Allahabad High Court
Smt. Ayesha Wats Nee Deva Thru Sri Keshav ... vs U.O.I. Thru Prin. Secy. Ministry Of Home ... on 19 February, 2020
Bench: Pankaj Kumar Jaiswal, Karunesh Singh Pawar
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH Court No. - 1 Case :- MISC. BENCH No. - 3815 of 2019 Petitioner :- Smt. Ayesha Wats Nee Deva Thru Sri Keshav Gurnani & Ors. Respondent :- U.O.I. Thru Prin. Secy. Ministry Of Home Affairs & Ors. Counsel for Petitioner :- Sudeep Seth,Abhishek Dhaon Counsel for Respondent :- A.S.G.,Deepanshu Dass,Pulkit Misra,Ratnesh Chandra Hon'ble Pankaj Kumar Jaiswal,J.
Hon'ble Karunesh Singh Pawar,J.
(1) Heard Sri Sudeep Seth, learned Senior Advocate assisted by Sri Abhishek Dhaon, learned Counsel for the petitioners and Sri Ratnesh Chandra, learned counsel for respondent Nos.2 and 3/Lucknow Development Authority.
(2) This is the second writ petition which is being filed by the petitioners for quashment of order dated 1.11.2018 passed by the respondent No.3 by which the application preferred by the petitioner No.2 seeking grant of Freehold Certificate has been rejected. The petitioners have also prayed for a writ of Mandamus directing respondent No.2/Lucknow Development Authority to issue Freehold Certificate with respect to Plot No.1B, La Place, Lucknow in their favour.
(3) The first writ petition of the petitioners has been dismissed as withdrawn with liberty to file a fresh petition vide order dated 18.1.2019 passed in Writ Petition No. 1325 (MB) of 2019, Smt. Ayesha Wats Nee Deva through Authorized Representative v. Union of India and others.
(4) According to the petitioners, they are owners of the property in question situated at Plot No.1B, La Place, Lucknow ad measuring 22,800 sq. ft.
(5) Brief facts of the case are that an area of 1 Bigha 14 Biswas 4 Biswanshi and 15 Kachwansi (plot No.1, La Place, Lucknow ad measuring - 46,602 sq. ft.) was leased out for the purpose of construction on 10.8.1938 for a period of 90 years and plot No.1A measuring 11,400 sq. ft. was leased out on 10.8.1939 for the purpose of garden use in favour of one Sri Sheikh Abdul Rahim on premium. The said original lessee sold his lease rights through Transfer Deed dated 19.8.1942 in favour of Shah Ahmad Suleman, Shah Mehmud Suleman and Shah Hamid Suleman and their names were accordingly mutated by the letter No.1337 dated 3.6.1943. In the year 1947 during partition of Dominion of India and Pakistan, the aforesaid three persons, namely, Shah Ahmad Suleman, Shah Mehmud Suleman and Shah Hamid Suleman, migrated to Pakistan as such their rights, i.e., leasehold rights stood vested in the custodian of the Evacuee Property. The custodian of the evacuee property has acquired only limited rights of lease as were vested in the aforesaid three persons and it could never become the owner of the properties.
(6) In the year 1952, the Lucknow Improvement Trust filed a list of 13 trust properties, the lessees of which migrated to Pakistan. Plot Nos.1 and 1A apart from other properties were declared to be evacuee properties and on 23.9.1952, the Government of India resolved that leases of the aforesaid 13 Trust Properties reported to be under the custody of Custodian of Evacuee Property be determined as ground rents have not been paid.
(7) In the year 1954, the Displaced Persons (Compensation and Rehabilitation) Act, 1954 was enacted. Section 12 of the 1954 Act gave power to the Central Government to acquire evacuee property for rehabilitation of displaced persons.
(8) On 12.1.1959, auction of plot Nos.1 and 1B took place and on 27.2.1959, through Sale Certificate, the leasehold rights were transferred in favour of Shah Ghayas Alam and Shah Farooq Alam. Thereafter, the said properties mutated in their names by the Up-Nagar Adhikari, Mahapalika vide letter dated 5.2.1960. The said Shah Ghayas Alam and Shah Farookh Alam transferred the sub-divided rights of the property in question which was numbered as 1B measuring 18,000 sq. ft. through registered deed dated 20.12.1960 in favour of Sri Krishna Deva, Sri Surendra Deva and Sri Tajendra Deva and their names were accordingly mutated vide letter dated 18.5.l962. After the death of joint-lessees, i.e., Sri Krishan Deva, Sri Surendra Deva and Sri Tajendra Deva, names of Km. Ayesh Deva, Sri Satendra Karam Deva, Sri Mekhla Deva and Sri Sidharth Deva were mutated with the rider that in case of dispute with respect to their inheritance arises, the mutation would automatically stand cancelled and the decision of the competent Court of Law would be final and binding.
