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2023 DIGILAW 971 (ALL)

City Montessori School v. State of U. P.

2023-04-10

MANISH KUMAR, RAJAN ROY

body2023
JUDGMENT : Heard Mr. Sudeep Seth, learned Senior Advocate alongwith Mr. Manish Vaish and Mr. Avinash Chandra, learned Advocates on behalf of the petitioner, Mr. Ratnesh Chandra, learned counsel on behalf of the Lucknow Development Authority and Mr. Nishant Shukla, learned counsel on behalf of the State Authorities. 2. This petition has been filed seeking following reliefs: ''(i) Issue an appropriate writ, order or direction quashing a series of orders of demolition dated 26/12/22(Annexure..19), 21.1.2023 (Annexure...20), 13.3.2023 (Annexure...26) and 3.4.2023 (Annexure...28) passed from time to time by the Executive Engineer, Division-2, Sharda Canal, Lucknow (Respondent No. 4) seeking to demolish a portion of school building (not yet earmarked/measured in those impugned orders of demolitions), erected over a plot of land situated in Sushant Golf City, Lucknow as being illegal, prematurely passed when the final order of transfer of this land was yet to be passed by the Irrigation Department in favour of builder namely M/s. Ansal Properties & Infrastructure Ltd. setting up a Hi-Tech Township and whose lay-out plan w.r.t.w.r.t. entire land measuring 3560 acres was passed on 27.4.2007 by the Lucknow Development Authority and also by the concerned department of State Government: and or (ii) Issue an appropriate writ, order or direction including writ of mandamus commanding the Respondent No. 3 i.e. the Principal Secretary, Irrigation Department, Government of U.P. to immediately calculate the market value of the disputed land as required by the Special Secretary, Irrigation vide his letter dated 17.6.2013 (Annexure 13) in context of correspondenceat the highest level between the Principal Secretaries of the Department of Housing and Urban Planning and Department of Irrigation, Government of U.P.which in turn could be realized from the writ petitioner in lieu of the said transfer of said disputed land; and/or (iii) Issue an appropriate writ, order or direction including writ of mandamus commanding the Principal Secretary, Irrigation Department to transfer the said disputed land in favour of the said builder namely M/s. Ansal Properties & Infrastructures Ltd.[who has sold his entire land related to land earmarked for educational purposes in the layout plan so approved on 27.4.2007 (including this small tiny patch of disputed land alleged to be encroached) to his sister company namely Sushil Ansal Foundation vide sale-deed dated 8.1.2021, and who has in turn sold a portion of this land measuring 1381.95 sq. mtr. mtr. to the writ petitioner]after realizing the value of the land from the writ petitioner so that the portion of school building can be protected from demolition where more than 1,000 students are studying; and/or (iv) Issue any appropriate writ, order or direction including writ of mandamus commanding Executive Engineer, Sharda Canal, Division-2 not to interfere with the peaceful possession of the land comprised Gata No. 150, situated at Village Yusuf Nagar, Bagiamau, Pargana-Bijnore, Tehshil Sarojani Nagar, Lucknow till final disposal of the applications moved by the writ petitioner under Sections 24 and 101 of the U.P. Revenue Code, 2006 seeking earmarking of land alleged to be encroached in Gata No. 150 and also for compounding the same before the said area is being declared as encroached; and/or (v) Allow the writ petition with costs.'' 3. We have gone through the impugned orders. 4. Petitioner is inter alia aggrieved by orders for demolition of portion of a School building existing on land measuring about 1381.95 square meter which is part of Khasra No. 150 and is recorded in the name of Irrigation Department, as informed by the petitioner's counsel. 5. At the very outset, we asked learned Senior Counsel appearing for the petitioner to show the documents by which Khasra No. 150 total area of which is 1.313 hectare was transferred by the State Government to M/s. Ansal Properties & Infrastructures Ltd. as it is the case of the petitioner that the said land belonging to the Irrigation Department was transferred to Ansals for building a Hi-tech township and was subsequently transferred by M/s. Ansal Properties & Infrastructures Ltd. to Sushil Ansal Foundation and petitioner claims its right through the latter, learned Senior Counsel fairly submitted that the said documents are not on record, but, there are various letters/correspondence which took place in this regard. We have perused the said letters/correspondence and do not find any final decision on records of this petition by which it may have been decided by the State Government to transfer the land belonging to the Government to M/s. Ansal Properties & Infrastructures Ltd. In fact, relief clause No. 1 and 3 in the writ petition itself says that said land is yet to be transferred by the Irrigation Department of the Government in favour of M/s. Ansal Properties & Infrastructures Ltd. and that it be so transferred by the State Government. The said company is not a party in this petition. 