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Allahabad High Court · body

2023 DIGILAW 557 (ALL)

Sheela Sachdeva v. State of U. P.

2023-02-24

RAJENDRA KUMAR IV, SUNEET KUMAR

body2023
JUDGMENT : Suneet Kumar, J, 1. Heard Sri Ravi Kant, learned Senior Advocate assisted by Sri Sanjeev Kumar, learned counsel appearing for the petitioners and Sri Ajit Kumar Singh, learned Additional Advocate General assisted by Sri Amit Verma, learned Standing Counsel for the State-respondents. 2. The property in issue pertains to Nazul Plot No. 10 Civil Station, Allahabad (Prayagraj), admeasuring 11761.41 sq. meters. The petitioners claim freehold right of the property. 3. The admitted, facts, inter se, parties are that a lease came to be executed by the State-respondents in favour of Smt. Khetar Dasi for a period of 50 years w.e.f. 1 April, 1914. Thereafter, the afore-noted plot came to be recorded in the name of Lala Mattu Mal in the Nazul register. After the death of Lala Mattu Mal, on the basis of a registered family partition dated 04 December, 1935, area admeasuring 4211 sq. meters, fell in the share of Ganesh Prasad Seth, son of, Lala Mattu Mal. The property devolved on the death of Ganesh Prasad Seth upon his widow Smt. Tara Devi. Smt. Tara Devi executed a Will in favour of petitioners on 26 June, 1972. 4. It is not in dispute, inter se, parties that the terms of the lease expired on 15 March, 1963. As per the stand of the State-respondents the Nazul plot in question was initially allotted to one A.M. Zeller on 16 March, 1863, for a period of 20 years on lease, duly executed by the then Commissioner, Allahabad Division, Allahabad. The lease expired on 16 March, 1930, which came to be renewed for another 50 years w.e.f. 01 April, 1914. On expiry of the lease in 1963, after a lapse of 27 years, the petitioners herein field an application on 28 February, 1999 for freehold rights. 5. As per the State-respondents, freehold rights has already been granted to the petitioners for 1427 sq. meters of the Nazul land on 26 March, 2002. Further, freehold rights on an additional area admeasuring 612 sq. meters was granted to the petitioners on 30 March, 2002. In other words 2084 sq. meters of the Nazul land was made freehold in favour of petitioners. The petitioners claim freehold right on the remaining part of the Nazul plot. 6. meters of the Nazul land on 26 March, 2002. Further, freehold rights on an additional area admeasuring 612 sq. meters was granted to the petitioners on 30 March, 2002. In other words 2084 sq. meters of the Nazul land was made freehold in favour of petitioners. The petitioners claim freehold right on the remaining part of the Nazul plot. 6. It appears that on a part of the Nazul land a building was standing, which was in the occupation of the Department of Food and Supply of Government of Uttar Pradesh, that portion of the Nazul land, the petitioners claim freehold rights from the State. The applications of the petitioners seeking freehold rights on the constructed portion of the Nazul land came to be rejected by the State Government by passing an order dated 12 October, 2006, wherein, it has been noted that the building was in occupation of the Department of the State Government. Consequently, pursuant to the Government Order referred therein, the lease for freehold rights for the land over which building stands cannot be granted to the petitioners. Pursuant to the impugned order, the second respondent District Magistrate, Allahabad (Prayagraj), by order dated 30 November, 2006, resumed the building / land admeasuring 1513.10 sq. meters. The petitioners by the instant writ petition are assailing the afore-noted orders and claim freehold rights on the said portion of the Nazul land. 7. It is submitted that on 28 February, 1999, petitioners filed an application for freehold right for an area admeasuring 1289.20 sq. meters. As per the Government Order, 25% of the self assessment of valuation of the plot came to be deposited by the petitioners vide Treasury Challan No. DP-2 at Rs. 1,54,704/-. Pursuant thereof, a demand notice was issued by the Additional District Magistrate for the balance amount at Rs. 3,16,700.84 for conversion of the Nazul land into freehold. The amount came to be deposited by the petitioners on 05 June, 2000. A proposed freehold deed, thereafter, was supplied to the petitioner by the office of the Additional District Magistrate. On 05 June, 2000, petitioners submitted a freehold deed along with stamp papers. It appears, thereafter, neither the deed was executed by the second respondent on behalf of the State Government, nor, did the occasion for registration arise. 