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2010 DIGILAW 1705 (ALL)

Suresh Singh Yadav v. State of U. P.

2010-05-21

JAYASHREE TIWARI, R.K.AGRAWAL

body2010
JUDGMENT 1. Heard learned counsel for the parties. 2. All these abovementioned writ petitions have been filed by the petitioners for the grant of writ of certiorari quashing the Government order no. 1795/9 Aa-4-2001-436/2001 dated 19.1.2002 and the impugned order passed in pursuance of the Government Order passed by District Magistrate, Moradabad respondent no.2 dated 25.2.2002 and for further issuance of writ of mandamus to the respondents not to disturb the peaceful possession of the petitioners as also to execute the freehold deed in favour of the petitioners in pursuance of Government Orders dated 23.5.1992 and 3.3.1998 and para 1.3 of Government Order dated 1.12.1998. 3. In short, contention of the petitioners is that petitioners were allotted quarter in question for living in their allotted quarters. The petitioners paid the entire amount of the quarters as required by the Government Order. A demand notice was sent to the petitioners by the competent authority on 21.1.1997 but subsequently without affording an opportunity of hearing being given to the petitioners their applications to convert the land into freehold were rejected. Against the said order the petitioners have come before this Court. 4. In the counter affidavit, the contention raised by the petitioners has been controverted and it is submitted that petitioners were allotted the property in question in their capacity as employees of Nagar Nigam for the purpose to reside and not as private persons. The building belongs to Nagar Nigam and the Nagar Nigam has preferential right to get freehold of the property in question. The deposit of the demanded amount does not confer any ownership right or title unless and until the title is executed. The order has been passed in favour of Nagar Nigam and the applications preferred by the petitioners for getting freehold lease have been rejected. The possession of the petitioners on the said property was merely in the capacity of employees of Nagar Nigam and not in their personal capacity. Employees are paying rent to the Nagar Nigam. Hence the employees have no right or title or lease over the disputed property. That freehold order has been passed in favour of Nagar Nigam. Since the order of freehold has been passed in favour of Nagar Nigam,the petitioners have no right to claim. The petitioners have already been allowed to get the money refunded by following necessary formalities. 5. Hence the employees have no right or title or lease over the disputed property. That freehold order has been passed in favour of Nagar Nigam. Since the order of freehold has been passed in favour of Nagar Nigam,the petitioners have no right to claim. The petitioners have already been allowed to get the money refunded by following necessary formalities. 5. In supplementary counter affidavit filed on 6.3.2005 in the leading writ petition it is further contended that the disputed plot was leased out by the State Government to the Nagar Nigam. That vide Government order dated 1.12.1998 all previous Government Orders were modified and vide para 5 preferential right of freehold was given to Nagar Panchayat, Nagar Nigam, Nagar Palika and other local bodies and they were given option to apply for freehold by 31.1.1998 by depositing 20% assessed value of the land. Nagar Nigam, Moradabad made an application on 30.12.1998 alongwith deposit of Rs.32,07,813.70. The Government Order dated 1.12.1998 has been annexed as 6 to the leading writ petition. 6. Against the counter affidavit, a rejoinder affidavit has been filed in the leading writ petition on behalf of the petitioner. In some writ petitions counter affidavit has been filed by the Nagar Nigam or by the State and in some writ petitions, counter affidavit has not been filed. It is contended that Nagar Nigam being unauthorised occupant is not entitled for freehold. Since the demand notice was made by the authorities hence they are bound to execute the freehold deed. 7. From the contentions made by the parties in their affidavits, counter affidavits, and rejoinder affidavits, the following points arise for determination of the matter in controversy: (i) Firstly, whether any illegal order passed if rectified by the competent authority suo moto, the action of the authority is illegal or not. (ii) Secondly, whether an illegal notice can confer any right upon the petitioners. (iii) Third, Whether under the Government Order, the petitioners can apply for freehold of Nazul land or only lessee can apply for preferential right. (iv) Fourth, The demand notice prior to cut of date if issued in accordance thereof is whether sustainable or not. (ii) Secondly, whether an illegal notice can confer any right upon the petitioners. (iii) Third, Whether under the Government Order, the petitioners can apply for freehold of Nazul land or only lessee can apply for preferential right. (iv) Fourth, The demand notice prior to cut of date if issued in accordance thereof is whether sustainable or not. (v) Fifth, Whether the tenant who does not come within the ambit of rent control can apply for grant of freehold of Nazul land (vi) Sixth, whether an employee of Nagar Nigam who was allotted accommodation in official capacity can claim for freehold of the quarter in his possession in the official capacity. 