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Allahabad High Court · body

2019 DIGILAW 939 (ALL)

Jyoti Kesarwani v. Union of India

2019-04-12

RAJENDRA KUMAR IV, SUDHIR AGARWAL

body2019
JUDGMENT : 1. Heard Sri. Ashish Kumar Singh, Advocate, assisted by Sri. Mohit Singh, learned counsel for petitioners, Sri. M.C. Chaturvedi, learned Senior Advocate, assisted by Sri S.C. Dwivedi, learned counsel for Nagar Nigam, Allahabad and perused the record. 2. All these writ petitions involve common questions of facts and law, therefore, were clubbed together and have been heard and are being decided by this common judgment. However, for brevity and clarity, we refer facts of individual cases separately and thereafter, proceed to consider issues raised in these matters. 3. Writ Petition No. 43642 of 2018 (hereinafter referred to "Petition 1") has filed by Smt. Jyoti Kesarwani wife of Ashish Kesarwani seeking a writ of certiorari for quashing order dated 17.9.2018 passed by Municipal Commissioner, Allahabad (Annexure 1 to the writ petition) rejecting her representation and directing her to remove construction raised on disputed site and vacate land in dispute. 4. Dispute relates to Shop No. 1, situated at Leader Road, Allahabad (renumbered as 22-B and then 107 and then 81), Mohalla Menhajpur (Leader Road), Pargana and Tehsil Sadar, Allahabad. A Deed of Conveyance was executed by President of India through Assistant Settlement Officer, District Relief and Rehabilitation, Allahabad on 2.7.1960 in favour of Smt. Sheela Devi wife of Sri R.K. Mehta under the provision of Displaced Persons (Compensation and Rehabilitation) Act, 1954 (hereinafter referred to as "Act, 1954"). Later on, disputed shop was transferred through a gift deed executed by Smt. Sheela Devi in favour of Nitin Mehta, Shivam Mehta and Saurabh, sons of Late Bhushan Kumar Mehta, executed on 14.9.1995 (registered on 5.1.1996) and thereafter through a registered sale-deed dated 25.9.2009, it was transferred by Nitin Mehta, Shivam Mehta and Saurabh in favor of petitioner Smt. Jyoti Kesarwani for a total consideration of Rs. 3,75,000/-. The area of shop mentioned in sale-deed is 18 sq. meters i.e. 16 ft. 1 inch x 12 ft. 5. A Public Interest Litigation No. 4003 of 2006 was filed before this Court seeking indulgence of this Court in the matter of pollution in River Ganga, which incidentally also considered issue of unauthorized constructions in Allahabad City. Complaint was that there are unauthorized constructions and encroachments on public roads. This was taken seriously by this Court and observations were made directing concerned authorities to take appropriate steps for removal of such encroachments and unauthorized constructions. Complaint was that there are unauthorized constructions and encroachments on public roads. This was taken seriously by this Court and observations were made directing concerned authorities to take appropriate steps for removal of such encroachments and unauthorized constructions. Relevant observations made in Court's order dated 19.12.2012 reads as under: "By our earlier order we have directed removal of encroachment from certain roads in the city of Allahabad due to ensuing Kumbh Mela. The roads which were mentioned in the order were basically the roads leading to Kumbh Mela from the railway station. It is necessary to remove encroachment from all these roads, namely Leader Road, Old G.T. Road, Mahatma Gandhi Marg and Nawab Yusuf Road. We find that the anti encroachment drive is very weak. Hardly any effective measures for complying with our orders have been taken. Sri S.D. Kautilya, learned counsel for the Nagar Nigam submitted that notices have been issued to various nurseries, which have encroached the Nalas, Road Patri and suitable action be taken. Apart from nurseries there are other encroachment, some of which are permanent in nature on the drains at the side of roads. The encroachment from all Nalas, drains and road Parties are to be removed. Effective steps were required to be taken by the Nagar Nigam as well as Allahabad Development Authority. We are sorry to record that due to lack of coordination amongst the two departments and the district administration hardly any concrete action is being taken. The situation is unhappy. We are of the view that the Principal Secretary, Urban Development and Awas should ensure that the effective steps are taken for removal of encroachment from Nala, Road Parties by the Nagar Nigam and Allahabad Development Authority in coordination with district administration i.e. District Magistrate and Senior Superintendent of Police. Adequate police force with Magistrate is provided to the Nagar Nigam and Allahabad Development Authority at the time of anti-encroachment drive. Looking to the ensuing Kumbh Mela, which is an international affair, removal of encroachment has to be done on war footing. Since this work requires cooperation of various department of the State, the Chief Secretary shall himself ensure that appropriate cooperation is provided by the various departments and in no case there should be any laxity in carry out of our orders. Since this work requires cooperation of various department of the State, the Chief Secretary shall himself ensure that appropriate cooperation is provided by the various departments and in no case there should be any laxity in carry out of our orders. An affidavit shall be filed by the Principal Secretary of the Urban Development and Awas with relevant photographs depicting the removal of encroachments as directed under our order dated 7.12.2012." 