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2007 DIGILAW 34 (ALL)

MASARRAT ALI @ BITTAN v. STATE OF UTTAR PRADESH

2007-01-05

B.B.AGARWAL, PRADEEP KANT

body2007
JUDGMENT Hon’ble Pradeep Kant, J.—Heard the learned Counsel for the petitioner Sri Mohd. Arif Khan and Sri Vinay Jeet Lal Verma for the State. 2. The petitioners are the purchasers of plot No. 1191 having an area of 206.63 sq. mtrs. situated at Qasba Islamnagar, Tehsil Bilsi, District Badaun and feel aggrieved by inaction on the part of the respondents in not delivering them the actual possession of the land in question, despite sale deed having been executed and a final order dated 1.10.2003 having been passed in writ petition No. 5058 (M/B) of 2003. 3. In short the necessary facts are that a notice was published by the Additional District Magistrate in local daily ‘Dainik Prakashan Prakash’ on 22.5.2003 inviting offers through tenders for the auction of the Nazul plot aforesaid. In response to the said notice, the petitioners submitted their tender for Rs. 14,15,000/-. The bid of the petitioner being the highest, was accepted by the Additional District Magistrate on 15.5.2003. The petitioners were required, by means of letter dated 24.5.2003, to deposit the balance amount within 15 days as the 1/4th amount was deposited earlier as per the terms of the agreement. On 31.5.2003, the District Magistrate, Badaun, addressed a letter to the Sub Registrar for registration of the sale deed. The sale deed was duly executed and was registered on 31.5.2003 itself. 4. After the execution and registration of the sale deed, the petitioners appear to have approached for delivery of possession but no action was taken by the respondents, which compelled the petitioners to approach the Deputy Secretary, Housing, Govt. of U.P., seeking necessary directions and on 29.8.2003, the State Government issued a directive that the petitioners be delivered possession but despite the specific direction issued by the State Government, under the signatures of the Special Secretary, the possession was not delivered to the petitioners. 5. The petitioners again made a representation to the Commissioner, Bareilly Division, Bareilly and also wrote letter to the District Magistrate for the purpose. 5. The petitioners again made a representation to the Commissioner, Bareilly Division, Bareilly and also wrote letter to the District Magistrate for the purpose. Finding no way out, the petitioners approached this Court by filing a writ petition, bearing writ petition No. 5058 (MB) of 2003, which was disposed of on 1.10.2003, with the following directive : “We, therefore, dispose of the writ petition with a direction that in view of the sale deed dated 31.5.2003 of the plot in question, executed in favour of the petitioner, and in view of the letter dated 29.8.2003 issued by the Special Secretary, the petitioner be delivered possession of the plot in question within a maximum period of one month from the date a certified copy of this order is served on the authority concerned, in case there is no other legal impediment in the matter.” 6. The petitioners’ case is that the aforesaid order though directed for delivery of possession but since it gave liberty to the authority for not doing so, in case there was any other legal impediment, the actual delivery of possession was not given to the petitioners although there was no such legal impediment, which again necessitated the filing of the present writ petition by the petitioners. 7. The legal impediment, as has been disclosed by the learned Counsel for the State and as pleaded, was initially to the effect that as per the report of the Senior Superintendent of Police dated 16.9.2003, the land in question was Ram Lila Maidan, where Ram Lila was being performed and celebrated for one month and, therefore, if the possession was delivered to the petitioners, it may create law and order problem but subsequently the stand of the respondents, is that though the land in question is not Ram Lila Maidan but it is adjacent to the Ram Lila Maidan and is occupied by certain unauthorised persons, whose names have also been given in report dated 28.8.2003. 8. It may be pertinent to mention here that the unauthorized occupants, namely, Rajendra Prasad, Dhruv Narain, Mahesh Chandra, Saddiq Ahmad and Nidish Krishna, had also moved an application for impleadment in the present petition, but none had appeared to press the application for impleadment, which is hereby rejected. 