Allahabad High Court
Ashok Kumar Malhotra & Another vs State Of U.P. And 3 Others on 22 May, 2018
Bench: Sudhir Agarwal, Ajit Kumar
HIGH COURT OF JUDICATURE AT ALLAHABAD AFR Reserved on 15.11.2017 Delivered on 22.05.2018 In Chambers Case :- WRIT - C No. - 57540 of 2015 Petitioner :- Ashok Kumar Malhotra and another Respondent :- State of U.P. and others Counsel for Petitioner :- Rajan Tripathi Counsel for Respondent :- C.S.C., Pradeep Kumar Tripathi, Shivam Yadav Hon'ble Sudhir Agarwal, J.
Hon'ble Ajit Kumar, J.
(Delivered by Hon'ble Sudhir Agarwal, J.)
1. Heard Sri Rajan Tripathi, Advocate, for petitioners; and, learned Standing Counsel and Sri Pradeep Kumar Tripathi, Advocate, for respondents.
2. This writ petition under Article 226 of the Constitution has been filed by two petitioners, who are brothers, seeking a mandamus commanding respondents-authorities to execute freehold deed of Plots No. 49A and 49 B, Block-F, Govind Nagar, Kanpur Nagar having total area of 596.98 square metres.
3. Brief facts, as stated in the writ petition, are that petitioners are in occupation of land in dispute since 1988. Kanpur Development Authority (hereinafter referred to as "KDA") announced scheme for regularization on 01.08.1988. The aforesaid advertisement published by KDA has been placed on record as Annexure-1 to the writ petition, which shows that KDA informed to owners of land, who have purchased the same from private/colonizer/housing cooperative societies and raised construction unauthorisedly on the land of Gram Samaj without payment of betterment charges/development charges, that they may get regularisation by submitting regularisation charge/betterment charge at the rate mentioned in the said advertisement. Last date for the submission of application was 30.08.1988. Petitioners submitted an application dated 20.08.1988 after depositing a token money of Rs. 84900/- on 27.03.1991. A letter was issued by Joint Secretary, KDA on 02.05.2000 requiring petitioners to deposit Rs. 11,36,811/- as a lump sum amount in one month or in four quarterly installment each of Rs. 3,33,557/-. Petitioners did not deposit any amount pursuant to the aforesaid letter and thereafter another letter was issued by KDA on 26.10.2004 requiring them to deposit the outstanding dues along with interest being Rs. 28,68,719/-. Alleging that petitioners have already made representation dated 18.05.2005, Writ Petition No. 57837 of 2005 was filed which was disposed of on 21.11.2011 with the following directions:
"Heard learned counsel for the parties.
During course of the arguments, learned counsel for the petitioner has confined his prayer to decide the representation dated 18.4.2005, appended as Annexure-17 to the writ petition, which is said to be still pending.
In the circumstances, this writ petition is finally disposed of with the direction that representation dated 18.4.2005 may be decided by the authority concerned by a reasoned and speaking order within a period of two months from the date a certified copy of this order is presented before the authority concerned."
4. In the light of the direction contained in the order dated 21.11.2011 passed by this Court, Vice-Chairman KDA informed petitioners that their request is contrary to the regularization policy since it has been sought to be regularized in 3 names, namely Ram Kumar Khanna, Yashpal Khanna and Krishna Kumar Khanna and if it is to be regularized separately, it will result in area of less than 200 square meters in respect to each person which is contrary to Scheme. He further informed that now regularisation has been stopped by Government Order dated 23.08.2004 and subsequently by Government Order dated 08.07.2010, it was informed to KDA that regularisation of unauthorised and illegal possession is not permissible and cannot be allowed.
5. Another demand notice was issued by KDA on 25.04.2013 referring to the Government Order dated 29.11.2011 demanding a sum of Rs. 42,79,548/- after adjusting the amount already paid by petitioners. The aforesaid demand is in the name of two petitioners and one Ram Kumar. Petitioners claimed that they have deposited Rs. 42,80,000/- on 28.04.2013 but no further action has been taken by KDA till date, hence a representation was also made on 15.02.2015 but nothing has been.
6. Respondents-2, 3 and 4, i.e., KDA and its authorities have contested the matter by filing counter affidavit stating that after 1988, another scheme was announced and published on 21.02.1991 offering regularization by depositing 1/4 of the amount computed in the manner as detailed in the said Scheme prior to 31.03.1991 and remaining in six half-yearly instalments. Petitioners did not deposit the amount as per aforesaid Scheme and, therefore, have lost their right of regularization.