6. Nagar Nigam, Allahabad consequently issued public notice dated 22.1.2013 and 20.5.2013 alleging that shop of petitioner is an encroachment and need be demolished. Petitioner approached officials of Nagar Nigam pointing out that there is no encroachment and she is owner of property in question, but no attention was paid by Nagar Nigam or Municipal Commissioner, whereupon a Writ Petition No. 5286 of 2013 was filed, which was disposed of vide order dated 5.2.2013, which reads as under: "Heard Mr. Umesh Narain Sharma, learned Senior Advocate, appearing for the petitioners, assisted by Mr. Jitendra Kumar, and Mr. Ajit Kumar Singh, learned counsel appearing for respondents No. 2 and 3. Mr. K.C. Kaushik, Additional Solicitor General of India, assisted by Mr. Chandra Bhushan Singh has filed his appearance slip on before of respondent no. 4. A supplementary-affidavit filed today in the Court is taken on record. The petitioners, apprehending that the structures under their occupation may be removed from the road-side in the drive undertaken by the authorities for removal of encroachments in pursuance of the orders passed in Public Interest Litigation No. 4003 of 2006, have filed this writ petition, stating that the structures under their occupation were allotted to them in 1957 and they are title-holders of the properties. Therefore, in absence of any encroachment, the eviction drive should not be extended to the structures under their occupation. It appears that after filing of the writ petition, on 28.1.2013 notices have been issued to the petitioners to produce records in support of their claim that they are owners of the land as well as the structures standing thereon. Though a week's time was granted in the notice to submit the documents, the petitioners, having filed this petition, have not submitted the documents. We, therefore, dispose of this writ petition directing that petitioners may submit their documents in support of their claim of title over the structures by Friday next (8.2.2013) before respondents No. 2 and 3. Though a week's time was granted in the notice to submit the documents, the petitioners, having filed this petition, have not submitted the documents. We, therefore, dispose of this writ petition directing that petitioners may submit their documents in support of their claim of title over the structures by Friday next (8.2.2013) before respondents No. 2 and 3. Upon that, respondents No. 2 and 3 shall examine the documents and wherever they find that the property under possession is based on a valid title, the eviction drive is not to be extended to such structures." (Emphasis added) 7. Petitioner claimed to have submitted representation dated 18.2.2013, which was rejected by Municipal Commissioner vide order dated 20.5.2013. Again petitioner filed Writ Petition (Writ-C) No. 10173 of 2018. Other similarly placed persons also filed several writ petitions. All the writ petitions were decided vide judgment dated 21.3.2018 and the said judgment reads as under: "Heard Mr. Rajendra Prasad Mishra and Mr. Jitendra Kumar, learned counsel for the petitioners, Dr. Y.K. Srivastava, learned Chief Standing Counsel for respondent No. 2 -State and Mr. S.K. Kautilya, learned counsel for respondent Nos. 3 and 4 - Nagar Nigam. The challenge raised in this bunch of writ petitions is similar. All petitioners challenge notices, whereby they are asked to remove themselves from the premises (shops), to facilitate widening of streets as part of preparation of the forthcoming Kumbh Mela and in view of the fact that the city of Allahabad has been declared as smart city. It appears, and it is not in dispute that shops were allotted by executing deeds of conveyance in favour of original allottees between footpaths and drains. Petitioners claim that deeds of conveyance were executed in respect of shops which are subject-matter of these writ petitions. Some of the petitioners are subsequent purchasers and they have purchased the shops from original allottees. It is made clear that we have not examined title of petitioners in the instant bunch of writ petitions. It is not in dispute and as contemplated by Section 285 of the Uttar Pradesh Municipal Corporation Act, 1959, that the owner of any building or land is entitled for compensation, whenever such building or land is required for public street under Sections 280, 281, 282 or 283. It is not in dispute and as contemplated by Section 285 of the Uttar Pradesh Municipal Corporation Act, 1959, that the owner of any building or