Allahabad High Court
Lov Mandeshwari Saran Singh vs State Of U.P. And 4 Others on 31 October, 2019
Bench: Sudhir Agarwal, Virendra Kumar Srivastava
HIGH COURT OF JUDICATURE AT ALLAHABAD AFR Reserved on 29/30.05.2019 Delivered on 31.10.2019 Court No. - 34 Case :- WRIT - C No. - 33360 of 2018 Petitioner :- Lov Mandeshwari Saran Singh Respondent :- State Of U.P. And 4 Others Counsel for Petitioner :- Harihar Prasad Srivastava Counsel for Respondent :- C.S.C.,Devi Prasad Mishra, Ajit Kumar Singh (Addl. A.G.), Nimai Das & Sudhanshu Srivastava (Addl.C.S.C.), M.D.Singh 'Shekhar' (Sr. Advocate), Amit Verma With Case :- WRIT - C No. - 35154 of 2018 Petitioner :- Kunwar Udai Singh And 2 Others Respondent :- State Of U.P. And Another Counsel for Petitioner :- Vikram D. Chauhan, Pallav Saxena, Harihar Prasad Srivastava Counsel for Respondent :- C.S.C.,Ajit Kumar Singh (Addl. A.G.), Nimai Das & Sudhanshu Srivastava, (Addl.C.S.C.), M.D.Singh 'Shekhar' (Sr. Advocate), Amit Verma Hon'ble Sudhir Agarwal,J.
Hon'ble Virendra Kumar Srivastava,J.
(Delivered by Hon'ble Sudhir Agarwal,J.)
1. Both these writ petitions relate to Nazul Plot No.112, Strachey Road, Allahabad.
2. Writ Petition No.33360 of 2018 (hereinafter referred to as "Writ-1") was heard on 29.5.2019 and judgment was reserved while Writ Petition No.35154 of 2018 (hereinafter referred to as "Writ-2") was heard on 30.5.2019 and judgment was reserved. Counsel for parties stated that both the matters relate to same plot, involve common question of facts and law, therefore, we are deciding both these writ petitions by this common judgment.
3. Sri Harihar Prasad Srivastava, Advocate, appeared for petitioner in Writ-1 and Sri Pallav Saxena, Advocate, assisted by Sri Vikram D. Chauhan, Advocate, appeared for petitioners in Writ-2. Sri Ajit Kumar Singh, Additional Advocate General assisted by Sri Nimai Das and Sudhanshu Srivastava, Additional Chief Standing Counsels have appeared for State of U.P. and its Authorities; Sri M.D.Singh Shekhar, Senior Advocate, assisted by Sri Amit Verma appeared for Allahabad Development Authority (hereinafter referred to as "ADA").
W.P.-1
4. In Writ-1, sole petitioner Lov Mandeshwari Saran Singh son of Late Badreshwari Saran Singh has prayed for issue of a writ of certiorari quashing notice dated 18.8.2018 issued by District Magistrate, Allahabad (respondent-3), intimating petitioner and one Jai Prakash Ojha, Manager, "The Prayag Upniveshan Avam Nirman Sahakari Samiti (hereinafter referred to as "PUANS Samiti") that lease of land in dispute, expired on 31.12.1960, has not been renewed thereafter; State Government has granted approval for resumption/re-entry on land in dispute; therefore petitioner and another should vacate disputed land within 15 days and hand over possession, failing which forcible possession shall be taken. Petitioner has also prayed for a writ of mandamus restraining respondents 1, 3, 4 and 5 from taking possession of land in dispute and also to place order dated 16.08.2018 passed by respondent-1 pertaining to proposal sent by respondent-2 to State Government, before this Court.
5. Brief facts pleaded by petitioner in Writ -1 are that Plot No.112, Civil Station, Allahabad is a Nazul Land having total area of 11,414 Sq.Meters. By way of an Indenture of Lease, dated 01.01.1894 it was let out to 'Agra Savings Bank Ltd.' in Liquidation, situate at Allahabad, on yearly rent of Rs.120/- for a period of seventeen years for maintaining and preserving building standing for dwelling purpose. The period of lease expired on 31.12.1910. The area of land mentioned in the Indenture of lease was 6 acres. Another lease deed was executed on 05.12.1924 whereby aforesaid plot 112, situate at Thornhill Road, area 2.821 acres, was let out to one Enite Edward Morean for a period of 50 years w.e.f. 01.01.1911. Some of the relevant terms of lease deed dated 05.12.1924 are as under :
(i) AND ALSO will not without the previous consent in writing of the said Collector erect or set up or suffer to be erected or set up on any part of the said premises hereby demised any messuage or building other than and except the messuage and buildings already erected and delineated upon the map hereto annexed.
(ii) AND THAT if in breach of the said preceding covenant any messuage or building is erected or set up or suffered to be erected or set up without such permission as aforesaid it shall be lawful for the Collector or for any person or persons duly deputed by him to cause such messuage or building to be pulled down after the expiration of fourteen days of his giving or causing to be given notice to the said lessee his Executors, Administrators and Assigns to remove the same which notice may be given either verbally or in writing upon the said premises.
(iii) AND will not without the previous consent in writing of the said Collector make any alteration in the plan or elevation of the said buildings and out buildings or carry or permit to be carried on the said premises any trade or business whatsoever or use the same or permit the same to be used for any purpose other than that of a dwelling house.
(iv) AND ALSO will not without the previous consent in writing of the said Collector grow any crops/ or keep any horses, cattle or other animals for hire or profit or allow the same to be done in or upon the said demised premises but shall use the name for the purposes of a garden or pleasure grounds attached to the said dwelling house
(v) AND ALSO upon the breach of any of the aforesaid covenant the said lessee his Executors, Administrators or Assigns shall and will on demand pay or cause to be paid to the Secretary of State the sum of Rs. 500 by way of liquidated damages and not penalty and that on a second breach of the same it shall be lawful for the said Secretary of State his Successors or Assigns into and upon the same demised premises or any part thereof in the name of the whole to re-enter and the same to have again repossess and enjoy as in their former estate anything herein contain to the contrary notwithstanding
(vi) AND ALSO that the said lessee his Executors, Administrators and Assigns will not without the permission in writing of the said Collector or of some person authorized by him in that behalf construct thatch or cover or cause or permit to be constructed thatched or covered with grass reeds or other inflammable materials any building which shall or may be erected or constructed upon the said piece or parcel of land or ground, unless such thatch or roof or inflammable material shall be protected by a covering of tiles.
(vii) And that if in breach of the said lastly preceding convent any building which shall or may be erected or constructed upon the said piece or parcel of land or ground be thatched or covered with grass reeds or other inflammable materials without such permission as aforesaid and without being protected by a covering of tiles, it shall be lawful for the said Collector or for any person duly deputed by him to cause such building, shed, roof, covering or other inflammable material to be pulled down after the expiration of twelve hours from the time of his giving or causing to be given notice to the said lessee his Executors, Administrators or Assigns to remove the same, which notice may be given either verbally or in writing upon the said premises
(viii) 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 will all such of the said erection or building and all fixtures and things 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.