8. A proposed freehold deed, thereafter, was supplied to the petitioner by the office of the Additional District Magistrate. On 05 June, 2000, petitioners submitted a freehold deed along with stamp papers. It appears, thereafter, neither the deed was executed by the second respondent on behalf of the State Government, nor, did the occasion for registration arise. 8. In the meantime, by the impugned communication dated 12 October, 2006, issued by the Special Secretary to the State Government, addressed to the second respondent that part of the Nazul land admeasuring 1513.10 sq. meter over which the office of the District Supply Officer and Additional District Magistrate (Na. Aa.) were functioning, pursuant to the Government Order dated 14 December, 2004, came to be allotted for the office of District Supply Officer, Allahabad, on the terms and conditions specified therein. Pursuant thereof, the District Magistrate passed the consequential order dated 30 November, 2006, resuming the property, admeasuring 1513.10 sq. meter, after demarcation. 9. Relying upon the Government Order dated 14 December, 2004, the application of the petitioners, herein, for freehold rights, on part of the property admeasuring 1289.20 sq. meters, sought vide applications dated 28 February, 1999, came to be rejected. Further, order was passed to refund the amount deposited by the petitioners towards freehold rights along with interest. Nazul land admeasuring 1513.10 sq. meters, accordingly, came to be resumed, as per Government Order dated 12 October, 2006, for the purposes of office of the District Supply Officer. 10. Learned counsel for the petitioners submits that since the second respondent acted upon the application submitted by the petitioners for freehold rights, the demand amount raised by the office of the second respondent came to be deposited, along with the freehold deed and stamp papers, it is urged that the second respondent cannot, thereafter retreat, rather, was bound to execute the deed and got it duly registered. It is further submitted that the second respondent is estopped from retracting and resuming the property in favour of the office of the State Government. It is, therefore, submitted that the respondents be directed to execute the freehold deed for the area of the plot for which the papers was duly completed and submitted for execution and registration. 11. Learned counsel for the petitioners placed reliance on the following judgements in support of his submission. It is, therefore, submitted that the respondents be directed to execute the freehold deed for the area of the plot for which the papers was duly completed and submitted for execution and registration. 11. Learned counsel for the petitioners placed reliance on the following judgements in support of his submission. (i) Sharif Ahmad vs. Regional Transport Authority, Meerut, (1978) 1 SCC 1 ; (ii) Gujrat Pottery Works vs. B.P. Sood, AIR 1967 SC 964 ; (iii) Virendra Sahney & Another vs. District Officer / Collector, Mau & others, AIR 1997 ALL. 82 ; (iv) Sangam Upnivashan Avas Evam Nirman Sahkari Samiti Ltd. vs. State of U.P. & State of U.P. & others, 2018 (7) ADJ 617 and; (v) Shyam Lal vs. Deepa Dass Chela Ram Chela Garib Das, (2016) 7 SCC 572 . 12. In rebuttal, the learned counsel appearing for the State-respondents submits that the lease, admittedly, came to expire in the year 1963. It is not in dispute that the office of the State Government exists on the constructed area of the Nazul plot and has continuously been in possession of the State, until the building was declared dilapidated and not fit for habitation. Consequently, the office came to be shifted to another tenanted building, in view of the status quo order passed by this Court. 13. It is further submitted that the application for renewal of lease came to be filed by the petitioners almost after three decades, the petitioners do not have any vested right and authority to insist upon the State Government to declare a part of the Nazul plot freehold in favour of petitioners. 