Allahabad High Court
Mani Bhadra Singh vs State Of U.P. Thru. Prin. Secy.,Revenue ... on 25 August, 2017
Author: Sudhir Agarwal
Bench: Sudhir Agarwal
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH AFR Reserved on 25.05.2017 Delivered on 25.08.2017 Court No. - 3 Case :- MISC. BENCH No. - 11634 of 2016 Petitioner :- Mani Bhadra Singh Respondent :- State Of U.P. Through Principal Secretary, Revenue Department, Lucknow and others Counsel for Petitioner :- Rajendra Pratap Singh, Surendra Pratap Singh Counsel for Respondent :- C.S.C., Alok Sharma, Viplav Sharma Hon'ble Sudhir Agarwal,J.
Hon'ble Virendra Kumar-II,J.
(Delivered by Hon'ble Sudhir Agarwal, J.)
1. Heard Sri Rajendra Pratap Singh, learned counsel for petitioner, learned Standing Counsel for respondents-1 to 4 and Sri Viplav Sharma, learned counsel for respondent-6. None appeared on behalf of respondents-7 to 10 despite service of notice though the case has been called in revised.
2. This writ petition under Article 226 of Constitution of India as Public Interest Litigation has been filed revealing unholy nexus and collusion between State Government officials and certain private individuals for converting State land as freehold land in favour of private individuals in utter disregard of statutory provisions, in a wholly illegal manner.
3. The dispute relates to Plots No. 1453 to 1455, 1457 to 1461 and 1467 having a total area of 12650 square meters situated in the heart of posh locality of Rae Bareli, i.e., Mohalla Ahmedpur, Civil Lines, Rae Bareli. In the revenue record (Khatauni of 1389 Fasli) non-Z.A. Mohal Nazul, land in question having total area of 20 Bhigha, 10 biswa and 10 biswansi. Khata No. 137 was shown in the name of Kailash Chandra son of Hanuman Prasad Agarwal resident of Rudauli, District Barabanki as occupant. In the same Khata number in 1389 Fasli, entry with regard to Gata Nos. 1453 to 1455, 1457 to 1461 and 1467 Fasali, a total area of 12640 square meters was entered in the name of Kamla Nehru Educational Society, Rae Bareli (hereinafter referred to as "Society") as a tenant for 30 years on a rent of Rs. 1135/- per annum without showing any demarcation.
4. Respondent-6, Sunil Dev, claiming himself to be Secretary of Society got various orders from higher authorities and as a result thereof, freehold deed dated 06.03.2003 was executed in respect of land in Khata No. 137. Aforesaid freehold deed was executed despite the fact that Society could not produce any lease deed executed earlier in its favour by State so as to allow Society to be treated as an ex-lessee or otherwise valid occupant of land in dispute. Several correspondence took place between authorities demanding lease deed from Society to know such lease deed was in fact executed. All the aforesaid transactions have taken place for conversion of a big chunk of nazul land in freehold in favour of Society in collusion with official respondents. Thereafter, now Society, has executed an agreement to sell to respondents-7 to 10 among whom respondent-8 was a Member of Legislative Assembly, respondent-7 is his mother and respondents-9 and 10 are his brothers. Entire exercise is to usurp the State Government's land in a most illegal and arbitrary manner.
5. Petitioner, therefore, has sought a direction to respondent-3 to take appropriate decision on the recommendation dated 07.07.2011 by Revenue Inspector and Sub Divisional Magistrate cancelled freehold deed dated 06.03.2003 to protect the interest of bona fide occupants of land in dispute.
6. A counter affidavit has been filed on behalf of respondent-6 through Shri Viplav Sharma, Advocate. It is stated therein that Society was formed in 1969 at Rae Bareli, on initiation of Late Smt. Indira Gandhi, Former Prime Minister, with an objective to develop Rae Bareli, her Constituency, by establishing an educational institution for women.
7. Society for the purpose of discharge of its objectives, sought land from District Administration. In furtherance thereof, State Government issued an order dated 11.03.1974 informing Collector, Rae Bareli, that Government has decided to grant lease of 3.125 acres of land at Village Chak Ahmedpur, Nazul, Civil Lines, Rae Bareli to Society in principle. Therefore, Collector was required to prepare a draft lease document for execution in favour of Society and sent the same for perusal to State Government. It does not appear that any lease deed was executed thereafter and land remained vacant.