(ix) PROVIDED ALWAYS and it is hereby understood and agreed that in case the said Secretary of State shall not at the expiration of the said term desire to take over the said buildings, erections or fixtures or things which shall have at any time during the said term granted under the lease dated 1st day of January, 1894 or during the said term hereby granted affixed to or set up within or upon the said premises it shall be lawful for the said lessee his Executors, Administrators or Assigns to remove and take away the same as and for his and their absolute property, but in case the said Collector shall at the expiration of the said term hereby granted give notice to the said lessee his Executors, Administrators or Assigns of his intention to take over the buildings, erections, fixtures or things which shall have been at any time during the said term granted under the lease dated 1st day of January, 1894 or during the said term hereby granted set up within or upon the said premises or any part thereof, it shall be lawful for the said Secretary of State, his Successors and Assigns to take over the said buildings, erections, fixtures and things or any part thereof with the land, and in that case the said Secretary of State, his Successors and Assigns shall pay unto the said lessee his Executors, Administrators or Assigns the value of such buildings, erections, fixtures or other things or of such part thereof as they shall so take over as aforesaid, such value to be ascertained in case the parties themselves cannot agree, by the arbitration of two arbitrators, the one to be named by the Secretary of State, his Successors and Assigns and the other by the said lessee his Executors, Administrators, or Assigns, and in case they shall differ by an umpire to be appointed by the said two arbitrators, or in case either of the parties hereto shall neglect to appoint an arbitrator for more than one fortnight after notice has been served upon them or him by the other party to appoint such arbitrator, then by the sole arbitration of the arbitrator appointed by such other of the parties hereto which arbitration shall be final.
(x) 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 presents shall be determined by re-entry for forfeiture in which case the building, erections and fixtures shall rest absolutely in the said Secretary of State, his Successors and Assigns as his own property without any compensation or payment in respect thereof.
(xi) PROVIDED FURTHER and it is hereby agreed that the said lessee his Executors, Administrators or Assigns shall not assign or underlet or otherwise part with the possession of the said premises or any part thereof without the permission of the said Secretary of State his Successors or Assigns (which permission may be signified by the said Collector or by such other person as the Government of the North-Western Provinces or the said Secretary of State may appoint in that behalf) for that express purpose had and obtained
(xii) PROVIDED ALWAYS that if the said lessee his Executors, Administrators or Assigns shall assign or transfer these presents, or the lease or term hereby granted or created, or the unexpired portion of the said term, or shall underlet the said premises or any part thereof with such permission as aforesaid unto any other person or persons of whom the said Collector shall approve, and if such person or persons shall engage and bind themselves to observe all the conditions, agreements and provisions of these presents in respect of such portion of the said term or of the said premises as shall have been so assigned or underlet to him as aforesaid and shall procure such assignments or sublease to be registered in such manner as shall be appointed by the said Secretary of State for the purpose of registering leases and other instruments of or relating to lands situate within the local limits of Allahabad (and for the registry of which assignments or subleases a fee of not more than Rs. 16 shall be paid by the person or persons tendering such assignments or sublease for registry) then and not otherwise the liability of the said lessee his Heirs, Executors and Administrators for the purpose or subsequent observance and performance of the covenants on the lessee's part herein contained, so far as relates to the portion of the said term or of the said premises so assigned or underlet as aforesaid, but not further or otherwise, shall cease and determine, but without prejudice however to the right of auction of the said Secretary of State his Successors or Assigns in respect or on account of any previous breach of any covenant or covenants herein contained,
(xiii) PROVIDED ALWAYS and it is hereby desired that if the said yearly rents hereby reserved or any part thereof shall at any time be in arrears and unpaid for the space of 21 days next after any of the said days whereon the same shall have become due whether the same shall have been lawfully demanded or not or if there shall be any breach or non-observance by the lessee of any of the covenants hereinbefore contained on his part to be observed and performed then and in any such case it shall be lawful for the Secretary of State notwithstanding the waiver of any previous cause or right of the re-entry to enter into and upon the said demised premises and the buildings and out buildings erected as aforesaid or any part thereof in the name of the whole and thereupon the same shall remain to the use of and be vested in the Secretary of State and this demise shall absolutely determine but which entry if made shall not prejudice the right of the said Secretary of State his Successors or Assigns to damages for the previous breach of any covenant on the part of the said lessee his Executors, Administrators or Assigns herein contained.
(xiv) AND the said Secretary of State doth hereby for himself his Successors and Assigns covenant with the said lessee his Executors, Administrators or Assigns that be the said lessee his Executors, Administrators or Assigns paying the rent hereinbefore reserved at the times and in manner hereinbefore appointed, and observing and performing all and singular the covenants, conditions and agreements herein contained and on his and their parts to be observed and performed according to the true intent and meaning of these presents, shall and may peaceably and quietly hold, use, occupy, possess and enjoy the said piece and parcel of land and ground and premises hereby demised during the said term of fifty years hereby granted without any let, suit, denial, eviction or disturbance of or by the said Secretary of State, his Successors or Assigns or of or by any person or persons claiming or to claim through or under them." (Emphasis added)
6. The lease rights of above Nazul Plot was transferred by Sri Morean in favour of Maharani Janki Kunwar through Management of Court of Wards, Bettiah Estate, Bihar in 1925. Maharani Janki Kunwar was daughter of Rai Bahadur Sidh Narain Singh, Talukedar of Anapur Estate, Allahabad. She was married to Maharaja Harendra Kishore Singh of Bettiah Raj in Bihar. Maharaja Harendra Kishore Singh died issuless and intestate in 1893. His first widow Maharani Sheo Ratan Kunwar succeeded Bettiah Estate. Maharani Sheo Ratan Kunwar died issuless in 1896. Thereafter Estate was succeeded by second widow Maharani Janki Kunwar. In 1897, Court of Wards, Bihar, holding Maharani Janki Kunwar incompetent to manage Estate, appointed Manager to look after management of property of Bettiah Raj Estate. The properties in State of U.P. were being managed by Court of Wards, Uttar Pradesh through Collector, Gorakhpur. In 1959, Court of Ward Act was repealed in State of U.P. and Board of Revenue was authorized to manage and administer affairs related with Court of Wards.
7. Transfer of disputed land by Sri E.E.Morean to Maharani Janki Kunwar was approved by Collector, Allahabad and she was recorded as lease-holder of aforesaid Nazul Plot in Nazul Property Register. On the disputed land there was a bungalow constructed for residence of Maharani Janki Kunwar, who was residing therein till her death i.e. 27.11.1954. The term of lease expired on 31.12.1960.