7. Persons placed similarly to the petitioners, who committed default in payment of amount as per Scheme flouted in 1991 also came to this Court seeking regularisation of their possession but failed. One of such Writ Petition No. 33575 of 2004 (Surendra Singh Yadav Vs. State of U.P. and and another) was dismissed vide judgment dated 19.08.2004, which reads as under:
"This writ petition has been filed seeking the remedy that the petitioner is not liable to pay the amount as per the demand notice dated 14.07.2004 for regularization of his possession and construction for the reason that the petitioner has deposited a sum of Rs. 19,000/- in 1991 as per demand of the respondents and, therefore, the petitioner is entitled for execution of the lease deed/regularization at the rate prevailing in 1991 and the impugned demand notice dated 14.07.2004 is liable to be quashed.
Admittedly, the scheme was floated in 1991 and vide order dated 21st February, 1991, it was made clear that if a person makes the self-assessment of the property in his possession and deposits 1/4th amount of the assessed value within stipulated time and further deposits the balance in three years in half yearly instalments, whenever agreement etc. would to be executed, it would be as per that rate prevailing in 1990-91.
In the instance case, petitioner never deposited half yearly instalments as stipulated in the said scheme, therefore, the petitioner cannot claim the relief prayed for.
Petition is accordingly dismissed.
Sri M.C. Tripathi, Advocate, appears for the respondents."
8. It is also pointed out that some other persons, who did not comply with the scheme and later on made a representation, approached this Court in Writ Petition No. 49429 of 2006 (Rajendra Singh and others Vs. State of U.P.) which was decided on 11.09.2006 with a direction to KDA to decide their representations though at that time no scheme for regularisation was in operation.
9. Another Writ Petition No. 53493 of 2006 (Ramadhar Ram Vs. State of U.P.) seeking benefit of order dated 11.09.2016 passed in Rajendra Singh and another Vs. State of U.P. (supra) was filed, when it was pointed out by learned counsel for KDA that no scheme for regularisation was operating and castigating the practice of seeking representation decided without disclosing correct facts this Court dismissed the Writ Petition vide judgment dated 05.10.2006, which reads as under:
"This writ petition has been filed by the petitioner to consider his representation for regularisation of possession. Learned counsel for the petitioner has stated that this Court has consistently been passing this kind of orders. He has placed reliance on the decision given in Writ Petition No. 49429 of 2006 (Rajendra Singh and others Vs. State of U.P. and others) decided on 11.9.2006. However, those orders including the order passed in the said writ petition had been passed in a bona fide belief on the statement made by the learned counsel for the respondent-Kanpur Development Authority, Kanpur that there was a Scheme for regularisation of possession provided the petitioner was willing to pay the current market price with 25% extra.
The Supreme Court has deprecated this type of practice to decide the representation without making reference to the issues involved and applying its mind to the merit particularly in APSRTC and others Vs. G. Srinivas Reddy and others, JT 2006 (3) SC 189 and Employees State Insurance Corporation Vs. All India ITDC Employees Union and others, JT 2006 (4) SC 26. In all the earlier cases, the Court had been passing the order under the belief that there was a Scheme for regularisation under which the cases for regularisation could be considered in accordance with law.
However, Sri M.C. Tripathi, learned counsel appearing for Kanpur Development Authority, Kanpur has for the first time pointed out that there is no such Scheme for regularisation. It was merely a proposal which was sent to the State Government which has not been approved and the Kanpur Development Authority, Kanpur does not have any power to regularise such possession.
In view of the above, we are not under any legal obligation to pass the same order which had been passing earlier. The dispute in the present petition relates to title of the land. It cannot be adjudicated upon in writ jurisdiction.
The writ petition is, therefore, dismissed with liberty to the petitioner to approach the appropriate Forum for appropriate relief."
10. Similar issue again was raised in Writ Petition No. 10103 of 2007 (Sanjay Bhatia Vs. Vice Chairman, Kanpur Development Authority and another) which was also dismissed by detailed order dated 03.03.2011, which reads as under:
"Heard Sri Chandra Dutt, learned counsel for the petitioner and Sri Pradeep Kumar Tripathi, holding brief of Sri M.C. Tripathi, learned counsel for the respondents.
The petitioner seeks relief of direction in the nature of certiorari quashing the impugned order dated 14-11-2006 passed by the Vice Chairman, Kanpur Development Authority (for brevity 'Authority') and also to issue a direction not to dispossess the petitioner from the land in dispute and also not to demolish the construction made therein.
