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2020 DIGILAW 1125 (ALL)

Shiv Kumar Pandey v. State Of U. P.

2020-09-09

PIYUSH AGRAWAL, SHASHI KANT GUPTA

body2020
JUDGMENT : 1. This writ petition has been, inter alia, filed for the following relief:- "i. Issue a suitable writ, order or direction in the nature of mandamus directing the respondents to restore the construction of the house and pay compensation, which was illegally demolished on 11.8.2020 at 4 p.m. by the respondents in regard to the house of the petitioner situated at 19 Clive Road Civil Lines Prayagraj/Prayagraj." 2. Heard learned counsel for the petitioner, Sri Arun Kumar, learned counsel for the Prayagraj Development Authority, learned Standing Counsel for the State and perused the record. 3. Learned counsel for the petitioner has submitted that the petitioner had been occupying 2 tin-shed rooms, part of the Premises No. 19, Clive Road, Prayagraj, since long. However, without giving any opportunity of hearing or issuing any notice, the said structure has been demolished by Prayagraj Development Authority (in short 'PDA') illegally and arbitrarily. 4. Per contra, Sri Arun Kumar, learned counsel for the PDA while placing the original records pertaining to demolition proceedings of the disputed structure has submitted that land in question measuring about 100 square yards was illegally occupied by the petitioner, without any right, title or interest. The petitioner has never paid rent/damages whatsoever. It was further submitted that the complaint was received by the PDA with regard to the illegal construction raised by the petitioner on 2.6.2020 on the alleged land. Upon inquiry it was revealed that illegal construction was raised over 100 square yard of land comprising two tin-shed rooms by the petitioner and further construction of walls was also being raised by the petitioner surreptitiously. Notice was issued under Section 27 (1) of the U.P. Urban Planning & Development Act, 1973 (in short 'Act, 1973). When the Development Authority failed to serve the notice upon the petitioner, the notice was affixed in accordance with Section 43 of the Act, 1973 on 4.6.2020 for showing cause, but the petitioner failed to file any reply to the said notice. Thereafter, again the notices were issued on 15.6.2020 & 26.6.2020 but the petitioner failed to respond. Ultimately, the demolition of disputed structure was carried out in accordance with law. 5. Thereafter, again the notices were issued on 15.6.2020 & 26.6.2020 but the petitioner failed to respond. Ultimately, the demolition of disputed structure was carried out in accordance with law. 5. It was further submitted by the learned counsel for PDA that earlier, a lease deed with respect to Plot No. 19, Clive Road was executed in favour of M/s Amrit Bazar Patrika Pvt. Ltd. (in short “the Company”) by means of a registered deed on 25.7.1949 by the State of Uttar Pradesh for 50 years from the first day of September 1937. United Bank of India (in short “the Bank”) had advanced credit facilities to the Company and the Company allegedly mortgaged the immovable property situated at 19 Clive Road, Prayagraj, which was earlier leased out by the State Government to it. Since the Company failed to repay the loan, the Bank, for recovery of its dues, filed a Suit No. 510 of 1990 in the Civil Court in the capacity of the mortgagee of the various properties of the said Company including the property situated at 19, Clive Road, Prayagraj, which was held by the Company, allegedly, as lessee. The said suit was decreed on 9.10.1991 in favour of the Bank. It is notable that the paramount title holder namely the State of Uttar Pradesh, was not made a party to the suit. Ultimately, the matter reached the Apex Court in Civil Appeal No. 5254 of 2010 (State of Uttar Pradesh and others Vs. United Bank of India and others) along with other similar civil appeals arising out of the common judgment and order passed by the court below. The Apex Court allowed the Civil Appeal No. 5254 of 2010 filed by the State of Uttar Pradesh and the impugned judgment and order dated 3.11.2009 passed by the High Court was set aside, inter alia, holding that mortgage done by the lessee Company in favour of the Bank is bad in law, and was in clear violation of the terms of the lease deed i.e. mortgage of the Nazul land without previous sanction in writing of the State. 