Allahabad High Court
Dr. O.P. Gupta And 5 Others vs State Of U.P. And 4 Others on 31 October, 2019
Equivalent citations: AIRONLINE 2019 ALL 2323
Bench: Sudhir Agarwal, Virendra Kumar Srivastava
HIGH COURT OF JUDICATURE AT ALLAHABAD Reserved on 29.05.2019 Delivered on 31.10.2019 Court No. - 34 Case :- WRIT - C No. - 30235 of 2018 Petitioner :- Dr. O.P. Gupta And 5 Others Respondent :- State Of U.P. And 4 Others Counsel for Petitioner :- Harshit Pandey,Gunjan Jadwani Counsel for Respondent :- C.S.C. Ajit Kumar Singh (Addl. A.G.), Nimai Das and Sudhanshu Srivastava (Addl.C.S.C.) Hon'ble Sudhir Agarwal,J.
Hon'ble Virendra Kumar Srivastava,J.
(Delivered by Hon'ble Sudhir Agarwal, J.)
1. Heard Sri Gunjan Jadwani, learned counsel for petitioners and Sri Ajit Kumar Singh, Additional Advocate General assisted by Sri Nimai Das, and Sri Sudhanshu Srivastava, Additional Chief Standing Counsels for State Authorities.
2. This writ petition has been filed under Article 226 of Constitution of India by six petitioners, all are residents of 17/19, Kasturba Gandhi Road, Allahabad, praying for issue of a writ of certiorari to quash order dated 18.08.2018, (Annexure 1 to the writ petition), passed by District Magistrate, Allahabad stating that Nazul land no.129, Civil Station, Allahabad, area 3 acres 2846 Sq. Yards, is required for public purpose by Nagar Nigam, Allababad for establishing a Ward Office/Workshop, and therefore, State is exercising its right of resumption, hence petitioners should vacate and hand over vacant possession of land within fifteen days to State Government, failing which possession shall be taken forcibly at the cost of petitioners. Petitioners have also sought a writ of mandamus commanding respondents not to dispossess and evict petitioners from one-third area of aforesaid Nazul Land, which earlier was numbered as Plot No.129, Civil Station, Allahabad and newly numbered as Bungalow No.26, Thornhill Road, Allahabad. Further, a writ of mandamus has been prayed directing respondents not to demolish construction of petitioners existing over one-third area of aforesaid land.
3. Petitioners have impleaded State of U.P. through Principal Secretary, Housing and Urban Planning as respondent-1, District Magistrate/Collector, Allahabad as respondent-2 and respondents 3 to 5 are private parties, who are all real brothers, sons of (late) Ram Babu Sharma and residents of 10, T.B.Sapru Road, Allahabad.
4. The dispute relates to Nazul Plot No.129, Civil Station, Allahabad (Part of land is newly numbered as Bungalow No.26, Thornhill Road, Allahabad) (hereinafter referred to as "Disputed Nazul Land"), having total area of 3 acres and 2846 Sq. Yards (Total area 17366 Sq.Yards). Petitioner's claim is confined to 1/3rd part of this land.
5. A lease deed was executed by Secretary to State of India in Council through Collector, Allahabad in favour of Babu Beni Prasad on 27.9.1918 in respect of Disputed Nazul Land granting lease of said land for a period of 50 years with effect from 01.01.1913. The period of 50 years expired on 31.12.1962. Subsequently, Disputed Nazul Land was divided in two parts, one as 129/1, Civil Station (6, Club Road) area 2 acres 690 Sq. Yards and recorded in the name of Gajadhar Prasad son of Murlidhar and another part as 129/2, Civil Station (26, Thornhill Road) area 1 acre 2156 Sq. Yards recorded in the name of Satyawati Devi wife of Pyare Lal.
6. Lease, after having expired on 31.12.1962, was not extended in respect of entire Nazul Land i.e. 129, Civil Station. It however remained in possession of respective parties i.e. Gajadhar Prasad and others and Smt. Satyawati Devi wife of Pyare Lal. Gajadhar Prasad died on 24.11.1976 and Smt. Satyawati Devi died on 07.6.1983. One Ram Babu Sharma son of late Mohan Lal Sharma claimed that Smt. Satyawati Devi executed a registered Will on 16.4.1982 and transferred her lease hold right in one-third area of aforesaid Disputed Nazul Land, i.e. 129/2, area 1 acre 2156 Sq.Yards, to Ram Babu Sharma. After death of Smt. Satyawati Devi on 07.6.1983, Ram Babu Sharma claimed to succeed lease hold right of Smt. Satyawati Devi over 129/2, area 1 acre 2156 Sq. Yards, in view of Will dated 16.4.1982. Subsequently, Ram Babu Sharma also executed Will dated 13.02.1993 transferring lease right over 129/2, Civil Station, area 1 acre 2156 Sq. Yards, in favour of his wife Smt. Phool Kumari and three sons Subhash Chandra Sharma, Suresh Chandra Sharma and Bimal Chandra Sharma, (respondents 3 to 5 in this writ petition). It is also averred in para 11 of writ petition that Ram Babu Sharma, on 21.12.1990, executed a registered agreement to sell in favour of M/s Jyoti Sahakari Samiti in respect of land which he claimed to have succeeded from Smt. Satyawati Devi pursuant to her Will dated 16.4.1982. For the same land, another agreement to sell was executed by Ram Babu Sharma on 15.02.1996 in favour of Vivekanand Rai. Later, Ram Babu Sharma authored another Will dated 25.6.1996 transferring only 600 Sq. Yard of 129/2, Civil Station, Allahabad, besides other property, to his wife Smt. Phool Kumari Sharma and three sons i.e. respondents 3 to 5 and another, and 600 Sq. Yards of said land sought to be transferred to Vivek Bhandari son of Ved Kumar Bhandari. Ram Babu Sharma passed away on 03.8.1996. Smt. Phool Kumari Sharma and respondents 3 to 5 executed a letter of nomination dated 11.06.2002 in favour of petitioners after receiving full and final consideration for freehold proceedings of Bungalow No.26/32 and 26/34, Thornhill Road, Allahabad except 600 Sq. Yards land. Petitioners also got possession as nominees.
7. In accordance with State Government's policy of conversion of lease hold rights into freehold, circulated vide Government Order (hereinafter referred to as "G.O.") dated 01.12.1998, petitioners applied for conversion of lease to freehold by depositing 25 percent of estimated value of property and submitted application dated 03.07.2002. Alleging that no action was taken on petitioners' application for five years, petitioners filed Writ Petition No. 7846 of 2008 seeking a direction to Competent Authority to decide petitioners' application for freehold in a prescribed time. Before any order could be passed in the said writ petition, District Magistrate, Allahabad passed order on 26.4.2008 holding that lease of Disputed Nazul Land expired on 31.12.1962 and recorded lease holder Smt. Satyawati Devi died issueless. As per G.O. dated 17.03.2008, only those, who were either original lease holder or legal successors of lease holders, were entitled to seek conversion of lease into free hold and not others. Further, if transfer of land has been made without any permission of owner i.e. State, no such transfer was valid in law. Consequently, application of freehold submitted by petitioners was rejected. It was also stated that land in dispute shall stand resumed/vested in State. Consequently, direction was issued to Nagar Nigam, Allahabad (now Nagar Nigam, Prayagraj) (hereinafter referred to as "NNP") to enter in its record name of State Government instead of lessee Smt. Satyawati Devi.
8. Aforesaid order dated 26.4.2008 was challenged by all these six petitioners in Writ Petition No.25414 of 2008 wherein State of U.P. and District Magistrate Allahabad were impleaded as respondents 1 and 2. Writ petition was allowed vide judgment dated 13.7.2009 and order dated 26.4.2008 was quashed by a Division Bench consisting of Hon'ble S.K.Singh and Ashok Srivastava, JJ, observing that application for conversion of lease into freehold ought to have been considered in the light of G.O's., as were operating on the date when application was submitted i.e. 03.07.2002. At that time, G.Os'. dated 01.12.1998 and 10.12.2002 were operating. Hence, District Magistrate, Allahabad was directed to pass a fresh order.