14. Rival submissions fall for consideration. 15. The facts, inter se, parties are not in dispute. Admittedly, the entire plot belongs to the State and it is also not in dispute that an area admeasuring 2084 sq. meters, in two parts (1472 + 612 sq. meters) has already been made freehold in favour of the petitioners. The claim of the petitioners on that part of the Nazul plot over which, admittedly, office of the State Government was operational and functional, has been refused as per the Government Orders applicable on the date of the decision. Government Order dated 14 October, 2004, mandates allotment of Nazul plot in favour of Government, over which offices has been setup. The claim of the petitioners on that part of the Nazul plot over which, admittedly, office of the State Government was operational and functional, has been refused as per the Government Orders applicable on the date of the decision. Government Order dated 14 October, 2004, mandates allotment of Nazul plot in favour of Government, over which offices has been setup. In other words, that portion of the land would not be made freehold in favour of the lease holder. Further, the construction of the office of the District and Supply Officer, after demolition of the dilapidated building is pending since 2010, due to the pendency of the present writ petition. 16. The sole question that arises for determination is as to whether the State Government was justified, in view of Government Order dated 14 October, 2004, refusing freehold right in favour of the petitioners for the Nazul plot on which office of the State Government was functional. 17. 'Nazul' is an Arabic word. It refers to a land annexed to Crown (Rajbhoomi) i.e. Government land. It is only such land which is owned and vested in the State on account of its capacity of sovereign, and application of right of bona vacantia, which is covered by the expression 'Nazul', as the term is known for the last more than one and half century. 18. Article 296 of the Constitution of India, has retained power of State to get ownership of such land, in respect whereof principle of 'escheat', 'lapse' or 'bona vacantia' would have been applicable prior to the enforcement of Constitution of India. The above power continued to apply after enactment of the Constitution with the only modification that if such land is situate within the territory of State Government, it will vest in State and in other cases, it will vest in Union of India. (Ref : Pierce Leslie and Co. Ltd. vs. Miss Violet Ouchterlony Wapsnare, AIR 1969 SC 843 ; State of U.P. vs. Zahoor Ahmad, 1973 (2) SCC 547 and Prakati Rai and others vs. State of U.P. and others, 2020(1) ADJ, 469 (DB) 19. The Government Order dated 14 October, 2004, addressed to all the Divisional Commissioners, District Magistrates and Vice Chairman of the Development Authority, pertains to the offices standing on leased Nazul plot, accordingly, mandating allotment of that portion of the Nazul land to the respective State departments free of cost. 20. The Government Order dated 14 October, 2004, addressed to all the Divisional Commissioners, District Magistrates and Vice Chairman of the Development Authority, pertains to the offices standing on leased Nazul plot, accordingly, mandating allotment of that portion of the Nazul land to the respective State departments free of cost. 20. The above noted Government Order and the relevant paragraphs for the purposes of the this case is being extracted :- fo"k; & izns'k ds fofHkUu tuinksa es iVVkxr utwy Hkwfe ij vofLFkr jktdh; dk;kZy;ksa ds i{k es utwy Hkwfe dk vkoaVu fu%'kqYd fd;k tkukA 1- utwy dh ftl Hkwfe dk orZeku es 'kkldh; ¼dk;kZy;] vkokl ;k vU; iz;kstu gsrq½ iz;ksx gks jgk gks muds iVVs dh vof/k ;fn lekIr gks x;h rks bls Qzh gksYM@uohuhdj.k rc rd u fd;k tk;s tc rd fd mi;ksxdrkZ foHkkx }kjk fyf[kr :i es ;g lwfpr u fd;k tk;s fd vc mUgs bl Hkwwfe dh vko';drk 'kkldh; mi;ksx ds fy;s ugh gSA 2- --------------------------------------------- 3- ,sls izdj.k tgkW iVVkxr Hkwfe dk vkaf'kd :i ls 'kkldh; iz;ksx gks jgk gS rFkk vkaf'kd :i ls ;g iVVk/kkjd ds dCts es gS mles ;fn 'kkldh; iz;ksx okys foHkkx dks vius foHkkxh; mŸkjnkf;Roks ds fuoZgu gsrq Hkw[k.M@Hkou dh vko';drk gS rks iVVs dh vof/k lekIr gksus ij iwjh Hkwfe iz'kkldh; foHkkx dks