restraining the petitioners from making constructions and to remove the same over the disputed plot No. 280, and also the order of the Secretary, Mussoorie Dehra Development Authority, dated 24-2-1987, directing demolition, are quashed. The petitioners would be entitled to get costs of this petition from Respondent No. 3.