8. Maharani Janki Kunwar was also lease-holder of another contiguous Nazul plot no.114, Civil Station, Allahabad and had one property i.e. 474, Mutthiganj, Allahabad. After death of Maharani Kunwar on 27.11.1954, a number of persons claimed property of 'Bettiah Estate' and filed petitions before Court of Wards, Bihar to get property released in their favour. State of Bihar also claimed aforesaid property through Escheat. Father of petitioner, Badreshwari Saran Singh, was minor in 1954. He was grandson and nearest blood relation of Maharani Janki Kunwar. Therefore, he also filed petition on 07.01.1955 claiming property of Maharani Janki Kunwar. The claim of parties over property of Bettiah Estate of Maharani Janki Kunwar was considered by Sri M.S.Rao, Additinoal Member, Board of Revenue and vide resolution dated 18.01.1955 he held that Court would retain charge of properties until dispute is determined by a competent Civil Court.
9. Petitioner claimed that he, being the great grand son and blood relation of Maharani Janki Kunwar, was entitled to get lease deed executed in his favour in respect of disputed Nazul land.
10. In the year 1960, when period of lease was going to expire, Manager of Court of Wards of Bettiah Estate requested Collector, Allahabad for renewal of lease and pursuant thereto a demand note was raised to deposit Rs.21,889/- as premium and Rs.202.11 towards yearly rent. Manager, Court of Wards deposited aforesaid amount by way of cheque to Nagar Mahapalika, Allahabad. It was encashed by Nagar Mahapalika, Allahabad on 31.03.1963. Administrator, Nagar Mahapalika, Allahabad vide letter dated 18.03.1967 sent proposal to Collector, Allahabad requesting execution of fresh lease of land in dispute. Collector forwarded the said proposal vide letter dated 07.04.1967 to Commissioner, Allahabad but it remained pending. Then, Collector, Allahabad, on 25.10.1993 again sent a detailed letter to State Government seeking advice in the matter relating to land in dispute. The said letter is on record as Annexure 5 to writ petition.
11. Petitioner filed an application in 2009 along with Treasury Challan dated 07.12.2009 to Collector, Allahabad requesting to convert disputed Nazul land into freehold in favour of petitioner. Thereafter petitioner filed Writ Petition No.3970 of 2010, seeking a mandamus commanding State of U.P. and others to convert Nazul plot No.112, Civil Station, Allahabad into freehold and accept petitioner's Treasury Challan dated 07.12.2009. He also prayed for quashing of nomination/consent letter dated 25.02.1999 issued by Manager, Court of Wards, Bettiah Estate in favour of M/s PUAENS Samiti (respondent-7 in that case) and application submitted by said Samiti for freehold of land in dispute. The writ petition was decided vide judgment dated 18.2.2010. This Court categorically held that petitioner has no right to make any application for free hold. The relevant observations in the judgment read as under :
"We are satisfied that the petitioner has no right to make any application for free hold." (Emphasis added)
12. With regard to entitlement of M/s PUAEN Samiti for freehold right of disputed Nazul land, this Court did not adjudicate the same but observed that if said application is considered by District Magistrate, he shall also look into the question "whether there was any right of nomination in favour of M/s PUAENS Samiti", and "whether any nomination or any exercise of freehold could be made in respect of land in dispute". Subject to above observations, writ petition was dismissed.
13. Petitioner then filed Review Petition No.103754 of 2010, which was also rejected vide order dated 11.10.2012. It is said that the order rejecting review application has been passed without any logical reason. It is further said that in the backdrop of aforesaid judgment, respondents 1, 3 and 4 have not executed any lease deed in favour of petitioner.
14. Again petitioner made a representation dated 26.09.2015 and then filed Writ Petition No.59253 of 2017, which is pending. Relying on Supreme Court judgment in State of Bihar and others vs. Sri Radha Krishna Singh and others, AIR 1983 SC 684, it is said that plea of escheat was not accepted by Supreme Court; property belonged to Maharani Janki Kunwar and under custody of Courts of Wards; petitioner being legal heir of Maharani Janki Kunwar is entitled to have claim over said property.
15. Further it is said that State of U.P. has filed Original Suit No.561 of 2001 in the Court of Civil Judge (Senior Division), seeking following reliefs:
"1. That through a declaration in favour of the plaintiff and against the defendant, it be declared that the plaintiff is owner of the properties of Betia Rajya detailed in Schedule 'A' & 'B' which earlier belonged to Late Maharaja Harinder Kishore Singh as it has devolved on it for want of any heir of Late Maharaja and his two widows.
2. That through decree of injunction in favour of the plaintiff against the Defendants, the defendants be restrained from disputing the plaintiff's title on the properties in suit and also from ejecting the plaintiff's forcibly over the suit properties.
3. That the cost of the suit be awarded to the plaintiff against the defendants.
4. That such other or further relief be awarded to the plaintiff against the defendants to which the plaintiff is found entitled." (Emphasis added)
16. Petitioner has pleaded that land in dispute, therefore, is in the custody of Board of Revenue. Claim of State of U.P. on the ownership of land in dispute is subjudice before Court of Civil Judge (Senior Division), Gorakhpur; hence, notice issued by respondent 3 for re-entry on land in dispute is illegal; it is also in violation of principles of natural justice as no opportunity of hearing has been given before issuing the aforesaid notice; Respondents have usurped authority of Board of Revenue, which has custody of property in dispute after repeal of Court of Wards Act, 1959 (hereinafter referred to as "Act, 1959") and notice is also in violation of judgment and direction given by Supreme Court in State of Bihar and others vs. Sri Radha Krishna Singh and others (supra).
17. On behalf of respondents 3 and 4, a counter affidavit has been filed stating that disputed land having total area of 11433 Sq. meters was demised through an Indenture of Lease dated 05.12.1924 for a period of 50 years commencing from 01.01.2011 in favour of E.E.Morean by Secretary of State for India; the lease in question is governed by the provisions of Government Grants Act, 1895 (hereinafter referred to as "GG Act, 1895"); Lease expired on 31.12.1960; it has not been renewed thereafter; Lease deed contained provision of re-entry and in pursuance thereof State has exercised its right of resumption/re-entry; though GG Act, 1895 has been repealed by Repealing and Amending (Second) Act, 2017 (hereinafter referred to as "Repeal Act, 2017") notified on 05.01.2018 but by virtue of Section 4, right, title, obligation or liability already acquired, accrued or incurred have been saved; the disputed land has been sought to be resumed for the purpose of constructing a 'Multi Purpose Building' and for functioning of Industrial Tribunal/Labour Court, which is to be developed by Allahabad Development Authority renamed as Prayagraj Development Authority (Now titled and described as "PDA"); Petitioner's claim for freehold right has already been rejected by this Court vide judgment dated 18.02.2010 and the said judgment has attained finality, petitioner, therefore, had no right in respect of land in dispute; property in dispute of Bettiya Estate relates to property owned by Maharaja Harendra Kishore Singh and his widows but property in question was never property of Maharaja Harendra Kishore Singh or his widows; Nazul is owned by State, hence question of title over land in dispute of Maharaja Harendra Kishore Singh does not arise; Petitioner has no right to claim execution of lease deed in his favour; respondents have rightly proceeded to resume land in dispute for public purposes and writ petition is liable to be dismissed.
