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2023 DIGILAW 93 (ALL)

Wajahat Husain Khan v. State of U. P.

2023-01-10

RAJENDRA KUMAR-IV, SUNEET KUMAR

body2023
JUDGMENT : Heard Shri Shashi Nandan, learned Senior Advocate assisted by Shri J.H. Khan, learned counsel appearing for the petitioners, learned Counsel for the State-respondents and Shri Satyavarath Sahai, Advocate holding brief of Shri S.D. Kautilya, learned counsel for the Nagar Nigam, Prayagraj. 2. Writ Petition No. 21835 of 2010, has been filed by petitioner Wajahat Husain Khan and his wife in the year 2010, inter alia seeking following reliefs : ''(i) Issue a writ, order or direction in the nature of mandamus commanding the respondents to convert the land of the petitioner No. 1 land part of Nazul Plot No. 11/5 area 437.80 square yards out of 1231 square yards of part of Plot No. 11-A/5 and petitioner No. 2 land part of Nazul Plot No. 11-A/5 area 405.04 square yards out of 1231 square yards of part of Plot No. 11-A/5 both situated in Nasibpur Bhakhtiara, Allahabad into free hold in compliance of Nazul Policy of the State Government and the Government Order dated 1.12.1998 and as amended from time to time and executed the requisite document/deed in this respect; (ii) Issue any other writ, order or direction which the Hon'ble Court may deem fit and proper in the circumstances of the present case. (ii-A) Issue, a writ, order or direction in the nature of mandamus declaring the Government order dated 4.3.2014 is illegal, arbitrary and ultra vires the Constitution of India and be quashed and the respondent to commanded not to enforce same against the petitioners. (iii) Award costs to the petitioners from the contesting respondents.'' 3. By the Writ Petition No. 14654 of 2010, petitioners are seeking following reliefs : ''(i) Issue a writ, order or direction in the nature of mandamus commanding the respondents to convert the Petitioners Land part of 15, Naseebpur Bakhtiyara, area 155.98 Sqm, to Free Hold Land since compliance of Nazul Policy of the State Government and Government Order dated 1.12.1998. (ii) Issue any other suitable writ, order or direction which this Hon'ble Court may deem fit and proper in the circumstances of the case. (iii) Award full cost of the present writ petition to the petitioners.'' 4. (ii) Issue any other suitable writ, order or direction which this Hon'ble Court may deem fit and proper in the circumstances of the case. (iii) Award full cost of the present writ petition to the petitioners.'' 4. By the Writ Petition No. 14657 of 2010, petitioner is seeking following reliefs : ''(i) Issue a writ, order or direction in the nature of mandamus commanding the respondents to convert the Petitioners Land part of 15, Naseebpur Bakhtiyara, area 217.12 Sqm, into Free Hold Land since compliance of Nazul Policy of the State Government and Government Order dated 1.12.1998 and as amended from time to time. (ii) Issue any other suitable writ, order or direction which this Hon'ble Court may deem fit and proper in the circumstances of the case. (iii) Award full cost of the present writ petition to the petitioners.'' 5. The facts of all the aforesaid writ petitions are similar, therefore, for the sake of convenience, the facts of Writ Petition No. 21835 of 2010, is being considered for disposal of the writ petitions on the consent of the parties. 6. Pursuant to the order dated 5.1.2023, the learned Standing Counsel has obtained instructions from the State Government vide communication dated 9.1.2023, is taken on record. 7. It is submitted by the learned State Counsel that the stand in the instructions is the stand of the State Government. The relevant portion of the instructions is quoted below : 8. This Court while admitting the petition issued an interim mandamus on 19.7.2010, directing the second respondent-Collector Allahabad (Prayagraj), to pass an appropriate order on the applications of the petitioner for declaring the land in question as freehold land, which is pending before him, as has been done in the case of similarly situated person in respect of the same parcel of land. The operative portion of the order is extracted below : ''In the meantime, it is provided that Collector shall pass the appropriate orders on the application of the petitioner for declaring the land in question as free hold land which is pending before him as has been done in the cases of similarly situated candidate neighbouring leaseholders within a period of ten days from the date of production of certified copy of this order.'' 9. It is informed that pursuant thereof no order came to be passed. 10. It is informed that pursuant thereof no order came to be passed. 10. The matter again came up before this Court on 8.8.2022, wherein, this Court after noting the facts, passed the following order. The relevant portion of the order is extracted below : ''Learned Senior Advocate appearing for the petitioners, submits that the petitioners herein have moved an application for grant of freehold rights in their names on 28.1.1999 alongwith three other applicants, who claimed grant of freehold rights for another portion of the plot in question. The freehold deeds were executed in their names by the Collector, Allahabad on 7th July, 2000 and the application moved by the petitioners herein has been kept pending without any cogent reason. In the meantime, the Government Order dated 4.3.2014 came into existence, which was challenged by way of an amendment application filed in the present writ petition. In the interregnum, the Government Order dated 4.3.2014 has been scraped vide Government Order dated 15.1.2015 and all the pending applications have been revived. The contention of the learned Senior Counsel for the petitioners is that the Collector, Allahabad (now Prayagraj) is under obligation to consider the pending application in a time bound manner and the rate for freehold shall be as per the policy applicable on the date of moving of