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2014 DIGILAW 2508 (ALL)

Indira Rai v. State of U. P.

2014-08-14

ASHWANI KUMAR MISHRA, KRISHNA MURARI

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JUDGMENT Krishna Murari & Ashwani Kumar Mishra,JJ. The petitioners have approached this Court seeking the following main reliefs : "(i) issue a writ, order or direction in the nature of certiorari quashing the impugned notices dated 04.04.2014 (Annexure No. 8 & 9 of the writ petition) issue by the respondent no. 3 in the interest of equity and justice. (ii) issue a writ, order or direction in the nature of certiorari quashing the impugned Government Order dated 28.9.2011 (Annexure No. 10 of the writ petition) and Government Order dated 04.03.2014 (Annexure No. 11 of the writ petition) issued by the State Government, declaring the Clause 10 of the Government Order dated 04.03.2014 as null and void pertaining to the petitioner in the interest of equity and justice.. (iii) issue a writ, order or direction in the nature of mandamus directing the respondent no. 1, 2 & 3 to execute the free hold deed in favour of the practitioners for their respective area of 3915 sq. ft. each relating to the Nazul Plot No. 82, situated at 3, Park Road, Civil Lines, Gorakhpur, in pursuance of the applications dated 16.05.2008 after issuing the necessary demand note for balance amount in the interest of equity and justice. (iv) issue any other and further writ, order or direction which this Hon'ble Court may deem fit and proper in the circumstances of the present case. (v) Award cost of petition to the petitioners. " 2. We have heard Sri J.N.Sharma, learned counsel for the petitioner and learned Standing Counsel for the State respondents. Facts giving rise to the dispute are as under : 3. The petitioners claim that the property in dispute was allotted to Sri P.N.Rai, the father-in-law of petitioner no. 1 and Sri L.R.Bajpai, the father of the petitioner no. 2 in the year 1968 and they were statutory tenants. After death of the aforesaid two allottees, the rights have been inherited by the present petitioners and they are the sitting statutory tenants. The two petitioners moved an application for getting the free hold rights over the area in their possession in pursuance of the policy of the State Government promulgamated through Government Order dated 01-12-1998 and 17-03-2008. It has further been alleged by the petitioners that neither the erstwhile lessee late Purshattam Das nor his heirs respondents no. The two petitioners moved an application for getting the free hold rights over the area in their possession in pursuance of the policy of the State Government promulgamated through Government Order dated 01-12-1998 and 17-03-2008. It has further been alleged by the petitioners that neither the erstwhile lessee late Purshattam Das nor his heirs respondents no. 4 to 7 ever exercised their rights for renewal of the lease deed which had expired. The petitioners further claim that in pursuance of clause 10 of the Government Order dated 01-12-1998 which conferred a right upon the statutory tenant to apply for grant of free hold rights in case the lessee fails to make such application for free hold rights in his favour, they made application alleging that they had a right for being considered for grant of free hold rights. 4. It appears that on the basis of the nomination made by the respondents no. 4 to 7 in favour of respondent no. 8 , he also made an application for grant of free hold rights. Writ petition no. 4976 (MB) of 2009 was filed by the respondent no. 8 before the Lucknow Bench of this Court which was disposed of vide order dated 31.8.2009 by following order : "Heard the counsel for the petitioner Sri Vishal Dixit, Sri A.K.Bhatnagar for the State and Sri Sharad Tiwari for respondent no. 3. It is admitted to the respondents that application for conversion of leased nazul land into free hold is pending before the competent authority. Counsel for the State, Sri A.K.Bhatnagar says and draws attention of the Court to the counter affidavit filed by the State in which it has been stated that the matter is under consideration, as apart from the petitioner, three more persons have applied for conversion of the land and, therefore, the matter may take some time. We take notice of the fact that proceedings for conversion of the nazul land into free hold are pending since long, therefore, we dispose of the writ petition, with the consent of the parties' counsel, with a direction that the pending matter be considered and disposed of by the competent authority by passing appropriate orders expeditiously, say within a maximum period of three months from the date of receipt of a certified copy of this order. While deciding the matter, the relevant government orders and Rules shall be taken into account and the matter shall be decided by a speaking and reasoned order. We may clarify that we have not addressed on the claim of either parties for conversion of the nature of the land and the same shall be considered by the competent authority in accordance with law. The writ petition is disposed of accordingly." 