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Allahabad High Court · body

2019 DIGILAW 1446 (ALL)

Dinesh Chand Tiwari v. State of U. P.

2019-05-27

PANKAJ MITHAL, PRAKASH PADIA

body2019
JUDGMENT : 1. Heard Sri S.S. Shukla, learned counsel for the petitioner (now petitioners), learned Standing counsel and Sri Swapnil Kumar along with Anadi Kirshna for the UPSIDC. 2. The petitioner Dinesh Chand Tiwari now represented by his heirs and legal representatives preferred this petition seeking a direction upon the respondents to handover actual physical possession of plot no. VL-3 having area of 293.50 sq. meters situate in industrial area Site-II Loni Road, Ghaziabad after getting it cleared from the illegal possession of the Commercial Tax Department, Ghaziabad. 3. It appears from the record that about 0-11-0 Bigha land of khasra no. 152 of Village Arthala, Pargana and Tehsil-Loni, District Ghaziabad was resumed by the State of U.P. in exercise of powers under Section 117 (6) of the U.P.Z.A. and LR Act, 1950 (in short the Act) vide notification dated 29.12.1969 and after taking possession of the same it was handed over to the Uttar Pradesh State Industrial Development Corporation (in short UPSIDC) on 9.12.1970 whereupon it came to be recorded in the name of UPSIDC. 4. The said land was developed into industrial plots by the UPSIDC and the aforesaid plot no. VL-3 was one of the plots carved out from the said land. 5. The petitioner had applied for allotment of an industrial plot to the UPSIDC vide application dated 1.2.2006 for setting up an industrial unit for manufacturing ready-made garments. He was allotted the aforesaid plot no. VL-3 vide letter dated 20.2.2007 and the lease deed in respect thereof was executed on 9/11.5.2007 and was duly registered. 6. The allotment letter mentions the area of the allotted plot to be 300.44 sq. meters whereas the lease deed mentions it to be 293.50 sq. meters. The aforesaid lease was executed on payment of premium of Rs. 2,15,722/-. The balance premium of Rs. 6,37,167/- was payable in 10 half yearly installments of Rs. 64,723/-. The petitioner duly paid/deposited the entire premium amount as well as the lease rent but the possession of the plot allotted was not given to him. The petitioner made repeated applications for possession to the Managing Director, UPSIDC as well as to the District Magistrate as it was informed that the possession of the said plot is with the Commercial Tax Department. 7. The petitioner made repeated applications for possession to the Managing Director, UPSIDC as well as to the District Magistrate as it was informed that the possession of the said plot is with the Commercial Tax Department. 7. On the persistent demand of the petitioner for possession of the aforesaid plot, symbolic possession of the same was given to him by the UPSIDC vide possession memo dated 6.3.2009 but the actual physical possession of the land was never handed over to the petitioner as it was the Commercial Tax Department. 8. The Commercial Tax Department claimed the said land belongs to it and this caused hindrance in the actual transfer of the possession. The petitioner therefore filed writ petition no. 40275 of 2013 which was decided on 16.9.2013 and in view of inter se dispute between the two statutory bodies of the State of U.P. vis-a-vis UPSIDC and Commercial Tax Department, High Court directed the State Government to consider the dispute as referred to it by the District Magistrate vide letter dated 27.10.2010 with regard to ownership of khasra no. 152 qua the two authorities. 9. In pursuance to the above directions of the High Court, the State Government vide office order dated 22nd August 2014 passed by the Chief Secretary on consideration of the respective claims set up by both the bodies and after hearing them opined that gata no. 152 was the land of Gaon Sabha which was resumed by the State Government under Section 117 of the Act and after UPSIDC deposited the necessary compensation its possession was delivered to it whereas the acquisition alleged to be in favour of the Commercial Tax Department is incomplete and there is no material evidence to show that in respect of the said acquisition any compensation was paid to any tenure holder and as such the aforesaid land is the land of the UPSIDC. 10. As despite the above order resolving the inter se dispute of the two departments over the said land, the possession was not given to the petitioner, he was forced to file the present writ petition. 11. The parties have exchanged the necessary pleadings. Learned counsel for the parties agree for the final disposal of petition on the basis of the pleadings on record. 12. 11. The parties have exchanged the necessary pleadings. Learned counsel for the parties agree for the final disposal of petition on the basis of the pleadings on record. 