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2022 DIGILAW 831 (ALL)

Ashwani Pratap v. State of Uttar Pradesh

2022-05-24

DINESH PATHAK, MANOJ KUMAR GUPTA

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JUDGMENT : 1. Heard Sri Vinayak Mithal, learned counsel for the petitioner, learned standing counsel for respondents No. 1, 3 and 4, Sri Pankaj Srivastava for respondent No. 2 and perused the record. 2. At the outset, Sri Vinayak Mithal, learned counsel for the petitioner states that he does not wish to rebut the additional counter affidavit filed on behalf of the second respondent and prays that the instant petition be heard and decided. 3. The facts, which are not in dispute, are that the respondent Nagar Nigam issued an advertisement on 16.10.2004 inviting bids for auction of 25 plots to be settled on lease hold basis. One Jai Prakash Agarwal was the highest bidder for plot No. 604 as he had offered a premium of Rs.23,50,000/- for obtaining the lease. It seems that twenty five percent of the premium amount was deposited by him on 22.12.2004 as earnest money on fall of the hammer. As per terms of auction, remaining amount was to be deposited within fifteen days of approval of the bid. Thereafter, the allottee had to take steps for execution of the lease deed within one month. On 7.3.2005, Jai Prakash Agarwal was informed that his bid had been accepted. Thereafter, it is alleged that he inspected the plot and came to know that it was under litigation and in illegal occupation of certain person. It also appears from the material placed on record that Nagar Nigam made efforts to obtain possession of the plot by requesting the Senior Superintendent of Police, Meerut to take action against illegal occupants. It is also an admitted fact that on 9.11.2009, Jai Prakash Agarwal submitted an application along with affidavit before respondent No. 2 for transfer of allotment in favour of the petitioner. The said request, it seems, was made in terms of Clause 17 of the auction document. By a communication dated 30.3.2012, the petitioner was informed that the request for transfer of the allotment in favour of the petitioner had been approved by Nagar Ayukt by order dated 6.3.2012 and the petitioner was required to deposit the remaining premium amount i.e. a sum of Rs.14,25,000/-along with 15% lease rent i.e. Rs.3,52,500/-, in all a sum of Rs.17,77,500/- to facilitate execution of lease deed in favour of the petitioner. The petitioner deposited Rs.17,77,500/- on 7.12.2012, however, the lease was not executed in his favour. The petitioner deposited Rs.17,77,500/- on 7.12.2012, however, the lease was not executed in his favour. This compelled the petitioner to file the instant writ petition praying for a mandamus commanding the second respondent no. 2 to execute lease deed in favour of the petitioner and hand over vacant possession of the subject land within stipulated period. 4. According to respondent-Nagar Nigam, initially the original allottee Jai Prakash Agarwal moved an application on 19.3.2005 that he was no more interested in the plot and that the money deposited by him be returned to him. Thereafter, on 23.10.2009, he made request for allotment to be transferred in favour of one Surendra Pratap, followed by another application dated 9.11.2019 for transfer of the allotment in favour of the petitioner herein. 5. The case set up by Nagar Nigam, Meerut before this Court is that now it is not in a position to execute the lease deed. It is alleged that a gazette notification was issued on 11.9.1987 extending the limits of Nagar Nigam, Meerut so as to include the disputed plot as well. The said land, according to respondent No. 2, was banjar land and consequently vested in the government. On its inclusion within limits of Nagar Nigam, it came under the management of Nagar Nigam. In support of said stand, copy of Khatauni has been brought on record wherein the entry is 'Banjar-Nagar Nigam'. 6. The respondent Nagar Nigam contends that by virtue of section 128 of the Uttar Pradesh Municipal Corporation Act, 1959, it did not had any right to transfer the land without prior permission of the State Government and that no such permission was ever granted. It is also the case of the said respondent that subsequently, the State Government by another notification dated 14.9.2011 resumed the said plot in exercise of power under Section 117 (6) of the UP Zamindari Abolition and Land Reforms Act, 1950 for the Home Department, Uttar Pradesh to establish office of Anti-Terrorism Squad, Meerut Unit. In support of the said plea, copy of Khatauni of 1422-1427 Fasli has been brought on record. It is submitted that as a consequence of above, the Nagar Nigam was divested of all its rights. In support of the said plea, copy of Khatauni of 1422-1427 Fasli has been brought on record. It is submitted that as a consequence of above, the Nagar Nigam was divested of all its rights. In other words, the contention is that the Nagar Nigam now does not have any right in the subject land nor is empowered to execute lease deed as has been prayed for in the writ petition. 7. In paragraph No. 13 of the additional counter affidavit, it is alleged that Municipal Commissioner, Nagar Nigam, Meerut passed an order on 26.7.2019 (during pendency of the writ), rejecting the claim of the petitioner. Consequently, cheques representing the sum realised from the petitioner (Rs.17,77,500/-) were tendered to counsel for the petitioner, but he refused to accept. The said fact is also not disputed by Sri Vinayak Mithal, learned counsel appearing on behalf of the petitioner. He states that as the petitioner was pressing for execution of the lease deed in his favour, therefore, the offer to receive back the money, was declined. 