9. District Magistrate, Allahabad, thereafter passed order dated 21.12.2009, again rejecting application of freehold submitted by petitioners. This order was challenged in Writ Petition No.63606 of 2009 by petitioners which was dismissed vide judgment dated 03.11.2016. Petitioners preferred Special Leave to Appeal (Civil) No.8340 of 2017 and Supreme Court vide judgment dated 01.09.2017, after condoning delay, dismissed Special Leave Petition holding that it finds no ground to interfere with order passed by this Court. The order of Supreme Court reads as under :
"Heard.
Delay condoned.
We do not see any ground to interfere with the impugned order. The special leave petition is, accordingly, dismissed.
Pending applications, if any, shall stand disposed of.
10. Petitioners, it is said, then have filed original suit No.465 of 2017 impleading State of U.P. through Chief Secretary, Lucknow; District Magistrate, Allahabad and respondents 3 to 5 as defendants- 1 to 5, in the Court of Civil Judge (Senior Division) Allahabad, seeking following reliefs:
"1. This Hon'ble court may issue a decree or declaration to the effect, declaring the plaintiffs to entitled to obtain free hold rights in their favour.
2. The Hon'ble Court may issue a decree declaration directing the plaintiffs are title holders of the suit property.
3. The Hon'ble Court may issue a decree of permanent and perpetual injunction restraining the defendants from dispossessing the plaintiffs from property in question and not interfering in peaceful possession of the plaintiffs in the property in question.
4. Any other further relief which this Hon'ble Court deem fit and proper in the circumstances of the case be awarded in favor of plaintiffs against the defendants." (Emphasis added)
11. Details of property given at the bottom of plaint is as under :
"Details of property: 129, Civil Station, Nazul Land, 836.97 Sq. Meters of Dr. O.P.Gupta; 837.65 Sq. meters Of Deepa Aggarwal, 839.86 Sq. Meters of Arti Jaiswal, 691.04 Sq. Meters of Saurabh Prakash and 688.39 Sq. Meters of Maya Gupta, and 688.39 Sq. meters of Manish Prakash) in Plot No. 129, Civil Station, Allahabad (total area 5936.31 Sq. meters)."
12. Petitioners also filed an application for ad interim injunction under Order 39 Rules 1 and 2 C.P.C. but no injunction has been granted by Civil Court.
13. In the meantime, now respondent-2 i.e. District Magistrate/ Collector, Allahabad has passed impugned order dated 18.08.2018 exercising right of resumption and giving 15 days' time to petitioners and others to hand over possession of land in dispute and to vacate the same. This order has been challenged on the ground that as per G.O. dated 01.12.1998, conversion of lease hold right into freehold is permissible in those cases also where lease has expired; action taken by respondent-2 in rejecting petitioners' application for freehold is arbitrary; in respect of two-third part of Disputed Nazul Land i.e. 129/1, Civil Station, area 2526 Sq. Meters, a freehold deed has already been executed in favour of legal heirs of Gajadhar Prasad, vide deed dated 23.11.2004; denial of freehold right in respect of other part of Disputed Nazul Land for which petitioners have applied, is arbitrary and discriminatory; respondents may acquire land in dispute by initiating acquisition proceedings under "Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013", (hereinafter referred to as Act, 2013") but cannot exercise right of resumption in the manner the same has been exercised; without resorting to provisions of Uttar Pradesh Public Premises (Eviction of Unauthorized Occupants) Act, 1972 (hereinafter referred to as "Act, 1972"), petitioners cannot be evicted and possession of Disputed Nazul Land cannot be taken from them; petitioners are residing for the last 15 years in the house standing on Disputed Nazul Land and now same cannot be threatened to be demolished.
14. Contesting writ petition, respondent-2 has filed counter affidavit, which has been sworn by Sri Gore Lal Shukla, Additional District Magistrate (Nazul), Allahabad. Pleadings in counter affidavit are that Nazul Plot No.129, Civil Station (now numbered as Bungalow No.26, Thornhill Road, Allahabad) initially demised by an indenture of lease dated 01.01.1863 executed by Commissioner of Allahabad in favour of Mrs. R. Scott for a period of 50 years. Subsequently, another lease deed was executed on 27.09.1918 for a period of 50 years in respect of Disputed Nazul Land area 3 acres 2846 Sq. Yards in favour of Babu Beni Prasad by Secretary of State through Collector, Allahabad. Lease was to take effect from 01.01.1913 and expired on 31.12.1962. The lease deed dated 27.9.1918 was governed by Government Grants Act, 1895 (hereinafter referred to as "GG Act, 1895"). The lease deed contained specific clause in respect of surrender and said as under :
"....And also shall and will at the end, expiration or other sooner determination of the said term peaceably and quietly leave surrender and yield up to the said Secretary of State, his Successors or Assigns the said piece or parcel of land or ground together with all such of the said erection or building and all fixtures and fittings which at any time and during the said term shall be affixed or set up within or upon the said demised premises as the said Secretary of State, his Successors and Assigns shall desire to take over at a valuation according to the option hereinafter reserved to them, subject however to the conditions hereinafter contained."
15. With regard to right of re-entry, stipulation contained in lease deed reads as under :
"Provided always and it is hereby declared and agreed that no compensation or payment shall be claimable by the said lessee his Executors, Administrators or Assigns for any buildings, erections, or fixtures, erected affixed, or placed by him, them or any of them in or upon the said premises or any part thereof, in case these premises shall be determined by re-entry for forfeiture in which case the buildings, erections and fixtures shall vest absolutely in the said Secretary of State, his Successors and Assigns as their own property without any compensation or payment in respect thereof" (Emphasis added)
16. GG Act, 1895 has been repealed by Repealing and Amending (Second) Act, 2017 (hereinafter referred to as "Repeal Act, 2017") but rights etc. in respect of effect and consequences etc. already done or suffered have been saved. Section 2 of Repeal Act, 2017 provides that enactment specified in First Schedule are hereby repealed. Reference of GG Act, 1895 is in First Schedule. Section 4 of Repeal Act, 2017 reads as under :
"4. Savings.- The repeal by this Act of any enactment shall not affect any other enactment in which the repealed enactment has been applied, incorporated or referred to;
and this Act shall not affect the validity, invalidity, effect or consequences or anything already done or suffered, or any right, title, obligation or liability already acquired, accrued or incurred, or any remedy or proceeding in respect thereof, or any release or discharge of or from any debt, penalty, obligation, liability, claim or demand, or any indemnity already granted, or the proof of any past act or thing;
nor shall this Act affect any principle or rule of law, or established jurisdiction, form or course of pleading, practice or procedure, or existing usage, custom, privilege, restriction, exemption, office or appointment, notwithstanding that the same respectively may have been in any manner affirmed or recognized or derived by, in or from any enactment hereby repealed;
nor shall the repeal by this Act of any enactment revive or restore any jurisdiction, office, custom, liability, right, tittle, privilege, restriction, exemption, usage, practice, procedure or other matter or thing not now existing or any force."
(Emphasis added)
17. In view of GG Act, 1895 read with Section 4 of Repeal Act, 2017, respondents 1 and 2 have exercised power of resumption. Allahabad City has been chosen to be developed as a "Smart City" and for such development, NNP has to execute some projects. A proposal in this regard was made by NNP, which was sent to State Government on 19.6.2018. Vide G.O. dated 16.8.2018, State Government has approved aforesaid proposal and in terms thereof respondent-2 has passed order dated 18.8.2018 resuming Disputed Nazul Land for public purposes to State Government. It is also said that petitioners have lost their matter upto Supreme Court whereby application for freehold was already rejected hence have no right to remain in possession of property in dispute or to challenge right of resumption exercised by respondents 1 and 2 in respect of land in dispute. In the counter affidavit, respondent-2 has placed reliance on a number of authorities namely Hajee S.V.M. Mohd. Jamaludeen Bros. & Co. vs. Govt. of T.N., (1997) 3 SCC 466; State of U.P. vs. Zahoor Ahmad (1973) 2 SCC 547; Chintamani Ghosh and another vs. State of U.P. and others, 2010(8) ADJ 697; State of Andhra Pradesh vs. Kaithala Abhishekam, AIR 1964 AP 450; Union of India and others vs. Harish Chand Anand, AIR 1996 SC 203; Smt. Shakira Khatoon Kazmi and others vs. State of U.P. and others, 2002 (1) AWC 226; Azim Ahmad Kazmi and others vs. State of U.P. and others (2012) 7 SCC 278; Anand Kumar Sharma vs. State of U.P. and others, 2014 (2) ADJ 742 and judgment of this Court in Writ Petition No. 62588 of 2010 (M/s Madhu Colonizers Pvt. Ltd. vs. State of U.P. and others) decided on 2.4.2013.