12. The simple issue is whether the petitioner who has been allotted an industrial plot in respect whereof even lease deed has been executed in his favour is entitle to its actual physical possession irrespective of the initial inter se dispute of the ownership of the said land between UPSIDC and the Commercial Tax Department which in fact has already been resolved vide order dated 22.8.2014 of the Chief Secretary, State of U.P. 13. There is no dispute to the fact that the petitioner is a bonafide allottee of the aforesaid industrial plot by the UPSIDC and that a lease deed in respect of the said plot has already been executed in his favour. Despite allotment made on 20.2.2007 and the lease deed dated 9/11.5.2007 the petitioner has not been put in actual physical possession of the same. It is already over 12 years from the date of allotment/execution of the lease but the physical possession has not been delivered to the petitioner. He could not establish his industry which he had planned to setup at the time of applying for the allotment of the plot for want of possession. The petitioner in the meantime has even died. Thus, the very purpose of allotment and lease may have been lost as the successors may not be in a position to set up an industry as planned. 14. The only reason on record for not delivering the possession is that the UPSIDC is claiming the said land on the basis of resumption under Section 117 of the Act for which notification was issued on 29.12.1969 whereas Commercial Tax Department is claiming that the said land was acquired for its benefit vide notifications dated 15.11.1976 and 3.12.1976 issued under Sections 4 and 6 of the Land Acquisition Act respectively and the award dated 4.6.1980/6.6.1980. 15. In short on account of the above inter se dispute of ownership between the two departments and the fact that the Commercial Tax Department has raised a boundary wall on part of it or even some constructions that the possession could not be delivered to the petitioner. 16. 15. In short on account of the above inter se dispute of ownership between the two departments and the fact that the Commercial Tax Department has raised a boundary wall on part of it or even some constructions that the possession could not be delivered to the petitioner. 16. At the very outset it is worth mentioning that the UPSDIC is a statutory corporation for promotion of industrial development for which purpose it develops land for industrial use and allot industrial plots so developed to the willing entrepreneurs. Therefore, it is the primary responsibility of the UPSIDC to allot industrial plots which are clear of all disputes and can be utilized without any let or hindrance for industrial purpose otherwise if the title or possession is in dispute, it would frustrate the very object of the allotment or the purpose for which UPSIDC is established. In the event UPSIDC proceeds to allot land and execute the lease deed thereof it becomes the bounden duty of it to deliver its actual possession to the allottee free from all encroachments so that the allottee may proceed to setup the industrial unit. 17. The UPSIDC in allotting and leasing out the aforesaid plot to the petitioner clearly failed to discharge its obligation of delivering actual physical possession of the plot to the petitioner. Thus, the allotment and the lease of the plot was futile and with no purpose to the petitioner. 18. The possession memo dated 6.3.2009 is apparently a sham transaction. It only purports to deliver symbolic possession of the plot to the petitioner. The UPSIDC could not have delivered the actual possession of it as its possession was with the Commercial Tax Department. This apart, symbolic or paper possession has no meaning. There has to be actual transfer of possession which should be suitably documented by executing a possession memo in the presence of the independent witnesses clearly mentioning that the possession has been transferred after removing all encroachments and unauthorized constructions, if any, existing over it. 19. The so called dispute between the UPSIDC and the Commercial Tax Department has been resolved by the State Government vide office order dated 22.8.2014 which has been passed in pursuance of the directions of this Court dated 16.9.2013 given in writ petition no. 40275 of 2013. 19. The so called dispute between the UPSIDC and the Commercial Tax Department has been resolved by the State Government vide office order dated 22.8.2014 which has been passed in pursuance of the directions of this Court dated 16.9.2013 given in writ petition no. 40275 of 2013. The State Government has categorically held that the aforesaid land was the land of the Gaon Sabha which has been resumed by the State Government under Section 117 (6) of the Act and has been settled with the UPSIDC. On the other hand, the claim of the Commercial Tax Department that the land has been acquired under the Land Acquisition Act for its benefit it has been opined that the said acquisition is not valid as the land which has already been resumed by the State Government and can not be acquired. The said acquisition proceedings were incomplete as no award as alleged on 4/6.6.1980 was validly given, in as much as, there was no approval of any such award by the Board of Revenue and that there is no material on record to establish the payment of compensation as per the award to the tenure-holders. 