18. Writ-2 has been filed by three petitioners namely Kunwar Udai Singh, Kunwar Vijay Singh and Kunwar Ajay Singh, all three sons of late Rajkumari Bina Singh alias Purnima Kunwar wife of Late Kunwar Narayan Singh. It has impleaded State of U.P. through Principal Secretary, Awas Avam Sahari Niyojan; District Magistate, Allahabad and Allahabad Development Authority (Now 'PDA') as respondents 1, 2 and 3, respectively. They have prayed for issue of a writ of certiorari for quashing notice dated 18.08.2018, which is impugned in Writ-1 also. They have further sought a declaration that property in dispute i.e. Nazul Plot No.112, Civil Station (Thornhill Road) also known as 7, Stretchy Road, Civil Lines, Allahabad, belongs to petitioners and not amenable to proceedings emanating from notice dated 18.8.2018 or any other action of respondents to re-enter and acquire the same under any law or administrative action.
19. The case set up by petitioners is that they are sons of late Kunwar Narayan Singh (Father) and (late) Rajkmari Bina Singh alias Purnima Kunwar (Mother). Sri Kunwar Narayan Singh died on 11.02.1975 and Rajkumari Bina Singh alias Purnima Kunwar died on 13.11.2012. Maharaha Harendra Kishore Singh succeeded to throne of Bettiah Raj and died intestate on 26.03.1893. He left a testamentary instrument i.e. 'Will', dated 13.09.1892, in favour of Yuvraj Ramni Singh. Will dated 13.09.1892 was approved by King of England vide memorandum dated 25.05.1938. After death of Maharaja Harendra Kishore Singh, Yuvraj Ramni Singh succeeded to the throne of Bettiah Raj. A letter was issued by Governor of Fort William, Bengal on 14.04.1937 addressed to Yuvraj Ramni Singh that order for his enthronement upon Rajgaddi of Bettiah Raj would be passed very soon and he shall be informed accordingly and till then he must have patience. Later on, Sri Rai Sahib J.O.N Shukla, Assistant Political Officer, Dehradun, U.P. sent a letter dated 07.10.1938 to Yuvraj Ramni Singh, remitting him a sum of Rs.1,55,000/- towards Annual State Grant for the year 1936-1937. Yuvraj Ramni Singh filed Original Suit No.428 of 1938 in the Court of Civil Judge, Allahabad, which was decreed vide judgment dated 19.03.1947 declaring him Successor of Late Maharaja Harendra Kishore Singh and absolute owner of Bettiah Raj. He was also declared successor of all rights, privileges, honours, title and moveable and immoveable properties of Maharaja Harendra Kishore Singh of Bettiah Raj. Appeal No.357 of 1947 filed by one Bhagwati Prasad Singh, who was defendant-11 in the said suit was dismissed by District Judge, Allahabad vide judgment and decree dated 30.07.1949. Some suits were filed in the State of Bihar and ultimately all these cases came to be decided by Supreme Court in State of Bihar & Ors. Vs. Radha Krishna Singh and others (Supra) wherein findings recorded by Court in para 265 read as under:
"(1) That the plaintiff has no doubt proved that he was a direct descendant of Gajraj Singh but that is of no assistance to him so long as it is not shown that the missing links the relationship of Gajraj Singh with Ramruch singh, and Ramruch Singh with Bansidhar Singh, and that Bansidhar Singh was one of the sons and that Bansidhar Singh was one of the sons of Hirday Narain Singh have been established.
(2) That the plaintiff has miserably failed to prove that Gajraj Singh was in any way connected with Bansidhar Singh, or that Ramruch Singh was the son of Bansidhar Singh and brother of Debi Singh.
(3) That Ex. J was admissible in evidence though of no assistance to the plaintiffs.
(4) That the documents, transactions, judgments, robkars, plaints, written statements, etc. produced by the plaintiffs are either inadmissible or irrelevant.
(5) That the oral evidence on the point of genealogy is utterly unreliable and unworthy of credence.
(6) That neither the documentary or the oral evidence adduced by the plaintiffs is sufficient to prove their case and hence the plaintiffs have failed to discharge the initial onus which lay on them to prove their case.
(7) That the majority judgment is wrong in law and on facts and has arrived at factually wrong and legally incorrect conclusions and, therefore, cannot be upheld.
(8) That we entirely agree with the judgment of M.M.Prasad, J. so far as the plaintiffs' case is concerned.
(9) The plaintiffs have not proved that they are the next and the nearest reversioners of the late Maharaja (Harendra Kishore Singh)" (Emphasis added)
20. With respect to claim of 'escheat' put forward by States of Bihar and U.P., in State of Bihar and others vs. Sri Radha Krishna Singh and others (supra), Court said that for the properties under management of Court of Wards of State of Bihar and Uttar Pradesh, status quo will be maintained until any of the State is able to prove its plea of 'Escheat' in a properly constituted action.
21. Petitioners' mother being daughter of Yuvraj Ramni Singh, who died on 14.12.1950, was the only surviving legal representative but she was not aware of her rights and entitlement over assets of Bettiah Raj including disputed Nazul land. She filed an application dated 01.10.2003 before Board of Revenue claiming release and handing over possession of entire moveable and immoveable properties to her from management and possession of Court of Wards relating to Bettiah Raj. Board of Revenue did not take any action and in the meantime petitioner's mother died. Thereupon, petitioners' came to this Court in Writ Petition No.52820 of 2014 complaining that no decision has been taken on their application dated 01.10.2003. It was disposed of vide judgment dated 26.9.2014 directing Chairman, Board of Revenue, to take decision and pass a reasoned order. The order passed by this Court reads as under:
"Heard learned counsel for the petitioners and learned Standing Counsel for the State respondents.
In substance, the petitioners appear to be aggrieved by non-disposal of their application dated 1.10.2003 made before the Chairman Board of Revenue, U.P. at Lucknow.
It is contended that since 2003, the application is pending before the Chairman Board of Revenue but no order has yet been passed thereon.
Having heard learned counsel for the parties, this writ petition is disposed of with the observation that the petitioner's application be decided in accordance with law by passing a reasoned speaking order by the Chairman Board of Revenue expeditiously It may be clarified that I have neither addressed myself on the maintainability of the petitioner's application nor its merit and the Chairman Board of Revenue is free to pass an independent order in accordance with law."