18. A rejoinder affidavit has been filed by petitioners denying all averments made in the counter affidavit which are contrary to the pleadings of petitioners in writ petition. Basically averments in rejoinder affidavit are repetition of pleadings of writ petition, hence, we are not dealing with the same hereat but may refer at a later stage whenever it is required.
19. Before considering issues which need be adjudicated in this case, we find it appropriate to place on record two family trees of Babu Beni Prasad and another of Ram Babu Sharma, as under :
Babu Beni Prasad (wife Smt. Janki Devi) ____________________|____________________ | | | Babu Gurucharan Banshi Lal Pyare Lal (wife Gunjan Devi) (Wife Smt. Mahdei) (wife Satyawati Devi) Ram Babu Sharma (wife Smt. Phool Kumari) ______________________|__________________ | | | Subhash Chandra Sharma Suresh Chandra Sharma Vimal Chandra Sharma
20. The rival submissions raised by parties in this writ petition, in our view, required following questions to be adjudicated in this writ petition:
(i) What is "Nazul"?
(ii) What is/are Statute(s) governing Crown's (now, "Government") Grant of land owned by Crown (Government) i.e. Nazul? Its status and effect.
(iii) Whether lease right governed by instruments of lease read with GG Act, 1895 is transferrable and if so, whether it is subject to any condition and any transfer made not consistent with such conditions, whether would be valid and confer an actionable right upon Transferree?
(iv) What is the status of a person, in possession of Nazul land, after expiry of period of lease?
(v) Whether petitioners have any valid actionable right or interest over Disputed Nazul land?
(vi) Whether right of resumption exercised by State is in accordance with law?
(vii) Whether petitioners can be evicted by State Government by giving a notice and following conditions of lease deed prescribing procedure or State should follow procedure laid down under U.P. Act, 1972?
(viii) Whether impugned notice and order of approval of State Government for resumption/re-entry over land in dispute is invalid on account of lack of opportunity granted to petitioners. In other words, whether principles of natural justice are applicable when State Government chose to exercise right of resumption/re-entry in respect of land owned by it?
21. We have framed above questions in the light of the fact that it is admitted by all the parties that land in dispute is 'Nazul' and owned by State Government.
22. Questions (i) and (ii), in our view, can be taken together. Every land owned by State Government is not termed as 'Nazul' and therefore it has become necessary to understand, what is 'Nazul'.
23. State Government may own land by having acquired and vested in various ways, which includes vesting of land in the capacity of a Sovereign body and having right of bona vacantia. Property may also be acquired and owned by State by way of acquisition under the Statute relating to acquisition of land or by purchase through negotiation or gift by an individual or in similar other manners. All such land, which is owned and vested in State Government results in making the State, owner of such land, but in legal parlance, the term "Nazul" is not applicable to all such land.
24. It is only such land which is owned and vested in the State on account of its capacity of Sovereign, and application of right of bona vacantia, which is covered by the term 'Nazul', as the term is known for the last more than one and half century.
25. In Legal Glossary 1992, fifth edition, published by Legal Department of Government of India, at page 589, meaning of the term 'Nazul' has been given as 'Rajbhoomi, i.e., Government land'.
26. Nazul is an Arabic word. It refers to a land annexed to Crown. During British Regime, immoveable property of individuals, Zamindars, Nawabs and Rajas when confiscated for one or the other reason, it was termed as 'Nazul property'. The reason being that neither it was acquired nor purchased after making payment. In old record, when such land was referred in Urdu, this kind of land was shown as 'Jaidad Munzabta'.
27. For dealing with such property, under the authority of Lt. Governor of North Western Provinces, two orders were issued in October, 1846 and October, 1848. Therein, after the words "Nazul property", its english meaning was given as 'Escheats to the Government'. Sadar Board of Revenue on May 20, 1845 issued a circular order in reference to "Nazul land" and in para 2 thereof it mentioned, "The Government is the proprietor of those land and no valid title to them can be derived but from the Government". Nazul land was also termed as "Confiscated Estate". Under Circular dated July 13, 1859, issued by Government of North Western Provinces, every Commissioner was obliged to keep a final confiscation statement of each District and lay it before Government for orders.
28. Right of King to take property by 'escheat' or as 'bona vacantia' was recognized by common law of England. Escheat of property was Lord's right of re-entry on real property held by a tenant, dying intestate, without lawful heirs. It was an incident of Feudal Tenure and based on the want of a tenant to perform Feudal services. On the tenant dying intestate without leaving any lawful heir, his estate came to an end and Lord, by his own right and not by way of succession or inheritance from the tenant, re-entered real property as Owner. In most cases, land escheated to Crown as the 'Lord Paramount', in view of gradual elimination of Intermediate or Mesne lords since 1290 AD. Crown takes as 'bona vacantia' goods in which no one else can claim property. In Dyke v. Walford 5 Moore PC 434= 496-13 ER 557 (580) it was said 'it is the right of the Crown to bona vacantia to property which has no other owner'. Right of the Crown to take as "bona vacantia" extends to personal property of every kind. The escheat of real property of an intestate dying without heirs was abolished in 1925 and Crown thereafter could not take such property as bona vacantia. The principle of acquisition of property by escheat, i.e., right of Government to take on property by 'escheat' or 'bona vacantia' for want of a rightful owner was enforced in Indian territory during the period of East India Company by virtue of Statute 16 and 17 Victoria, C. 95, section 27.
29. We may recollect, having gone through history, that prior to 1857, several Estates were taken over by British Company i.e. East India Company by way of annexation. Doctrine of lapse applied in Jhansi was another kind of above mentioned two principles.
30. The above provisions had continued by virtue of section 54 of Government of India Act, 1858, section 20(3)(iii) of Government of India Act, 1915 and section 174 of Government of India Act, 1935. After enactment of Constitution of independent India, Article 296 now continue above provision and says:
'Subject as hereinafter provided, any property in the territory of India which, if this Constitution had not come into operation, would have accrued to His Majesty or, as the case may be, to the Ruler of an Indian State by escheat or lapse, or as bona vacantia for want of a rightful owner, shall if it is property situate in a State, vest in such State, and shall, in any other case, vest in the Union.' (Emphasis added)
31. Article 296, therefore, has retained power of State to get ownership of such land, in respect whereof principle of 'escheat', 'lapse' or 'bona vacantia' would have been applicable prior to enforcement of Constitution of India. The above power continued to apply after enactment of Constitution with the only modification that if such land is situate within the territory of State Government, it will vest in State and in other cases, it will vest in Union of India. Vesting of land and giving ownership to State Government or Union of India under Article 296 is clearly in respect of a land, which will come to it by way of 'escheat', 'lapse' or 'bona vacantia' and not by way of acquisition of land under some Statute or purchase etc.
32. In Pierce Leslie and Co. Ltd. Vs. Miss Violet Ouchterlony Wapsnare, AIR 1969 SC 843, Court has considered the above principle in the context of 'Sovereign India' as stands under Constitution after independence, and, has observed :
"....in this country the Government takes by escheat immoveable as well as moveable property for want of an heir or successor. In this country escheat is not based on artificial rules of common law and is not an incident of feudal tenure. It is an incident of sovereignty and rests on the principle of ultimate ownership by the State of all property within its jurisdiction".
(Emphasis added)
33. Court also placed reliance on Collector of Masulipatam v. C. Vencata Narainapah 8 MIA 500, 525; Ranee Sonet Kowar v. Mirza Himmut Bahadoor (2) LR 3 IA 92, 101, Bombay Dyeing and Manufacturing Co. Ltd. v. State of Bombay [1958] SCR 1122, 1146, Superintendent and, Legal Remembrancer v. Corporation of Calcutta [1967] 2 SCR 170, 204.