vkcafVr dj nh tk;sxhA 4- -------------------------------------- 5- -------------------------------------- 6- ftu ekeyks es iwoZ rRle; izpfyr uhfr ds varZxr iVVk/kkjdksa ds i{k esa QzhgksYM djus gsrq LoewY;kadu /kujkf'k tek dh tk pqdh gS ijUrq QhgksYM MhM fu"ikfnr ugha dh x;h gS] muesa Hkh 'kkldh; dk;kZy; fLFkr gksus rFkk mlds mi;ksx ds fy;s vko';drk gksus dh fLFkfr es QzhgksYM djus ls euk fd;k tk ldsxk vkSj tek LoewY;kadu /kujkf'k tekdrkZ dks lC;kt okil dj nh tk;sxhA 21. On bare perusal of the afore-noted Government Order, it mandates that wherever, on leased Nazul land government office, residential accommodation or any other activities are continuing and the term of the lease has expired, freehold / renewal of the lease would not be renewed / granted without obtaining prior approval from the concerned department as to whether, the property is required for the State. The Government Order further provides that where on the leased Nazul land, Government Offices are situated and in possession of the State department, and that the property is required for the purposes of the office, the same would be allotted to the concerned department, upon expiry of the lease. In other words, freehold right would not be granted. 22. Paragraph 6 of the Government Order mandates and clarifies that where the lease holder of the Nazul property has deposited the amount of the self assessment valuation, but the freehold deed is yet to be executed or has not been executed, the same would not be executed for the portion of the Nazul land over which government office is situated. In that event, the amount, so deposited would be returned to the lease holder along with interest. 23. On specific query, learned counsel appearing for the petitioners fairly admits that the Government Order dated 14 October, 2004 is not under challenge in the present writ petition. 24. On the contrary, reliance has been placed by the learned counsel for the petitioners on the Government Order dated 31 December, 2002, clarifying the earlier Government Order dated 10 December, 2002. In paragraph 3 of Government Order dated 31 December, 2002, it has been provided that the lease holders of expired lease, who have deposited 25% of the self assessment valuation amount prior to 10 December, 2002, and pursuant thereof the entire formalities were been completed, as per government policy, in that event all the applications pending for freehold should be processed and completed pursuant to the Government Order dated 10 December, 2002. 25. The relevant portion of the Government Order dated 31 December, 2002, is extracted :- ^^31-12-2002 fo"k; % utwy Hkwfe ds izca/k ,oa fuLrkj.k ds lEca/k es tkjh 'kklukns'kA fnukad 10 fnlEcj 2002 ds lEc/ak es ekxZ n'kZuA 2- mDRk lEca/k es ;g Li"V fd;k tkrk gS 'kklukns'k la[;k &2873@9&vk&4&2002&152,u@2000 VhŒlhŒ fnukad 10 fnLkEcj 2002 }kjk izfrikfnr uhfr rRdky izHkko ls ykxw dh x;h gSA vr% fnukad 10-12-2002 ls iwoZ es ftu vkosndksa us LoewY;kadu dh 25 izfr'kr /kujkf'k tek djrs gq, pkyku dh izfr ds lkFk izkFkZuk i= izLrqr dj fn;k Fkk RkFkk Qzh gksYM dh ik=rk lEca/kh leLr fu/kkZfjr vkSipkfjdrk;sa iw.kZdj nh Fkh] mu izdj.kks es rRdkyhu uhfr vuqlkj njs o 'krsZ ykxw gksxhA ,sls ekeyks es 'kklukns'k 10-12-2002 ykxw ugh gksxkA^^ 26. Further, reliance was placed by the learned counsel for the petitioners on the order dated 24 March, 2003, issued by the Special Secretary, Government of Uttar Pradesh, addressed to the District Magistrate, Allahabad, in respect of Nazul land No. PP Civil Station, Allahabad, wherein, it has been directed that in the event, the lease holder has deposited the self assessment valuation amount in the State Treasury, in the year 2000, it was incumbent that as per the Government Policy pertaining to Nazul land freehold right could not have been refused. 27. In view of the afore-noted Government Orders and communications, it is submitted that the petitioners, admittedly, completed the formalities pursuant to their application dated 28 February, 1999, and the deed came to be prepared on the proposed draft supplied by the second respondent on 05 June, 2000, upon deposit of the self assessment valuation amount of the plot. It is urged that the petitioners could not be discriminated against and freehold rights should be executed as per Government Order dated 31 December, 2002. 