22. Thereafter, petitioners filed an application under Section 13 of Bengal Court of Wards Act, 1879 claiming release of possession of entire moveable and immoveable properties from management and possession of Court of Wards relating to Bettiah Raj. The said application has been registered as Case No.11 of 2018. Petitioner then received impugned notice dated 18.8.2018. Petitioners submitted reply to District Magistrate/Collector, Allahabad vide letter dated 29.09.2018 stating that disputed land and Nazul Land is part of assets of Bettiah Raj, which has been succeeded by petitioners and therefore notice is wholly illegal.
23. The notice has been challenged on the ground that it amounts to contempt of judgment in State of Bihar and others vs. Sri Radha Krishna Singh and others (supra) passed by Supreme Court; property in question cannot be acquired by State except by due process of law and impugned notice amounts to violation of Article 300-A of Constitution; lease having expired in 1960, notice has been issued after 58 years without following procedure prescribed in law and in any case notice is barred by limitation; it is hit by doctrine of acquiescence and prescription; notice is unreasoned and case of petitioners for release is already pending before Board of Revenue hence it is to impede process of justice and there is an attempt to usurp property at the back of petitioners; it is contrary to statutory provisions and judicial precedence; Respondents have no right of re-entery/ resumption of disputed property; Property has ceased to be governed by provisions of GG Act, 1895; Impugned notice is devoid of legal statutory sanction; status of property in dispute has not been considered and it is otherwise illegal.
24. A counter affidavit has been filed on behalf of respondent-2 i.e. District Magistrate, Allahabad in which pleadings are basically the same as stated in counter affidavit filed in Writ-1. It is additionally stated that succession dispute with respect to Bettiah Estate has nothing to do with property in dispute since it is already owned by State of Uttar Pradesh and not being property of Maharaja Harendra Kishore Singh, aforesaid dispute has nothing to do with the property in question.
25. A rejoinder affidavit has been filed by petitioners, wherein an application filed by Collector, Allahabad has been placed on record stating that Nazul Plot No.112 was property of Maharani Bettiah Raj; in the disputed land, Industrial Tribunal/Labour Court is working but since March, 1967, rent has been collected by Manager, Court of Ward, Bettiah Estate while Collector demanded rent from Tribunal, therefore, till the right of collection of rent is decided, rent should be deposited in Court. On that application filed by Industrial Tribunal, Court permitted deposit of rent in the Court. In State of Uttar Pradesh, right of management of Estate of Bettiah Raj is within the competence of District Administration on behalf of Board of Revenue, therefore, amount of rent, which has been deposited, be released to State and future rent by Industrial Tribunal should be paid to Administrator /Collector, Allahabad. Further, Secretary, Board of Revenue, Bihar (Patna) protested against deposit of rent in State Government Treasury vide letter dated 7.10.1974. Rest averments in rejoinder affidavit basically are reiteration of what has been said in writ petition hence we shall discuss the same in the process of discussion of issues raised in these petitions, wherever required.
26. Learned counsel for petitioner appearing in WP-1 contended that property right of Betttiah Estate has been ascertained by Supreme Court in State of Bihar and others vs. Sri Radha Krishna Singh and others (supra); petitioner Lov Mandeshwari Saran Singh is great grandson of Maharani Janki Kunwar, thereafter after her death on 27.11.1954, he succeeded estate of Maharani Janki Kunwar, which included unexpired lease rights over land in dispute; there was some dispute over succession of estate of Maharani Janki Kunwar, therefore, estate of Maharani Janki Kunwar went into the hands of Court of Ward, Bihar for management and petitioner is entitled to transfer of leased land by Court of Ward, Bihar; when he submitted his application, Court of Ward held possession of land in dispute on behalf of legal heirs of Maharani Janki Kunwar; when it made application for renewal of lease, it was on behalf of such legal heirs; it is in furtherance thereof that petitioner applied for freehold in 2009 but this Court did not consider the matter properly and writ petition was dismissed holding that petitioner has no right for freehold of disputed land; claim of State Government with regard to ownership of land in dispute is subjudice in the Court of Civil Judge (Senior Division), Gorakhpur in Original Suit No.561 of 2001 hence, notice issued to petitioner for re-entry/resumption of land is patently illegal; respondents have no right to resume land since dispute of ownership is still pending; impugned notice is also in violation of principles of natural justice and contrary to what has been said by Supreme Court in State of Bihar and others vs. Sri Radha Krishna Singh and others (supra).
27. Petitioners of WP-2 claim themselves to be owner of land in dispute hence it is contended that State is not entitled to re-enter or resume the same. Here also reliance has been placed on Supreme Court judgment in State of Bihar and others vs. Sri Radha Krishna Singh and others (supra). It is contended that notice in question amounts to contempt of judgment of Supreme court aforesaid; further notice in question amounts to acquisition of land by State without due process of law and notice is in violation of Article 300-A of Constitution; resumption is sought to be made after 58 years of expiry of lease without following procedure prescribed in law; it is barred by limitation, hit by doctrine of 'prescription' and 'acquiescence'; notice is unreasoned and dispute relating to release of land is pending before Board of Revenue, hence impugned notice would impede process of justice thereat; property in question ceased to be governed by provisions of GG Act, 1895 and moreso since it has been repealed therefore, State cannot take recourse of provisions of said Act.
28. Certain facts, which emerge from above pleadings we find it appropriate to place in a chronological manner hereinbelow for proper appreciation of dispute:
Date Events 01.01.1894 Nazul Plot No.112, Civil Station, Allahabad, area 11,414 Sq.Meters was leased to to M/s Agra Savings Bank Ltd. (in liquidation at that time) for a period of 17 years for dwelling purposes.
31.12.1910 Period of above lease expired.
01.01.1911 Renewal of lease of Nazul Plot 112 (earlier Civil Station now called Thornhill Road) area 2.821 acres in favour of Enite Edward Morean vide lease deed dated 05.12.1924 for a period of 50 years.1925
Enite Edward Morean transferred lease rights of Nazul Plot No.112 in favour of Maharani Janki Kunwar through Management Court of Ward, Bettiah Estate, Bihar.
27.11.1954 Maharani Janki Kunwar died.
31.12.1960 Lease expired.
...
Court of Ward, Bihar deposited premium and yearly rent of one year requesting renewal of lease by cheque to Nagar Mahapalika, Allahabad.
31.03.1963 Nagar Mahapalika, Allahabad encashed cheque.
18.03.1967 Administrator, Nagar Mahapalika, Allahabad sent proposal to Collector, Allahabad for execution of fresh lease.
07.04.1967 Collector sent proposal to Commissioner, Allahabad.
25.10.1993 Collector, Allahabad sent letter to State Government seeking its guidance over land in dispute.
25.02.1999 Manager of Court of Ward, Bettiah Estate gave consent letter/nomination in favour of M/s PUAENS Samiti to get land in dispute freehold.
2009Petitioner of WP-1 filed application and deposited requisite amount to Collector, Allahabad for conversion of Nazul into freehold in his favour.