34. Judicial Committee in Cook v. Sprigg (1899) AC 572 while discussing, 'what is an act of State', observed :
"The taking possession by Her Majesty, whether by cession or by any other means by which sovereignty can be acquired, was an act of State." (Emphasis added)
35. This decision has been followed in Raja Rajinder Chand v. Mst. Sukhi, AIR 1957 SC 286.
36. In Nayak Vajesingji Joravarsingji v. Secretary of State for India in Council AIR 1924 PC 216, Lord Dunedin said :
"When a territory is acquired by a sovereign State for the first time, that is an act of State. It matters not how the acquisition has been brought about. It may be by conquest, it may be by cession following on treaty, it may be by occupation of territory hitherto unoccupied by a recognised ruler. In all cases the result is the same. Any inhabitant of the territory can make good in the municipal courts established by the new sovereign only such rights as that sovereign has, through his officers, recognised. Such rights as he had under the rule of predecessors avail him nothing."
37. In Dalmia Dadri Cement Co. Ltd. v. CIT [1958] 34 ITR 514 (SC) : AIR 1958 SC 816, Court said (page 523 of 34 ITR) :
"The expression 'act of State' is, it is scarcely necessary to say, not limited to hostile action between rulers resulting in the occupation of territories. It includes all acquisitions of territory by a sovereign State for the first time, whether it be by conquest or cession." (Emphasis added)
38. In Promod Chandra Deb v. State of Orissa AIR 1962 SC 1288, Court said, 'Act of State' is the taking over of sovereign powers by a State in respect of territory which was not till then a part of its territory, either by conquest, treaty or cession, or otherwise.
39. To the same effect was the view taken by a Constitution Bench in Amarsarjit Singh v. State of Punjab AIR 1962 SC 1305, where in para 12, Court said :
"It is settled law that conquest is not the only mode by which one State can acquire sovereignty over the territories belonging to another State, and that the same result can be achieved in any other mode which has the effect of establishing its sovereignty."
(Emphasis added)
40. In Thakur Amar Singhji v. State of Rajasthan AIR 1955 SC 504, in para 40, Court said :
"The status of a person must be either that of a sovereign or a subject. There is no tedium quid. The law does not recognise an intermediate status of a person being partly a sovereign and partly a subject and when once it is admitted that the Bhomicharas had acknowledged the sovereignty of Jodhpur their status can only be that of a subject. A subject might occupy an exalted position and enjoy special privileges, but he is none the less a subject..."
(Emphasis added)
41. In State of Rajasthan vs. Sajjanlal Panjawat AIR 1975 SC 706 it was held that Rulers of the erstwhile Indian States exercised sovereign powers, legislative, executive and judicial. Their firmans were laws which could not have been challenged prior to the Constitution. Court relied on earlier decisions in Director of Endowments, Govt. of Hyderabad vs. Akram Ali, AIR 1956 SC 60, and Sarwarlal vs. State of Hyderabad, AIR 1960 SC 862.
42. In Promod Chandra Deb vs. State of Orissa AIR 1962 SC 1288 "act of the State" was explained in the following words :
'an "act of State" may be the taking over of sovereign powers either by conquest or by treaty or by cession or otherwise. It may have happened on a particular date by a public declaration or proclamation, or it may have been the result of a historical process spread over many years, and sovereign powers including the right to legislate in that territory and to administer it may be acquired without the territory itself merging in the new State.'
43. This decision has been followed later in Biswambhar Singh vs. State of Orissa 1964 (1) SCJ 364, wherein Court said :
"16. Thus, a territory acquired by a sovereign State is an Act of State but the land comprising territory does not become the land owned by State. The land owned by State may come to it in various ways, like confiscation, purchase, escheat or bona vacantia, gift, etc. In such a case the ownership vests in State, like any other individual and State is free to deal with the same in a manner like any other owner may do so.
17. Thus 'Nazul' is a land vested in State for any reason whatsoever that is cession or escheat or bona vacantia, for want of rightful owner or for any other reasons and once land belong to State, it will be difficult to assume that State would acquire its own land. It is per se impermissible to acquire such land by forcible acquisition under Act, 1894, since there is no question of any transfer of ownership from one person to another but here State already own it, hence there is no question of any acquisition." (Emphasis added)
44. Thus the land in question which is admittedly 'Nazul', belonged to the category as discussed above i.e. it came to be vested and owned by State in its capacity of Sovereign and right of bona vacancia. When acquisition is made under the provisions of a Statute, purpose of acquisition is already known and State pay its price but when land is owned by State, which is Nazul, objective of use of such land is not predetermined but it can be utilized by State for larger public welfare and its benefit, as necessitated from time to time. In other words 'Nazul' land forms the assets owned by State in trust for the people in general who are entitled for its user in the most fair and beneficial manner for their benefit. State cannot be allowed to distribute such largesse by pick and choose manner or to some selected groups, or in a whimsical manner etc.
45. Historical documents, record as also authorities discussed above show that earlier Government i.e. East India Company upto 1858 and thereafter British Government used to allot "Nazul land" to various persons, who had shown their alliance to such Government in various ways, sometimes by deceiving their Indian counter parts who had raised voice against Foreign Ruler, or those who remained faithful to Foreign regime and helped them for their continuation in ruling this country, and similar other reasons. Sometimes land was given on lease without any condition and sometimes restricted for certain period etc., but in every case, lease was given to those persons who were faithful and had shown complete alliance to British Rule. The reason was that in respect of Nazul, no predetermined objective was available as was the case in respect of land acquired by State by way of acquisition under Statute of Acquisition after paying compensation or purchase. Further allocation of Nazul land by English Rulers used to be called "Grant".
46. In other words, we can say that initially land owned by State used to be allotted in the form of 'Grant' by British Government. No specific statutory provisions were available to govern it. TP Act, 1882 was enacted to govern transfer of immovable property. Sections 10 - 12 of TP Act, 1882 made provisions invalidating, with certain exceptions, all conditions for forfeiture of transferred property on alienation by transferee and all limitations over consequence upon such alienation or any insolvency of or attempted alienation by him. Apprehending that above provisions of TP Act, 1882, may be construed as a fetter upon discretion of Crown in creation of inalienable Jagirs in 'Grants', acting upon advice that it would not be competent for Crown to create an inalienable and impartible Estate in the land comprised in the Crown Grant, unless such land has heretofore descended by custom as an impartible Raj, it was sought to make a separate statute to give supremacy to the provisions contained in Crown's Grant, notwithstanding any other law including TP Act, 1882. With this objective, 'GG Act 1895' was enacted.
47. Preamble of GG Act, 1895 gives purpose of its enactment stating that doubts have arisen to the extent and operation of TP Act, 1882 and to the power of Crown (later substituted by word "Government") to impose limitations and restrictions upon grants and other transfers of land made by it or under its authority, hence to remove such doubts, GG Act, 1895 was enacted.
48. Section 2 of GG Act, 1895, as it was initially enacted, read as under :
"2. Transfer of Property Act, 1882, not to apply to Government grants.- Nothing in the Transfer of Property Act, 1882, contained shall apply or be deemed ever to have applied to any grant or other transfer of land or of any interest therein heretoforce made or hereafter to be made by or on behalf of Her Majesty the Queen Empress, Her heirs or successors, or by or on behalf of the Secretary of State for India in Council to, or in favour of, any person whomsoever; but every such grant and transfer shall be construed and take effect as if the said Act had not been passed." (Emphasis added)
49. The above provision was amended in 1937 and 1950 and the amended provision read as under :
"2. Transfer of Property Act, 1882, not to apply to Government grants.- Nothing in the Transfer of Property Act, 1882, contained shall apply or be deemed ever to have applied to any grant or other transfer of land or of any interest therein heretoforce made or hereafter to be made by or on behalf of the Government to, or in favour of, any person whomsoever; but every such grant and transfer shall be construed and take effect as if the said Act had not been passed." (Emphasis added)
50. Section 3 of GG Act, 1895 read as under :
3. Government grants to take effect according to their tenor.- All provisions, restrictions, conditions and limitations over contained in any such grant or transfer as aforesaid shall be valid and the effect according to their tenor, any rule of law, statute or enactment of the Legislature to the contrary notwithstanding."
