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2020 DIGILAW 111 (ALL)

Mata Deen Bhagwan Das v. State Of U. P.

2020-01-10

PANKAJ MITHAL, VIPIN CHANDRA DIXIT

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JUDGMENT : Heard Sri Swapnil Kumar, learned counsel for the petitioners and Sri Mata Prasad, learned Standing Counsel. 2. The petitioners have invoked the writ jurisdiction of the court for issuance of a writ in the nature of mandamus commanding the respondents to execute a freehold deed in their favour in respect of the land plot No.71, Block No.79 (House No.79/75), Area 3213.76 Sq. Mtrs. situate in Bansmandi Kanpur, pursuant to their application dated 29.01.1999 for grant of freehold rights in the said land. 3. The petitioners at the same time have also prayed for the quashing of the Government Orders dated 04.03.2014 and 28.09.2011 and Clause 2(i) of the Government Order dated 15.01.2015 which provides for applying the circle rate prevailing on the date of disposal of the freehold application instead of the date of submitting the application. 4. The petitioners allege that in respect of Nazul land of plot No.71 aforesaid having an area of 3351.31 Sq. Mtrs. a lease deed was executed on 01.03.1897 for a period of 99 years in favour of Babu Murlidhar and two others. The said lease rights were inherited by Smt. Pranpati @ Kishan Rani, who transferred the said rights vide sale deed dated 03.02.2016 in favour of Lala Rang Lal and Ram Gopal. Later Ram Goptal vide sale deed dated 10.10.2017 purchased the entire rights in the said property and became the exclusive lessee of it. 5. The petitioners purchased the leasehold rights in the said property on 01.07.1921 from Ram Gopal. Ever-since then they are in actual physical possession of the aforesaid plot. However, the petitioners vide registered sale deed dated 29.01.1972 transferred their rights in a small portion of the said property to the extent of 137.55 Sq. Mtrs. in favour of Ganpat Rai Moti Ram Charitable Trust. 6. In view of the above, the petitioners remain to be the lease of 3213.76 Sq. Mtrs. of the said plot of land whereas the above Charitable Trust became the lessee of an area of 137.55 Sq. Mtrs. of it. 7. The State Government came out with a policy for converting Nazul land into freehold by issuing Government Orders from time to time and finally a Government Order dated 01.12.1998 was issued in this regard. 8. Mtrs. of the said plot of land whereas the above Charitable Trust became the lessee of an area of 137.55 Sq. Mtrs. of it. 7. The State Government came out with a policy for converting Nazul land into freehold by issuing Government Orders from time to time and finally a Government Order dated 01.12.1998 was issued in this regard. 8. The petitioners in accordance with the terms and conditions of the aforesaid Government Order deposited 25% of the self-assessed market value of the said land amounting to Rs.7,35,182/-and submitted application dated 29.01.1999 for the grant of freehold rights in the aforesaid land of plot No.71 having an area 3213.76 Sq. Mtrs. 9. Simultaneously, vide application dated 30.01.1999 Ganpat Rai Moti Ram Charitable Trust also applied for grant of freehold rights in respect of 137.55 Sq. Mtrs. of the land of the aforesaid plot No.71 which it had purchased from the petitioners. 10. The Charitable Trust has been granted freehold rights in the said portion of land and a freehold deed in its favour has been executed on 29.03.2012 on being satisfied that its rights over it as claimed by it are not in doubt. 11. In regard to the application of the petitioners for grant of freehold rights, Additional District Magistrate (F & R) vide letter dated 20.01.2003 made certain inquiries with regard to the manner in which the petitioners have acquired rights in the above property. The petitioners in response to the said query supplied all documents pertaining to their title/leasehold rights over the said land. 12. Despite the above, the District Magistrate vide letter dated 05.12.2007 required the petitioners to produce all documents of their rights which were again produced before him on 02.01.2018 by the petitioners. Then certain clarifications were sought which were duly clarified by means of an affidavit submitted on 03.08.2010. Thereafter the petitioners were given personal hearing and they appeared on 26.10.2010 but the respondents failed to issue the demand letter for the balance amount so as to convert the land into freehold. 13. In the meantime pending the above proceedings a Government Order was issued on 28.09.2011 directing the authorities to decide all pending applications for freehold within six months and if they remain undecided they shall stand rejected. 13. In the meantime pending the above proceedings a Government Order was issued on 28.09.2011 directing the authorities to decide all pending applications for freehold within six months and if they remain undecided they shall stand rejected. Another Government Order dated 04.03.2014 provided that for the purposes of disposal of all such applications circle rate on the date of submission of applications as per the land use according to the master plan shall apply subject to the area of the plot. The rejection clause was withdrawn by the Government vide another Government Order dated 15.01.2015 and it was provided that for the purpose of grant of freehold rights the circle rate of the land as per the Government Orders dated 28.09.2011 and 04.03.2014 shall be applicable. 14. One Sanjiv Kumar Shakya, the then Tehsildar Ghatampur, District Kanpur Nagar has filed a counter affidavit on behalf of the respondents. In addition to it a separate counter affidavit has been filed by one Virag Karvariya, Naib Tehsildar, Tehsil Sadar, District Kanpur in response to the amended paragraphs of the above writ petition. 