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2016 DIGILAW 3455 (ALL)

Khalid Jameel v. State of U. P.

2016-10-17

ARUN TANDON, NAHEED ARA MOONIS

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JUDGMENT Arun Tandon and Naheed Ara Moonis,JJ. Heard learned counsel for the petitioner and learned Standing Counsel for the State-respondents. 2. Petitioner on the basis of sale-deed said to have been executed by one Faiyaz Hussain in his favour claims that he acquired the lease hold rights in respect of property recorded as shop in the municipal records. It is then stated that the petitioner is in actual possession of the shop in question being Khasara No.1249. 3. In paragraph-11 of the present writ petition it is stated that records reflect that the property was in fact a Nazul property. The original lease whereof was granted in favour of Parshadi son of Girdhari Lal and Radhey Kishan son of Damrumal. It is stated that the aforesaid two persons had sold the property in favour of Faiyaz Hussain, who in turn executed sale-deed in favour of the petitioner. 4. On these factual allegations, the petitioner claims to have made an application for grant of free hold rights over the property in question in terms of the Government Order dated 3rd October, 1994. Since his application was not being considered, petitioner filed the present writ petition for a writ of mandamus commanding the District Magistrate to consider his application dated 19th September, 1995 in view of the Government Order dated 3rd October, 1994. 5. While the present writ petition was still pending, the State Government came out with the Government Order dated 28th September, 2011 as amended vide Government Order dated 4th March, 2014, wherein it was provided that all pending applications for grant of free hold rights shall stand rejected. 6. According to the petitioner, the relevant clause of the said Government Order was bad and therefore, he made an amendment application for challenging the said clause of the aforesaid Government Orders. 7. It has been stated before us today that amendments, which had been prayed for the purposes of challenging the clause of the Government Order dated 28th September, 2011 as amended vide Government Order dated 4th March, 2014 has become redundant in view of the subsequent decision of the State Government to consider the applications for grant of free hold rights in accordance with law. 8. We are, therefore, not required to adjudicate upon the challenge made to the relevant clause of the Government Order 28th September, 2011 as amended vide Government Order dated 4th March, 2014. 9. 8. We are, therefore, not required to adjudicate upon the challenge made to the relevant clause of the Government Order 28th September, 2011 as amended vide Government Order dated 4th March, 2014. 9. Counter affidavit has been filed on behalf of the District Magistrate, Ferozabad and in paragraph-4 of the counter affidavit it has been stated that the petitioner filed an application on 29th December, 1998 for grant of free hold rights. In view of para-4 (7) of the Government Order dated 1st December, 1998, which provides that if the applicant is a purchaser from a person other than the original lease holder, the applicant would be liable to deposit 100% of the prevalent circle rate for grant of free hold rights. Notice in that regard was issued to the petitioner calling upon him to deposit the money with the prescribed period. Petitioner did not respond. Therefore, possession has been taken over by the Government. It is then stated that petitioner has also entered into unauthorized occupation of public road total area 49 square meters in addition to Plot No. 1249 in respect whereof he alleges to have made an application for grant of free hold rights. It is a categorical stand of respondents that the petitioner cannot be granted free hold rights in the facts of the case. 10. In the present writ petition, an interim order was passed on 7th February, 2013 requiring the petitioner to deposit Rs. 19,395/- with a further direction that the petitioner shall not be dispossessed in case of such deposit. On 11th February, 2015 on an undertaking given by the learned Standing Counsel that the petitioner's pending application shall be considered, the Court provided three weeks' time for the purpose to the District Magistrate. 11. In pursuance thereof, the District Magistrate, Ferozabad has passed a detail order categorically recording therein that the petitioner had failed to deposit the money in terms of Clause 4 (7) of the Government Order dated 1st December, 1998 and therefore, no benefit of such Government Order can be granted. 12. Government Order dated 1st December, 1998 has been superseded and there is no application of the petitioner under the relevant Government Order now applicable for grant of free hold rights. Reasons have also been recorded as to why the petitioner has been treated to be a tress-passer. 13. 12. Government Order dated 1st December, 1998 has been superseded and there is no application of the petitioner under the relevant Government Order now applicable for grant of free hold rights. Reasons have also been recorded as to why the petitioner has been treated to be a tress-passer. 13. We have considered the submissions made by the learned counsel for the parties and have examined the records of the present writ petition. 14. It is not in dispute that the petitioner claims to have purchased the property from Faiyaz Hussain who was not the original lease holder. It has not been demonstrated before us that in the original lease executed in respect of the shop, there was any authorization in favour of lease holder to transfer the property and if so permission of the District Magistrate was necessary or not. In absence thereof. Clause 4 (7) of the Government Order dated 1st December, 1998, which is not under challenge before us specifically provides that if the person applies for grant of free hold rights on the basis of a sale-deed of the property in question, which has been executed by a person other than original lease holders, he shall be liable to deposit 100% of the prevalent circle rate as applicable in respect of the property in question would apply. 15. The records reflect that there has been non-compliance of the said condition of Government Order dated 1st December, 1998, despite notice having been issued to the petitioner. 16. In the facts of the case, we do not see any reason to issue any mandamus as has been prayed for. Application of the petitioner for grant of free hold rights has already been rejected by the District Magistrate as noticed above. The said order of the District Magistrate is not under challenge. 17. The present writ petition is accordingly dismissed. Interim order, if any, stands discharged. 18. However, it is left open to the petitioner to make a fresh application in accordance with the Government Order applicable. This order shall not confer any right upon the petitioner in respect of the land which is alleged to have been encroached upon by him.