51. In the State of Uttar Pradesh, vide Government Grants (U.P. Amendment) Act, 1960 (U.P. Act No.XIII of 1960), Sections 2 and 3 of GG Act, 1895, were substituted by Section 2, 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, heretoforce 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, 1938, 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 effect 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 be 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 land." (Emphasis added)
52. A perusal of Section 2 of GG Act, 1895 shows two things :
i. A declaration is made that any grant or other transfer of land or of any interest therein, made by or on behalf of Government, in favour of any person, on and after enactment of GG Act, 1895, would not be governed by provisions of TP Act, 1882 i.e. nothing contained in TP Act, 1882 shall apply to such Grant, transfer or interest.
ii. A clarification that a Grant or Transfer, referred to in Section 2, when is to be construed and given effect, it shall be done in such manner and by treating as if TP Act, 1882 has not been passed.
53. Thus, GG Act, 1895, in fact was a declaratory statute. The first declaration is in respect of Grant or transfer of land or creation of any interest, as the case may be, to exclude TP Act, 1882 for all purposes. Second part of Section 2 clarified that while construing and giving effect to a Grant or Transfer, referred to in Section 2, it will be presumed that TP Act, 1882 has not been passed at all.
54. In Section 2(1) of GG Act, 1895, as amended in Uttar Pradesh, we do not find any distinction vis a vis what has been said in Section 2 of GG Act, 1895. There is an addition in GG Act, 1895 in its application to Uttar Pradesh, by inserting sub-section (2) in Section 2, a provision in respect of U.P. Tenancy Act, 1939 and Agra Tenancy Act, 1926 also, making a similar declaration, as made in sub section (1) in respect of TP Act, 1882.
55. Sub-section (3) of Section 2 of GG Act, 1895 protects certain leases, already made, declaring the same to be valid in the light of insertion of sub-section(1) of Section 2 in the State of Uttar Pradesh and that is why, notwithstanding any decree or direction of Court of law, leases already made, were validated, which otherwise might have been affected by U.P. Tenancy Act, 1938 or Agra Tenancy Act, 1926.
56. Proviso to sub-section (3) of Section 2 of GG Act, 1895 further declares that all provisions of Section 2 of GG Act, 1895 will have no effect when land is sought to be acquired under the provisions of Statute relating to acquisition or for giving effect to a Statute relating to land reforms or imposition of ceiling on agricultural land.
57. Section 3 of GG Act, 1895 is not available in State of U.P. after U.P. Amendment Act, 1960 since Sections 2 and 3 of Principal Act virtually got amalgamated in the form of Section 2, by Government Grants (U.P. Amendment) Act, 1960. However, intent, effect and declaration by legislature is almost pari materia with the only addition that in State of U.P., U.P. Tenancy Act, 1939 and Agra Tenancy Act, 1926 are also excluded in the same manner as was done in respect of TP Act, 1882.
58. Sections 2 and 3 of GG Act, 1895 were considered in State of U.P. vs. Zahoor Ahmad, 1973(2) SCC 547 and in para 16, Court said :
"Section 3 of the Government Grants Act declares the unfettered discretion of the Government to impose such conditions and limitations as it thinks fit, no matter what the general law of the land be. The meaning of Sections 2 and 3 of the Government Grants is that the scope of that Act is not limited to affecting the provisions of the Transfer of Property Act only. The Government has unfettered discretion to impose any conditions, limitations, or restrictions in its grants, and the right, privileges and obligations of the grantee would be regulated according to the terms of the grant, notwithstanding any provisions of any statutory or common law." (Emphasis added)
59. Again in Hajee S.V.M. Mohamed Jamaludeen Bros. & Co. vs. Government of Tamil Nadu (1997) 3 SCC 466, Court said that combined effect of two sections of GG Act, 1895 is that terms of any Grant or terms of any transfer of land made by a Government would stand insulated from tentacles of any statutory law. Section 3 places terms of such Grant beyond reach of restrictive provision contained in any enacted law or even equitable principles of justice, equity and good conscience adumbrated by common law, if such principles are inconsistent with such terms. Court said :
"The two provisions are so framed as to confer unfettered discretion on the government to enforce any condition or limitation or restriction in all types of grants made by the government to any person. In other words, the rights, privileges and obligations of any grantee of the government would be completely regulated by the terms of the grant, even if such terms are inconsistent with the provisions of any other law."
(Emphasis added)
60. In Azim Ahmad Kazmi and others vs. State of U.P. and Another (2012) 7 SCC 278 observations made in para 16 in State of U.P. vs. Zahoor Ahmad (supra) have been reproduced and followed.
61. In State of U.P. and others vs. United Bank of India and others (2016) 2 SCC 757, in para 30 of the judgment, Court said :
"Indisputably, the lease of nazul land is governed by the Government Grants Act, 1895. Sections 2 and 3 of the Government Grants Act, 1895 very specifically provide that the provisions of the Transfer of Property Act do not apply to government lands ....." (Emphasis added)
62. Thus, a 'Grant' of a Nazul will be governed by terms and conditions contained in the instrument/deed if Grant, wholly unaffected by any Statute providing otherwise.
63. It neither can be doubted nor actually so urged by petitioners that the lease granted in the case in hand is/was a 'Grant' governed by GG Act, 1895. Broadly, 'Grant' includes 'lease'.
64. The term "Grant" has not been defined in GG Act, 1895. What a 'Grant' would mean is of importance for the reason that GG Act, 1895 has used the term "Grant". Therefore, it has to be seen "whether a lease executed by State in respect of land owned by it and covered by the term "Nazul", through a lease deed or instrument of lease or indenture of lease, whatever the term used, will constitute a "Grant" of State or it is something else.
65. In Black's Law Dictionary, Eighth Edition, at page 719, the word "Grant" has been defined as under :
"Grant, n. 1. An agreement that creates a right of any description other than the one held by the grantor. Examples include leases, easements, charges, patents, franchises, powers,and licenses. 2. The formal transfer of real property. 3. The document by which a transfer is effectd; esp., DEED. 4. The property or property right so transferred." (Emphasis added)
66. Interestingly, in Black's Law Dictionary, 'Grant' has been said to be of various kinds and it has enumerated seven types of 'Grant' as under:
"Community grant. A grant of real property made by a government (or sometimes by an individual) for communal use, to be held in common with no right to sell. A community grant may set out specific, communal uses for the p roperty, such as for grazing animals or a playground. Cf. Private grant.
Escheat grant. A government's grant of escheated land to a new owner. - Also termed escheat patent.
imperfect grant. 1. A grant that requires the grantee to do something before the title passes to another. Cf. Perfect grant. 2. A grant that does not convey all rights and complete title against both private persons and government, so that the granting person or political authority may later disavow the grant. See Paschal v. Perex, 7 Tex. 368 (1851).
inclusive grant. A deed or grant that describes the boundaries of the land conveyed and excepts certain parcels within those boundaries from the conveyance, usu. Because those parcels of land are owned or claimed by others.- Also termed inclusive deed.
office grant. A grant made by a legal officer because the owner is either unwilling or unable to execute a deed to pass title, as in the case of a tax deed. See tax deed under DEED.
Perfect grant. A grant for which the grantor has done everything required to pass a complete title, and the grantee has done everything required to receive and enjoy the property in fee. Cf. Imperfect grant private grant. A grant of real property made to an individual for his or her private use, including the right to sell it. Private grants made by a government are often found in the chains of title for land outside the original 13 states, esp. in former Spanish and Maxican possession." (Emphasis added)
67. In Corpus Juris Secundum, A Complete Restatement of the Entire American Law, as developed by All Reported Cases, Volume XXXVIII, word "Grant" has been defined at page 1066-1070, as under :
"Grant - In General - A word which has a peculiar and appropriate meaning in the law, and is to be construed and understood according to such meaning; but its signification, in particular cases is to be determined from its connection and the manner of its use.
As a Noun In General. The act of granting; a bestowing or conferring; a boon, a concession, a gift; also the thing granted or bestowed. As applied to grants by public authority, the word "grant" implies the conferring by the sovereign power of some valuable privilege, franchise, or other right of like character on a corporation, person, or class of persons; an act evidenced by letters patent under the great seal, granting something from the king to a subject. In a somewhat different sense, an admission of something as true.
As a Contract. A grant is said to be a contract executed, that is, one in which the object of the contract is performed. Ordinarily, the essential elements of a contract are necessary to constitute a grant, such as competent parties and a subject matter, a legal consideration, a mutuality of agreement and of obligation. As in the case of other contracts in writing, it ordinarily comprehends something more than the mere execution of the instrument; it includes a delivery of it. It is not indispensable, however, that technical words be used.
