Allahabad High Court
Krishna Baranwal vs State Of U.P. And 4 Others on 6 September, 2024
Author: Mahesh Chandra Tripathi
Bench: Mahesh Chandra Tripathi
HIGH COURT OF JUDICATURE AT ALLAHABAD Neutral Citation No. - 2024:AHC:145078-DB Reserved on: 09.08.2024 Delivered on: 06.09.2024 Court No. - 29 Case :- WRIT - C No. - 41537 of 2018 Petitioner :- Krishna Baranwal Respondent :- State Of U.P. And 4 Others Counsel for Petitioner :- Arvind Srivastava Counsel for Respondent :- Arti Raje,C.S.C.,Punit Khare,Ravi Prakash Pandey Hon'ble Mahesh Chandra Tripathi,J.
Hon'ble Prashant Kumar,J.
(Delivered by M.C. Tripathi, J.)
1. Heard Sri Arvind Srivastava, learned counsel for the petitioner, Sri M.C. Chaturvedi, learned Senior Advocate assisted by Sri Ravi Prakash Pandey, learned counsel for Varanasi Development Authority and Sri Ajit Kumar Singh, learned Additional Advocate General assisted by Sri Amit Verma, learned Standing Counsel for the State respondents and perused the record.
2. Facts giving rise to the present writ petition in brief are that a lease-deed was executed by Varanasi Development Authority1 in favour of allottee Smt. Gurmeet Kaur on 03.09.1964, which was registered on 18.12.1964. Smt. Gurmeet Kaur was allotted Plot No. 58 measuring 3515 sq. ft. (near D.I.G. Bungalow), Development Scheme Khajuri, Secrole Ward, Varanasi by Nagar Mahapalika, Varanasi, (now known as VDA,) on lease rent for construction of residential accommodation under Low Income Group Housing Scheme for a period of 30 years renewable for two more terms of 30 + 30 years. Pursuant to said allotment, she took possession of the plot and got a boundary wall constructed covering the area of allotted plot apart from constructing two rooms. She was regularly paying lease rent without any default.
3. As per the lease deed, allottee had to commence the construction of the building within the period of one year and would completely finish the same fit for habitation and use, within the period of two years. The allottee made an application for approval of Map for construction of house and the same has been sanctioned on 30.04.1965. However, instead of making house two rooms were constructed with small kitchen and bathroom surrounded by a boundary wall. In the year 1969, an application was made by the allottee for extension of time for completion of construction work and accordingly on 02.09.1971, extension of further two years have been granted for completion of construction.
4. In the year 1988, allottee Smt. Gurmeet Kaur had given Power of Attorney to Shri Ashok Gupta and an agreement of sale was executed on 17.09.1988 in favour of the present petitioner.
5. Before expiry of term of lease-deed, allottee Smt. Gurmeet Kaur through an application dated 24.11.1993 applied for renewal in accordance with terms of lease-deed, but VDA did not pass any order on the said application. However, on 13.04.1994, VDA issued a show cause notice, calling for reply from the allottee by 28.04.1994, as to why allotment of the said plot in her favour be not cancelled on account of having violated the terms of lease-deed by not getting the construction done within the specified period as extended time to time. It was further mentioned in the notice that if reply is not filed within stipulated period, it will be deemed that the allottee has nothing to say and action will be taken in accordance with law. In response thereof, allottee Smt. Gurmeet Kaur through her Power of Attorney holder filed reply on 16.05.1994 stating therein that she has already constructed two rooms, water boring and boundary wall within the time prescribed, but could not complete rest of the construction due to death of her husband. She is in possession over the plot and further she has not violated any of the terms of lease-deed. Ultimately, she prayed for cancellation of show cause notice dated 13.04.1994 and extension of lease period.
6. As the VDA has not taken any decision on application/representation, aggrieved with the same, allottee Smt. Gurmeet Kaur preferred a writ petition being Civil Misc. Writ Petition No. 23102 of 1994 before this Court with a prayer to issue a mandamus directing the VDA to renew the lease dated 03.09.1964 and restrain the VDA from dispossessing her and allotting the plot in question to some body else.
7. On 27.03.1998, an interim order was passed in the said writ petition, directing not to dispossess the allottee from the land in dispute and not to allot the land to any one else. It is claimed that copy of the said order was also served upon the VDA through application dated 02.04.1998.