6. Mr. 6. Mr. Arun Kumar, learned counsel for the PDA, in support of his contention, has referred to Paragraphs 38 and 45 of the judgment and order passed in the aforesaid Civil Appeal No. 5254 of 2010 by the Apex Court with respect to premises No. 19, Clive Road Room (disputed structure 2 tin-shed rooms is a part of the said premises) which was earlier allotted to the Company, which are quoted hereinbelow: Paragraph 38 "In the present case there was nothing on the record to show that the lessee i.e. (ABP) has obtained any written sanction from the lessor i.e. Government before mortgaging his leasehold interest in the Nazul Land. Meaning thereby the mortgage done by the lessee in favour of the Bank itself is bad in law, which was done in clear violation of the terms of the lease deed i.e. mortgage of the Nazul land without previous sanction in writing of the State." Paragraph 45 "45. After considering the entire facts of the case and the submissions made by learned counsel appearing for the parties, we come to the following conclusion:- (i) Indisputably, the property in question i.e. Premises No.19, Clive Road, Prayagraj is a Nazul land governed by the Government Grants Act, 1895 and Nazul Rules. (ii) The property was given on lease by the State of U.P. to Mrs. Mortha Anthony and second time the lease was renewed in favour of Ms. Verna Anthony and Ms. Leena Anthony for a further period of 50 years which was valid up to 31.8.1987. (iii) During the subsistence of lease, the leasehold interest was transferred in 1945 in favour of ABP Co. and on the basis of the said transfer a lease was executed in 1949 by the State of U.P. in favour of ABP Co. for the remaining period of lease which expired in 1987. (iv) As against the loan taken by the Company from the Bank, a mortgage was created in respect of the property by the Company in favour of Bank. The lease in respect of the leasehold interest in the property admittedly expired in 1987. for the remaining period of lease which expired in 1987. (iv) As against the loan taken by the Company from the Bank, a mortgage was created in respect of the property by the Company in favour of Bank. The lease in respect of the leasehold interest in the property admittedly expired in 1987. (v) The mortgage so created by the Company in favour of the Bank in respect of Nazul land without the sanction of the State of Uttar Pradesh in terms of the lease, is ab initio void, hence no right was created in favour of the Bank by reason of the said mortgage. (vi) Consequently, a mortgage decree obtained by the Bank on the basis of settlement, in absence of and behind the back of the State of U.P. could not have been enforced against the State. The subsequent proceedings of transferring the decree to the Debt Recovery Tribunal and again passing an order for auction sale of the property on the basis of settlement is wholly illegal and without jurisdiction. (vii) The appellant Bank has no right, title or interest in the property so as to claim a right of conversion of the property into a freehold property. (viii) The impugned notice issued by the State of U.P. directing resumption of the property is legal and valid and cannot be quashed at the instance of the Bank." 7. Learned counsel for the PDA while referring to the above judgment has contended that the Apex Court has very categorically held that the notice issued by the State of Uttar Pradesh directing resumption of the property is legal and valid and the property could not have been mortgaged by the Company in favour of the bank. The land in dispute over which the alleged construction has been raised, comprising of 100 square yards is a part and parcel of the premises situated at 19 Clive Road, Prayagraj, which was earlier leased out in favor of the Company and was later on resumed by the State. It was further submitted by the learned counsel for the PDA that premises No. 19 Clive Road, Prayagraj admeasuring 24280.34 square meter of land, out of which the petitioner was illegally occupying 100 square yards of land by making illegal constructions over it. It was further submitted by the learned counsel for the PDA that premises No. 19 Clive Road, Prayagraj admeasuring 24280.34 square meter of land, out of which the petitioner was illegally occupying 100 square yards of land by making illegal constructions over it. Due to the illegal occupation of the petitioner over the land in dispute, the development of the entire land demised in 19 Clive Road, Prayagraj was stalled. It has also been brought to our knowledge that the said premises at 19 Clive Road has been allotted to the Allahabad High Court for the purpose of constructing the residential houses of the High Court Judges. 8. Learned counsel for the petitioner has raised the plea of adverse possession and in support of his contention has placed reliance upon the judgment and order dated 7.8.2019 passed by the Apex Court in Civil Appeal No. 7764 of 2014 (Ravinder Kaur Grewal and Ors. Vs. Manjit Kaur & Ors.) and submitted that the petitioner has acquired title by virtue of adverse possession. 