Transfer of Property. As a technical term, originally used to signify a conveyance of an incorporeal hereditament whereof livery could be had, but now of far more extended application, see Deeds (1 c notes 54 - 63). While the term is commonly used to denote private conveyances, it has been characterized as a nomen generalissimum, applicable to all sorts of conveyances, and in this sense has been defined as a transfer of property, real or personal, by deed or writing. The following notes contain examples of what, under particular circumstances and according to the subject matter and the context, the term may be applied to, or be held to include or what the term may be held not to include.
...
Transferring property. An operative word of transfer, technically applicable to real estate, although not necessarily so. It is made use of in deeds of conveyance of lands to import a transfer; and in this application has been defined as meaning to convey; to make conveyance of; to transfer property by an instrument in writing.
As used in a will, to devise or to bequeath."
68. In Words and Phrases, Permanent Edition, Volume 18A Gone-Gyrotiller, word "Grant" has been defined at page 379, as under :
" ...
To grant means to give over, to make conveyance of, to give the possession or title to, to convey-usually in answer to petitioner; to confer or bestow, with or without compensation, particularly in answer to prayer or request; to admit as true when disputed or not satisfactorily proved; to yield belief to; to allow; to yield; to concede. Grant is usually regarded as synonymous with give, confer, bestow, convey, transfer, admit, allow, concede. As a noun, the term signifies: (1) The act of granting; a bestowing or conferring; concession; admission of something as true. (2) The thing granted or bestowed; a gift; a boon. (3) a transfer of property by deed or writing, especially an appropriation or conveyance made by the government, as a grant of land."
69. In Jowitts Dictionary of English Law, Second Edition by John Burke (Volume 1), word "Grant" has been defined at page 870, as under:
"Grant :a common law conveyance.
...
The sovereign's grants are matters of record, and are either letters patent or writs close.
"Grant" is the term commonly applied to rights created or transferred by the Crown, e.g., grants of pensions, patents, charters, franchises. It is also used in reference to public money devoted to special purposes. See Exchequer Grants."
(Emphasis added)
70. In Biswas Encyclopedic Law Dictionary (Legal & Commercial) Third Edition 2008, word "Grant" has been defined at page 737, as under :
"GRANT. The act of granting; something granted, especially a gift for a particular purpose; a transfer of property by deed or writing; the instrument by which such a transfer is made; also the property so transferred.
A grant may be defined generally as the transfer of property by an instrument in writing without the deliverty of possession of any subject-matter thereof. Mozley & Whiteley's Law Dictionary, 8th edn." (Emphasis added)
71. In P Ramanatha Aiyar's "The Law Lexicon", Fourth Edition 2017, word "Grant" has been defined at page 762-763, as under :
"...
An operative word of conveyance, particularly appropriate to deeds of grant, properly so called, but used in other conveyances also, such as deeds of bargain and sale, and leases.
...
"This word is taken largely where any thing is granted or passed from one to another, and in this sense it doth comprehend feofments, bargains and sales, gifts, leases, charges, and the like; for he that doth give, or sell, doth grant also and thus it is sometimes in writing or by deed, and sometimes it is by word without writing. But the word being taken more strictly and properly, it is the grant, conveyance, or gift, by writing of such an Incorporeal thing as lieth in grant, and not in livery, and cannot be given or granted by word only without deed, or it is the grant by such persons as cannot pass anything from them but by deed, as the King, bodies corporate, &c. And this albeit it may be made by other most proper to this purpose"
The word "grant" in sec. 5 connotes transfer of property and mining leases are property. Biswanath Prasad v. Union of India, AIR 1965 SC 821, 825. [Mines and Minerals (Regulation and Developments) Act (67 of 1957), S. 5(1)] The expression "grant" is wide enough to take within its sweep a grant by the government to the Girasdar and is not limited to a grant by the Girasdar to the tenant. Digvijaysingh Ji v. Manji Savda, AIR 1969 SC 370, 372. [Saurashtra Land Reforms Act (25 of 1951), S. 18] "GRANT, BESTOW, CONFER. Honours, distinctions, favours, privileges are conferred. Goods, gifts, endowments are bestowed. Requests, prayers, privileges, favours, gifts, allowances, opportunities are granted. A peculiar sense attaches to the word Grant as a legal term, as a piece of land granted to a noble or religious house. So Blackstone speaks of "the transfer of property by sale, grant, or conveyance." (Smith. Syn. Dis.)"
(Emphasis added)
72. Under Indian Easements Act, 1882, (hereinafter referred to as "IE Act, 1882"), definition of "licence" in Section 52 says that it is the Grant of a right made by the Grantor. Sections 53 and 54 of IE Act, 1882 also refer to grant of licence. Thus, without a "Grant" in general sense, licence cannot be created. This is how definition of "licence" under IE Act, 1882 vis a vis the term "Grant" was considered by Supreme Court in Hajee S.V.M. Mohamed Jamaludeen Bros. & Co. (supra).
73. Court also said that though the term "Grant" is not defined in GG Act, 1895, but it is quite evident that this word has been used in GG Act, 1895 in its ethnological sense and therefore, it should get its widest import.
74. In Mohsin Ali vs. State of M.P. AIR 1975 SC 1518, Court said :
"in the widest sense 'grant' may comprehend everything that is granted or passed from one to another by deed. But commonly the term is applied to rights created or transferred by the Crown e.g. grants of pensions, patents, charters, franchise."
(Emphasis added)
75. Court in Hajee S.V.M. Mohamed Jamaludeen Bros. & Co. (supra), in para 16, said that word "Grant" used in GG Act, 1895 could envelop within it, everything granted by the government to any person. A licence obtained by a person by virtue of agreement would also fall within the ambit of "Grant" envisaged in GG Act, 1895.
76. In Pradeep Oil Corporation vs. Municipal Corporation of Delhi and others (2011) 5 SCC 270, Court said that GG Act, 1895 is a special Statute and will prevail over general Statute i.e. TP Act, 1882. It says:
"In the present case grant has been made by the President of India in terms of Section 2 of the Government Grants Act, 1895 and the Transfer of Property Act, 1882 may have little bearing in the instant case. The former, i.e. the Government Grants Act, 1895 being a special statute would prevail over the general statute, i.e. the Transfer of Property Act, 1882. Accordingly, the rights and obligations of the parties would be governed by the terms of the provisions of Government Grants Act, 1895 whereunder the Government is entitled to impose limitations and restrictions upon the grants and other transfer made by it or under its authority." (Emphasis added)
77. Therefore, where 'Nazul' is let out to a person by Government under agreement of lease i.e. Grant, it is governed by GG Act, 1895 and rights of parties therefore have to be seen in the light of stipulations contained in the document of 'Grant'. Terms and conditions of 'Grant' shall be governed by such document and it shall prevail over any other law including TP Act 1882. One cannot take resort to TP Act, 1882 to wriggle out of any condition or limitation etc. imposed in terms of document of 'Grant'.
78. In the State of Uttar Pradesh, management of 'Nazul', in absence of statutory provisions, is governed by various administrative orders compiled in a Manual called "Nazul Manual". Here Government has made provisions of management of 'Nazul' through its own authorities namely District Magistrate or Commissioner, and, in some cases, through local bodies.
79. Nature of orders compiled in "Nazul Manual" in the context of 'Nazul' have been considered recently in State of U.P. vs. United Bank of India (supra) where Court has said that land and building in question is "Nazul" being property of Government and maintained by State authorities in accordance with 'Nazul Rules' but not administered as a 'State property'. Court has also observed that lease of "Nazul" land is governed in accordance with GG Act, 1895. Sections 2 and 3 thereto very specifically provide that provisions of TP Act, 1882 do not apply to Government land. Section 3 says that all provisions, restrictions, conditions and limitations contained in any such 'Grant' or 'Transfer', as aforesaid, shall be valid and take effect according to their tenor, any rule of law statute or enactment of the Legislature to the contrary notwithstanding. Thus stipulations in "lease deed" shall prevail and govern the entire relations of State Government and lessee.