8. He further submitted that in any event, the petitioner not being at fault, he is entitled to refund of the money with interest and exemplary compensation for the losses suffered by him in the process. 9. We have considered the rival submissions. In the backdrop of the admitted facts, we proceed to examine as to whether the petitioner could be granted the principal relief, i.e. a direction to the respondent Nagar Nigam, to execute lease deed in his favour and deliver possession of the subject land. 10. The notification dated 11.9.1987 published in Government Gazette seeks to include certain areas within the limits of Nagar Nigam, Meerut. It was issued in exercise of power under Section 3 of the U.P. Municipal Corporation Adhiniyam, 1959 (previously U.P. Nagar Mahapalika Adhiniyam, 1959). The subject land is plot no. 604, Village Roshanpur Darauli. Indisputably, as a consequence of the notification dated 11.9.1987, the subject land, Plot No. 604 of revenue Village Roshanpur Darauli got included in the territorial limits of Nagar Nigam, Meerut. As per khatauni, it is recorded as 'banjar' in name of Nagar Nigam, Meerut. Section 126 of the Act stipulates the manner of succession to property, assets, rights, liabilities and obligations of the Municipal Corporation constituted under the Act. As per khatauni, it is recorded as 'banjar' in name of Nagar Nigam, Meerut. Section 126 of the Act stipulates the manner of succession to property, assets, rights, liabilities and obligations of the Municipal Corporation constituted under the Act. Sub-Section 1 thereof provides the manner in which vesting of properties and assets takes place in favour of the Corporation. According to it, the plot in dispute, consequent to issuance of notification under Section 3 of the Act ceases to be under the control of the local authority having jurisdiction immediately preceding issuance of notification under Section 3 of the Act and come to be vested in Nagar Nigam, Meerut. Section 126(1)(a) and (b) which are relevant, are extracted below:- "126. Succession to property, assets, rights, liabilities and obligations in certain cases. -(1) As from the appointed day [and subject to any direction of the State Government in this behalf] - (a) all property, interests in property and assets including cash balances, wherever, situate which immediately before such day were vested in any [Municipal Council], Improvement Trust or other local authority established for the area included in the City or any part of such area or in any local authority having jurisdiction both within and outside such area shall vest in and be held by the Corporation of such City, for the purposes of this Act, and (b) all rights, liabilities and obligations of the aforesaid [Municipal Council], Improvement Trust or other local authority [in relation to the area included in the City] whether arising out of any contract or otherwise, existing immediately before such day shall be the rights, liabilities and obligations of such Corporation." 11. Consequently, on 16.10.2004, when advertisement was issued, Nagar Nigam, Meerut was fully competent to settle it on leasehold basis. It is an admitted fact on record that for one reason or the other, the matter remained pending and on 14.9.2011, a notification was issued under Section 117(6) of the Uttar Pradesh Zamindari Abolition and Land Reforms Act, 1950 by the State Government, resuming the subject land for use by the Home Department for constructing office of Anti-Terrorism Squad, Meerut Unit. As a consequence of the same, Nagar Nigam, Meerut was divested of its title, right and interest in the subject land. As a consequence of the same, Nagar Nigam, Meerut was divested of its title, right and interest in the subject land. Section 117(6) which is relevant, is extracted below: - "117(6) The State Government may, at any time, [by general or special order to be published in the manner prescribed], amend or cancel any [declaration, notification or order] made in respect of any of the things aforesaid, whether generally or in the case of any Gaon Sabha or other local authority and resume such thing and whenever the State Government so resumes any such thing, the Gaon Sabha or other local authority, as the case may be, shall be entitled to receive and be paid compensation on account only of the development, if any, effected by it in or over that thing : Provided that the State Government may after such resumption, make a fresh declaration under sub-section (2) vesting the thing resumed in the same or any other local authority (including a Gaon Sabha), and the provisions of sub-section (3), (4) and (5), as the case may be, shall mutatis mutandis apply to such declaration." 12. Since, Nagar Nigam, Meerut is now having no right, title or interest in the subject land, it also cannot transfer any right in favour of the petitioner, nor is competent to execute any lease deed, the principal prayer made in the petition. The submission of learned counsel for the respondent Nagar Nigam in this behalf is therefore accepted. 