WP-3970 of 2010 Writ Petition filed by petitioner WP-1 seeking mandamus commanding Collector to accept Treasury Challan of petitioner WP-1 and convert Nazul Plot 112, Civil Station, Allahabad into freehold.
18.02.2010 Writ Petition No. 3970 of 2010 was dismissed holding that petitioner of WP-1 has no right to make any application for freehold.
11.10.2012 Review Application filed by petitioner of WP-1 was rejected.
26.09.2015 Petitioner of WP-1 again made a representation requesting for freehold.
WP-59253 of 2017 Writ petition filed by petitioner WP-1 and the same is pending.
29. There is another set of facts relating to ownership of Bettiah Estate, Bihar and we find it appropriate to place the same in chronological manner hereat.
Date Events ...
Maharani Janki Kunwar (daughter of Rai Bahadur Sidh Narain Singh, Talukdar of Anapur Estate) married to Maharaja Harendra Kishore Singh of Bettiah Raj, Bihar.
1893Maharaj Harendra Kishore Singh died issueless.
1896The first widow of Maharaj Harendra Kishore Singh i.e. Maharani Sheo Ratan Kunwar, who succeeded Bettiah Estate after death of Maharaj Harendra Kishore Singh, also died issueless.
1897Court of Ward, Bihar held Maharani Janki Kunwar incompetent to manage Estate i.e. Bettiah Estate of Maharaj Harendra Kishore Singh, thus appointed Manager.
27.11.1954 Maharani Janki Kunwar died.
1959Court of Ward Act repealed and thereupon Board of Revenue was authorized to manage and administer affairs related to Court of Ward.
30. There is third set of facts borne out from WP-2 and the same is also stated in a chronological manner as under:-
Date Events ...
Maharaja Harendra Kishore Singh succeeded to throne of Bettiah Raj, Bihar.
13.09.1892 Maharaja Harendra Kishore Singh executed a Testamentary Instrument i.e. will in favour of Yuvraj Ramni Singh.
26.03.1893 Maharaja Harendra Kishore Singh died, hence, in terms of will Yuvraj Ramni Singh succeeded Bettiah Raj Estate.
14.04.1937 Governor of Ford William sent a letter to Yuvraj Ramni Singh informing that throne of Bettiah Raj Estate would soon be assigned to him and till then he must have patience.
25.05.1938 King of England approved will dated 13.09.1892.
07.10.1938 Yuvraj Ramni Singh got Rs. 1,55,000/- towards annual estate grant for the year 1936-37 from Assistant Political Officer, Dehradun.Original Suit No.428 of 1938
Yuvraj Ramni Singh filed suit in the Court of Civil Judge, Allahabad, for declaration as successor of late Maharaja Harendra Kishore Singh and absolute owner of Bettiah Raj.
19.03.1947 Aforesaid suit was decreed.
Appeal No.357 of 1947One Bhagwati Prasad Singh, defendant -11 in aforesaid suit filed appeal.
30.07.1949 Appeal filed by Bhagwati Prasad Singh was dismissed.
14.12.1950 Yurraj Ramni Singh died. His daughter i.e. mother of petitioners of W.P. 2 succeeded to the entire estate.
.11.02.1975 Kunwar Narayan Singh, petitioners' father died.
2001Original Suit No.561 of 2001 has been filed by State of U.P. in the Court of Civil Judge (Senior Division), Gorakhpur, seeking declaration that plaintiff is owner of property of Bettiah Raj, detailed in Schedule 'A' & 'B'.
23.11.2012 Raj Kumari Bina Singh alias Purnima Kunwar, petitioners' mother died.
31. Above facts make it clear that petitioners are trying to create confusion in property of Bettiah Estate/Bettiah Raj and Nazul Plot No.112, Civil Station, Allahabad, with which we are concerned. It is admitted by parties that plot no.112, which is disputed land in both these writ petitions, is 'Nazul land' and owned by State Government. It is also not in dispute that State Government has never transferred its ownership rights to erstwhile Ruler of Bettiah Raj and Bettiah Estate or anyone else. No material in this regard has been placed on record and it is also not the case of petitioners at all.
32. Here we are not concerned with title/ownership of Estate of Bettiah Raj as to whom the said ownership devolved after death of Maharaj Harendra Kishore Singh when he died in 1893 or thereafter. Before us, succession of ownership rights over estate of Bettiah Raj is not a subject matter of adjudication. Both the petitioners have heavily relied on Supreme Court judgment in State of Bihar and others vs. Sri Radha Krishna Singh and others (supra) to contend that notice in question amounts to contempt of aforesaid judgment of Supreme Court but neither anything has been explained to us during course of argument nor anything has been shown as to how notice, which has been questioned in both writ petitions amounts to contempt of aforesaid judgment. We have also gone through entire judgment rendered by Constitution Bench (four Judges Bench) of Supreme Court dealing with set of appeals arising from Special Bench judgment of Patna High Court. From the aforesaid judgment, we find that Raja Hirday Narain Singh was admittedly owner of properties of Bettiah Estate. Maharaja Harendra Kishore Singh was a direct descendant of Raja Hirday Narain Singh. After the death of Maharaja Harendra Kishore Singh on 26.03.1893, claiming his impartible estate, a number of claims were set up by several persons. Property of Bettiah Estate comprised of huge moveable and immovable properties, such as land, houses, jewellery, etc. One suit i.e. T.S. No.3 of 1955 was filed at Varanasi by one Ram Bux Singh. Aforesaid suit, however, was withdrawn on 09.04.1956. Another suit was filed on 16.08.1955 in the Court of Sub-Judge, Patna and it was registered as T.S. No.44 of 1955. Plaintiff in that case was Suresh Nandan Singh. Third suit i.e. T.S. No.25 of 1958 was filed in the Court of Sub-Judge, Patna on 11.04.1958 by Raja Jugal Kishore Singh. Forth suit i.e. T.S. No.5 of 1961 was filed initially on 12.03.1959 in the Court of Sub-Judge, Chhapra, which was later transferred to the Court of Sub-Judge, Patna and re-numbered as T.S. 5 of 1961. Here Principal Plaintiff was Radha Krishna Singh son of Bhagwati Prasad Singh. Matter reached Supreme Court as a result of decree passed in favour of Radha Krishna Singh by High Court while other two suits were dismissed.
33. Main contest before Supreme Court was between Radha Krishna Singh, State of Bihar and State of Uttar Pradesh, who claimed that Estate of Bettiah State vested in respective State Governments by 'escheat' after death of two widows of Maharana Harendra Kishore Singh who died issuless.