Earlier the petitioner filed a representation seeking relief of regularisation of the house constructed by him in the plot which was encroached by him and this court, it appears gave opportunity to the petitioner to make a representation to the Authority and pursuant thereto a representation had been made and the Authority had rejected the claim of the petitioner through the present impugned order.
The fact which is not in dispute appears to be that the land was originally acquired by the government for utilisation of the Authority and in such a land, the petitioner had encroached to some extent and raised a construction also. Subsequently he filed an application seeking regularisation of the construction by paying some amount. Later on the application of the petitioner was rejected.
In this regard it is the contention of the learned counsel for the petitioner that having received the money it is not proper for the Authority to pass an order of rejection to the claim for regularisation. We cannot accept this contention of the learned counsel for the petitioner for the simple reason that the mere acceptance of the money on the application cannot be constructed as accepting the plea of the petitioner and any receipt of the government money or application would only mean that the matter is under consideration before appropriate authority.
Now as has already pointed out, by virtue of the order of this court passed earlier, a representation has been made by the petitioner and the same has been rejected by the present impugned order. In the impugned order it has been stated inter alia that the land was originally acquired for the purpose of the Authority and therefore the representation of the petitioner cannot be accepted in asmuchas the petitioner not only encroached upon that acquired land but also made a construction.
Counsel for the respondent Authority submits that earlier there used to be a scheme for regularisation but operation of the same had been stayed by the Government of U.P. and therefore the benefit of the said scheme for regularisation is not available to the petitioner in as much the operation of the said scheme had been made ineffective by staying the operation of the scheme.
Therefore, viewed from any angle, the possession of the petitioner in the disputed land is only as encroacher and the construction was illegal. He cannot avail any benefit under the scheme or under any statute. Therefore, mere permission to the petitioner to file representation does not confer any right upon the petitioner. From the record it is obvious that the respondent Authority had promptly considered the representation and passed the impugned order. It is further brought to the notice of the court by the learned counsel for the petitioner that the house which has been constructed by the petitioner was already subjected to demolition. Therefore, in a way, the matter does not require any further consideration.
Therefore, we see no reason to interfere in the matter and accordingly the impugned order passed by the Authority does not call for any interference of this Court."
11. It is pointed out that State Government issued orders under Section 41 of U.P. Urban Planning and Development Act 1973 (hereinafter referred to as "Act, 1973") holding that regularisation of land with persons who are in illegal possession is not permissible.
12. Following judgment in Ramadhar Ram Vs. State of U.P. (supra) another judgment was passed on 16.09.2011 dismissing Writ Petition No. 53775 of 2011 (Daya Shankar Tripathi Vs. State of U.P. and others) and we may reproduce the aforesaid order as under:
"Petitioner has contended before us that he is residing in the premises for a period of 30 years and not the encroacher of the land but by the impugned order dated 1.9.2011 the petitioner has been directed to vacate the premises. Though the consideration was made on the basis of the order of the Division Bench dated 10.8.2010 in Writ C No. 47508 of 2007 (Daya Shankar Tripathi Vs. State of U.P. through Secretary Urban and Others) in accordance with the policy of 1990 but there is no whisper about the policy of scheme applicable in 1990 whereas the scheme will be applicable only in 1991.
As against this submission, the respondent authority has cited two judgements of the Division Bench of this Court to establish his case. According to the respondents as per the scheme of 1991, if a person makes self assessment of the property in possession and deposits 1/4th amount of the assessed value within the stipulated time and further deposits the balance in three years in half yearly installments, whenever agreement etc. would be executed, it would be as per the rate prevailing in 1990-91. As because petitioner in the case of Writ C No. 33575 of 2004 (Surendra Singh Yadav Vs. State of U.P. through its Secretary, Local Self Government, Civil Secretariat, Lucknow) was not covered with the same, the writ petition was dismissed on 19.8.2004.
According to the learned counsel appearing for the respondent, meager sum has been deposited and no amount has been deposited thereafter moreover the title of the petitioner is fictitious since the predecessor-in-interest has no title whatsoever in respect of the property in question subsequently.
However, the petitioner has contended that it is not a subsequent scheme of 2005 but according to the respondent, it is not a scheme but proposal of the authority. It has not been approved by the State and even to that extent, the writ petition was dismissed by a Division Bench of this Court in the similar circumstances as available in Writ C No. 53493 of 2006 (Ramadhar Ram Vs. State of U.P. through Secretary (Awas) Planning and Development Department, U.P. Lucknow) being dated 5.10.2006.