6. What we find is that a sale-deed was executed by M/s. Ansal Properties & Infrastructures Ltd. in favour of Sushil Ansal Foundation on 27.4.2011 transferring land measuring 55624.60 square meter to Sushil Ansal Foundation. The said sale-deed is on record and we have perused the same. We do not find mention of Khasra No. 150, with which we are concerned, in the said sale-deed. However, learned Senior Counsel for the petitioner says that the land pertaining to Khasra No. 150 which is in dispute in this petition was part of Institutional/Higher Education Plot bearing No. C/9/HE-1, Sector-C, Pocket-9 admeasuring 55624.60 square meter which is mentioned at internal page 5 of the sale-deed (page 82 of the writ petition). There is no proof in this regard except this oral statement. Even otherwise, as already stated, transfer of such land by the Government to M/s. Ansal Properties & Infrastructures Ltd. is itself not proved in these proceedings. 7. We then asked learned Senior Counsel to kindly show the sale-deed which may have been executed by Sushil Ansal Foundation in respect of the land forming part of Khasra No. 150 measuring 1381.95 square meter, which according to the Official opposite parties has been encroached by the petitioner, learned Senior Counsel submitted that there is no sale-deed, but, there is an agreement to sell entered into between petitioner and Sushil Ansal Foundation. Sushil Ansal Foundation has not been arrayed as an opposite party in these proceedings. Nevertheless, the agreement to sell is on record and it has been annexed as Annexure-14 to the writ petition. This agreement to sell is dated 8.1.2021 which has been entered into between the petitioner and Sushil Ansal Foundation. It is in respect of a land measuring 1381.95 square meter situated in Mohalla/Village Sushant Golf City/Yusuf Nagar alias Bagiamau, Pargana - Bijnore, Tehsil Sarojini Nagar, District Lucknow and is mentioned as part of Unit No. C/9/HE-1, Sector-C, Pocket-9. The agreement to sell mentions the consideration for the agreement as Rs. 3,74,60,978/- and advance paid Rs. 50,000/- only. Valuation of property is mentioned as 3,04,17,000/- and stamp duty paid is Rs. 26,22,270/-. Khasra No. 150 is mentioned in the said agreement to sell and the agreement to sell was in respect of the said land. The agreement to sell mentions the consideration for the agreement as Rs. 3,74,60,978/- and advance paid Rs. 50,000/- only. Valuation of property is mentioned as 3,04,17,000/- and stamp duty paid is Rs. 26,22,270/-. Khasra No. 150 is mentioned in the said agreement to sell and the agreement to sell was in respect of the said land. According to clause (3) of the said agreement, the first party shall execute the formal sale-deed in respect of the said property mentioned above in favour of the second party i.e. the petitioner herein or their nominee or nominees as the case may be, by March, 2022. 8. It it is an undisputed fact that no sale-deed has been executed by Sushil Ansal Foundation in pursuance to the aforesaid agreement to sell prior to March, 2022 or for that matter even thereafter till date in favour of the petitioner, yet, the petitioner is in possession of the said property. 9. It is not in dispute that Khasra No. 150 is recorded in the name of the Irrigation Department of the Government of Uttar Pradesh. We specifically asked learned Senior Counsel appearing for the petitioner in this regard and he fairly accepted the said fact. 10. This petition challenges the orders impugned herein for demolition of part of School Building of the petitioner existing on land measuring 1381.95 square meter which was the subject-matter of agreement to sell between Sushil Ansal Foundation and the petitioner. 11. Now, the fact is undisputed that the said land belongs to the Irrigation Department of the Government of Uttar Pradesh and as of now there is nothing on record to show that the said land was ever transferred to M/s. Ansal Properties & Infrastructures Ltd. Relief No. 1 and 3 in this petition itself admits to this factual position. 12. As already noticed, no sale-deed has been executed by Sushil Ansal Foundation, which had allegedly purchased the said land from M/s. Ansal Properties & Infrastructures Ltd., on 27.4.2011, in favour of petitioner till date and even as per agreement to sell dated 8.1.2021, the sale-deed had to be executed before March, 2022 which has not been done. Apparently on the face of the record, land belongs to the Government and the petitioner is in illegal possession of it. Apparently on the face of the record, land belongs to the Government and the petitioner is in illegal possession of it. Merely because the map for construction of the School building which exists on the land measuring 1381.95 square meter, which is the subject-matter of these proceedings, had been sanctioned by the Lucknow Development Authority as claimed by the learned Senior Counsel, it does not enure to the benefit of the petitioner. Mere sanction of map will not create title nor legalize the petitioner's possession in respect thereto, in view of the above discussion. 