8. That on 09.09.1998, an order was passed by the Vice Chariman, VDA, stating that the plot allotted to the allottee Smt. Gurmeet Kaur (Plot No. 58, (near D.I.G. Bunglow), Development Scheme Khajuri, Secrole Ward, Varanasi) was allotted with the condition that within two years construction work has to be completed and in case the work is not completed, the Authority can take back the possession of the said plot. Since the conditions were clearly violated and period of lease had expired on 03.09.1994, thereafter, the lease was not renewed and neither the layout Map has been applied nor it has been sanctioned. Since the lease has expired and original tenure holder violated the lease condition, hence the Vice Chairman had directed to take back the possession of the land with immediate effect and also directed under Section 26A(5) of the U.P. Urban Planning and Development Act, 19732 to seize the illegal construction over the plot in question.
9. That on 09.09.1998, another order was passed by the Vice Chairman, VDA under section 15(9) of the Act, 1973, which was a show cause notice of the cancellation of the layout Map which was already sanctioned.
10. Yet another order was passed on 09.09.1998, whereby the application given by the allottee Smt. Gurmeet Kaur for extension of the lease was rejected.
11. On 10.09.1998, VDA seized the house of allottee Smt Gurmeet Kaur by putting seal and lock at the main gate, in compliance of the order passed by the Vice-Chairman, under Section 26A(5) the Act, 1973.
12. Aggrieved with the action taken by the VDA, Smt. Gurmeet Kaur, the allottee submitted an application dated 30.09.1998 for recall of the order dated 09.09.1998 passed under Section 26A(5) the Act, 1973.
13. Against both the orders dated 09.09.1998 passed by the Vice Chairman under Section 26A(5) and under Section 15(9) of the Act, 1973, the allottee Smt. Gurmeet Kaur preferred a Civil Misc. Writ Petition No. 35073 of 1998 challenging the validity of the orders dated 09.09.1998 and also prayed for a mandamus restraining the VDA not to dispossess her and to remove the seal and lock. The Division Bench of this Court considered the petition and vide interim order dated 29.10.1998, stayed the effect and operation of the order dated 09.09.1998 and directed the respondents to remove seal and lock from the house in dispute and not to interfere with the possession of the petitioner -allottee Smt. Gurmeet Kaur.
14. That against the order dated 09.09.1998 by which the application for renewal/extension of lease was rejected by the VDA, the original allottee Smt. Gurmeet Kaur preferred yet another writ petition numbered as Civil Misc. Writ Petition No. 44007 of 1998.
15. While entertaining the aforementioned writ petitions, the Division Bench had clubbed all the three writ petition together and vide judgement and order dated 15.12.2009, dismissed all the three writ petitions vide judgement and order dated 15.12.2009 with the observation that the writ petitions filed through power of attorney can not be held to be maintainable.
16. Order of the Division Bench dated 15.12.2009 was challenged before the Apex Court by means of petitions for Special Leave to Appeal (Civil) Nos. 3486-3488 of 2010 and the same was dismissed vide judgement and order dated 15.04.2011 and consequently, the judgement and order dated 15.12.2009 passed in the Civil Misc. Writ Petition Nos. 23102 of 1994, 35073 of 1998 and 44007 of 1998, attained finality.
17. After dismissal of the Special Leave to Appeal, the petitioner herein, filed an Original Suit No. 268 of 2011 for declaration challenging the validity of the same order dated 09.09.1998 passed by the respondent-VDA.
18. During the pendency of the suit, a fresh application was moved by the petitioner before the Vice Chairman, VDA, claiming free hold rights of the plot in dispute. This application was rejected vide order dated 24.05.2018 by respondent no. 5 on the ground that the lease has already been cancelled, the possession of the land has been taken and the applicant/petitioner had no right to make such kind of request. Aggrieved by this order, petitioner has preferred the instant writ petition with following relief:-
"A. Issue a writ, order or direction in the nature of certiorari quashing impugned order dated 24.05.2018 (Annexure No. 53 to this writ petition) B. Issue a writ order or direction in the natue of mandamus to grant freehold rights of the property named Plot No. 58 as described in the paragraph 3 of this writ petition on which house no. s8/108 3 Ka has been constructed.
C. Issue a writ, order or direction in the nature of mandamus directing the respondents to not inferring in the peaceful possession of the petitioner."
19. Pleadings have been exchanged and with the consent of the parties, the matter is being decided finally under the provisions of High Court Rules 1952.
ARGUMENT OF THE PETITIONER
20. Learned counsel for the petitioner submitted that in some of the cases, the free hold rights had been granted to the allottees whose lease were expired and sought parity to the same. He further submitted that Government Order dated 10.05.1995 read with G.O. dated 23.10.1986 and 24.05.1995 and 21.09.1995 clearly entitled the petitioner to get free hold rights over the property. He further submitted that property had been demolished and the application for free hold rights was dismissed without any authority and without giving any opportunity of hearing.