(9) According to the petitioners, on 12.1.1959, the auction of plot Nos.1 & 1B took place and a freehold Certificate of Sale of the aforesaid land in question under Section 20 (1) of the 1954 Act read with Rule 90 (15) of The Displaced Persons Rules, 1955 was issued by the Managing Officer, Ministry of Rehabilitation, Government of India in favour of Shah Ghayas Alam and Shah Farooq Alam which is duly registered in Book No.1 Document No.964 (Annexure 9 to the writ petition).
(10) On 19.11.1959, the Managing Officer, Acquired Properties issued a copy of Certificate to the Lucknow Improvement Trust wherein 'freehold' has been scored out and thereafter converted the same as 'leasehold' (Annexure - 10 to the writ petition). The Certificate issued by the Managing Officer has been received by the petitioners under the provisions of Right to Information Act, 2005.
(11) Shah Ghayas Alam and Shah Farooq Alam executed two Sale Deeds pertaining to sub-divided Plot No.1B, La Place measuring 18,000 sq. ft. in favour of Sri Krishan Deva, Sri Surendra Deva and Sri Tejindra Deva, on 16.12.1960 and on 3.1.1961 for 4800 sq. ft.
(12) On 3.6.1961, Krishan Deva, Surendra Deva and Tejindra Deva filed an application for mutation before Up-Nagar Adhikari - I, Nagar Mahapalika, Lucknow. Subsequently, on 18.5.1962, their names were mutated pertaining to an area of 18,000 sq. ft. of sub-divided Plot No.1B, La Place, Lucknow.
(13) On 29.5.1962, Krishan Deva, Surendra Deva and Tejindra Deva filed another application for the remaining area of 4800 sq. ft. As nothing has been done on the said application, they preferred anther application on 19.1.1971 before Mukhya Nagar Adhhikari, Nagar Mahapalika, Lucknow. Pursuant to this, Up- Nagar Adhikari has sent a letter to them on 24.3.1971 stating therein that the mutation has already been done in their favour and it is recommended that they should get a fresh lease deed done for remainder of perpetual lease (90 years).
(14) It is stated that Shah Ghayas Alam preferred a letter on 19.1.1972 addressed to the Mukha Nagar Adhikari stating therein that the property was sold to him as freehold from the Custodian of Evacuee Property and the State Authorities have no right to demand lease rent on a freehold property. Thereafter, on 14.9.1973, the Lucknow Improvement Trust illegally leased the entire property situated at La Place, Lucknow ad measuring 46602 + 11400 = 58002 sq. ft. in favour of Shah Ghayas Alam.
(15) On 23.12.29178, the Revenue Officer issued a show cause notice to Shah Ghayas Alam as to why names of Krishan Deva, Surendra Deva and Tejindra Deva were not mutated in the lease for the area sold to them vide Sale Deeds in 1960 and 1961. In August, 2017, the petitioners being the legal heirs of Krishan Deva, Surendra Deva and Tejindra Deva preferred an application for mutation of their names in the records before the respondents for the area purchased under Sale Deeds executed in the years 1960 and 1961.
(16) Petitioner Nos.1 and 3 filed their respective affidavits on 17.10.2017 whereas petitioner Nos. 2 and 4 filed their separate affidavits on 27.10.2017 before the Lucknow Development Authority wherein they have also admitted that they are only having leasehold rights. A copy of one of affidavits of petitioner No.1 (Ayesha Watts) which has been filed by the Lucknow Development Authority with their counter affidavit reads as under:-
"1. That the leasehold plot bearing No.1B La-place colony, Hazaratganj, Lucknow, is in the name of Mr. Krishan Deva, Mr. Tejindra Deva and Mr. Surendra Deva jointly, in the records maintained by the Authority.