15. In the counter affidavit it has not been disputed that the petitioners have applied for grant of freehold rights in the Nazul land as stated by them. In paragraphs 10 and 16 of the first counter affidavit it has been admitted that the application of the petitioners was complete and a proposal was got prepared for getting the land converted into freehold but the freehold rights could not be granted as in the meantime a notification was issued declaring elections of the U.P. Vidhan Sabha. It further states that the application of the petitioners stood rejected in view of the Government Order dated 28.09.2011. 16. It has also been averred that as the application of Ganpat Rai Moti Ram Charitable Trust was complete the District Magistrate in April, 2007 accorded approval for conversion of its Nazul land into freehold. Consequently, a freehold deed dated 19.03.2012 was executed in its favour. 17. In the counter affidavit filed in reply to the amended paragraphs of the writ petition it has been stated that in accordance with the Government Order dated 15.01.2015 which provides that all pending applications for freehold shall be treated as valid and therefore, shall be decided in accordance with the circle rate prevailing at the time of the disposal. 18. In the counter affidavit filed in reply to the amended paragraphs of the writ petition it has been stated that in accordance with the Government Order dated 15.01.2015 which provides that all pending applications for freehold shall be treated as valid and therefore, shall be decided in accordance with the circle rate prevailing at the time of the disposal. 18. Despite complete pleadings on record vide order dated 21.08.2019, learned Standing Counsel was granted indulgence to seek instructions as to whether actually the application of the petitioners was complete in all respect before the declaration of the general elections of Vidhan Sabha of the State of U.P. and as to why the immediate action was not taken on it. 19. Learned Standing Counsel, thus obtained instructions and accepted it that the application was complete as mentioned in paragraphs 10 and 16 of the counter affidavit but action could not be taken as it was treated to have been rejected. 20. On the basis of the above instructions he proposed to file an additional counter affidavit which we refused to accept at this stage of final hearing as the court had not required filing of any further or additional counter affidavit. It is well settled that a party is entitle to file reply in response to the petition only once and that successive counter affidavits are not to be permitted as a matter of course. In view of the stand taken by the respondents in the above counter affidavits, it is clear that the respondents have initially treated the application of the petitioners to have been rejected and that presently the application is said to be pending but no final decision thereof could be taken for the reason that now the demand note has to be issued as per the prevailing circle rate. The bone of contention is as to why the application of the petitioners for grant of freehold rights could not be finalised earlier when the subsequent application of another party in respect of a small portion of the same very plot of land has been considered and the freehold deed dated 19.03.2012 was executed in respect to said portion of the land and as to the rate on which the petitioners are entitled to get the freehold rights. There is not dispute to the fact that the petitioners have applied for grant of freehold rights in accordance with the terms and conditions of the Government Order dated 12.01.1998 and accordingly, they are entitle to freehold rights on fulfillment of the conditions laid down therein and as modified by the subsequent government orders. The counter affidavit makes it abundantly clear that the application of the petitioners for grant of freehold rights was complete but it could not be finalised due to implementation of the Model Code of Conduct. The Model Code of Conduct had not remained in operation for long and despite its lifting the application of the petitioners was not processed and finalised. There is nothing on record to show inability on part on part of the respondents in not granting the freehold rights to the petitioners on or before 28.09.2011 except for the implementation of the Model Code of Conduct for which purpose no relevant dates as to when it was enforced and lifted has been mentioned. 21. The above excuse is apparently an eyewash. We do not find any valid or logical reason on part of the respondents in keeping the application of the petitioners for grant of freehold rights pending since January, 1999 till September, 2011 i.e. for a period of 11 years except for making inquiries regarding the rights of the petitioners on the said land when in respect of the application of one another person, who claims rights from the petitioners no such query or inquiry was made and freehold rights were granted. 22. In the event the holder of a small portion of the land of the same plot in respect of which the petitioners are claiming freehold rights has been granted freehold rights there appears to be no justification on part of the respondents in not considering the application of the petitioners. It is not the case of the respondents that the petitioners do not fulfill or satisfy the conditions set out in the Government Order dated 12.01.1998 or their title/rights are in doubt. In fact, the title or rights of the petitioners in the said land can not be doubted when the person deriving rights from them has already been recognised for grant of freehold rights. 23. In fact, the title or rights of the petitioners in the said land can not be doubted when the person deriving rights from them has already been recognised for grant of freehold rights. 