8. It is not disputed that the petitioners were employees of Nagar Nigam and they were allotted the quarters as employees of the Nagar Nigam itself on the payment of rent. So the situation comes out that Nagar Nigam being the original lessee has given quarters to the petitioners who were employees of Nagar Nigam to reside during the course of their official tenure in the said property. 9. From the discussions made in the preceding para it comes out that the petitioners were not holding possession over the disputed quarters in their personal capacity or in the capacity of the tenant whose case comes under The Rent Control Act and in that situation, it is apparently clear that they have no right to apply for freehold of the Nazul land,since the petitioners come in the status of lessee or licensee of the Nagar Nigam who is the original lessee and who has given permission to the petitioners its employees to reside in the house during their official tenure in the Nagar Nigam. 10. So far as the demand notice is concerned, it is contended by the learned counsel for the petitioners that the demand notice has been given by the competent authority. The demand notice ( Annexure 1) on record at page 30 in the leading case which has been issued by the Additional District Magistrate, Moradabad on the basis of Government Order dated 1562/9-Aa-4-92-293N/90 dated 23.5.1992. By way of this notice the concerned authority has mentioned that the application for making freehold of Nazul land of area 70.11 Sq. The demand notice ( Annexure 1) on record at page 30 in the leading case which has been issued by the Additional District Magistrate, Moradabad on the basis of Government Order dated 1562/9-Aa-4-92-293N/90 dated 23.5.1992. By way of this notice the concerned authority has mentioned that the application for making freehold of Nazul land of area 70.11 Sq. metres which is on the land with the petitioner has been accepted by the District Magistrate and it was informed that on the fixed single rates to the tune of Rs.63,099/- the petitioner shall deposit in the treasury so that on the basis of complete deposit of the amount the valid deed be executed. It is mentioned therein that if the said amount is deposited within 90 days, 20% relaxation will be granted etc. It is further mentioned that if the amount is not deposited, then it will be taken that they are not interested for freehold. Contention of the petitioners is that in pursuance of demand notice dated 21.1.1997 they have deposited the demanded money and as such the respondents are under obligation to execute freehold deed in their favour. Paper 33 is the deposit receipt of Rs. 50,479.00 in the leading case which has been deposited immediately within the stipulated period. 11. The respondents have referred a Government Order in which it has been held that if local bodies have not made application they again be asked to submit their applications or no objection certificate . If Nagar Nigam makes an application then freehold declaration be made in favour of Nagar Nigam. If Nagar Nigam is not willing for freehold it will give no-objection certificate in favour of tenants and freehold be declared in favour of tenants. Nagar Nigam shall give no objection certificate within a period of one month . Thus, according to this Government Order dated 4.1.2000 modulating all other Government orders it has been directed by the Government that application or no-objection certificate be obtained from local Nagar Nigams as preferential rights. In pursuance of this order it comes out that Nagar Nigam has right to opt for freehold and in case it is not willing and if it gives no-objection in favour of the petitioners, freehold declaration can be made in favour of the tenants. In pursuance of this order it comes out that Nagar Nigam has right to opt for freehold and in case it is not willing and if it gives no-objection in favour of the petitioners, freehold declaration can be made in favour of the tenants. In view of the Government Order dated 4.1.2000 it comes out that Nagar Nigam has the preferential right to opt for declaration of freehold. 