21. Learned counsel for the petitioner further submitted that all the three writ petitions taken together were dismissed on the ground that the writ petitions cannot be filed through power of attorney holder this judgment is not a good law any more, as the Full Bench of this Court in the matter of Syed wasif Husain Rizvi vs. Hasan Raza Khan and others3 has given a contrary view and has allowed the petitioner to file the writ petition through the power of attorney holder, hence the judgment and order dated 15.12.2009 passed in the aforesaid three writ petitions is not good and it is open for the petitioner to challenge again.
ARGUMENTS ON BEHALF OF THE RESPONDENT
22. Shri M.C. Chaturvedi, learned Senior Counsel appeared on behalf of the VDA and submitted that the order was passed by VDA whereby the lease-deed and the allotment made in favour of Smt. Gurmeet Kaur had been cancelled, but without having title over the land in dispute, Shri Ashok Baranwal had executed sale deed on 15.01.2010 in favour of the present petitioner, hence the aforesaid sale deed is void ab initio. He further submitted that the possession of the plot in question had been taken by the VDA and the encroachment was removed and the property was not belonging to the present petitioner Krishna Baranwal, hence there is no question of entertaining the application of free hold of the plot.
23. He further submitted that against the order dated 09.09.1998 by which extension of lease deed was cancelled and the possession was taken over by the VDA had been challenged by the petitioner by way of filing Original Suit No. 268 of 2011 (Smt. Krishna vs Vice Chairman, VDA and others) which is pending before the trial court in Varanasi and in addition to it the present petition has been filed, the petitioner cannot avail two remedies for the same cause of action.
24. He further submitted that by exercising power conferred under section 26(C)(a) of the Act, 1973, the VDA has exercised it's power and passed the order dated 09.09.1998.
25. He further submitted that so far as the orders by which the premises was seized, layout map was cancelled and extension of lease deed was rejected, the same had been challenged by means of three writ petitions numbered as Civil Misc. Writ Petition Nos. 23102 of 1994, 35073 of 1998 and 44007 of 1998 and the same were dismissed by the Division Bench vide judgement and order dated 15.12.2009, against which, the original allottee Smt. Gurmeet Kaur had filed the Special Leave Petition before the Hon'ble Apex Court, which was also dismissed vide order dated 15.04.2011 and hence this issue had attained finality. It is not open for the petitioner (who had got the right over the land through sale deed dated 15.01.2010) to question the validity of order dated 09.09.1998 by which allotment of lease deed was cancelled, possession was taken and demolition of illegal construction was carried out. The land does not belong to the petitioner any more and therefore, there is no question for her to move an application for grant of free hold rights over the plot which is already vested in VDA.
26. Learned counsel for the respondent submitted that undoubtedly, the ratio of the judgment passed in the order dated 15.12.2009 has subsequently been changed by the Full Bench of this Court vide order dated 22.01.2016, but before that, the order passed by the Division Bench of this Court has already been approved by the Supreme Court in the year 2011 and hence no benefit may be granted to the petitioner and moreover when the order was passed in those writ petitions it was good law, though subsequently be changed but the benefit cannot be extended to the petitioner.
ANALYSIS BY THE COURT
27. Heard learned counsel for the parties and perused the record.
28. From the facts cited above, it is clear that a lease was executed in the year 1964 by VDA in favour of Smt. Gurmeet Kaur, wherein a plot was allotted with a condition that she will start the construction work and complete it within two years. It is also mentioned in the lease deed that in case the construction is not carried out, it will be open for the respondent to take back the possession. Undoubtedly, some construction was carried out which do not qualify the minimum area to be constructed. Though, there was some efforts made for extension of time for construction, which was accorded, and the layout map was produced for sanctioning of the construction, but due to some reason construction was not carried out. The lease period of 30 years came to an end on 02.11.1993. After the lease come to an end, an application for renewal of lease deed was moved on 24.11.1993. When the lease was not renewed, the original allottee Smt. Gurmeet Kaur apparently filed first writ petition number as Civil Misc. Writ Petition No. 23102 of 1994 seeking the renewal of lease deed.
29. During the pendency of this petition, while exercising the power conferred under Section 26(C)(a) of the Act, 1973, VDA passed three orders on 09.09.1998 back to back. For ready reference Section 26(C)(a) of the Act, 1973 is quoted herein below:-
"Section 26(C). Authority may, without notice, remove anything erected or deposited in contravention of Act. The Authority or an officer authorized by it in this behalf may, without notice cause to be removed "(a) Any wall, fence, rail, post, step, booth or other structure whether fixed or movable and whether of a permanent or a temporary nature or and fixture which shall be erected, or set up in or upon or over any street or upon or over any open channel, drain, well or tank contrary to the provision of this Act."