land is entitled for compensation, whenever such building or land is required for public street under Sections 280, 281, 282 or 283. Counsel appearing for the Nagar Nigam, after inviting our attention to these provisions, submits that if petitioners are having ownership/title over the shops in dispute, the Municipal Commissioner shall determine compensation to be paid to them within a period of eight weeks from the date of receipt of this order or the Nagar Nigam shall offer them alternative premises/site. In this backdrop, counsel appearing for the petitioners do not press these petitions and seek direction to the Municipal Commissioner to either pay compensation to petitioners in accordance with law or to offer them alternative premises/site within a period of two months. In the circumstances, we dispose of these writ petitions, as not pressed. We direct the Municipal Commissioner to either pay compensation to petitioners in accordance with law, if they are found to be owners of shops in dispute or to allot them alternative shops/site, as expeditiously as possible and preferably within a period of two months from the date of receipt of this order. Petitioners are directed to produce a copy of this order alongwith documents showing their ownership/title within 15 days from today. We hope and trust that the Municipal Commissioner shall pass appropriates orders within the stipulated time. It is needless to mention that this order shall not preclude the concerned authorities from commencing the work of construction/widening of streets where the shops in dispute are situated and, for that purpose, if the shops are required to be demolished, they may proceed to do so." (Emphasis added) 8. Petitioner and other similarly placed persons submitted their documents showing their title over property in dispute whereupon Municipal Commissioner has passed impugned order dated 17.9.2018 stating that shop was constructed on road/road side Patri as per Revenue map of 1950-51 and such construction over public passage is not permissible in law. Petitioner and other similarly placed persons submitted their documents showing their title over property in dispute whereupon Municipal Commissioner has passed impugned order dated 17.9.2018 stating that shop was constructed on road/road side Patri as per Revenue map of 1950-51 and such construction over public passage is not permissible in law. It has also held that document dated 6.7.1960 i.e. Deed of Conveyance, executed in favour of Smt. Sheela Devi wife of Sri R.K. Mehta, was erroneous and contrary to Rules hence would not confer any right of ownership upon petitioner on any part of public passage and any constructions raised thereon is also against public interest and contrary to law. Therefore, claim of petitioner is bad. 9. Facts in all other writ petitions are similar except number of shop, person in whose favour initial Deed of Conveyance was executed by Government of India and writ petition number in which judgment dated 21.3.2018 was passed, therefore, instead of repeating facts, we may reproduce these facts, averred in the writ petition, in the form of chart, as under:- S. No. Writ Petition Number Particulars/Details Writ Petition number in which impugned order has been passed 1 43621 of 2018 Deed of Conveyance was executed on 08.09.1961 in favour of Dharam Singh, who sold the same to Laddha Mal vide sale-deed dated 17.10.1963, who transferred the same to the father of petitioner vide sale-deed dated 18.01.1966. 33451 of 2013 2 43525 of 2018 Deed of Conveyance was executed on 23.07.1960 in favour of Nevand Ram, who transferred the same through Will dated 02.07.1964 in favour of Anil Kamal and Smt. Ajab Kaur, who transferred the same to petitioner vide sale-deed dated 19.11.1997. 33460 of 2013 3 43627 of 2018 Deed of Conveyance in respect of shop in question was executed on 26.10.1961 in favour of Bana Mal, and the same come in the share of father of petitioner on the basis of family settlement, which took place on 12.02.1993. 31908 of 2013 4 43629 of 2018 Deed of Conveyance in respect of shop in dispute was executed on 24.11.1959 in favour of Ravel Singh, Amar Singh and Santosh Singh. Petitioner is said to have got the disputed shop through Will dated 15.10.1997 executed by his grand father in his favour. 31908 of 2013 4 43629 of 2018 Deed of Conveyance in respect of shop in dispute was executed on 24.11.1959 in favour of Ravel Singh, Amar Singh and Santosh Singh. Petitioner is said to have got the disputed shop through Will dated 15.10.1997 executed by his grand father in his favour. Petitioner's father is said to have derive title over shop in dispute through Will dated 14.10.1983 executed by his friend Sri Ram Prakash Gandhi but there is nothing on record to show how Sri Ram Prakash Gandhi got title over disputed shop. 5 43631 of 2018 Deed of Conveyance in respect of shop in dispute was executed in favour of Ladda Mal (Copy whereof is not available) which was transferred vide sale-deed dated 04.04.1978 in favour of Sachhidanand and Nityanand, who transferred the same vide sale-deed dated 29.11.1994 in favour of petitioner (copy whereof is also not appended though mentioned as Annexure 2). 