12. Annexure 3 is the true copy of the Government Order dated 23.5.1992 which makes provisions for declaration of freehold of Nazul land. It has been mentioned that in respect of Nazul land which has been given for unending lease if lessee deposits the settled amount he will have a right to freehold. From the perusal of Government Order it also comes out that it applies only to those permanent lessee of the land and property and not to sub-lessee or the lincenee. In clause 8 it has also been provided that in case of an unauthorised occupants the claim shall not be applicable and for unauthorised occupants the matter will be legally dealt with. So, in this Government Order dated 23.5.1992 only the lessee of the land or property is entitled to apply for freehold. Again the position of the petitioners are not at all of the original or permanent lessee of the property on contrary they are holding possession in the capacity of employees of the Nagar Nigam. The original lessee is who provides accommodation on rent to its employees for their stay during their official tenure. So under this Government Order also the case of the petitioners is not covered. 13. Annexure 7 is the order passed by Dy Secretary Sri Javed Aihatesham to the District Magistrate intimating that according to the decision taken in the meeting it is decided that in accordance with Government Order no. 3731/9-Aa-4-2000-17 G/99 dated 4.1.2000 the freehold proceedings be completed in favour of Nagar Nigam, Moradaad except the three tenants in whose favour freehold deed have already been executed, the application of the remaining applicants who are the tenants be rejected. In pursuance of the said letter the District Magistrate vide order dated 25.2.2002 has rejected the application of the petitioners and has asked them to take back the amount deposited by them according to normal procedure of law. In pursuance of the said letter the District Magistrate vide order dated 25.2.2002 has rejected the application of the petitioners and has asked them to take back the amount deposited by them according to normal procedure of law. It has been mentioned by the District Magistrate that vide Government Order dated the first right for getting the declaration of freehold has been given to Nagar Nigam and the Government has directed that the freehold declaration be made in favour of Nagar Nigam except those three tenants in whose favour a freehold deed have already been executed. 14. A perusal of the Government Order dated 1.12.1998 which is annexure 6 on record shows that freehold shall be made in favour of the nominated persons. It is mentioned in clause 1 that the first right to get freehold declaration will be of Nagar Nigam. In clause 2 it has been mentioned that if the Nagar Nigam is not willing to declare freehold then this facility shall be available in favour of the tenants. The right of Nagar Nigam has been accepted till 31.12.1998. By 31.12.1998 Nagar Nigam had right to apply and prefer for freehold A notice dated 21.1.1997 shows that the notice has been issued prior to the cut off date, uptil when Nagar Nigam had option to apply for free hold. 15. In the circumstances, it is apparently clear that without waiting for fixed time for applying for freehold by the Nagar Nigam till 31.12.1998 the District Magistrate has given demand notice on 21.1.1997 which is against the provisions made in the Government Order as mentioned in the aforesaid. The notice has no effect because it is a void notice. If in pursuance of such notice amount has been deposited by the petitioners it confers no rights at all in favour of the petitioners. Besides this, unless and until the date for submission of freehold application by Nagar Nigam expires the petitioners can claim no rights especially in a particular case where the notice suffers for violation of the provisions of Government Order itself. It has no force in the eye of law. 16. In the same connection it is worth noting that earlier notice has been sent violating the provisions of the Government Order. It has no force in the eye of law. 16. In the same connection it is worth noting that earlier notice has been sent violating the provisions of the Government Order. If the same has been cancelled and the application of the applicants petitioners have been rejected by the District Magistrate in pursuance of the directions issued by the Government vide subsequent Government Order. It seems that order passed by the competent authority does not suffer from any manifest error or illegality in following the law and it creates no right to the petitioners to challenge the same. It has been held by the Hon'ble Apex Court that law prevailing on the date in connection with the Nazul land shall prevail. 