13. At this stage, Mr. Ratnesh Chandra, learned counsel for the Lucknow Development Authority invited our attention to the permit granted by the Lucknow Development Authority for construction of the school building which is dated 27.6.2022 and a copy thereof is annexed as Annexure-15 to the writ petition and which is being relied by the petitioner's counsel. He stated that the property mentioned therein is Plot No. /Survey No. : Khasra No. -1086 and 1087. He says that this does not mention Khasra No. 150. We confronted learned Senior Counsel in this regard, but, he was unable to give any reply. Apparently, the permit is not with respect to Khasra No. 150. Even if it was, it would not help the petitioner's cause in view of the above discussion. 14. Learned Senior Counsel vehemently argued that there are documents and reports on record to show firstly that the canal actually does not exist on the spot and the same is not required for irrigation purposes. In this regard he referred to provision of Northern India and Canal Drainage Act, 1873 and the show-cause notice issued by the Official opposite parties to the petitioner for removal of encroachment etc. to contend that the said provision did not apply. This also does not help the petitioner's cause unless and until it had a valid title and legal possession of the property in question. We are concerned with the undisputed title and/or legal possession of the petitioner herein in respect of the land in dispute and there is nothing on record to show that the petitioner has legal title or is in valid possession of the said property. We are concerned with the undisputed title and/or legal possession of the petitioner herein in respect of the land in dispute and there is nothing on record to show that the petitioner has legal title or is in valid possession of the said property. Even at the cost of repetition, it needs to be mentioned that the property, as informed by the learned Senior Counsel, is recorded in the name of Irrigation Department of the Government. 15. In these circumstances, we fail to understand as to how we can interfere in such a matter merely because there is some part of a School building existing on the land in question. We asked the learned Senior Counsel for the petitioner as to what is the total area of the School campus, but, he could not inform us about the same. In any case, in view of the above, there is very little we can do under Article 226 of the Constitution of India. 16. The plea that the petitioner has moved some application under Section 24 of the U.P. Revenue Code, 2006 is also of no avail as unless and until the petitioner is recorded in respect of the land in question he has no right so far as this land measuring 1381.95 square meter (Khasra No. 150) is concerned to initiate proceedings under Section 24 of the U.P. Revenue Code, 2006 for demarcating boundaries of the said land. At this stage, learned Senior Counsel says that the proceedings under Section 24 of the U.P. Revenue Code, 2006 have been initiated in respect of some other Khatas/Kharas. If it is so, then, we are not concerned with those proceedings at all and they have no relevance in this case. As of now there is no order under Section 101 of the U.P. Revenue Code, 2006 asserting that the said provision will apply in this case. Section 101 of the U.P. Revenue Code, 2006 applies for exchange of land of any bhumidhar with the land held by another bhumidhar; or entrusted or deemed to be entrused by any Gram Panchayat or a local authority under Section 59. Now, whether the Irrigation Department which owns the said land would be covered by the said provision or not is an issue which has not been addressed before us, therefore, we leave this issue as it is for consideration by the appropriate authority. 17. Now, whether the Irrigation Department which owns the said land would be covered by the said provision or not is an issue which has not been addressed before us, therefore, we leave this issue as it is for consideration by the appropriate authority. 17. We do not find any ground for exercising our extraordinary discretionary jurisdiction to interfere with the impugned action nor for grant of relief No. 1 and 4. Relief No. 2 and 3 cannot be granted at the behest of the petitioner. 18. This order is confined to an adjudication of the rights claimed by the petitioner and it shall not affect the rights, if any, of any person not a party to these proceedings. 19. The petition lacks merit and is dismissed.