34. The entire history of Bettiah Raj has been given in the judgment of Supreme Court and, in our view, it is not necessary to go into that detail for the reason that in the present case we are not concerned with title/ownership/succession dispute of Estate of Bettiah Raj. Suffice it to mention that after death of second widow of Maharaja Harendra Kishore Singh i.e. Maharani Janki Kunwar, management of Bettiah Estate went into hands of Court of Ward, Bihar and property in State of Uttar Pradesh came to be administered by Court of Ward, U.P. Succession and ownership dispute has to be settled in the light of respective litigation. Even in the suit filed by State of U.P. i.e. Original Suit No.561 of 2001, as we have noticed above, plaintiff i.e. State of U.P. has claimed ownership of property of Bettiah Raj which earlier belonged to late Maharaja Harendra Kishore Singh, on the ground that it devolved upon State of U.P. for want of any heir of Late Maharaja Harendra Kishore Singh and his two widows.
35. We are concerned here with Nazul Plot 112, which admittedly is owned and vested in State of U.P. and its title and ownership has never been transferred to anybody else at any point of time. Neither any such argument was advanced before us, nor there is any pleading, nor any material to support it.
36. Petitioners assume that transfer of lease rights of Nazul land is same thing as if title has been transferred. This assumption is wholly fallacious and lacks any legal sanctity.
37. In the present case, disputed Nazul land was let out through 50 years' Indenture of Lease executed by Secretary of State of India in Council, in favour of Enite Edward Morean w.e.f. 01.01.1911. In 1925, lease rights of Nazul Plot was transferred by Enite Edward Morean to Maharani Janki Kunwar through Management of Court of Ward, Bettiah Estate, Bihar. Maharani Janki Kunwar died on 27.11.1954 issuless. Term of lease also expired on 31.12.1960. Petitioners of both the writ petitions claiming rights in property of Maharani Janki Kunwar have undergone various litigation but Nazul plot was not property of Maharani Janki Kunwar at all. Therefore, question of any interest acquired by petitioners in Nazul land does not arise at all.
38. The very basic assumption on the part of petitioners in this regard is patently fallacious, illegal and erroneous in law.
39. At this stage, it would be appropriate for this Court to examine and made it clear as to what is 'Nazul'.
40. Every land owned by State Government is not termed as 'Nazul' and therefore it has become necessary to understand, what is 'Nazul'.
41. 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 the State Government results in making State, owner of such land, but in legal parlance, the term "Nazul" is not applicable to all such land.
42. 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.
43. 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'.
44. 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'.
45. 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.
46. 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 heirs, 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.
47. 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.
48. 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 continues 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)
49. 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.
50. In Pierce Leslie and Co. Ltd. Vs. Miss Violet Ouchterlony Wapsnare, AIR 1969 SC 843 Court has considered the above principles 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)
51. 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.
52. 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)
53. This decision has been followed in Raja Rajinder Chand v. Mst. Sukhi, AIR 1957 SC 286.
54. 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." (Emphasis added)
55. 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)
56. 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.
57. 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)
58. 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)
59. 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.
60. 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.'
61. 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)
62. 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 vacantia. 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 etc.
63. Thus, land in question remained with State Government being its owner. Lease right transferred to Maharani Janki Kunwar ceased to continue with Lessee after her death that too issueless, and in any case after expiry of term of lease on 31.12.1960.
64. The next submission that State cannot acquire land without acquisition proceeding is also misconceived, inasmuch as, there could not have been any occasion of acquisition of land vested in State, since State cannot acquire land already owned by it or vested in it. Law in this regard is well settled.
65. In Secretary of State Vs. Narain Khanna AIR 1942 Privy Council 35, it was held:
"where Government acquires any property consisting of land and buildings, and where land was the subject matter of Government grant, subject to power of resumption by Government at any time on giving one month's notice, then compensation was payable only in respect of such buildings as may have been authorized to be erected and not in respect of land." (Emphasis added)
66. A Division Bench of Judicial Commissioner in Md. Wajeeh Mirza vs. Secretary of State for India in Council, AIR 1921 Oudh 31, said as under:
"when Government itself claims to be owner of the land, there can be no question of its acquisition and the provisions of the Land Acquisition Act cannot be applicable. This opinion expressed by Judicial Commissioner has been approved in Sharda Devi vs. State of Bihar and another (supra). Court reiterate in Sharda Devi vs. State of Bihar and another (supra) that land or an interest in land pre-owned by State cannot be subject-matter of acquisition by State. If the land in question is Government land, there is no question of initiating proceedings of acquisition at all. Government would not acquire the land, which already vests in it."
(Emphasis added)
67. In Sharda Devi Vs. State of Bihar and another, 2003 (3) SCC 128, Court has said as under:
"the State does not acquire its own land for it is futile to exercise the power of eminent domain for acquiring rights in the land, which had already vests in the State. It would be absurdity to comprehend the provisions of Land Acquisition Act being applicable to such land wherein ownership or the entirety of rights already vests in State. In other words, land owned by State on which there are no private rights or encumbrances is beyond the preview of provisions of Land Acquisition Act."
(Emphasis added)
68. In Collector of Bombay Vs. Nusserwanji Rattanji Mistri (1996) 10 SCC 150, it was held:
"under the provision of Land Acquisition Act, Government acquires the sum total of all private interests subsisting in them. If Government has itself an interest in land, it has only to acquire other interest outstanding thereof so that it might be in a position to pass it on absolutely for public user."
(Emphasis added)
69. In State of U.P. and another Vs. Lalji Tandon (dead) through Legal Representatives (2004) 1 SCC 1 referring to the decision in Sharda Devi vs. State of Bihar (supra), court said as under:
"the notification and declaration under Sections 4 and 6 of the Land Acquisition Act for acquisition of the land i.e. the site below the bungalow are meaningless. It would have been different if the State would have proposed the acquisition of lease hold rights and/or the superstructure standing thereon, as the case may. But that has not been done."
70. Further Claim of petitioner in WP-1 about conversion of lease into freehold under Government policy is thoroughly misconceived, inasmuch as, neither petitioners are Lessees nor otherwise entitled to claim freehold under any of the relevant Government Orders.
71. We could have gone in further detail on this aspect but this issue has already been considered by this Court while dismissing earlier petition of petitioner of WP-1 i.e. Writ Petition No.3970 of 2010 vide judgment dated 18.02.2010 observing that petitioner has no right to make any application for freehold and that is why we express our full agreement therewith and reiterate the same. The same reasoning applies to petitioners of WP-2 also.
72. In the circumstances, petitioners have no claim whatsoever over land in dispute and hence, they have no occasion to challenge impugned notice also for want of any right, interest etc. in the property in dispute.
73. Further, petitioners of WP-2 have claimed their right through alleged succession to Bettiah Raj by Yuvraj Ramni Singh pursuant to testamentary instrument i.e. Will dated 13.09.1892. Original Suit No. 428 of 1938 filed by Yuvraj Ramni Singh was decreed by Civil Judge, Allahabad, holding him successor of Late Maharaja Harendra Kishore Singh and absolute owner of Bettiah Raj. Since land in dispute was not part of Estate of Bettiah Raj and it was never owned by Maharaja Harendra Kishore Singh, therefore, aforesaid suit and decree passed by Civil Court in favour of Yuvraj Ramni Singh will have no concern or effect with respect to land in dispute. Their claim is also wholly devoid of any merit.