9. We have carefully perused the aforesaid judgment and we are sorry to say that the judgment is not at all applicable to the facts of the present case. The observation made by the Apex Court is with regard to the private property, and it has been held that a person in possession cannot be ousted by another person except by due procedure of law and once the 12 year period of adverse possession is over, even the owner's right to eject him is lost and the possessory owner acquires right, title and interest possessed by the outgoing person/owner, as the case may be. In the aforesaid judgment, in Paragraph 60, the Apex Court has also held that law of adverse possession as has developed vis-a-vis to property dedicated to public use, courts have been loath to confer the right by adverse possession. In such cases, on the land reserved for public utility, it is desirable that rights should not accrue. The law of adverse possession may cause harsh consequences. Hence, the Apex Court held that it would be advisable that concerning such properties dedicated to public cause, it is made clear in the statute of limitation that no rights can accrue by adverse possession. 10. The law of adverse possession may cause harsh consequences. Hence, the Apex Court held that it would be advisable that concerning such properties dedicated to public cause, it is made clear in the statute of limitation that no rights can accrue by adverse possession. 10. For ready reference, Paragraph 60 of the judgment and order dated 7.8.2019 passed in Civil Appeal No. 7764 of 2014 (Ravinder Kaur Grewal & Ors. Vs. Manjit Kaur & Ors.) by the Apex Court is quoted hereinbelow:- “60. When we consider the law of adverse possession as has developed vis-a-vis to property dedicated to public use, courts have been loath to confer the right by adverse possession. There are instances when such properties are encroached upon and then a plea of adverse possession is raised. In such cases on the land reserved for public utility, it is desirable that rights should not accrue. The law of adverse possession may cause harsh consequences, hence, we are constrained to observe that it would be advisable that concerning such properties dedicated to public cause, it is made clear in the statute of limitation that no rights can accrue by adverse possession.” 11. In support of his contention, Sri Arun Kumar, learned counsel for the PDA has further referred to the Paragraph 12 of the judgment passed by the Apex Court in the case of State of Orissa Vs. Ram Chandra Dev and another, AIR 1964 SC 685 , which is quoted hereinbelow:- 12. Mr. Tatachari, however, has contended that the right on which the petitions of the respondents are founded is a right flowing from the respondents continuous possession of the properties for many years, and he argues that if such a right is proved, the High Court would be justified in issuing a writ protecting that right. This argument is clearly fallacious. Mere possession of the property for however long a period it may be, will not clothe the possessor with any legal right if it is shown that the possession is under a grant from the State which is resumable. This argument is clearly fallacious. Mere possession of the property for however long a period it may be, will not clothe the possessor with any legal right if it is shown that the possession is under a grant from the State which is resumable. Such long possession may give him a legal right to protect his possession against third parties, but as between the State and the grantee, possession of the grantee under a resumable grant cannot be said to confer any right on the grantee which would justify a claim for a writ under Article 226 where the grant has been resumed. In dealing with this argument, we have assumed without deciding that though a suit under Section 9 of the Specific relief Act would have been incompetent against the appellant, a similar relief can be claimed by the respondents against the appellant under Article 226. Even on that assumption, no right can be claimed by the respondents merely on the ground of their possession, unless their right to remain in possession is established against the appellant, and this can be done if the grant is held to be not resumable. 