20. The State Government concluded as under:- ^^mijksDr ÁLrj&3 esa okf.kT; dj foHkkx }kjk ÁLrqr rF; ,oa vk/kkjksa] ÁLrj&4 esa mfYyf[kr ;wŒihŒ,lŒvkbZŒMhŒlhŒ }kjk ÁLrqr rF; ,oa vk/kkjksa rFkk ÁLrj&5 esa ftykf/kdkjh] xkft;kckn ls ÁkIr vk[;k ,oa miyC/k djk;s x;s vfHkys[kksa ds ijh{k.k ls Li"V gS fd xkVk la[;k&152 ,oa xzke lHkk Hkwfe jktdh; Hkwfe Fkh ftldk iquxzg.k mŒÁŒ tehankjh fouk'k ,oa Hkwfe O;oLFkk vf/kfu;e] 1951 dh /kkjk 117 ds varxZr fd;k x;k rFkk ;wŒihŒ,lŒvkbZŒMhŒlhŒ }kjk mDr jktdh; Hkwfe dk cktkj nj ij ewY; lacaf/kr ys[kk'kh"kZd esa tek dj fn;k x;k rFkk ml ij fof/kor dCtk ÁkIr dj fy;k x;k tcfd okf.kT; dj foHkkx ds i{k esa Hkw&vtZu dh dk;Zokgh iw.kZ ugha gqbZ vkSj mlds lkis{k Áfrdj dk dksbZ Hkqxrku HkwLokfe;ksa dks fd;s tkus ds dksbZ lk{; okf.kT; dj foHkkx ;k ftykf/kdkjh }kjk ÁLrqr ugha fd;k x;kA mijksDr ls Li"V gS fd xkVk la[;k&152 ds laca/k esa ;wŒihŒ,lŒvkbZŒMhŒlhŒ dk i{k mfpr ,oa Lohdkj djus ;ksX; gSA fd'ku flag vVksfj;k Áeq[k lfpoA** 21. The above decision as on date is final and conclusive. It has not been challenged by any party in any forum. The above decision as on date is final and conclusive. It has not been challenged by any party in any forum. Thus, no inter se dispute of ownership of the above land vis-a-vis UPSIDC and Commercial Tax Department survives and it stands settled in favour of the UPSIDC. 22. The argument that the State Government has referred the aforesaid decision for review to some high power Committee is of no consequence. First of all, there is no material to establish any such reference. Secondly, an order which is final and conclusive can not be reviewed in the absence of any statutory provision permitting such a review. At the same time, the State Government can not refer the matter to any other high power Committee as no appeal lies against it. The reference, if any, is simply a device to get the aforesaid order nullified and to obtain an order of the choice at the cost of the petitioner. An exercise of this kind is not permissible in law and the State authorities can not be permitted to go on reviewing an order till a desired or favourable result is obtained. 23. The record further reveals that after the aforesaid order dated 22.8.2014 letters have been written by the District Magistrate to the Additional Commissioner, Commercial Tax, Ghaziabad and to other Administrative authorities for ensuring that the land in dispute be handed over to UPSIDC but the fact remains that its possession has not been delivered to the petitioner. 24. In view of the aforesaid facts and circumstances it is fit case for exercise of extra ordinary jurisdiction to avoid miscarriage of justice. Accordingly, we issue a writ in the nature of mandamus commanding all the respondents to ensure that the petitioner now represented by his heirs and legal representatives is put in possession of the plot in question VL-3 area 293.50 sq. meters industrial area Site-II Loni Raod, Ghaziabad within a period of three months from the date a copy of this order is produced by him or by any party before the District Magistrate, Ghaziabad, Regional Manager, UPSIDC, Ghaziabad and the Additional Commissioner Commercial Tax, Ghaziabad and to pay a token compensation @ Rs. 1,00,000/- per annum as damages from the date of the lease deed till the delivery of the possession to the petitioner. 1,00,000/- per annum as damages from the date of the lease deed till the delivery of the possession to the petitioner. Alternatively, in case for any reason it is still not possible for the respondents to deliver possession of the said plot to the petitioner within the above period, the respondents would in addition to the above compensation pay the petitioner the market value of the land on date determined as per the circle rate notified by the District Magistrate under the Indian Stamp Act for the industrial/commercial purpose for the area where the land is so situate. 25. It is worth noting that the petitioner has apparently suffered due to the dispute of the two departments of the Government as such has been dragged into this litigation unnecessarily. The Court has also been burdend with this unwanted case and the earlier petition which would have been avoided with little co-ordination of the two bodies and care by the State Government. This unnecessary litigation has resulted in unnecessary expenditure of the public money. Therefore, we consider it appropriate to call from the Commercial Tax Department and the UPSIDC the details of the expenditure incurred by each of them on this litigation viz. the expenses, counsel fee, travelling expenses of the officers/staff in attending the proceedings or the office of the counsel etc. It may be filed by them on affidavit within three months along with a separate affidavit regarding compliance of the mandamus issued by the Court. The expenses so incurred shall be deposited by the Commercial Tax Department and UPSIDC with State Treasury within a month thereafter and may be recovered from the officers responsible. The petitioner shall be at liberty to move an application in this decided petition itself in the event any of the above directions are not complied with by any of the respondents. 26. The writ petition is allowed.