8. Collector, Rae Bareli vide letter dated 11.09.1985 informed Society that land in dispute is still lying vacant though grant of lease in favour of Society was executed by State Government on 11.03.1974 but it has been occupied by some other persons, therefore, if Society does not require said land, it may inform Collector so that land may be utilized for some other purpose.
9. Secretary of Society vide letter dated 21.09.1985 informed Collector that construction of Women Degree College on the land in dispute is under consideration at higher level and, therefore, Society would require land in dispute. Hence, Collector may take appropriate action for removing encroachment made by others on the said land.
10. Nothing further transpired thereafter Collector, Rae Bareli vide letter dated 04.04.1993 sent report to State Government informing that land in dispute was initially sanctioned for lease in favour of Bharat Sewa Sansthan, Moti Mahal-2, Rana Pratap Marg, Lucknow for construction of a Nursery School. The said institute did not proceed to raise any construction whereafter Governor cancelled lease and vide letter dated 11.03.1974, lease of land in dispute in principle was executed by Government in favour of Society. Draft lease document was forwarded to Government vide letter dated 19.03.1974. Thereafter vide letter dated Nil July, 1976, Governor granted approval for execution of lease deed at an annual rent of Rs. 1135/- for a period of 30 years subject to necessary conditions in the deed. However, draft deed was not received from Government, therefore, lease deed could not be executed till date and Society has not paid annual rent. Collector, therefore, requested Government to make lease deed available for further action.
11. A letter was sent thereafter by the then Union Minister of Urban Development, Smt. Sheela Kaul to Shri Motilal Vora, Governor, U.P., Lucknow on 02.11.1993 stating that due to non-receipt of draft lease deed, same could not have been executed by Collector. Therefore, appropriate instruction be issued forthwith to authorities concerned for execution of lease deed in respect of land in question in favour of Society where it proposed to construct a Women Degree College. Thereupon, it appears that the then Governor, U.P., Lucknow, Shri Motilal Vora, made following endorsement:-
**mDr Hkwfe dk iV~Vk lkslkbVh ds i{k esa rqjUr fu"ikfnr djus dh dk;Zokgh dh tk;s rFkk ,d lIrkg esa vk[;k izLrqr dh tk;A izeq[k lfpo] vkokl ,oa uxj fodkl** Proceedings for execution of lease of aforesaid land in favour of Society be initiated immediately and compliance be reported within a week.
Principal Secretary, Awas Evam Nagar Vikas"
(English Translation by Court)
12. Nothing further transpired thereafter Smt. Sheela Kaul, the then Urban Minister sent another letter dated 08.04.1994 addressed to Chief Minister, U.P., Shri Mulayam Singh Yadav, with the same request as she has already made in earlier letter dated 02.11.1993. Chief Minister, U.P. sent reply vide letter dated 29.04.1994 to Smt. Sheela Kaul that he is getting the matter examined.
13. In-charge Officer, Nazul, Rae Bareli thereafter sent a letter dated 05.09.1994 to President/Secretary of Society inquiring as to who is authorized to execute sale deed on behalf of Society. The requisite Resolution of Society be made available in this regard. Nothing transpired thereafter and it is not the case of petitioner that Society gave any reply to In-charge Officer, Nazul in the context of letter dated 05.09.1994 and instead made an application on 06.02.2001, requesting to convert disputed land in freehold in favour of Society by depositing 25% of freehold charge vide Treasury Challan dated 06.02.2001. In the said application, Society claimed its right as a lessee. It also appended a copy of Khatauni non-Z.A. Of 01.04.2006 (Fasli) showing that in the column of occupant, Society's name was mentioned.
14. It also sent a letter to Collector, Rae Bareli to remove unauthorized possession over land in dispute, whereupon In-charge Officer, Nazul on 08.02.2001 issued instruction to City Magistrate, Rae Bareli to look into the matter at his own level.
15. Another request was made vide letter dated 15.02.2001 sent by Smt. Sheela Kaul as President of Society to Collector, Rae Bareli.
16. Respondent-6 sent a letter dated 22.05.2002 informing Secretary, Rae Bareli Development Authority, Rae Bareli that in respect of disputed land, it was found that some part was sold by some persons after plotting and maps have been submitted by vendees for sanction of Development Authority. Hence, till the dispute is settled, such map may not be sanctioned which relates to land in dispute.
17. In-charge Officer, Nazul also issued a letter dated 05.09.2002 informing respondent-6 that as per Collector's order dated 09.02.2002, rent of nazul land for the period of 30 years, which was not deposited has to be deposited which was computed to Rs. 30645/- and same was required to be deposited at the earliest.