8. It may be pertinent to mention here that the unauthorized occupants, namely, Rajendra Prasad, Dhruv Narain, Mahesh Chandra, Saddiq Ahmad and Nidish Krishna, had also moved an application for impleadment in the present petition, but none had appeared to press the application for impleadment, which is hereby rejected. One more aspect which makes the imleadment application liable for rejection, is that the unauthorized occupants themselves had filed a writ petition at Allahabad, the effect of which would be considered at the appropriate place in this judgment, but they failed to avail the opportunity given to them by the Court, in getting the land in question settled in their favour, and therefore, also, they have no case for impleadment in this writ petition. 9. The admitted facts, which emerge from the pleadings of the parties, are that the State Government through the Additional District Magistrate consciously and deliberately issued an advertisement in the local daily inviting tenders to transfer the Nazul plot in question by way of auction through tender process and that in pursuance thereof, the petitioners had also applied and incidentally, since their bid was highest, the same was accepted. After the acceptance of the bid, the petitioners were required to deposit 1/4th amount instantly and remaining 3/4th amount within 15 days, which the petitioners also deposited. After deposit of the aforesaid amount, the District Magistrate forwarded the sale deed for registration before the Sub Registrar on 31.5.2003 and the same was duly registered on that very date. 10. The opening lines of the sale deed itself reflect that for acquiring free hold ownership rights over Nazul land, sale deed was being executed on 31.5.2003. During the entire process, starting from the date of publication of the advertisement, holding of auction through tender process, execution of the sale deed/free hold deed and its registration, no objection was ever raised that the land in question is in fact, Ram Lila Maidan or that Ram Lila was being celebrated or acted on the said piece of land. To the contrary, it became obvious and stood established that the land, which was the subject matter of free hold deed/sale deed, was occupied by certain unauthorised individuals, who had put their Gumti or shop etc. which is also evident by the letter of Sub Divisional Magistrate, Karmendra Singh, wherein he had filed the site plan, as Annexure A-1. 11. To the contrary, it became obvious and stood established that the land, which was the subject matter of free hold deed/sale deed, was occupied by certain unauthorised individuals, who had put their Gumti or shop etc. which is also evident by the letter of Sub Divisional Magistrate, Karmendra Singh, wherein he had filed the site plan, as Annexure A-1. 11. The report of the Senior Superintendent of Police dated 16.9.2003, filed alongwith the original counter-affidavit filed by the then Sub Divisional Magistrate, Sri Mohd. Mubeen Khan, though bases its conclusion on the report of the Additional Superintendent of Police (Rural) dated 28.8.2003, but says that it stands established from all levels that this land is being used traditionally for about a month during Dussehra for playing Ram Lila and Ram Baraat procession and, therefore, he was of the opinion that this entire land, which is being used as Ram Lila Maidan by the local people, if is transferred, it would create disharmony and law and order situation. 12. We have been taken through the report of the Additional Superintendent of Police dated 28.8.2003 also, which has been filed by means of an affidavit dated 26.5.2006 and also by the affidavit dated 28.8.2003, wherein the learned Counsel for the State could not indicate that any such report was submitted by the Additional Superintendent of Police saying that the land in question is Ram Lila Maidan, as has been observed by Senior Superintendent of Police. 13. In fact, the Additional Superintendent of Police has reported that the sale deed has already been executed on 31.5.2003 in favour of the petitioners but over the land under the sale deed, Rajju alias Rajaram son of Raghunandan, Mahesh son of Radhey Shyam, Tejpal son of Lalta Prasad, Gorish son of Krishna Nanda, Siddiq son of Gafoor and Kailash Bharti and certain persons are in possession since a long period of time. Arshad and Bittan (father of petitioner No. 1) initially tried to take possession of the land by putting bricks but that was opposed by the erstwhile Chairman Virendra, Satyapal Gupta, Ram Lila Committee and members of the Vishwa Hindu Parishad. So far the location and nature of the land is concerned, the Additional Superintendent of Police has stated and has given out that the land is adjacent to the Police Station, which is adjacent to Ram Lila Maidan. So far the location and nature of the land is concerned, the Additional Superintendent of Police has stated and has given out that the land is adjacent to the Police Station, which is adjacent to Ram Lila Maidan. The dispute was sought to be resolved by the District Magistrate number of times but these persons did not allow to take possession nor they left the possession. The report further says that these persons are in occupation of the premises for long time and, therefore, they say that the land be given to them. The report also says that the local MLA’s role in taking possession does not appear to be correct and that this dispute can be sorted out by sending revenue officials on the spot. 14. Writ Petition No. 10285 of 2003 was filed by the unauthorized occupants at Allahabad claiming that the land in question be settled with them, which writ petition was disposed of vide order dated 1.3.2000 with the direction that the District Magistrate shall pass appropriate orders on the application made by the applicants (unauthorized occupants) for conversion of the lease hold right into free hold in accordance with law, which were pending. 