6 43632 of 2018 Deed of Conveyance in respect of shop in dispute was executed on 20.07.1960 in favour of Teyu Mal, who sold the same to petitioner and three others namely Omkar Srivastav, Rajendra Prasad Srivastava and Dashrath Srivastava vide sale-deed dated 06.05.1985. 7 43634 of 2018 Deed of Conveyance in respect of shop in dispute was executed on 26.04.1968 in favour of Mahendra Arora and the same was transferred in favour of petitioner. It is not made clear as to in what manner petitioner has any legal right over shop in dispute. 33457 of 2013 8 43635 of 2018 Deed of Conveyance in respect of shop in dispute was executed on 07.08.1967 in favour of Choith Mal, which was further transferred by Laddha Mal through Power of Attorney holder of Smt. Maya Devi and Choith Mal through sale-deed dated 02.11.1978 in favour of father of petitioner. 33449 of 2013 9 43638 of 2018 Deed of Conveyance in respect of shop in dispute was executed on 07.08.1967 in favour of Choith Mal, which was transferred vide sale-deed dated 01.11.1978 in favour of Parshumal and the same was further transferred on 13.11.1997 in favour of petitioner. 33492 of 2013 10 43639 of 2018 Deed of Conveyance in respect of shop in dispute was executed on 07.03.1962 in favour of Ram Prakash Gandhi, which was subsequently transferred in favour of petitioner vide Will dated 15.10.1983 executed by Ram Prakash Gandhi. 33492 of 2013 10 43639 of 2018 Deed of Conveyance in respect of shop in dispute was executed on 07.03.1962 in favour of Ram Prakash Gandhi, which was subsequently transferred in favour of petitioner vide Will dated 15.10.1983 executed by Ram Prakash Gandhi. 33446 of 2013 11 43641 of 2018 Deed of Conveyance in respect of shop in dispute was executed on 23.03.1963 in favour of Khillu Mal, which was transferred through Will dated 22.03.1983 executed by Khillu Mal in favour of petitioner and his brother Shiv Kumar. 33459 of 2013 12 43644 of 2018 Deed of Conveyance in respect of shop in dispute was executed on 02.05.1964 in favour of Atma Prakash and Thakur Dutt, who transferred the same in favour of petitioner. It is not made clear as to in what manner petitioner has any legal right over shop in dispute. 31914 of 2013 13 43646 of 2018 Deed of Conveyance in respect of shop in dispute was executed on 18.01.1963 in favour of Gajjan Mal, who transferred the same to the petitioner vide Will dated 13.02.1982. 33453 of 2013 14 43648 of 2018 Deed of Conveyance in respect of shop in dispute was executed on 27.02.1961 in favour of Dhanu Mal, who transferred the same to Mohal Das. Mohal Das again transferred the same in the year 1987 in favour of Dulana Ram and Teerath Das. Thereafter Teerath Das, Dhanraj, Sushil Kumar, sons of Dulana Ram and Smt. Seema transferred the same in favour of petitioner. 33489 of 2013 15 43652 of 2018 Deed of Conveyance in respect of shop in dispute was executed on 23.03.1963 in favour of Khillu Mal, who transferred the same through Will dated 22.03.1983 in favour of petitioner and his brother Shiv Kumar. 33455 of 2013 16 43656 of 2018 Deed of Conveyance in respect of shop in dispute was executed on 06.09.1957 in favour of Pawan Das, who transferred the same to Tahalram vide sale-deed dated 31.03.1960 and thereafter the same was transferred vide sale-deed dated 18.04.1984 in favour of petitioner. 31901 of 2013 17 4115 of 2019 Deed of Conveyance in respect of shop in dispute was executed on 18.11.1957 in favour of Bodh Raj, who transferred the same vide dated 27.05.1960 and subsequently it was transferred in favor of petitioner vide sale-deed dated 15.10.1966. 31905 of 2013 10. 31901 of 2013 17 4115 of 2019 Deed of Conveyance in respect of shop in dispute was executed on 18.11.1957 in favour of Bodh Raj, who transferred the same vide dated 27.05.1960 and subsequently it was transferred in favor of petitioner vide sale-deed dated 15.10.1966. 31905 of 2013 10. The disputed constructions over land in dispute have already been demolished by respondents. 11. Counsel for petitioners contended that admittedly Government of India executed Deeds of Conveyance, transferring shops to various persons under Act, 1954 and the petitioners, being subsequent transferees stand in the shoes of such initial owner. Aforesaid Deed of Conveyance executed by Government of India could not have been nullified by an Executive Authority like Municipal Commissioner stating that said documents are illegal. Instead remedy lies to respondents to seek a declaration from a Court of law that aforesaid document are illegal and the same should be cancelled but no such action in common law was taken. He further contended that, assuming without admitting that land in dispute was part of public passage and Deed of Conveyance only transferred shops to petitioners, still the shops could not have been demolished without paying any compensation to petitioners particularly when the same were allotted in