18. Freehold charges and lease rent were deposited and then freehold deed was executed in favour of Society through respondent-6. Thereafter, Society passed Resolution dated 23.06.2015 that price of land in question has already substantially increased and it is inadequate for establishment of multi-facetted academic, sports and community related activity institution, therefore, it should be sold and some other place be purchased. In furtherance thereof, an agreement to sell was executed in favour of respondents-6 to 10.
19. A copy of another Resolution dated 23.07.2015 has also been placed on record to show that for arranging funds for deposit of freehold charges, certain amount interest free taken from Jawahar Lal Nehru Sports Trust and after selling land in question, said amount would be refunded to said Trust. The Resolution itself is said to be signed by Shri Vikram Kaul (Executive President), Shri Sunil Dev (Hony. Secretary), Shri Lalit Bhasin (Member), Shri Salman Khursheed (Member), Shri Gautam Kaul (Member), Shri R. Prabhu (Member), Smt. Anjul Kaul (Member).
20. A similar Resolution authorizing Shri Vikram Kaul as President was passed by Office Bearers of Society on 25.08.2015. Thereafter, an agreement to sell was executed for a sum of Rs. 9.30 Crores to respondents-6 to 9 who advanced Rs. 30 lacs for execution of agreement to sell. In the meantime, it appears that change of guard, officials and administration and also complaint made by some other occupants over land in dispute, inquiry was made by Collector, Rae Bareli and he, prima facie, found that by misrepresentation and playing fraud, order of freehold was obtained from erstwhile Collector on 09.02.2002. Consequently, he issued a show cause notice dated 14.10.2016 to Society as to why said order of freehold be not recalled. Reply has been given by Society vide letter dated 08.12.2016 and 11/14.04.2017. However, in the counter affidavit of respondent-6, there is nothing to show that any final decision has been taken by Collector in the matter.
21. Respondent-3 has also filed a counter affidavit sworn by Shri Abhay, posted as District Magistrate, Rae Bareli. We may reproduce paragraphs 4, 6, 8, 9, 10 of said counter affidavit showing the stand taken by Collector, Rae Bareli in the matter and also the statement that matter is under active consideration before him:-
"4. That it may be submitted at the outset that no original lease deed in favour of Kamla Nehru Educational Society, Rai Bareili is available on record and on the basis of Government Order No. 2333,u0/9-2-148 ,u0/72 dated 0-07.1976 for transfer of Plots No. 1453, 1454, 1455, 1457, 1459, 1460, 1458 Min., 1461 Min., 1467 Min. measuring 05 Bigha in favour of Kamla Nehru Educational Society, Rai Bareli and the Government Order dated 2269/9-v-4-98 dated 01.12.1998 pertaining to the management and disposal of Nazul lands and upon the application for freehold dated 06.02.2001 as moved by Sri Sunil Dev, Secretary, Kamla Nehru Educational Society, Rai Bareli the freehold proceedings took place and the freehold deed dated 06.03.2003 was executed in pursuance of sanction order dated 09.02.2002 passed by the District Magistrate, Rai Bareli.
6. That with regard to the averments made in paragraph no. 3 of the writ petition it may be submitted that in the Nazul Property Register a Government Order No. 2333,u0/9-2-148 ,u0/72 dated 0-07.1976 for transfer of Plots No. 1453, 1454, 1455, 1457, 1459, 1460, 1458 Min., 1461 Min., 1467 Min., measuring 05 Bigha in favour of Kamla Nehru Educational Society Rai Bareli on yearly rent for a term of 30 years is entered. On the basis of the aforesaid Government Order and the Government Order dated 2269/9-v-4-98 dated 01.12.1998 pertaining to the management and disposal of Nazul lands and upon the application for freehold dated 06.02.2001 as moved by Sri Sunil Dev, Secretary, Kamla Nehru Educational Society, Rai Bareli the freehold proceedings took place and the freehold deed dated 06.03.2003 was executed in pursuance of sanction order dated 09.02.2002 passed by the District Magistrate, Rai Bareli.
8. That with regard to the averments made in Paragraph No. 5 and 6 it may be submitted that in Khata No. 137 in the Non-ZA Khatauni of Fasli Year 1389 regarding Nazul Milkiyat the name of Babu Kailash Chandra R/o Rudauli, District Barabanki is entered in category 9(2). In the same Khata an entry of 30 year's annual lease in favour of the aforesaid Society at a yearly rent of Rs. 1135/- is also made. On the spot the aforesaid plot situates parellel to the Allahabad-Lucknow State Highway.