28. In support of the submissions reliance has been placed on Sangam Upnivashan Avas Evam Nirman Sahkari Samiti Ltd. (supra), wherein, petitioners seeking freehold rights, the Division Bench after referring to the Full Bench decision in Anand Kumar Sharma, 2014(2) ADJ 742 (FB), was of the view that once there is a decision to grant freehold rights then the element of discrimination between the same set of applicants and any arbitrary act would give rise to violation of fundamental rights, judicial review whereof would be permissible. Relevant portion of judgment is extracted :- “The Full Bench, however, did not proceed further and, we therefore, find that it necessary to indicate that once there is a decision to grant freehold rights then the element of discrimination between the same set of applicants and any arbitrary act would give rise to violation of fundamental rights, judicial review whereof would be permissible. This would remove any element of uncertainly possibility of arbitrariness as and when the occasion arises.” 29. This would remove any element of uncertainly possibility of arbitrariness as and when the occasion arises.” 29. In this backdrop, learned counsel for the petitioners submits that petitioners cannot be discriminated as it is admitted that petitioners had completed all the formalities for freehold right pursuant to Government Order dated 31 December 2002 and in view of the decision rendered in Sangam Upnivashan Avas Evam Nirman Sahkari Samiti Ltd. (supra), petitioners are entitled to freehold right of the remaining Nazul plot. 30. We do not find merit in the submission of learned counsel for the petitioners. Upon careful perusal of the Government Orders, relied upon by the petitioners, we find that it is of no assistance to the petitioners. The Government Order dated 10 December, 2002 and 31 December, 2002, merely, mandates that in the event, the lease holders of Nazul plot have complied their part by depositing self assessment valuation for freehold rights before 10 December, 2002, freehold deed be executed in their favour. The Government Order does not, however, refer to or advert to such Nazul land over which Government Office or any other accommodation is standing and is in possession of the Government department / Office. The petitioners herein have been declined allotment of the Nazul land over which government office was functioning, in view of Government Order dated 14 December, 2004. It is also not being disputed by the learned counsel for the petitioners that petitioners have already been granted freehold rights of the Nazul land in respect of 2084 sq. meters. A part of the Nazul land admeasuring 1513.10 sq. meters, over which the Government office was functional and in possession of the Government department, in view of the Government Order dated 14 October, 2004, the District Magistrates have been restrained from converting the Nazul plot into freehold, if the department has sought allotment of the property for the purposes of office / accommodation. 31. The question referred to the Full Bench of this Court in Anand Kumar Sharma (supra) is extracted :- “1. 31. The question referred to the Full Bench of this Court in Anand Kumar Sharma (supra) is extracted :- “1. Whether the application of the petitioner dated 25.07.2005 submitted for grant of freehold right on the basis of the Government Order dated 01.12.1998 (Paragraph 7) and the Government Order dated 10.12.2002 (paragraph 5) was entitled to be considered in accordance with the Government policy as was in existence on the date of application or the Government policy as amended by Government Order dated 04.08.2006, was to be taken into consideration while deciding the application while deciding the application on 18.12.2006? 32. In other words, the question posed to the Court was as to whether, the Government policy applicable on the date of application for freehold right would apply or the Government policy applicable on the date of decision of the Government. 33. In paragraphs 41 and 42, the Court clarified that by merely making an application for grant of freehold rights, petitioners did not acquire a vested right. 