2. That Mr. Krishan Deva, Mr. Tejindra Deva and Mr. Surendra Deva have died.
3. That prior to Mr. Krishan Deva's death, a will was executed by him in favour of his son Mr. Narendra Deva, with respect to his share in the property.
4. That, after Mr. Narendra Deva died, the share of Late Mr. Krishna Deva in the aforesaid property was inherited by Ms. Ayesha Watts nee Deva and Mr. Satyendra Karan Deva, S/o Late Narendra Deva.
5. That Mr. Tejindra Deva's share in the aforesaid property was inherited by Ms. Mekhela Deva and Mr. Siddharth Deva.
6. That Mr. Surendra Deva and his wife Ms. Meera Deva died without an heir. Therefore, their share in the aforesaid property has been inherited by Mr. Satyendra Karan Deva, S/o Late Mr. Narendra Deva, S/o Late Mr. Krishan Deva, Mr. Siddharth Deva, S/o Late Mr. Tejindra Deva, Ms. Mekhela Deva, D/o Mr. Tejindra Deva, and myself, Ms. Ayesha Watts nee Deva, jointly.
7. That the mutation of the aforementioned property, measuring 18,000 sq. ft. 4800 sq. ft. 3300 sq. ft. with a total of 26,100 sq. ft. shall be in the name of Mr. Satyendra Karan Deva, S/o Late Mr. Narendra Deva, S/o Late Mr. Krishna Deva, Mr. Siddharth Deva, S/o Late Mr. Tejindra Deva, Ms.Mekhela Deva, D/o Mr. Tejindra Deva and myself, Ms. Ayesha Watts nee Deva, jointly.
8. That all the successors, including myself, shall abide by the terms and conditions set by Lucknow Development Authority.
9. That I have no objections, with respect to mutation of the aforesaid property in the names of Mr. Satyendra Karan Deva, S/o Late Mr. Narendra Deva, S/o Late Mr. Krishna Deva, Mr. Siddharth Deva, S/o Late Mr. Tejindra Deva, Ms.Mekhela Deva, D/o Mr. Tejindra Deva and myself, Ms. Ayesha Watts nee Deva, jointly.
10. That in case it is found out that the mutation has been obtained by fraud, misstatement or concealment of facts, then the aforesaid successors and I shall have no objection to cancellation of mutation by Lucknow Development Authority."
(17) Similar affidavit filed by the earlier lessee, who had sold their rights to the petitioners, had also submitted an affidavit on 7.12.2016 wherein he mentioned the property in question to be a leasehold property. Para - 6 of the affidavit is relevant for adjudication of the matter which reads as under:-
"6. That by virtue of the Sale Certificate of Government of India, the Deponent and his father became joint and co-owner of the property, thereby meaning the Deponent became absolute Lease Holder of 29,001 Sqft. (Twenty Nine Thousand & One Sqft.) of land and his father became absolute Lease Holder of 29,001 Sqft. (Twenty Nine Thousand & One Sqft.) of land. There is no ambiguity in it. Total land auctioned was 58,002 Sqft. (Fifty Eight Thousand & Two Sqft.) with a dilapidated Bungalow."
(18) On 20.1.2018, the Tehsildar, Trust, Lucknow Development Authority issued a letter to the petitioners stating therein that the mutation of their names as legal heirs of Krishan Deva, Surendra Deva and Tejindra Deva has been done.
(19) After a period of more than five decades, on 17.7.2018, petitioner No.2 wrote a letter to the Tehsildar, Trust, Lucknow Development Authority that the property was sold as freehold to Shah Ghayas Alam under public auction and by virtue of Sale Certificate issued by the Ministry of Rehabilitation, Government of India, under Rule 90 (15) of The Displaced Persons Rules, 1955 and as such cannot be claimed to be a leasehold property by the Lucknow Development Authority.
(20) On 1.11.2018, respondent No.3 after examining the whole issue in great detail passed the impugned order stating therein that the land in question is leasehold as it was originally leased by the Lucknow Improvement Trust in favour of Sri Sheikh Abdul Rahim in 1939 and subsequently transferred in favour of Shah Ahmad Suleman, Shah Mehmud Suleman and Shah Hamid Suleman in 1942, who migrated to Pakistan at the time of partition and and hence the property was taken over by the Custodian of Evacuee Property and sold under public auction to Shah Ghayas Alam and another and thereafter, a sub-divided plot, i.e., 1-B La Place, Lucknow was sold to Krishan Deva and others. Thereafter, the mutation of names of legal heirs of Krishan Deva and others has been done on 17.1.2018. It also states that as per Sale Certificate on record, the property in question is a leasehold property and Shah Ghayas Alam has paid lease rent against the land in question which also means that the property is leasehold. If the property is to be converted to freehold, requisite proceedings should be done under the State of Uttar Pradesh Government Order dated 12.12.2014.