13. However, the matter does not rest here. Initially, Nagar Nigam, Meerut was not in position to deliver possession of subject land to the original allottee on account of certain rival claim of title in the subject land. This is evident from a communication sent by the Municipal Commissioner, Nagar Nigam, Meerut to the District Magistrate, Meerut on 7.4.2005, mentioning that the subject land is recorded as banjar and consequently it vests in Nagar Nigam, Meerut. The rival claim relating to any portion of subject land being part of a burial ground, was disputed in the said communication. This is evident from a communication sent by the Municipal Commissioner, Nagar Nigam, Meerut to the District Magistrate, Meerut on 7.4.2005, mentioning that the subject land is recorded as banjar and consequently it vests in Nagar Nigam, Meerut. The rival claim relating to any portion of subject land being part of a burial ground, was disputed in the said communication. Another communication by Municipal Commissioner, Nagar Nigam, Meerut to Senior Superintendent of Police, Meerut dated 10.8.2007 reveals that subject land was not in possession of Nagar Nigam, Meerut, as it is admitted therein that one Mehak Singh Tank and his accomplices were not permitting the original allottee to take possession of the plot and request was made for providing police aid to facilitate handing over of possession to the allottee. It is also clear beyond doubt that the original allottee being unable to obtain possession, tried to get rid of the predicament by surrendering and transferring the allotment. However, the Nagar Nigam kept dragging its feet in the matter and ultimately it even approved transfer of allotment in favour of the petitioner on 30.6.2012, oblivious of the notification dated 14.9.2011, under Section 117(6) of the Uttar Pradesh Zamindari Abolition and Land Reforms Act, 1950, divesting it of all its rights in the subject land. On the other hand, the petitioner bonafidely acting on the assurance extended to him by letter dated 30.3.2012, deposited the balance amount of Rs.14,25,000/- and 15% lease rent amounting to Rs.3,52,500/-, in all a sum of Rs.17,77,500/-, expecting that it would be followed by execution of lease deed and entitlement to use the subject land, but once again Nagar Nigam, Meerut kept the matter pending. 14. It appears from the note sheet that even after 14.9.2011, Nagar Nigam, Meerut was not certain of the course to be adopted and on 20.6.2014, Municipal Commissioner, Nagar Nigam made an endorsement that the matter required permission of the State Government and enquired whether it had been obtained or not. 14. It appears from the note sheet that even after 14.9.2011, Nagar Nigam, Meerut was not certain of the course to be adopted and on 20.6.2014, Municipal Commissioner, Nagar Nigam made an endorsement that the matter required permission of the State Government and enquired whether it had been obtained or not. Again note sheet dated 13.6.2014 reveals that there is office noting that on 15.2.2005, a Committee headed by Divisional Commissioner approved settlement of the land by auction; that now no suit was pending in respect of the subject land; that entire sum was in deposit with Nagar Nigam; that the land was vacant and that lease deed could be executed in favour of the petitioner in terms of Clause 17 of the auction document. On 13.6.2014 again, there is noting by Municipal Commissioner that in the first instance, a lease deed would be executed in favour of original allottee and then original allottee would execute lease deed in favour of the petitioner. He also made a query as to why lease deed had not been executed so far and also relating to possession/title of the subject land. It is also the specific case of the petitioner that in respect of other adjoining plots, auctioned on the same day, lease deeds were executed soon after the auction, but only in respect of petitioner's plot, the Nagar Nigam authorities had kept the matter pending. 15. It is clear from the facts noted above that it is Nagar Nigam, Meerut which was at fault in approving transfer of allotment in favour of the petitioner on 30.3.2012, despite issuance of notification under Section 117(6) of U.P.Z.A. & L.R. Act on 14.9.2011. Nagar Nigam, Meerut, at that time, ought to have informed the original allottee that transfer of allotment was not possible as Nagar Nigam, Meerut itself had been divested of its title. The petitioner having deposited huge sum, acting on the representation of Nagar Nigam, Meerut, is entitled to be compensated adequately. 16. Accordingly, we direct Nagar Nigam, Meerut to refund Rs.17,77,500/- deposited by the petitioner on 7.12.2012, with 8% per annum simple interest, till the date of actual payment and a further sum of Rs. 5 lakhs as compensation in depriving the petitioner of the use and enjoyment of the subject land. 16. Accordingly, we direct Nagar Nigam, Meerut to refund Rs.17,77,500/- deposited by the petitioner on 7.12.2012, with 8% per annum simple interest, till the date of actual payment and a further sum of Rs. 5 lakhs as compensation in depriving the petitioner of the use and enjoyment of the subject land. These amounts shall be paid to the petitioner within one month from the date of communication of the instant order, failing which, interest @ 14% will be payable on the entire sum for the period in default, till date of actual payment. 17. In case the petitioner produces No-Objection Certificate along with affidavit of the original allottee for release of 25% of the bid amount deposited by him as earnest money, the said amount shall also be released in favour of the petitioner. 18. The petition stands disposed of accordingly.