the application, i.e. in the year 1999. In order to address the issue raised herein, we may note that no counter-affidavit has been filed on behalf of the State, i.e. respondent Nos. 1 to 3. Only counter-affidavit has been filed by the respondent No. 4, we, therefore, provide two weeks time to the learned Standing Counsel appearing for the respondent Nos. 1 to 3 to file a counter-affidavit giving the details of parawise reply to the writ petition as also to answer the contention of the petitioners that freehold deed is to be executed at the rate prevailing as per the policy on the date of the moving of the application, i.e. 28.1.1999. The counter-affidavit shall positively be filed on or before 23rd August, 2022 after serving the copy of the same upon the counsel for the petitioners. One week, thereafter, is granted to file rejoinder-affidavit. List this matter on 6th September, 2022.'' 11. The counter-affidavit shall positively be filed on or before 23rd August, 2022 after serving the copy of the same upon the counsel for the petitioners. One week, thereafter, is granted to file rejoinder-affidavit. List this matter on 6th September, 2022.'' 11. Now, as per instructions, the stand of the State Government is that pursuant to the Repealing and Amending (Second) Act, 2017 (No. 4 of 2018), whereby, the Government Grants Act, 1895, has since been repealed. It is further submitted that it was under the Government Grants Act, the nazool land was allotted on lease. Pursuant to the Repeal Act, vide Government Order dated 27.7.2020, the management and disposal of the nazool land, including, provisions pertaining to freehold until further orders have been kept in abeyance. Further, stand has been taken that a draft bill for the management and disposal of the nazool property is under consideration with Government since 2020. 12. In this background, it is submitted by the State Counsel that at the moment there is no such provision for the management, disposal or creating freehold right in respect of the nazool property in the State. 13. In this background, the learned Senior Counsel appearing for the petitioners submits that the right that have been created in respect of a portion of the parcel of the plot/land in question, in respect of one of the persons on 7.7.2000, on an application moved in the year 1999, simultaneously, with that of the petitioners (28.1.1999), the petitioners are entitle to freehold rights in respect of their portion of the same parcel of land on the same terms and conditions, as their matter was kept pending. 14. It is submitted that the rights that have accrued to a third party w.e.f. 7.7.2000 i.e. from the date of discrimination, petitioners cannot be non suited and are entitled to freehold rights in respect of their portion of the land w.e.f. 7.7.2000 on the same terms and conditions. Reliance has been placed on a division Bench decision of this Court in Mata Deen Bhagwan Das and others v. State of U.P. and others, 2020(1) ADJ 525 (DB). Paragraph Nos. 28 and 36 are reproduced below: ''28. 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. 19.3.2012 on which Ganpat Rai Moti Ram Charitable Trust has been granted freehold rights. Paragraph Nos. 28 and 36 are reproduced below: ''28. 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. 19.3.2012 on which Ganpat Rai Moti Ram Charitable Trust has been granted freehold rights. 36. 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 19.3.2012, 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.'' 15. It is further submitted that the State carried the judgment in Special Leave to Appeal (C) No. 15720 of 2020, which came to be dismissed vide order dated 22.1.2021, the order reads as under : ''We are not inclined to interfere with the impugned order at the behest of the petitioners as the High Court has been more than indulgent to the petitioner(s) and thus, dismiss the Special Leave Petition with however, the clarification that were the respondents to file a Special Leave Petition, it would be examined on its own merits. Pending application, if any, shall also stands disposed of.'' 16. Thereafter, a review petition came to be filed by the State, which came to be dismissed by Supreme Court vide order dated 1.4.2022. 17. The submission of the learned Counsel for the State that at present there is no scheme/policy for freehold declaration of nazool land and therefore, the case of the petitioners at this stage cannot be considered lacks merit. It is not the case of the petitioners that they have sought freehold rights after repeal of the Grants Act or supersession of the Government Orders. It is not the case of the petitioners that they have sought freehold rights after repeal of the Grants Act or supersession of the Government Orders. The case setup by the petitioners is that they had applied alongwith other allottees in the year 1999, the respondents passed order for freehold rights in respect of one of the allottee but for others (petitioners) the matter was kept pending. In the circumstances, petitioners are entitled to freehold rights on the same terms as on 7.7.2000 as per the Government Order prevalent on the said date. The repeal of the Grants Act and supersession of the Government Orders subsequently would have no bearing on the case of the petitioners as their case relates back to 2000. The Government Orders in operation and holding the field as on the date of applications would be applicable on the case of the petitioners in respect of the same nazool land. 18. In view thereof, the writ petitions are allowed in terms of order passed in Mata Deen Bhagwan Das (supra), the second respondent i.e. Collector Allahabad, District Allahabad (Prayagraj) is directed to convert/declare freehold part of nazool plot as noted in the prayer clause of the writ petitions extracted herein above within two months from the date of service of certified copy of this order, on the terms and conditions as on 7.7.2000. 19. No cost.