lieu of compensation under the provision of Act, 1954 and amount of compensation was adjusted by Government of India. The aforesaid documents, therefore, confer a legal right upon the allottees and then to petitioners since shops were allotted to them in lieu of due consideration and it was never challenged by respondents at any point of time in any competent Court of law. Hence, it was not permissible for Municipal Commissioner to suo moto treat the said documents illegal and ignore the same, holding that petitioners would have no right even in respect of shops, which were then subsequently demolished by respondents. In any case, when petitioners' writ petitions were decided by this Court vide judgment dated 21.3.2018, issue with regard to entitlement of petitioners of compensation was already decided and this Court disposed of writ petitions with direction to Municipal Commissioner either to pay compensation to petitioners in accordance with law, if they are found owners of shops in dispute or to allot them alternative shops/site, as expeditiously as possible. Petitioners were found owners of shops in view of documents i.e. Deed of Conveyance initially executed and subsequent transfer, which were placed before Municipal Commissioner but holding that said documents are illegal, Municipal Commissioner has denied either compensation or allotment of alternative shops or site to petitioners, which is not only inconsistent to judgment dated 21.3.2018 but also to documents on record. 12. In our view, factum that Deeds of Conveyance executed by Government of India allotting shops to predecessors from whom the same stood transferred to petitioners on various dates under the provisions of Act, 1954 is not in dispute. Petitioners being transferees from initial allottees (owners of shops) are ostensible owners of shops in dispute, which were allotted by Government of India under the Deed of Conveyance, detailed hereinabove. The aforesaid Deeds of Conveyance, whether valid or not, could not have been decided by Municipal Commissioner since title dispute could have been settled only by a Court of law and Municipal Commissioner is not competent to declare Deeds of Conveyance transferring title to original transferees to be illegal and bad. 13. Once existence and execution of Deeds of Conveyance and that too executed by Government of India were not in dispute, Municipal Commissioner had no option but to proceed to consider whether persons coming before him in respect of shops in dispute, derive their title from such Deeds of Conveyance or any subsequently executed Deed of Conveyance or Instruments or documents of title and thereafter ought to have passed order for payment of compensation or to make an alternative site or shop available. But that has not been done. Therefore, in our view, impugned orders in all the writ petitions are patently illegal and without jurisdiction as Municipal Commissioner has traveled beyond its authority by declaring Deeds of Conveyance executed by Government of India, duly registered under the provisions of Registration Act, 1908 (hereinafter referred to as "Act 1908") with the Competent Authority, after almost sixty more years, illegal and in passing order denying any right of compensation to petitioners. 14. Moreover, here is not a question of ownership of land. When shops were allotted to petitioners, they were entitled for compensation in respect of shops provided all the petitioners substantiated their right flowing from initial Deeds of Conveyance, executed by Government of India or subsequent sale-deed or instruments executed by erstwhile allottees or their transferees. 15. 14. Moreover, here is not a question of ownership of land. When shops were allotted to petitioners, they were entitled for compensation in respect of shops provided all the petitioners substantiated their right flowing from initial Deeds of Conveyance, executed by Government of India or subsequent sale-deed or instruments executed by erstwhile allottees or their transferees. 15. In the result, writ petitions are allowed with costs. We quantify cost of Rs. 5,000/- to each set of petition, against respondents 3 and 4 of Petition 1. The impugned orders are hereby set aside. Municipal Commissioner now shall proceed to determine compensation payable to petitioners after examining whether petitioners, coming before him, are valid owners/transferees of shops in dispute and derive their right from allottees under initial Deed of Conveyance executed by Government of India or any subsequent document of transfer executed by vendees/purchasers under Deed of Conveyance executed by Government of India, and have legal right to claim compensation. It is also provided, as also already directed by this Court vide judgment dated 21.3.2018 that instead of compensation it will also be open to respondents 3 and 4 to allot any other shop/site to petitioners, if it is suitable and agreeable to petitioners and that will settle all other claims with regard to disputed shops, which have been demolished by respondents.