30. Firstly, Vice Chairman, VDA vide order dated 09.09.1998 ordered to take back the possession of the plot which was executed on 03.09.1964 and seize the illegal construction existing on the plot under Section 26A(5) of the Act, 1973 with immediate effect. Secondly, yet another order was issued on 09.09.1998 and in exercise of power conferred under Section 15 (9) of the Act, 1973 by Vice Chairman, VDA, whereby notice/order was issued to cancell the Map layout, as the same was acquired by the original allottee Smt. Gurmeet Kaur by misrepresentation and production of fraudulent information for sanction of Map layout. Thirdly, vide order dated 09.09.1998, Vice Chairman, VDA rejected the lease deed granted in favour of the allottee Smt. Gurmeet Kaur on 03.09.1964, with immediate effect.
31. Original allottee by means of the second petition being Civil Misc. Writ Petition No. 35073 of 1998 challenged the first and second order passed by the Vice Chairman, VDA on 09.09.1998 and also preferred third writ petition being Civil Misc. Writ Petition No. 44007 of 1998 against the third order dated 09.09.1998 passed by the Vice Chairman, VDA.
32. All these three writ petitions were clubbed together and Division Bench of this Court vide order date 15.12.2009 was pleased to reject all the three writ petitions on the ground of maintainability as the same was filed through power of attorney holder. This order dated 15.12.2009 was challenged by means of Special Leave to Appeal (Civil) Nos. 3486-3488 of 2010 and the same was ultimately dismissed vide judgement and order dated 15.04.2011. After dismissal of the Special Leave to Appeal, orders passed on 09.09.1998 were confirmed and had attained finality. The possession of the property was taken by VDA, the property no more belonged to the petitioner, all the illegal construction standing on the property were demolished.
33. After having lost all the way to the Supreme Court, the petitioner herein again reagitated the issue by filing a suit being Original Suit No. 268 of 2011 (Krishna Baranwal vs. Varanasi Development Authority and others), whereby the orders dated 09.09.1998 passed by the Vice Chairman, VDA were challenged. During the pendency of the suit, yet another endeavour has been made by the petitioner to revive the said dispute, which has already attained finality and move an application for according a free hold rights on the said plot/property. Obviously, the said application was rejected vide order dated 24.05.2018 passed by the respondent no. 5, which is impugned herein in this writ petition as Annexure no. 53.
34. Since the matter stands concluded as the order dated 09.09.1998 by which the initial allotment was cancelled, the lease was terminated, possession was taken and the illegal structure was demolished had already been approved by the Supreme Court, once the same has attained finality, it cannot be reopened.
35. Hon'ble Supreme Court in the matter of Pradeep Kumar Maskara and others vs. State of West Bengal and others4 has held that In such condition, it is settled that even if the decision on a question of law has been reversed or modified by subsequent decision of a superior court in any other case it shall not be a ground for review of such judgment which had attained finality merely because a subsequent judgment has taken contrary view. The subsequent view if any, does not confer jurisdiction upon the tribunal to ignore the judgment and direction of the High Court given in the case of the appellants.
36. Subsequent to the dismissal, when the plot already stand vested with the VDA, the possession is taken, it is not open for the petitioner to claim free hold status of such plot. This application has been misconceived and has already been rejected vide order dated 24.05.2018.
37. Learned counsel for the petitioner failed to place any document to show that other allottee in whose favour the lease deed was extended/renewed had the same set of facts, wherein the allotment was cancelled and possession of the land was taken by the VDA, which has already been approved by the Supreme Court. There is no illegality in the impugned order dated 24.05.2018 and the instant writ petition is liable to be dismissed.
38. Counsel for the petitioner argued that the ground on which all the three writ petitions were dismissed has already been set aside by a Full Bench of this Court in the matter of Syed Wasif Husain Rizvi (supra) vide judgement and order dated 22.01.2016, the argument raised by him though attractive but cannot be excepted for the simple reason that the judgment passed by the Division Bench in the writ petitions on 15.12.2009 has already been confirmed by the Supreme Court vide judgement and order dated 15.04.2011. The ground for rejection had been disapproved much later in time by the Full Bench of this Court, hence the petitioner cannot get any benefit of the said judgment passed by the Full Bench of this Court, as the Hon'ble Supreme Court in the matter of Pradeep Kumar Maskara (supra) has already held that the judgement passed by the Court or the law laid down is subsequently changed by the subsequent judgment, then the benefit could not be granted to the earlier petitioner.
39. In view of the observation made above, the writ petition sans merit and is accordingly dismissed.
Order date : 06.09.2024 Bhanu