Ag against this background, we cannot pass any affirmative order in favour of the petitioner to regularize his land in question. It is advisable that if any irregularity is there in respect of the right title and interest in question petitioner can file appropriate civil suit before the appropriate court or forum to protect his interest immediately. Otherwise writ Court cannot adjudicate such type of issue and finalize the same by giving directions upon the respondents to consider his representation. Therefore, writ petition cannot be admitted and hence it is dismissed without imposing any cost.
In any event, passing of this order will in no way affect the right of the petitioner to approach before the the authority concerned to consider his case independently not on the basis of the observation of this Court."
13. Thereafter again the same issue arose before a Division Bench of this Court consisting of Hon'ble Sunil Ambwani and Hon'ble Pankaj Naqvi, J.J. in Abdul Waheed Vs. Vice-Chairman, Kanpur Development Authority and another 2012 (7) ADJ 133. Therein petitioner sought following reliefs in Writ Petition No. 36258 of 2003:
"(a) To issue a Writ, Order, direction in the nature of mandamus directing the respondents to regularize the house No. 133/165-B, Rattoopurwa, Juhi Khurd, Kanpur Nagar, constructed over plot No. 234-A, Juhi Khurd, Kanpur Nagar, measuring an area of about 760.48 sq. meter, according to the scheme of the Kanpur Development Authority, Kanpur for regularization of plot at latest rate.
(b) To issue a Writ, Order or direction in the nature of mandamus directing the respondents to decide the representation of the petitioner within the time granted by this Hon'ble Court.
(c) To issue any such other suitable writ order or direction as this Hon'ble Court may deem fit and proper under the circumstances of the case.
(d) To award the costs of this writ petition to the petitioner."
14. Petitioners had deposited a token money of Rs. 38,000/- on 18.03.1991, but no further amount thereafter was deposited. After noticing the contentions, this Court held in para-11 to 16 of judgment as under and dismissed the writ petition:
"11. The KDA, with a view to regularise certain unauthorized constructions over the acquired land belonging to either KDA or of Gram Samaj, publicly notified a scheme for regularization on 17.6.1990. A prominent feature of the scheme was that the same was applicable only in relation to such class of persons, who were in unauthorized possession up to 30.4.1990. The benefit of the said scheme was available only in respect to residential plots. The applicants were required to submit applications for regularization up to 15.7.1990, enclosing therewith a token amount depending upon the area in possession with the applicant. Alongwith the aforesaid token deposit, the applicants were also to deposit the scheduled rate plus 10% interest in reference to the location of the plot. The applicants were to deposit 1/4 of the total amount after adjusting the token money deposit before the aforesaid date and the balance amount was to be paid within a period of thirty days from the date of receipt of the demand letter and the remaining 3/4 amount in a period of three years, in six 6 monthly instalments alongwith 15% interest.
12. The scheme was modified on 2.2.1991 wherein it provided that if an applicant, who is in unauthorized possession of the land either belonging to the KDA or to the Gaon Sabha or if it has been declared excess in the urban ceiling or urban zamindari proceedings, then in case the applicant deposits the token amount alongwith scheduled rate of the plot with 10% interest, if 1/4 of the net amount so calculated by the applicant after adjusting the token amount, is deposited with the KDA within the financial year 1990-91 and the balance 3/4 amount is deposited within a period of three years in six 6 monthly instalments alongwith 15% interest, then irrespective of the date of final decision on regularization, the benefit of rates of the year 1990-91 would be available. It further provided that in case the applicant does not deposit 1/4 amount within the current financial year, then the scheduled rates applicable would be such, which are prevalent at the time of decision. The scheme was modified on 31.3.1991 providing the 1/4 amount so calculated by the applicant was to be deposited on or before 31.3.1991, and that on deposit of 1/4 amount the KDA could not be compelled to accept the claim of the applicant.
13. The petitioner had deposited a sum of Rs. 38,000/- on 18.3.1991. The petitioner alleges to have filed an application for regularization on 18.3.1991 itself, but the same has not been annexed by him in any pleadings filed by him.
14. As per the scheme the petitioner was required to deposit a sum of Rs. 2,23,852.95p. after deducting an amount of Rs. 38,000/-, which was already in deposit. The petitioner was required to deposit % of the aforesaid amount of Rs. 2,23,852.95 p., which he did not deposit in accordance with the scheme. The statement of fact in para 8 of the counter-affidavit that the petitioner did not deposit 1/4 amount has not been controverted in the rejoinder affidavit, wherein it is only stated that he had deposited Rs. 38,000/-, as being 1/4 amount of development/betterment charges.
