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Allahabad High Court · body

2009 DIGILAW 2535 (ALL)

O. P. GUPTA v. STATE OF U. P.

2009-07-13

ASHOK SRIVASTAVA, S.K.SINGH

body2009
JUDGMENT By the Court.—Heard Sri H.R. Mishra assisted by Sri K.M. Mishra in support of the petitioner and Sri Shandilya learned Addl. Chief Standing Counsel who appeared for the State authority. 2. Challenge in this writ petition is the order passed by the District Collector, Allahabad dated 26.4.2008 by which the application filed by the petitioners for getting the land in question freehold has been rejected. 3. At the very outset it is to be mentioned that although there were several applicants but the Court is informed that the petitioners alone have challenged the impugned order and this has been stated in paragraph 13 of the counter affidavit also. 4. For disposal of writ petition facts in brief will suffice. 5. Petitioners and other applicants applied for getting the land known as Nazul Land No. 129 Civil Station freehold. One Satyawati Devi was original lessee of the land and it is on her death by means of subsequent development as will be noticed shortly, the application for getting the land freehold was moved which has been rejected which is subject matter of challenge. 6. Submission of learned counsel for the petitioners is that Satyawati Devi, who died on 3.8.1986, being original lessee executed a registered will in favour of Ram Babu Sharma, who died in the year 1996 and before his death he also executed a registered will in favour of Phool Kumari and Suresh Sharma and others and these persons nominated the petitioners on 27.6.2002 to get the land in question freehold in their favour and the possession of the same was also handed over to them after receiving the full and final consideration for which a receipt dated 11.6.2002 is there. The claim is that on the basis of the nomination, petitioners applied for freehold on 3.7.2002 and at that time the policy mentioned in the Government Order dated 1.12.1998 was in operation permitting the freehold in favour of the nominee also subject to various other conditions so provided in that policy. The application for getting free hold was decided after a long time i.e. by impugned order dated 26.4.2008 and the learned Collector applied the policy/norms so applicable in view of the Government Order dated 17.3.2008 which is clearly erroneous. 7. The application for getting free hold was decided after a long time i.e. by impugned order dated 26.4.2008 and the learned Collector applied the policy/norms so applicable in view of the Government Order dated 17.3.2008 which is clearly erroneous. 7. The submission of learned counsel for the petitioner is that the claim of the petitioners was required to be considered by the learned Collector in accordance with the policy so prevailing at that time when the petitioner applied for getting the land freehold. The petitioner applied for freehold on 3.7.2002. The policy dated 1.12.1998 was to be taken note. The amendment to the policy of making freehold in favour of nominee was amended vide Government Order dated 10.12.2002 which is clear from the perusal of paragraph 3 of the Government Order dated 10.12.2002. In the said Government order it is clearly mentioned that the policy/provision of making freehold in favour of nominee is being withdrawn and now freehold is to be done only in favour of original lessee or legal heirs or subsequent purchasers who have taken the land by means of registered sale-deed by paying stamp duty. It is further submitted that freehold has been made in favour of a large number of other lessee whose lease stood expired already and they applied lateron. This aspect was placed during the course of argument on the basis of a reply given from the office of the Collector under Right to Information Act dated 27.6.2009 which is annexed as Annexure-SA 1 to the supplementary affidavit. The submission is that as the claim of the petitioners has not been considered on merits and has been rejected only on the basis that term of the lease stood expired and the petitioners claimed to be nominee and in view of the present/current policy freehold in their favour cannot be made, the impugned order be quashed and the Collector be directed to consider the claim of the petitioners afresh on merits in accordance with law after giving opportunity of hearing to the other claimants also including the petitioners. 8. 