5. In pursuance of the direction issued by this Court, the mater was considered by the District Magistrate, Gorakhpur and vide letter dated 21-11-2009 he referred the application made by the respondent no. 8 to the State Government. Thereafter, the present petitioners filed writ petition no. 4170 of 1999 before this Court claiming a mandamus to command the State respondents to accept the deposit made by them for conversion of lease hold to free hold in terms of the Government Order dated 01-12-1998. Writ petition was dismissed vide order dated 22-08-2007 by observing that the petitioners have failed to demonstrate that they have any lease hold right and further failed to demonstrate that the respondents are under a statutory obligation for which a writ of mandamus can be issued. 6. It appears that in the meantime, the order dated 02-04-2008 was passed by the District Magistrate in favour of the respondent no. 8 granting him free hold rights on the basis of nomination given by the heirs of the erstwhile lessee. The petitioners have not brought on record of the writ petition the copy of the said order. Only a passing reference of the same has been made in paragraph 41 of the writ petition. The petitioners again filed writ petition no. 44334 of 2008 challenging the order dated 02-04-2008 alongwith mandamus to command the respondents to grant them free hold rights over the property in dispute. The writ court noticing dismissal of the earlier writ petition no. 4170 of 1999 filed by the petitioner vide judgment and order dated 15-10-2008 dismissed the said writ petition. It may be relevant to reproduce the judgment and order dated 15-10-2008 : "The petitioners had earlier come to this Court with writ petition no. 4170 of 1999 in which the prayer was that mandamus be issued commanding the respondents no. 4170 of 1999 filed by the petitioner vide judgment and order dated 15-10-2008 dismissed the said writ petition. It may be relevant to reproduce the judgment and order dated 15-10-2008 : "The petitioners had earlier come to this Court with writ petition no. 4170 of 1999 in which the prayer was that mandamus be issued commanding the respondents no. 1 to 3 to accept the deposit made by them for conversion of lease hold rights into free hold in terms of the Government Order dated 01-12-1998. The writ petition was dismissed vide order dated 22-08-2007 with finding that the petitioners have failed to demonstrate that they have leasehold right and further failed to demonstrate that respondents are under any statutory obligation for which writ of mandamus can be issued. In present writ petition the prayer for quashing the order dated 2.4.2008 passed by the respondent no. 3 for issuance of mandamus commanding the respondents to grant free hold right to the petitioners in regard to the plot no. 82. The plot in dispute in the present writ petition is the same in the earlier writ petition. Although the petitioners have also sought for quashing the order dated 2.4.2008 yet it appears that the real dispute in the present writ petition relates to the petitioners' right for conversion into free hold rights. Sri Ravi Kant, learned Senior Counsel for the petitioners submitted that in the earlier writ petition the petitioners had not annexed the copy of the allotment letter. This Court had taken the view that petitioners have not been able to demonstrate any right. In the present writ petition the copy of the allotment letter is annexed by the petitioners. The copy of the earlier writ petition was produced before us by the petitioners' counsel. In paragraph 1 it has been stated that the petitioners are the allottee and the legal occupants of the house. The controversy raised in the earlier writ petition as well as in the present writ petition appears to be same. As such, this writ petition is not maintainable. The petitioners' contention is that certain material had not been placed before the Court on account of which, an adverse finding was given against the petitioners that they have not been able to establish the lease hold rights. This contention does not entitle the petitioners to file second writ petition. As such, this writ petition is not maintainable. The petitioners' contention is that certain material had not been placed before the Court on account of which, an adverse finding was given against the petitioners that they have not been able to establish the lease hold rights. This contention does not entitle the petitioners to file second writ petition. In case the petitioners so advised, it is open to the petitioners to file a review application in the earlier writ petition. With these observations, the writ petition is dismissed." 