12. A perusal of the aforesaid judgment clearly indicates that the Apex Court has very categorically held that mere possession of a property for a long period will not clothe the possessor with any legal right that the possession is under a grant from the State which is resumable. In the present case, the situation of the petitioner is even worse. Firstly, lease was never executed in favour of petitioner or his grand father. Lease was executed in favour of the Company, wherein a small piece of land was occupied by him without any authority of law. It may be again reiterated that the lease whatsoever made in favour of the Company had expired number of decades ago and the land stood resumed and the resumption of the said property was held to be legal and valid on 26.11.2015 by the Apex Court in Civil Appeal No. 5254 of 2010 (State of Uttar Pradesh and others Vs. United Bank of India and others). 13. The area of the land in question over which the illegal construction has been raised by the petitioner is a very small fraction of the total land leased out earlier to the Company. United Bank of India and others). 13. The area of the land in question over which the illegal construction has been raised by the petitioner is a very small fraction of the total land leased out earlier to the Company. Petitioner claims himself to be merely the grand son of an employee of Amrit Bazar Patrika Company. According to him, since his grand father was an employee of the Company, was permitted to occupy certain portion (about 100 square yard) of the land for residential purpose by the lessee Company. Thus, first of all, the Company had no legal right to part away with certain portion of the land in favour of the third party, as it was in clear violation of the terms of the lease deed. Secondly, the property in question has already been resumed by the State Government and the said resumption has been held legal and valid by the Apex Court. Thirdly, petitioner cannot take the plea of adverse possession against a property of the State and moreso, no continuous possession over the property in dispute has been established by the petitioner. 14. Further contention of the learned counsel for the petitioner is that the grand father of the petitioner was an employee in the Company at Prayagraj and he was allotted vacant land measuring about 100 square yard in the year 1955-56 by the alleged Company. After the death of his father, he was occupying the house in question but the petitioner failed to show any document as to how he is having his legal right over the land in dispute. Apart from it, the petitioner failed to show any document to the effect that even a single penny was ever paid to any authority concerned. In fact the petitioner should be made liable to pay damages for illegally occupying the land in dispute and creating obstacle in the development activity. Admittedly, the land in question is a Nazul land and the Apex Court has already held that the mortgage done by the lessee Amrit Bazar Patrika in favour of the Bank itself is bad in law, which was done in clear violation of the terms of the lease deed i.e. mortgage of the Nazul land without previous sanction in writing of the State. The Apex Court has very categorically held that impugned notice issued by the State of U.P. directing resumption of the land in dispute on 9.5.2005 is legal and valid and cannot be quashed at the instance of the Bank, as such, once resumption of a Nazul property has been made by the State, no person has any right to occupy a Nazul property without prior permission of the State. Petitioner does not have any right, title or interest over the property in question. Petitioner has failed to show his continuous possession over the land in dispute. Perusal of the original record placed before us clearly reveals that the demolition of 2 tin-shed rooms illegally constructed by the petitioner has been rightfully done after following the due procedure provided under law. A perusal of the record further reveals that opportunity was given to the petitioner to show cause but he failed to avail the opportunity and therefore the Development Authority had no other option but to demolish the disputed structure. Moreso, the petitioner has not come with clean hands, and no relief can be granted to him under Article 226 of the Constitution of India. Any indulgence would result in perpetuating illegality. 15. The contention of the learned counsel for the petitioner that interim orders have been passed by this High Court in various matters, restraining the authorities concerned from demolishing any property during Covid-19 pandemic is misconceived and has no force as the order of this Court was only with respect to those matters where orders were already passed by the Court staying the demolition and such orders were expiring due to pandemic. Here, in the present case, no such stay order was ever passed by any Court. Petitioner has failed to place any such interim order on record. 16. In view of the above, the writ petition is devoid of merit and is hereby dismissed.