(21) It is this order which has been impugned in this writ petition and the present writ petition has been filed by the attorney holders Keshav Gurnani and Vijay Gurnani on the ground that no leasehold rent in respect of the property in question was demanded by the Lucknow Development Authority and it is only when the petitioners approached the Lucknow Development Authority to provide them a freehold certificate, the petitioners were for the first time intimated by the impugned order that their land is not freehold but leasehold. The demand of Lucknow Development Authority is illegal, unlawful and unjustified as they kept sleeping over the matter since 1960 and now after a lapse of 58 years they are seeking conversion charges ignoring a registered document of Government of India dated 12.1.1959 which unequivocally says that the property which was sold in publication auction was a freehold property.
(22) As per counter affidavit filed by the respondent Nos.2 and 3, the land in question was leased out in 1938-39 and thereafter, the original lessee sold his leasehold rights through Transfer Deed dated 19.8.1942 and accordingly their names were mutated on 3.6.1943 in favour of Shah Ahmad Suleman, Shah Mehmud Suleman and Shah Hamid Suleman. In the year 1947, when they migrated to Pakistan, the leasehold rights stood vested in the custodian of Evacuee Property. The custodian of the evacuee property has acquired only limited rights of lease as were vested in the aforesaid three persons and it could never become the owner of the properties nor it ever claimed to be the owner of the properties. Moreover, the custodian could not have any better rights than what was with the aforesaid three persons.
(23) On 27.2.1959, the custodian auctioned the said property in favour of Shah Ghayas Alam and Shah Farooq Alam through the Sale Certificate and leasehold rights were transfered. Thereafter, the said property was mutated in their names. They transferred the sub-divided rights of the property in question which was numbered as 1B measuring 18,000 sq. ft. through registered deed dated 20.12.1960 in favour of Sri Krishan Deva, Sri Surendra Deva and Sri Tejindra Deva and their names were mutated on 18.5.1962. After the death of joint-lessees, namely, Sri Krishan Deva, Sri Surendra Deva and Sri Tejindra Deva, names of the petitioners (Km. Ayesh Deva, Sri Satendra Karam Deva, Sri Mekhla Deva and Sri Sidharth Deva) were said to be mutated with the rider that in case of dispute with respect to their inheritance arises, the mutation would automatically stand cancelled and the decision of the competent Court of Law would be final and binding.
(24) From the aforesaid, it is clear that the rights which have been vested in the petitioners are only leasehold rights and at no point of time, freehold deed was executed in their favour nor the property was ever declared as freehold. The custodian of the evacuee property has no better rights than the person whose property it has acquired. Merely scoring out and writing in the sale certificate to be a freehold property it would not give a better title either upon the petitioners or the custodian or the erstwhile lessees. The erstwhile lessee Shah Ghayas Alam who has deposited annual lease rent of Rs.53/- on 18.2.1960 was fully aware and conscious that he has purchased only leasehold rights from the custodian. Even the Sale Certificate clearly shows it to be the leasehold property after deleting the word 'free'. After depositing the rent, the said lessee has submitted a letter in 1960 wherein he intimated about the deposition of lease rent. The Up Nagar Adhikari, Mahapalika vide letter dated 6.12.1960 demanded lease rent and vide letter dated 6.12.1961, penalty of one year rent was imposed as the property was transferred without intimating the Nagar Mahapalika.
(25) Sri Krishan Deva had also submitted a letter dated 21.10.1976 to the then Administrator, Nagar Mahapalika wherein he described the property in question as leased property. All this clearly establishes that the petitioners and their predecessors were sitting tight over the matter for the last fifty years and have always treated the property in question as leasehold property and after a period of fifty years, they have filed this petition to declare the property as freehold property that too through their Attorney Holders without giving the particulars as to how they inherited the property after the death of joint-lessees, i.e., Sri Krishan Deva, Sri Surendra Deva and Sri Tejindra Deva.