7. The second writ petition was filed on the allegation that in the earlier writ petition it could not be pleaded that petitioners were allottees of the premises in dispute. However, the Court found that it was pleaded in the earlier writ petition that they were allottees and legal occupants of the house, and repelling the contention dismissed the petition finding it to be based on same cause of action as the earlier one . 8. The State Government has now come out with a new free hold policy vide Government Order dated 04-03-2014. There is a provision in the said Government Order that all the pending application made for grant of freehold rights under the earlier Government Order shall stand automatically rejected and any amount deposited in pursuance of the earlier policy along with application shall be liable to be refunded. 9. Respondent no. 2, vide letter dated 04-04-2014 informed the two petitioners that their application stands rejected and they should provide the details of their bank account and IFC Code of the bank so as to enable the State Government to refund the amount deposited by them along with their application with 5% simple interest. 10. Treating the aforesaid letter as a new cause of action, the petitioners have again approached this Court by filing the instant writ petition for quashing the letter dated 04-04-2014 issued by the respondent no. 2. Challenge has also been made to the Government Order enforcing the new policy for free hold. 11. Two earlier writ petitions filed by the petitioners relating to their right for obtaining free hold rights over the property in dispute already stand dismissed. In writ petition no. 2. Challenge has also been made to the Government Order enforcing the new policy for free hold. 11. Two earlier writ petitions filed by the petitioners relating to their right for obtaining free hold rights over the property in dispute already stand dismissed. In writ petition no. 4170 of 1999 a Division Bench of this Court categorically held that the petitioners have failed to demonstrate that they have any lease hold right and further failed to demonstrate that the respondents are under a statutory obligation for which writ of mandamus can be issued. Subsequent writ petition no. 44334 of 2008 filed by two petitioners alleging that in earlier writ petitions, it could not be brought on record that the petitioners were statutory tenants and thus had a right under the policy dated 01-12-1998 to make an application for grant of free hold rights was also dismissed being a second writ petition for the same cause of action and relief. The Division Bench in the subsequent writ petition further observed that the second writ petition was not maintainable but in case the petitioners are so advised they may file a review application in the earlier writ petition. 12. It has been stated before us by the learned counsel for the petitioners that a review application has been filed and is pending. 13. The issue involved in this petition is same i.e. the right of the petitioners to obtain free hold rights which was subject matter of adjudication in the earlier two writ petitions which were dismissed. Once it was adjudicated that the petitioners have no right to obtain free hold rights over the property in dispute, the logical conclusion is that the State was under an obligation to refund the deposit made by them while making the application. Merely because the Collector vide letter dated 04-04-2014 has informed the petitioners to supply necessary details of their bank account and IFC Code of the bank for refund of the said amount, after enforcement of new policy the same will not give them a fresh cause of action to approach this Court. Merely because the Collector vide letter dated 04-04-2014 has informed the petitioners to supply necessary details of their bank account and IFC Code of the bank for refund of the said amount, after enforcement of new policy the same will not give them a fresh cause of action to approach this Court. Once it was crystallized by dismissal of the earlier two writ petition filed by the petitioners that they are not entitled to claim free hold rights in the property in dispute, they are also left with no locus to challenge the condition in the new policy/G.O. dated 4.3.2014 that all pending application for conversion to free hold rights shall be deemed to have been rejected. 14. Refund of the amount deposited along with the application is only a consequence of the adjudication in the two earlier writ petitions filed by the petitioners that they had no right for obtaining the free hold rights in the property. The refund of the amount deposited does not vest them with any new cause of action so as to again approach this Court. 15. For the aforesaid facts and discussions, writ petition is thoroughly misconceived and accordingly stands dismissed.