80. Superiority of stipulations of Grant to deal relation between Grantor and Grantee has been reinforced in Azim Ahmad Kazmi and others (Supra). Therein dispute related to Plot No. 59, Civil Station, Allahabad, area 1 acre and 4272 sq. yard, i.e., 9112 sq. yard or 7618 sq. meter. Initially a lease deed was executed on 11.01.1868 by Secretary of State for India in Council, in favour of one, Thomas Crowby, for a period of 50 years and it was signed by Commissioner, Allahabad Division on behalf of Secretary of State for India in Council. After expiry of lease, a fresh lease was executed for another period of 50 years on 12.04.1923 w.e.f. 01.01.1918. Lease holder with permission of Collector, Allahabad transferred lease rights to Purshottam Das in 1945. The legal heirs of Sri Purshottam Das, on 31.10.1958, transferred leasehold rights in favour of Smt. Shakira Khatoon Kazmi, Smt. Sabira Khatoon Kazmi and Smt. Maimoona Khatoon Kazmi. After the death of Smt. Maimoona Khatoon Kazmi her legal heirs, namely, Azim Ahmad Kazmi, Omar Ahmad Kazmi, Shamim Ahmad Kazmi, Alim Ahmad Kazmi and Maaz Ahmad Kazmi also claimed lease rights by succession. Lease granted on 12.04.1923 w.e.f. 01.01.1918 expired on 31.12.1967. It was renewed on 19.03.1996 for a period of 30 years w.e.f. 01.01.1968 which period expired on 31.12.1997. Again on 17.07.1998 it was renewed for a further period of 30 years w.e.f. 01.01.1998. While lease was continuing, vide G.O. dated 15.12.2000, right of resumption was exercised by State Government. It directed resumption of possession of plot in question and lease deed was cancelled. District Magistrate, Allahabad served a notice dated 11.01.2001 to lease holders intimating them that State Government's order dated 15.12.2000 has cancelled lease and resumed possession of land in question, as the same was required for public purpose. Notice also directed lease holders to remove structures standing on plot, failing which possession would be taken in accordance with Clause 3(c) of lease deed. Lease holders filed objections against notice to District Magistrate and also stated that they have sent representation/ objection to Chief Minister praying for revocation of G.O. dated 15.12.2000. District Magistrate passed order on 24.08.2001 rejecting objection of lease holders and sent a cheque of Rs. 10 lacs representing compensation for the building standing over plot. State authorities claimed that they took possession of open land on 01.09.2001. Lease holders filed writ petition which was dismissed vide judgment dated 07.12.2001, Shakira Khatoon Kazmi vs. State of U.P., AIR 2002 All 101. Lease holders challenged judgment dated 07.12.2001 in Supreme Court to the extent they failed. State Government filed appeal against part of order of this Court wherein an observation was made that State Government is not entitled to take forcible possession though it may take possession of demised premises in accordance with procedure established by law. After considering Clause 3(c) of lease deed which provides for resumption of land for public purpose after giving a month's clear notice to lessee to remove any building standing at the time on demised premises and within two months of receipt of notice, to take possession thereof on expiry of that period, and Sections 2 and 3 of GG Act, 1895, Court said that Clause 3(c) of lease deed confers power upon State Government that plot in question, if required by Government for its own purpose or for any public purpose, it shall have the right to give one month's notice in writing to lessees to remove any building standing on the plot and to take possession thereof on expiry of two months from the date of service of notice. Court said that land, if required for any public purpose, State Government has absolute power to resume leased property. Under the terms of Grant, it is absolute, therefore, order of resumption is perfectly valid and cannot be said to be illegal. It also refers to an earlier instance where Nazul Plot No. 13, Civil Station, Allahabad situate in Civil Lines area was resumed by State Government for the purpose of construction of a 'Bus Stand' by exercising similar power, without initiating any proceeding under Land Acquisition Act, 1894 (hereinafter referred to as "L.A. Act, 1894"). Resumption in that case was challenged in Writ Petition No. 44517 of 1998, Sayed Shah Khursheed Ahmad Kashmi vs. State of U.P. and said writ petition was dismissed on 16.12.1999 by a Division Bench of this Court, whereagainst Special Leave Petition No. 4329 of 2000 was dismissed by Supreme Court on 07.09.2001. First question, therefore, was answered in negative and in favour of Government.
81. With respect to procedure for taking possession, Supreme Court, while considering Question-2, said that in absence of any specific law, State Government may take possession by filing a suit. When a land is acquired under L.A. Act, 1894, Government can take possession in accordance with provisions of said Act and in case of urgency, Collector can take possession after publication of notice under Section 9 and no separate procedure is required to be followed. Court said that similarly where a lease has been granted under the terms of GG Act, 1895, then what procedure has to be followed is provided by Section 3 of GG Act, 1895 which says that 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 enactments of the Legislature, to the contrary, notwithstanding. Court relied on its earlier judgment in State of U.P. vs. Zahoor Ahmad, 1973(2) SCC 547 holding that Section 3 of GG Act, 1895 declares unfettered discretion of Government to impose such conditions and limitation as it thinks fit, no matter what the general law of land be. Then Court construing Clause 3(C) of lease deed said that it provides procedure for taking possession of demised premises when State Government re-enter or resume possession of demised land. Court in para 30 and 32 of judgment said:
"30. In the case of The State of U.P. vs. Zahoor Ahmad and Another, 1973(2) SCC 547, this Court held that the Section 3 of the Act declares the unfettered discretion of the Government to impose such conditions and limitation as it thinks fit, no matter what the general law of land be. From Clause 3(C) of the deed, it is clear that the State of U.P. while granting lease made it clear that if the demised premises are at any time required by the lessor for his or for any public purpose, he shall have the right to give one month's clear notice to the lessee to remove any building standing at the time of the demised property and within two months' of the receipt of the notice to take possession thereof on the expiry of that period subject to the condition that the lessor is willing to purchase the property on the demised premises, the lessee shall be paid for such amount as may be determined by the Secretary to the Government of U.P. in the Nagar Awas Department."
"32. Under Clause 3(C) of the lease deed, the respondent-State was permitted resumption of the land which required for its own use or for public purpose and after giving one month's clear notice in writing is entitled to remove any building standing at the time on the demised premises and within two months of the receipt of the notice to take possession thereof subject to the condition that if the lessor is willing to purchase the building of the demised premises required to pay the lessee the amount for such building as may be determined by the Secretary to Government of U.P. in the Nagar Awas Department...." (Emphasis added)
82. Having said so, Court said, "we are of the view that there is no other procedure or law required to be followed, as a special procedure for resumption of land has been laid down under the lease deed".
83. Supreme Court then set aside direction of this Court that State will not take possession forcibly except in accordance with procedure established by any other law, holding that since special procedure for resumption is prescribed under lease deed, no direction otherwise could have been issued to State Government.
84. The above discussion makes it clear that 'Nazul' is a land owned and vested in State. It is such land which has vested in State by virtue of its 'Sovereignty' and incidence of 'Sovereignty' i.e. annexation, lapse and bona vacantia. Further, 'Grant' means transfer of property by a deed in writing and includes within its ambit, an instrument of lease/lease deed. Such 'Grant' is governed by provision of GG Act, 1895, which were applicable to 'Grants' executed on and after enforcement of GG Act, 1895 and rights and entitlement of private parties in respect of land, which was transferred to such person under such 'Grant' would be governed by terms and conditions contained in such 'Grant' and not by provisions of TP Act, 1882 or any other Statute. The terms and conditions of 'Grant' shall override any statute providing otherwise. Moreover, in State of U.P., wherever applicable, U.P. Tenancy Act, 1939 and Agra Tenancy Act, 1926 will also be inapplicable to such 'Grant'.
85. Thus, for resumption/ re-entry of land, State Government can follow procedure prescribed in the terms of lease as it is a special procedure for such purpose and it is not necessary to look into any other procedure prescribed in law.
86. We, therefore, answer questions (i) and (ii) and hold that Nazul is land owned by Government having vested by escheat, bona vacantia or lapse. Further the terms and conditions of 'Grant' a Nazul would govern relation of lessor and lessee and any other statute providing otherwise has no application.
87. The answer to questions (i) and (ii), in effect, gives answer to question (iii) also, inasmuch as, Grantee cannot transfer property, which was transferred to it by way of 'Grant' except the manner in which it is permitted by such 'Grant'. Any transfer otherwise will be illegal and would not confer any right upon Transferree.