(26) As per short counter affidavit filed on behalf of Ministry of Home Affairs, Government of India, the work regarding administration, management and disposal of acquired evacuee lands/properties and realization of rental demands and other outstanding dues etc. stand transferred to the State Government of Uttar Pradesh vide Annexure RA1 dated 23.3.1977. Any further action in the matter will be taken up by the State Government being appropriate authority to deal with such matters.
(27) In Civil Appeal No. 6079 of 2010 filed in the matter of Union of India v. International Sindhi Panchayats and others, vide order dated 28.4.2014, the Apex Court upheld the order dated 7.1.2016 in Review Petition No.3377 of 2015 inter alia ruled that it is declared that the provisions of Section 6 of the General Clauses Act are applicable to the Displaced Persons Claims and Other Laws Repeal Act, 2005 (for short 'Repeal Act, 2005) and that the respondent Nos.6 and 8 therein shall continue to decide the cases and proceedings pending on the date of the said Repeal Act, 2005 and implement the decision in the said cases under the un-repealed Displaced Persons Compensation & Rehabilitation Act, 1954 and other related Acts.
(28) Considering the above judgment, the Ministry of Home Affairs has requested all the State Governments/Union Territories to continue to decide the pending cases and proceedings which were pending on the date of the repeal of the said Acts, and deal with the residuary works of administration, management and disposal of acquired evacuee properties (forming part of Compensation Pool) transferred to the State Governments/ Union Territories under the un-repealed Displaced Persons (Compensation & Rehabilitation) Act, 1954 and other related Acts as per the provisions of Section 6 of the General Clauses Act, 1897.
(29) Annexure - 9 is the Sale Certificate issued under Rule 90 (15) of the 1955 Rules. The whole case is on the basis of the interpolation made in the Sale Certificate wherein the word 'free' has been scored out and in its place, the word 'lease' has been inserted. The lessee during his life time Shah Ghayas Alam never raised any objection regarding the aforesaid change in the sale deed and now the power of attorneys of the petitioners after a period of more than fifty years who became more wiser have filed this writ petition on the aforesaid count with the plea that the property was sold as freehold to Shah Ghayas Alam under public auction and by virtue of Sale Certificate issued by the Ministry of Home Affairs under Rule 90 (15) of the 1955 Rules, the property be declared as freehold which is nothing but an afterthought to somehow grab the property. No Original Certificate has been filed alongwith this writ petition nor the same has been produced by the petitioners to prima facie consider their submissions. Thus, the grounds taken in the writ petition and arguments advanced on behalf of petitioners by the learned Senior Advocate are totally misconceived. In absence of any material, the petitioners are therefore not entitled to claim the property in question as freehold contrary to the right, title and interest of the Evacuee Property. Thus, the order passed by the learned Authority is just and proper and no case is made out to quash the impugned order in the writ proceedings.
(30) There is a distinction between the 'leasehold property' and 'freehold property'. If any person has purchased a leasehold property, he will not be the owner of the property or the land it is situated upon and the lessee has to pay ground rent to the owner or leaseholder and once the set period of the lease expires, the ownership of the property is given back to the lessor. If anyone purchased a freehold property, he will be owner of the property outrightly and land on which it stands. He will have the right to make alterations or redo some parts of the property after taking permission from authorities concerned.
(31) The legal position that we have summarized with regard to transfer of title in respect of leasehold property which the lessee has purchased in public auction under Rule 90 (15) of the 1955 Rules is that once the payment of full purchase price by the auction purchaser is made, leasehold rights in property would pass on to an auction purchaser and thus, the Lucknow Development Authority/respondent No.3 has rightly passed the impugned order wherein they have held that only leasehold rights have been transferred in their favour and after a period of more than 50 years, the property in question cannot be declared as freehold property.
(32) For the above mentioned reasons, now after a period of more than fifty years, at the instance of attorney holders, without giving any details as to how the petitioners have inherited after the death of joint lessees, we cannot declare the property in question as freehold property.
(33) The writ petition filed by the petitioners has no merit and is dismissed with cost which is quantified to be Rs.10,000/-.
[Karunesh Singh Pawar, J.] [Pankaj Kumar Jaiswal, J.] Order Date :- 19.2.2020 lakshman