9. That with regard to the averments made in Paragraph No. 7, 8 and 9 it may be submitted that on the basis of the Government Order No. 2333 ,u0/9-2-148 ,u0/72 dated 0-07.1976 and Government Order dated 2269/9-v-4-98 dated 01.12.1998 pertaining to the management and disposal of Nazul lands and upon the application for freehold dated 06.02.2001 as moved by Sri Sunil Dev, Secretary, Kamla Nehru Educational Society, Rai Bareli the freehold proceedings took place and the freehold deed dated 06.03.2003 was executed in pursuance of sanction order dated 09.02.2002 passed by the District Magistrate Rai Bareli. It may also be submitted that as per the noting of Additional District Magistrate (Finance and Revenue) dated 07.02.2002 it is evident that the copy of the lease deed was not made available by the applicant. Furthermore, after the institution of the instant writ petition before the Hon'ble High Court the answering opposite party took cognizance of the matter and immediately directed the Sub-Divisional Magistrate, Rai Bareli enquire into the records as also to conduct a spot enquiry. The Sub-Divisional Magistrate, Rai Bareli accordingly submitted a report dated 04.10.2016 to the effect that Khata No. 137 in the Non-ZA Khatauni of Fasli Year 1389 regarding Nazul Milkiyat the name of Babu Kailash Chandra R/o Rudauli, District Barabanki is entered in Category-9(2) and that in the same Khata an order of 30 year's annual lease in favour of the aforesaid Society at a yearly rent of Rs. 1135/- is also entered. A copy of report dated 04.10.2016 submitted by the Sub-Divisional Magistrate is being filed herewith as Annexure No. CA-1. On the basis of the aforesaid report by the Sub-Divisional Magistrate notices were issued by the office of the answering Opposite Party on 14.10.2016 thereby calling upon Sri Sunil Dev, Secretary, Kamla Nehru Educational Society and the tenure holder Sri Kailash Chandra son of Sri Hanuman Prasad to put their case alongwith documentary evidence failing which the freehold order dated 09.02.2002 passed by the then District Magistrate shall be recalled. A copy of the aforesaid notice dated 14.10.2016 issued to Sri Sunil Dev, Secretary, Kamla Nehru Educational Society is being filed herewith as Annexure No. CA-2 while the copy of notice dated 14.10.2016 issued to Sri Kailash Chandra is being filed as Annexure No. CA-3.
10. That the answering Opposite Party again directed the Sub-Divisional Magistrate to make available the documents pertaining to the aforesaid Government Order and the lease and Sub-Divisional Magistrate, in turn, procured and provided the copies of Government Order No. 2333 ,u0/9-2-148,u0/72 dated 0-07.1976 and Government Order dated 11.03.1976 and Letter No. 21.04.1993 and an incomplete copy ¼dPph izfr½ of form Tajdeed and on a careful examination thereof the following facts emerged:
i. The proposal for letting out the land in question in favour of Kamla Nehru Educational Society was principally accepted on 11.03.1976 and a direction was issued for execution of lease deed.
ii. That aforesaid lease was accepted for a term of 30 years on an yearly rent of Rs. 1135/- and it was also stipulated that the lessee shall have no right to transfer or divide the land except under the previous permission from the State Government. It was also provided that in the event of there being a violation of the terms of the lease the land shall revert to the Nazul without any compensation.
iii. The incomplete copy ¼dPph izfr½ of the lease deed not being in the format as prescribed by the Nazul Manual the same was directed to be made available vide Government's letters dated 02.08.1993 and 25.09.1993.
iv. From the documents as available on record it was found that the proceeding of execution of lease deed had not taken place and no original lease deed is available on record.
It may further be submitted that the matter is being heard and considered by the answering Opposite Party for taking appropriate action."
22. Respondent-6 has also appeared and filed supplementary affidavit sworn on 25.05.2017 relying on Government letter dated 11.03.1974 that, in principle, grant of lease was approved in favour of Society but entire affidavit nowhere stated that any lease was actually executed in favour of Society by Competent Authority in respect of land in dispute before freehold conversion deed was executed on 06.03.2003. It has also placed before us various Government Orders dated 23.05.1992, 02.12.1992, 03.10.1994, 17.02.1996, 29.08.1996, 26.09.1997, 01.12.1998 regarding policy of freehold of nazul land. Perusal of aforesaid Government Orders shows that aforesaid policy was applicable to land in respect whereof lease was granted and period thereof has either expired or continuing. Government Order dated 23.05.1992 was applicable to such nazul land for which lease was granted either has expired or is continuing but was in respect of residential purposes. Subsequently, it was expanded to individual residential purpose, group housing and commercial purposes.