88. Here, we remind ourselves with the principle that a person can transfer only such right and interest which he or she possesses and not beyond that. If a person did not possess any right of transfer or such right is subject to any restriction like prior permission of owner etc., it means that such person himself has no right of transfer and/or his right is restricted in a particular manner and such restriction is to be observed in words and spirit to validate such transfer, else transfer shall be illegal and will not result in bestowing any legal right upon the Transferee. In other words, any otherwise transfer by such person, of land subjected to Grant, will not confer any valid right or interest upon the person to whom it is transferred in violation of stipulations contained in Grant.
89. In Delhi Development Authority Vs. Anant Raj Agencies Pvt. Ltd. (2016) 11 SCC 406 Court said :
"It is well settled position of law that the person having no right, title or interest in the property cannot transfer the same by way of sale deed."
90. In State of U.P. and others vs. United Bank of India and others (supra) considering a similar situation, Court held that any transfer without sanction of lessor will be invalid. In paras 39 and 40 of judgment, Court said as under :
39. This "within written lease" is the original lease deed as mentioned in the Form 2 of the Nazul Manual. Form 2 of lease of Nazul land for building purposes it is one of the condition between the lessor and the lessee that " the lessee will not in any way transfer or sublet the demised premises or buildings erected thereon without the previous sanction in writing of the lessor".
40. In the present case there was nothing on the record to show that the lessee i.e. (ABP) has obtained any written sanction from the lessor i.e. Government before mortgaging his leasehold interest in the Nazul Land. Meaning thereby the mortgage done by the lessee in favour of the Bank itself is bad in law, which was done in clear violation of the terms of the lease deed i.e. mortgage of the Nazul land without previous sanction in writing of the State." (Emphasis added)
91. Further, any such invalid transfer can also be construed as breach of terms of Grant and would empower and enable principal Grantor i.e. State, owner of property, to take such steps including resumption/re-entry to the property under Grant, to itself, besides claiming damages, compensation, as the case may be, and law permits.
92. We, therefore, answer question-(iii) accordingly.
93. Now, coming to questions- (iv) and (v), which can be taken together, in the light of above law we find that leased land was not transferable without prior permission of Collector. One of the copy of lease executed on 27.09.1918 w.e.f. 01.01.1913 is Annexure-1 to the counter affidavit. It is not disputed before us that transfer of lease was not permitted without prior permission of Collector.
94. However, in this case something strange has happened. Lease executed on 27.09.1918 for a period of 50 years w.e.f. 01.01.1913 admittedly expired on 31.12.1962. Original lessee was Babu Beni Prasad son of Sri Banshi Lal. After death of Babu Beni Prasad, his legal heirs, namely, his widow Smt. Janki Devi, Smt. Gunjan Devi wife of late Babu Gurucharan and Smt. Mahdei wife of late Banshi Lal gave consent for mutation of name of Pyare Lal and his wife Satyawati Devi in respect of part of 129 Civil Station, i.e., 26 Thornhill Road. Pyare Lal was son of Smt. Mahdei wife of late Banshi Lal and brother of husband of Smt. Gunjan Devi. Their names were recorded in Nazul Register on 02.02.1949. Pyare Lal died issueless. After his death Smt. Satyawati Devi continued to be the lessee in respect of part of Nazul land i.e. 26 Thornhill Road. Smt. Satyawati Devi remained a valid leaseholder only till 31.12.1962 since lease expired on that day. Thereafter it was never extended.
95. One Rambabu Sharma claimed that Smt. Satyawati Devi executed a Will on 16.04.1982 transferring her leasehold rights in favour of Rambabu Sharma though in 1982 Smt. Satyawati Devi was not having any lease rights whatsoever since lease had expired on 31.12.1962 and never renewed thereafter. When Smt. Satyawati Devi herself did not possess any lease right, question of transfer of lease right by 'Will' does not arise. To that extent alleged Will is void and confer no right whatsoever upon Sri Rambabu Sharma.
96. Smt. Satyawati Devi admittedly died on 07.06.1983. Sri Rambabu Sharma, who, in law, did not succeed to any right whatsoever in respect of Nazul land over which Smt. Satyawati Devi had lease rights upto 31.12.1962, but strangely he also executed a Will on 13.08.1993 transferring so called lease right, though no such right was existing, to his wife Smt. Phool Kumari and three sons, Subhash Chandra Sharma, Suresh Chandra Sharma and Vimal Chandra Sharma. Subsequently Sri Rambabu Sharma executed a registered agreement to sell on 21.12.1990 in respect of disputed land which he claimed to have succeeded though neither he had any ownership right nor any other right whatsoever he had succeeded. Hence, aforesaid agreement to sell was also void and non est. Another agreement to sell, executed by Sri Rambabu Sharma on 15.02.1996 in favour of Sri Vivekanand Rai is also non est for the same reason as stated above. Sri Rambabu Sharma died on 03.08.1996. Thereafter alleged nomination made by Smt. Phool Kumari and Respondents-3 to 5 in favour of petitioners on 11.06.2002 is also a nullity in the eyes of law since they themselves had acquired nothing hence could not have transferred anything. Entire exercise is of no legal consequence. Thus petitioners have no legal right in respect of Nazul land in dispute and are only strangers, rank trespassers, therefore, have no right to obstruct resumption/ re-entry by State over land in dispute. Questions-(iv) and (v) are answered accordingly against petitioners holding that petitioners have no right at all over land in dispute.
97. Now we consider Questions-(vi), (vii) and (viii) together. We have already held that petitioners have no right whatsoever in respect of land in dispute. Their claim for conversion of lease in freehold has already failed inasmuch as order dated 21.12.2009 passed by District Magistrate, Allahabad rejecting application of petitioners for freehold has been upheld by this Court in Writ Petition No. 63606 of 2009 dismissed on 03.11.2016 and Supreme Court has also dismissed Special Leave to Appeal (Civil) No. 8340 of 2017 on 01.09.2017.
98. Power of State for re-entry over land in dispute and procedure having already been prescribed in lease deed, the same is special procedure as held in Azim Ahmad Kazmi and others (supra), therefore, State Government is well within its right to follow the said procedure.
99. Further resumption of land in dispute for establishing Ward Office/ Workshop is a public purpose. This aspect during course of argument has not been challenged at all. The basic challenge is to the procedure. It is contended that in any case respondents should have followed the procedure prescribed under U.P. Act, 1972 but we find that a special procedure was provided in lease deed wherein after expiry of lease, State has authority to re-enter. Supreme Court has also held that provision contained in lease deed for re-entry is a special procedure and can be adopted and followed by State. Similar procedure followed has been upheld by Division Bench of this Court consisting of Hon'ble Ashok Bhushan and Hon'ble A.P. Sahi, JJ. (As their Lordships then were) in Chintamani Ghosh and another vs. State of U.P. and others (supra) and again in M/s Madhu Colonizers Pvt. Ltd. vs. State of U.P. (supra) decided by Division Bench consisting of Hon'ble Shiva Kirti Singh, C.J. (As His Lordship them was) and Hon'ble Dilip Gupta, J. Therein Court has also held that a nominee cannot have larger right than the lessee. Once order of District Magistrate for resumption of land in accordance with terms and conditions prescribed in lease deed is valid, a nominee cannot have any surviving right to claim conversion of lease hold rights into freehold. Court said, "on valid resumption order being passed, the lease hold rights cease to exist and there can be no occasion for conversion of lease hold rights into freehold rights in such circumstances."
100. It is lastly contended that after repeal of GG Act, 1895 by Repeal Act, 2017 the State has no authority to exercise any power of resumption under GG Act, 1895 and impugned notice having been issued after repeal of GG Act, 1895, is illegal. Suffice it to mention that Section 4 of Repeal Act, 2017 has saved all the obligations, rights, duties etc. already accrued. Under the lease deed, lessee was under an obligation to handover possession of disputed land whenever State Government re-enters the land or lease is terminated/ expired. The said obligation of lease holder would continue irrespective of fact whether GG Act, 1895 continued or not since the same is protected by Section 4 of Repeal Act, 2017.
101. Questions-(vi), (vii) and (viii) are also answered against petitioners.
102. In view of above discussion, we find no merit in the writ petition.
103. Dismissed accordingly. No costs.
Order Date :-31.10.2019 KA/AK