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2016 DIGILAW 735 (UTT)

Mahesh Chandra Agarwal v. State of Uttarakhand

2016-10-19

K.M.JOSEPH, V.K.BIST

body2016
JUDGMENT : K.M. Joseph, J. 1. Petitioner calls in question Annexure-11 impugned order dated 02.09.2016 passed by the second respondent (Collector/District Magistrate, Nainital). 2. In brief, the case of the petitioner is as follows:- Property in subject matter is a Nazul land. It was initially leased by the erstwhile Government under the Government Grants Act to Lala Badri Prasad Gupta for the purpose of construction of a dwelling house and out buildings for a period of 90 years subject to renewal after every 30 years on a revised rent. Sri Gupta came into possession of the said property and constructed a residential building in the name of Sitapur House in three stories, a portion of the property and out houses was meant for staff and servants. The ground floor was given on rent whereas the other floors were used by him as his residence, where he resided with his family. Shri Gupta came to be associated with the Arya Samaj Movement of Swami Dayanand and after demise of his son he dedicated his life towards charity and public welfare. He dedicated a portion of the building for conducting Vedic rights and Yagnas and as such, laid down the foundation of the Arya Samaj, Bhowali while he started a library in the rest of the building, known as the Shambhu Nath Rameshwari Devi Library. He donated a library building and out houses for the purpose of establishment of public library in the name of his son Shambhu Nath and his wife Rameshwari Devi to be managed and run by Arya Pratinidhi Sabha, Uttar Pradesh. Sri Gupta after establishing a library and stacking the same with the latest books and journals handed over the management of the library to the Arya Pratinidhi Sabha, Uttar Pradesh and left for his ancestral village never to return. The lease came to expire for the first time in 1956; but it is not renewed by the Arya Pratinidhi Sabha, Uttar Pradesh. The library started to became remained closed and new books and journals were not available though a considerable number of old books were still there. The lease came to expire for the first time in 1956; but it is not renewed by the Arya Pratinidhi Sabha, Uttar Pradesh. The library started to became remained closed and new books and journals were not available though a considerable number of old books were still there. Arya Pratinidhi Sabha completely withdrew from the management of library; the keys were handed over to one Bhumitra Arya, who claimed to be the manager of the Arya Samaj Mandir, Harsholi and took charge of the Arya Samaj, already existing in the said premises and started renting various rooms of the building and the out houses to the tenants on a monthly basis. It is the case of the petitioner that Naveen Chandra Arya is deliberately trying to damage the building of library as well as out house appurtenant thereto, in order to compel the old tenants to vacate. The entire library building and out houses are in dilapidated stage and respondent nos. 4 & 9 are least bothered about its repair. Petitioner highlighting complaints, filed Writ Petition (PIL) No. 99 of 2014. In the said writ petition, this Court did not interfere, as such, but held as follows:- “In case, the petitioner feels that there is some anomaly committed, which is in violation of the lease he is always at liberty to approach the District Magistrate, Nainital. The writ petition is disposed of with the direction to the District Magistrate, Nainital that in case, such an application is made by the petitioner, it shall be decided in accordance with law.” 3. Finally, the second respondent passed order dated 03.08.2016 with direction to the Sub Divisional Magistrate, Nainital to take possession of the property with the specific finding that condition of lease deed has been violated by the lessee, there was no library operational and the building itself has been dilapidated. It is provided that respondent no. 3 must submit a proposal for the use of the building for public purpose so that the same may be handed over to the Nagar Palika Parishad. Pursuant to the said order, Nagar Palika Parishad passed a Board Resolution on 27.08.2016 for acquisition and use of the property for public purpose with a provision for existing tenants as well and a detailed Project Report was also submitted by respondent no. 3 to Sub Divisional Magistrate on 31.08.2016. Pursuant to the said order, Nagar Palika Parishad passed a Board Resolution on 27.08.2016 for acquisition and use of the property for public purpose with a provision for existing tenants as well and a detailed Project Report was also submitted by respondent no. 3 to Sub Divisional Magistrate on 31.08.2016. It is the further case of the petitioner that the possession of the property was taken on 31.08.2016, and the property in possession of Naveen Chandra Arya and respondent no. 9 purported to be used as library was sealed along with the shops allegedly in possession of respondent nos. 5 to 8 by the Tehsilar. Proceedings initiated by the petitioner, stood culminated in the said manner; but later came the impugned order dated 02.09.2016. By the said order without affording an opportunity of hearing to the petitioner, the Magistrate modified the earlier order and permitted the parties to apply on free hold basis in terms of policy. 4. We heard Mr. Bhuwan Bhatt, learned counsel for the petitioner, Mr. S.S. Chauhan, learned Deputy Advocate General for the State of Uttarakhand/respondent nos. 1 and 2, Mr. Navnish Negi, learned counsel for respondent no. 3, Mr. Manoj Tiwari, Senior Counsel assisted by Mr. Alok Mahra, learned counsel for respondent nos. 5, 6, 7 & 8 and Mr. S.S. Yadav, learned counsel for respondent no. 10. 5. We feel that there is a merit in the complaint of the petitioner that the order dated 03.08.2016, which was passed in the matter finding that violation of lease and among other things, and providing for use of the property for public purpose, has been overridden by the impugned order, without affording an opportunity of hearing to the petitioner. On that ground, the matter must be redone with an opportunity to all the parties, which means the petitioner and party respondents. Accordingly, we quash the impugned order. We further direct that the second respondent-Magistrate will afford an opportunity of hearing to the petitioner as also all the party respondents and will take a decision in accordance with law. This exercise will be completed within a period of three months from the date of production of certified copy of the judgment. But, till a decision is taken, further proceedings, pursuant to the decision dated 03.08.2016, will be kept in abeyance. This exercise will be completed within a period of three months from the date of production of certified copy of the judgment. But, till a decision is taken, further proceedings, pursuant to the decision dated 03.08.2016, will be kept in abeyance. We further make it clear that this Court has not expressed any opinion regarding the merits of the petitioner’s case as the case of the petitioner is disputed by the party respondents and the second respondent will take a decision on considering the merits of the contentions, to be raised by the parties.