23. Be that as it may, the fact remains that in the present case, it is nobody's case that any lease deed was actually executed in favour of Society. Collector's affidavit as well as counter affidavit and supplementary affidavit of respondent-6 clearly show that there did not exist any lease deed, ever executed in favour of Society, by Competent Authority, in accordance with Nazul Manual or Government Grants Act, 1895 (hereinafter referred to as "Act, 1895").
24. Learned counsel for respondent-6 submitted that provisions of Transfer of Property Act, 1882 (hereinafter referred to as "Act, 1882") are not applicable in respect of land whereof grant is made by Governor in view of Section 2 of Act, 1985 and, therefore, provisions of lease in Act, 1882 would be inapplicable in the case in hand.
25. Sections 2 and 3 of Act, 1895 have been substituted by U.P. Act 13 of 1960 and Section 2(1) and (2) as well as Section 3 as applicable in the State of U.P. in Act, 1895 as substituted by U.P. Act 13 of 1960 read as under:-
"2.(1) Transfer of Property Act, 1882, not to apply to Government Grants.- Nothing contained in the Transfer of Property Act, 1882, shall apply or be deemed ever to have applied to any grant or other transfer of land or of any interest therein, heretofore made or hereafter to be made, by or on behalf of the Government to or in favour of any person whomsoever; and every such grant and transfer shall be construed and take effect as if the said Act had not been passed.
(2) U.P. Tenancy Act, 1939 and Agra Tenancy Act, 1926 not to affect certain leases made by or on behalf of the Government.- Nothing contained in the U.P. Tenancy Act, 1939, or the Agra Tenancy Act, 1926, shall affect or be deemed to have ever affected any rights, created, conferred or granted, whether before or after the date of the passing of the Government Grants (U.P. Amendment) Act, 1960, by leases of land by, or on behalf of, the Government in favour of any person, and every such creation, conferment or grant shall be construed and take effect, notwithstanding anything to the contrary contained in the U.P. Tenancy Act, 1939 or the Agra Tenancy Act, 1926.
3. Certain leases made by or on behalf of the Government to take affect according to their tenor.- All provisions, restrictions, conditions and limitations contained in any such creation, conferment or grant referred to in Section 2, shall be valid and take effect according to their tenor; any decree or direction of a Court of law or any rule of law, statute or enactment of the Legislature, to the contrary notwithstanding:
Provided that nothing in this section shall prevent, or deemed ever to have prevented the effect of any enactment relating to the acquisition of property, land reforms or the imposition of ceiling on agricultural lands." (emphasis added)
26. We have no manner of doubt, having gone through aforesaid provisions, that Government Grant of its own land would be governed by terms and conditions of grant and Act, 1882 to that extent would have no application. Such grant would be regulated only by terms of grant even if same is inconsistent with the provisions of Act, 1882 or any other statute.
27. The letter dated 11.03.1974 relied by respondent-6 shows only decision taken by Governor that in principle it has accepted proposal for grant of disputed land on lease to Society but for that purpose, it clearly requires execution of lease deed. Hence, it was a condition precedent for execution of grant that unless such lease deed is executed, it cannot be said that grant actually became effective in favour of Society. Therefore, statement on behalf of respondent-6, relying on the provisions of Act, 1895 that mere factum of approval of State Government that in principle grant was approved is sufficient to treat the grant, is not acceptable. In absence of any execution of lease deed, we cannot accept contention that Society must be deemed to have been granted lease under the provisions of Act, 1895.
28. However, at this stage, we do not propose to record our conclusive opinion on the matter for the reason that respondent-3 in the affidavit has specifically said that in the light of material it has collected, it is inquiring into the matter and final decision is yet to be taken.
29. In the light of above discussion and facts and circumstances of the case, we dispose of this writ petition by directing respondent-3 to take final decision in the matter within three months from the date of production of a certified copy of this order and while taking decision, if he finds that decision of freehold in favour of respondent-6 was taken illegally, it will also ascertain who were the officials responsible for the same and would take appropriate action or would recommend appropriate action to be taken by Competent Authority in the matter against such officials.
30. The action taken report shall be placed before this Court after four months and for that purpose only, this matter shall be listed for perusal of Action Taken Report.
31. Subject to above directions, this writ petition is disposed of.
Order Date :- 25.08.2017 Shubham