8. In response to above learned Standing Counsel submits that in view of the policy so prevailing at the time of passing of the order, the provision of freehold in favour of nominee stood withdrawn and as there is no dispute about the fact that petitioners claimed freehold on the basis of they being the nominee of the lessee which stood expired long back, the Collector rightly rejected the application of the petitioners. He also referred before the Court the reason so recorded by the Collector while rejecting the application of the petitioners and thus the submission is that the petition needs to be dismissed. 9. In view of the above, this Court is to take final decision in this matter. 10. So far as the policy which is said to be prevailing on the date of passing of the order dated 26.4.2008 by the Collector is concerned, there is no dispute about the fact that the amended policy dated 10.12.2002 was in operation. By the said policy the earlier provision of making freehold in favour of nominee was specifically withdrawn. In the Government Order dated 10.12.2002 referred to above it is clearly mentioned that earlier provision now stands abolished. The relevant extract can be quoted below : Þukfer O;fDr ds i{k esa Ýh&gksYM dh mDr O;oLFkk dks lekIr djrs gq, vc ;g Ákfo/kku fd;k x;k gS fd Ýh&gksYM dh lqfo/kk vc dsoy ewy iV~Vk/kkjd vFkok mlds fof/kd mŸkjkf/kdkjh ds vfrfjDr ,sls Øsrk ftUgksaus iathÑr foys[k ds ek/;e ls LVkEi kqYd nsdj Hkwfe ÁkIr fd;k gS] dks gh orZeku lfdZy jsV ds vkoklh; ekeyksa esa 40 Áfrkr rFkk O;olkf;d ekeyksa esa 60 Áfrkr dj Ýh&gksYM dh lqfo/kk vuqeU; gksxhAÞ 11. In respect of provision of making freehold in favour of nominee the learned counsel pointed out the Government order dated 10.12.1998 (Annexure-3 to the writ petition) by referring para 1.2 of the aforesaid policy which clearly provides that application is to be filed by the nominee in whose favour the claim of freehold can be considered. 12. Be that as it may, these facts as noted above appear to be undisputed. They are born out from the record. Petitioners applied for renewal on 3.7.2002 and at that time the policy of making freehold in favour of nominee was available. 12. Be that as it may, these facts as noted above appear to be undisputed. They are born out from the record. Petitioners applied for renewal on 3.7.2002 and at that time the policy of making freehold in favour of nominee was available. If the authority has taken such a long time in disposing of the application for making land freehold and that was not decided on merits by the time that policy stood amended then it is not a case of fault/lapse from the side of petitioners for which they are to be penalised. By keeping a matter pending for a long without any justification or for any inaction on the part of a claimant/applicant, his cause which was otherwise acceptable on the date of move, cannot be permitted to be negatived by any change in policy unless that has been given retrospective effect. If the approach of authorities is permitted to prevail, then according to their whims or for various hidden reasons, they will delay in disposal of the matter for getting desired result if that is in offing. Why for the inaction/lapses of respondent/authority a claimant is to be made to suffer? If that can be so then the official will have to spell the reason and justification for long, unreasonably, undue delay in disposal of things which otherwise need to be completed, on completion of needed formalities. A lawful, valid, bonafide excuse will have to be shown when matter comes to the Court to deprive a person of his claim to which he has a legitimate expectation. Counsel for petitioners also informed the Court that a large number of freehold has been done in favour of various lessees and the persons so entitled whose lease stood expired but we are not to go into this question as on today, learned Collector has rejected the petitioners’ application not on merits i.e. for any violation or on any other grounds on account of which they may not be able to get the land freehold in their favour but the application has been rejected solely on two technical grounds. In respect to this, Court is of the view that it could not have been made a ground of rejection of the application. In respect to this, Court is of the view that it could not have been made a ground of rejection of the application. Thus the direction is required to be given to the learned Collector to take final decision in the matter on the merits in accordance with law keeping in mind the policy so prevailing at the time when the petitioners applied for getting the land freehold and all the persons are to be given proper opportunity of hearing before taking appropriate final decision in the matter. 13. For the reasons given above, this petition succeeds and is allowed and the impugned order dated 26.4.2008 is hereby quashed. Learned Collector, Allahabad is directed to pass appropriate final orders as indicated above preferably within a period of two months from the date of receipt of this order. ————