15. It has also come on record and it has been submitted by the Counsel for the petitioners as well as the State that the unauthorised occupants aforesaid, in fact, did not move any application for conversion of the land into free hold land nor deposited any fee etc., as required with the result that they lost their claim of getting the land settled with them, if any, they were having, despite the direction issued by the High Court for considering the conversion of the lease hold right into free hold right in accordance with law. 16. Once the writ petitions filed by various unauthorised occupants, some of whose names have been mentioned in the report of the Additional Superintendent of Police aforesaid, have failed in their claim of continuing possession over the land in question i.e. writ petitions No. 10285 of 2000 and 23127 of 2003 and their application for impleadment having also been rejected, the objection on the part of such unauthorised occupants cannot be a legal impediment in handing over possession of the land in question to the bonafide purchasers and the persons, in whose favour free hold deed has already been executed and registered. 17. 17. The plea that the land in question is in fact, Ram Lila Maidan, also stands rebutted by the own statement of fact made by the Additional Superintendent of Police and the report of the Senior Superintendent of Police cannot be relied upon for the simple reason that though it is based on the report of the Additional Superintendent of Police but it does not reflect the correct statement made therein. 18. If the plea raised that the land in question being adjacent to Police Station, which is adjacent to Ram Lila Maidan, wherever Ram Lila is played, the same is used or otherwise put under use for the same purpose or otherwise for sitting of audience and, therefore, they cannot be required to hand over possession, is assumed to be correct, though it is strongly disputed by the learned Counsel for the petitioner, then even in that case, the land in question cannot be said to be the land of Ram Lila Maidan nor it can be said that Ram Lila was being played over the said land. 19. The plea of the respondents that it was part and parcel of the Ram Lila Maidan, because of its location, being used for sitting of persons visiting Ram Lila, also does not appeal, for the simple reason that if the land in question is already occupied by unauthorised occupants, names of some of whom have been given in the report of the Additional Superintendent of Police and which fact is not being disputed by the respondents and rather it being the case of such unauthorised occupants that the land should be settled with them, it is difficult to presume that in the presence of Gumti and shops, this land can be used for any fruitful purpose even for seeing and viewing Ram Lila. 20. Once it is undisputedly established that the land which is subject matter of transfer is not Ram Lila Maidan and Ram Lila is not being performed or played over that land and that the same is under occupation of unauthorised persons, who are having their shops and Gumtis and who have already lost their claim of continuing possession after filing writ petitions at Allahabad, there remains little justification for the respondents not to deliver possession to the petitioners. 21. 21. Having come to the conclusion that the land in question is neither Ram Lila Maidan nor Ram Lila is enacted or played on the said land, and the same is under occupation of some unauthorized persons, who have put their shops and stalls etc., and that the petitioners would not take possession forcibly from the unauthorised occupants, in view of the law laid down by the apex Court in the case of Rame Gowda (dead) by LRs v. M. Varadappa Naidu (dead) by LRs and another, 2005 (25) LCD 740, therefore, in view of the aforesaid legal position and the facts, which stand established from the material brought on record, we direct the State and its authorities to get the possession delivered of the land in question to the petitioners, in accordance with law expeditiously, without any undue delay. 23. The writ petition is allowed in part. No order as to costs. ————