17. Division Bench decision of this Court in Rameshwar Dayal Gupta Vs. State of U.P. and others in Civil Misc. Writ Petition No. 16359 of 2000 dated 22.03.2007 has held that... In State of Tamil Nadu Vs. M/s. Hind Stone & ors, which dealing with a similar issue the Hon'ble Supreme Court held that mere pendency of an application does not create any legal right in favour of the applicant and the application is to be decided as per the law applicable on the date of decision. The Court held as under : "While it is true that such application should be dealt with within a reasonable time, it cannot on account be said that right to have an application disposed of in a reasonable time, clothes an applicant for a lease with a right to have the application disposed of on the basis of rules in force at the time of making of the application. No one has a vested right to the grant or renewal of a lease and none can claim a vested right to have an application for the grant or renewal of a lease dealt with in a particular way, by applying particular provisions. In the absence of any vested rights in any one, an application for a lease has necessarily to be dealt with according to rules in force on the date of the disposal of the application despite the fact that there is a long delay since the making of application." 18. The said judgement has been approved and an similar view has been reiterated by the Hon'ble Supreme Court in V. Karnal Dural Vs. The said judgement has been approved and an similar view has been reiterated by the Hon'ble Supreme Court in V. Karnal Dural Vs. District Collector, Tuticorin & Anr., wherein it has been held that if during the pendency of an application for grant of a mining lease the rules are amended, the application is to be decided as per the amended rules. 19. Similar view has been reiterated in Howrah Municipal Corporation & Ors. Vs. Ganges Rope Company Ltd. & Ors., wherein reliance had been placed on the judgement of its earlier judgement in Usman Ganij. Khatri of Bombay Vs. Cantonment Board & Ors., and State of West Bengal vs. Terra Firma Investment & Trading Pvt. Ltd, wherein the Apex Court had held that application is to be decided on the basis of the law existing on the date or decision and not on the basis of the law prevailing on the date of submission of the application. 20. Division Bench decision of this Court in Smt. Kanak Sharma Vs. State of U.P. and others has held that ...The Government Order under which the policy to convert the Nazul land into free hold land has been modified by the subsequent Government Order dated 1st December, 1988. The petitioner has challenged by means of this writ petition para 5 (i) of the Government Order dated 1st December, 1998. A perusal of the application filed by the petitioner applied for conversion of nazul rights into freehold rights under the Government Order 23rd May, 1992 we find that the relief no. (a) cannot be granted because he has not demonstrated that either he is offended or affected particularly by para 5 (1) of the Government Order dated 1st December, 1998 so far as the relief no. B is concerned, petitioner has sought for quashing of the application of Nagar Nigam for getting the land in question converted into freehold. The said application has been filed by Nagar Nigam in terms of the Government Order dated 1st December, 1998 to which petitioner possibly cannot oppose the application filed by the Nagar Nigam. B is concerned, petitioner has sought for quashing of the application of Nagar Nigam for getting the land in question converted into freehold. The said application has been filed by Nagar Nigam in terms of the Government Order dated 1st December, 1998 to which petitioner possibly cannot oppose the application filed by the Nagar Nigam. So far as the prayer No. C is concerned, he has prayed for conversion of nazul rights into freehold rights pursuant to the Government Order dated 23rd May, 1992, we have asked the petitioner that under what provisions the tenant of Nazul land, which is under the management of the local body concerned, he applied for conversion into freehold. Learned counsel for the petitioner could not demonstrate that he has any right particularly in view of the fact which is according to own submission of the petitioner that he has filed application pursuant to the Government Order dated 23rd May, 1992 which has not been decided by the District Magistrate." 21. Thus in view of the aforesaid it comes out that while disposing the application, law as prevailing was Government Orders dated 4.1.2000 and 23.5.1998 In the circumstances, we find no error or illegality in the impugned order dated 25.2.2002 and dated 18.2.2002 in civil Misc. Writ Petition No.21879 of 2002 passed by the competent authority while rejecting the application for freehold. 22. On the basis of the discussions it comes out that the petitioners have no legal right in the capacity in which they have been in possession of the disputed land i.e. employees of the Nagar Nigam to apply for freehold and have no rights to challenge the order of rejection of their application duly passed by the District Magistrate in accordance with the provisions of the applicable Government Orders. The above writ petitions are devoid of any merits and are dismissed accordingly. Parties to bear their own costs.