34. Paragraphs 41 and 42 are extracted :- “41. Vested right can be different kind of vested right in context of different variety or nature of right. It is true that the words “vested right” are generally used in context of a right in a property, but the concept of vested right cannot be confined only to right of enjoyment of possession of land. The issue in the present case is as to whether by submitting an application for grant of freehold right any vested right has been acquired by the petitioner. 42. We after considering the relevant Government Orders on the subject and pronouncements of the Apex Court as noted above, are of the view that merely by making an application for grant of freehold right, petitioner did not acquire a vested right. 35. The Court, thereafter, answered the reference in the following terms :- (i) The application of the petitioner dated 25.07.2005 submitted for grant of free hold right on the basis of the Government Orders dated 01.12.1998 and 10.12.2002 was entitled to be considered in accordance with the Government's policy as was in existence at the time of passing of the order. The Government Order dated 04.08.2006 was rightly relied on by the Collector while rejecting the application on 18.12.2006. 36. The Government Order dated 04.08.2006 was rightly relied on by the Collector while rejecting the application on 18.12.2006. 36. The Full Court was of the view that by making an application for grant of freehold right, petitioner did not acquire vested right. The Government policy applicable on the date of decision of the Government would apply while disposing off the applications of the petitioners for freehold right. 37. Accordingly, in view of the law laid down in Anand Kumar Sharma (supra), the application submitted by the petitioners for freehold rights, was entitled to be considered in accordance with the Government policy as was in existence on the date of passing of the order on the application. The State respondents were justified in disposing of the application submitted by the petitioners as per the Government policy mandated vide Government Order dated 14 December, 2004. 38. It is noted in the impugned order that the District Supply Officer had demanded the premises to continue the office in the same building, after removing the dilapidated structure and constructing a new building, thereupon. It is informed that budget was also sanctioned for the construction but due to pendency of the present writ petition, the same could not be executed. The office was shifted to another rented accommodation. 39. The plea of the petitioners that petitioners have been discriminated, is unfounded. It is not being disputed by the learned counsel for the petitioners that petitioners have been granted freehold right on 2084 sq. meters of the same Nazul plot, like being the case of other occupants of the plot. Further, parity claimed by the petitioners with lease holder of Nazul plot No. PP Civil Station, Allahabad, contending that since they were granted freehold rights, petitioners being similarly placed should also be granted freehold right. The claim based on parity lacks merit. On Nazul plot No. 10, Civil Station, a Government Office was in occupation of the building, whereas, there is no such building in the possession and occupation of the Government department on Nazul plot No. PP Civil Station, Allahabad. The Government Order dated 14 October, 2004, would govern all such Nazul land over which Government Office / Department is in occupation. That is not the case with Nazul plot No. PP Civil Station, Allahabad. The Government Order dated 14 October, 2004, would govern all such Nazul land over which Government Office / Department is in occupation. That is not the case with Nazul plot No. PP Civil Station, Allahabad. In any case, petitioners are not the lease holder / occupant of Nazul plot No. PP Civil Station, Allahabad, therefore, it is not open for the petitioners to submit that they have been discriminated against after allottees of Nazul plot No. PP Civil Station, Allahabad. The ratio of Sangam Upnivashan Avas Evam Nirman Sahkari Samiti Ltd. (supra), would not apply in the case of the petitioners. 40. The learned counsel for the petitioners failed to point out any illegality, irregularity or perversity in the impugned order. 41. The writ petition being devoid of merit, is accordingly, dismissed. 42. The State respondent to proceed with the construction of the Government office in accordance with law.