74. Now coming to right of State for resumption and re-entry, petitioners are only stranger so far as disputed land is concerned. Lease right has already expired on 31.12.1960. Lease has not been granted to anyone else. Petitioners have no claim for conversion into freehold. Hence right of State to get its own land is not obstructed in any manner.
75. Moreover, rights of State to resume its Nazul land is settled in Azim Ahmad Kazmi and others vs. State of U.P. and Another (2012) 7 SCC 278 as also by a Division Bench 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 that State has unrestricted power of re-entry to its own property and, that too, for public purpose and the above authorities are applicable to these petitions.
76. Both the writ petitions therefore are wholly misconceived. Petitioners have no claim over property in dispute, therefore other issues raised by petitioner with regard to Repeal Act, 2017 etc. are not relevant and only academic. However, even in respect of effect of Repeal Act, 207, we do not find any merit in the submission advanced on behalf of petitioners.
77. It is contended that Section 4 of Repeal Act, 2017 only protects right, title, obligation or liability already acquired, accrued or incurred by State of U.P. under GG Act, 1895 to resume Nazul land according to resumption clause of lease-deed prior to repeal of GG Act, 1895 and nothing more than that. Since no right, title, obligation or liability was acquired or incurred or accrued to State Government by resorting to resumption under resumption clause before repeal of GG Act, 1895, resumption sought with reference to GG Act, 1895 after its repeal is wholly illegal.
78. Meaning of words 'accrue', 'acquired' and 'incurred' have been given in various paragraphs of writ petitions but we find that basic aspect has been ignored and missed by petitioners Terms of lease as soon as lease was executed caused in creating rights, obligations, duties and interest of both the parties i.e. Lessor and Lessee in accordance with terms and conditions of lease. Relevant clause says that it shall be lawful for the Secretary of State notwithstanding waiver of any previous cause or right of re-entry to enter into and upon said demised premises whereupon the same shall remain to the use of and vested in Secretary of State and said demise shall absolutely determine out. The Lessee, who agreed with said terms incurred duty to allow such re-entry to State whenever Government do exercises its right of re-entry and here lies the right of State to re-enter the land, which was required by State. By virtue of execution of lease deed and accepting the same, Lessee incurred liability not to obstruct the said right of State i.e. Lessor.
79. Petitioners, in our view, have misconstrued the provisions of Section 4 vis-a-vis terms of lease and therefore, entire argument in this respect is devoid of merit hence rejected.
80. The other issues have been raised with respect to resumption being barred by limitation, doctrine of 'prescription', 'acquiescence' and non speaking notice as also violative of Article 300-A of Constitution. However, counsel for petitioners has not placed anything to show as to how above argument are substantiated. It could not be disputed that petitioners are not claiming any right founded on adverse possession and therefore, doctrine of 'prescription' has no application. No limitation could be shown in the case in hand, which is applicable. The property belongs to State, therefore, question that Article 300-A of Constitution is violated also does not arise.
81. Record shows that petitioners are not in possession over the land is dispute and an Industrial Tribunal is running over it. Moreover, even possession of lessee after determination of lease or expiry of period of lease becomes that of "Tenant at sufferance", therefore, even a quit notice is not necessary to be given and Section 106 of TP Act, 1882 is not at all attracted. Relying on earlier decision in R.V. Bhupal Prasad vs. State of A.P. (1995) 5 SCC 698 in a recent decision in Sevoke Properties Ltd. vs. West Bengal State Electricity Distribution Company Ltd. AIR 2019 SC 2664, Court held that once it is admitted by lessee that term of lease has expired, lease stood determined by efflux of time and in such case, a quit notice under Section 106 is not required to be given. Court has said as under :
"Once the lease stood determined by efflux of time, there was no necessity for a notice of termination Under Section 106."
(Emphasis added)
82. In the above authority, Court held that after expiry of period of lease, status of Lessee becomes that of 'Tenant at sufferance'. 'Tenant at sufference' is one who comes into possession of land by lawful title, but who holds it by wrong after termination of term or expiry of lease by efflux of time. The tenant at sufferance is one who wrongfully continues in possession after extinction of a lawful title. There is little difference between him and a trespasser. Quoting from Mulla's Transfer of Property Act (7th Edn.) at page 633, Court observed that tenancy at sufferance is merely a fiction to avoid continuance in possession operating as a trespass. It has been described as the least and lowest interest which can subsist in reality. It, therefore, cannot be created by contract and arises only by implication of law when a person who has been in possession under a lawful title continues in possession after that title has been determined, without consent of person entitled. A "tenancy at sufferance" does not create relationship of landlord and tenant. Court further quoted from page 769 of Mulla's transfer of Property Act (7th Edition), that act of holding over after expiration of term does not necessarily create a tenancy of any kind. If lessee remains in possession after determination of term, the common law Rule is that he is a tenant at sufferance.
83. One more interesting fact we may notice at this stage. Petitioners of WP-2 are staking their claim over land in dispute on the basis of alleged Will executed by Maharaja Harendra Kishore Singh on 13.09.1892 and he died on 26.03.1893. On that date, land in dispute was neither part of Bettiah Raj estate nor even lease was executed in favour of either Maharaja Harendra Kishore Singh or Maharani Janki Kunwar. As per record, lease of land in dispute was executed on 01.01.1894 in favour of M/s Agra Savings Bank Ltd. for a period of 17 years, which expired on 31.12.1910. Thereafter, renewed lease deed was executed on 05.12.1924 with effect from 01.01.1911 in favour of Enite Edward Morean. In 1925, only lease rights were transferred by Enite Edward Morean in favour of Maharani Janki Kunwar. Thus, question of aforesaid lease land becaming part of Bettiah Estate, which could have been subject matter of Will dated 13.09.1892 executed by Maharaja Harendra Kishore Singh, would not arise and the very foundation and basis of petitioners of WP-2 falls on the ground and renders their entire claim wholly fallacious and misconceived. This reason alone is sufficient to reject their claim.
84. The last question up for consideration is "whether re-entry/resumption of land by Lessor i.e. State Government is valid?"
85. So far as validity of resumption of land in 'public purpose', it could not be disputed that land has been sought to be required by State for 'public purpose'. Allahabad City has been selected for development as a Smart City and respondents have pleaded that demand of lot of land has been made by various Government departments since various Offices, Workshops, Parks, Parking places etc. have to be constructed. The land in dispute has been found suitable for erection of building for 'Industrial Tribunal cum Labour Court' and construction of 'Multipurpose Building' by A.D.A. and development whereof is public purpose. In fact, on this aspect, no substantial argument has been made and in our view, resumption of land by State is for 'public purpose'.
86. In view of above discussion, we do not find any merit in both the petitions. The writ petitions are accordingly dismissed.
87. No costs.
Order Date :- 31.10.2019 KA