23. The contention that the petitioners never accepted for grant of freehold rights on the prevailing circle rate or on the higher rate is neither here nor there as the respondents never issued any demand notice to the petitioners demanding any amount at any rate much less the prevailing circle rate. 24. Thus, on the ground of parity alone the petitioners are also entitle for freehold rights in the land in question from the date i.e. 19.03.2012 on which Ganpat Rai Moti Ram Charitable Trust has been granted freehold rights. 25. The condition that all applications which have remained pending for over six months from the issuance of Government Order dated 28.09.2011 stand automatically rejected has lost all its efficacy and is meaningless as the said condition of the Government Order dated 28.09.2011 was subsequently recalled vide Government Order dated 15.01.2015 and the applications were restored. The issue as to the validity of Clause 2(i) of the Government Order dated 15.01.2015 which provides for applying the circle rate as provided in Government Orders dated 28.09.2011 & 04.03.2014 i.e. the rate prevailing on the date of the disposal of the application of freehold rights, it is pertinent to mention that the issuance is res integra as it is squarely covered by the Full Bench decision in the case of Anand Kumar Sharma Vs. State of U.P. and others, 2014 (2) ADJ 742 wherein it has been categorically held that mere making of an application for freehold rights does not give rise to any vested right and if in the meantime there is a change in policy, the application has to be decided as per the policy in existence at the time of passing of the order and consequently for the purpose of freehold rights, the applicant has to deposit the amount as per the circle rate prevailing on the date of the application. In view of above, we have no hesitation to say that the petitioners are also liable for the payment of the amount at the circle rate prevailing on the date of disposal of the application. In view of above, we have no hesitation to say that the petitioners are also liable for the payment of the amount at the circle rate prevailing on the date of disposal of the application. The challenge to the Government Orders dated 04.03.2014 and 28.09.2011 is only to a limited extent in so far as they directed for the disposal of the freehold applications within six month failing which they would stand automatically rejected. Since the said condition of rejection has been withdrawn the challenge to the said orders to the above extent is of no avail. It may not be out of context to mention that a Division Bench of this court in which of us (P. Mithal, J.) was a member of in the case reported in 2019 (8) ADJ 442 (DB) Amar Nath Bhargava Vs. State of U.P. and others has issued general directions to the District Authorities of Allahabad to finalise all pending applications for grant of freehold rights filed in pursuance to the Government Order dated 01.12.1998 most expeditiously latest by 31 December, 2019. In Dr. Ashok Tahiliani Vs. State of U.P. and others 2019 (9) ADJ 176 another Division Bench of this court in the matter concerning grant of freehold rights in Nazul land on an application submitted in accordance with Government Order dated 01.12.1998 issued a general mandamus commanding all District Magistrates throughout the State of U.P. to take a decision on all pending applications within a time bound period not exceeding six months. 26. In the case at hand, we do not find that the petitioners were in any way responsible for the delay in consideration of their application for freehold rights. There application was complete in all respect. It was not rejected or even treated to be rejected as the 25% amount deposited by the petitioners were never offered to be returned. There is no allegation anywhere that the petitioners were not taking interest and have delayed the proceedings. 27. In view of the aforesaid facts and circumstances, we are of the opinion that there is an inordinate and unexplained delay on part of the respondents in dealing with the application of the petitioners for grant of freehold rights. There is no allegation anywhere that the petitioners were not taking interest and have delayed the proceedings. 27. In view of the aforesaid facts and circumstances, we are of the opinion that there is an inordinate and unexplained delay on part of the respondents in dealing with the application of the petitioners for grant of freehold rights. Since the respondents have executed freehold deed in favour of Ganpat Rai Moti Ram Charitable Trust that has purchased a small portion of the aforesaid plot from the petitioners on 19.03.2012, the petitioners are also entitled for freehold rights as on the aforesaid date and at the rate on which the rights were so conferred upon the said trust or in the alternatively to pay damages to the petitioners at the rate of difference between the circle rate prevailing as on date and that which has been applied for grant of freehold rights to the aforesaid trust. 28. Accordingly, we issue a writ in the nature of mandamus commanding the respondents to issue a demand note to the petitioners by applying the same rate that had been applied for grant of freehold rights to the aforesaid Trust or the rate prevailing as on date within a period of one month from today and on the petitioners depositing the said amount to execute the sale deed within a further period of one month from the date of deposit of the amount by the petitioners. In the event, the circle rate prevailing today is applied the respondents shall compensate the loss to the petitioners by paying damages as observed above. 29. The Writ Petition is allowed with no order as to costs.