15. There is nothing on record to indicate that after making the 1/4 deposit on 18.3.1991, the petitioner sincerely pursued the matter of regularization with the respondents. The petitioner finally woke up after almost ten years on 31.1.2001, when he is alleged to have submitted a representation requesting the authorities to pass orders on his application for regularization. The petitioner has not complied with conditions in the scheme by failing to depositing 1/4 amount of Rs. 2,23,852.95 p, within the stipulated period and violated the essential term of the scheme. On these facts the KDA was not obliged to pass any orders on the application filed by the petitioner. There was complete inaction on the part of the petitioner in ventilating the said issue for almost eleven years. Now it is too late in the day to ask the respondent-authority to pass orders on the application for regularization filed by the petitioner. The conditions of eligibility and consequences of failure to comply with the same were evident in the scheme.
16. The regularization of unauthorized occupation and constructions made without sanction of building plan is a serious issue of violation of rights of general public. The public land should not be allowed to be usurped by unauthorized persons. As the validity of the same is not questioned before us, we refrain from commenting on the same. The petitioner having committed default in the first deposit itself, is not entitled to claim any relief in equity. The scheme was for a limited duration and once the period has expired, the petitioner in the absence of any provision under the scheme has lost the rights to claim regularization of his occupation and constructions over the plot."
15. In the present case also we find that pursuant to the Scheme which was launched in 1991, petitioners deposited 1/4th amount, but thereafter remaining amount which was to be deposited in three years in installments was not paid at all. Therefore, so far as 1991 Scheme is concerned, no benefit can be claimed by petitioners at all. No further Scheme is shown to exist at this stage in which an encroacher can claim as substantive right confirmation of title by depositing certain amount with KDA and KDA can be forced by issuing a writ of mandamus commanding it to execute freehold deed in faovur of petitioner. Petitioners are claiming mandamus not pursuant to any contract or public offer made by KDA in 2015 when the writ petition was filed. Admittedly, petitioners have no title or right to occupy land in question and they are sheer trespassers. The land belong to public authority like KDA. Petitioners being trespassers are liable for eviction even under provisions of Public Premises (Eviction of Unauthorised Occupants) Act, 1971 (hereinafter referred to as "Act, 1971") in the light of law laid down by Supreme Court in Delhi Development Authority Vs. Anant Raj Agencies Pvt. Ltd. (2016) 11 SCC 406.
16. Writ of mandamus cannot lie unless petitioner is seeking enforcement of any statutory right and respondents have a corresponding statutory obligation in the matter petitioner is seeking enforcement and have failed to discharge their obligation.
17. It is well settled that a writ of mandamus would lie only if the petitioners are enforcing a legal right and the respondents, who are under statutory obligation to do or not to do something, have failed to do so.
18. In Oriental Bank of Commerce Vs. Sunder Lal Jain and another (2008) 2 SCC 280 the Apex Court after referring to its earlier judgments in Bihar Eastern Gangetic Fisherman Cooperative Society Ltd. Vs. Sipahi Singh (1977) 4 SCC 145; Lekhraj Sathramdas Lalvani Vs. N.M. Shah, AIR 1966 SC 334, Dr. Uma Kant Saran Vs. State of Bihar 1993(1) SCC 485 observed as under:
" There is abundant authority in favour of the proposition that a writ of mandamus can be granted only in a case where there is a statutory duty imposed upon the officer concerned and there is a failure on the part of that officer to discharge the statutory obligation."
19. The above exposition of law makes it clear that writ of mandamus cannot be issued on mere asking unless the pre-conditions are satisfied.
20. In the case in hand, learned counsel for the petitioners could not show any such statutory legal duty upon the official respondents corresponding statutory legal right on the petitioners which could be enforced by issuing a writ of mandamus as prayed for by the petitioners.
21. Deprecation of practice of seeking regularisation of illegal and unauthorised occupation of land in the Abdul Waheed Vs. Vice-Chairman, Kanpur Development Authority and another (supra), in our view, is appropriately applicable in this case also and petitioners, who themselves are guilty of trespass, in our view, cannot be allowed an equitable discretionary relief under Article 226.
22. Even otherwise, it is a well established principle of exercise of equitable jurisdiction that a person who seeks equity, must do equity. Admittedly, a person who is trespasser over a land cannot be allowed relief of getting a title and thereby a premium of his own illegal act of trespass. The relief, therefore, prayed for cannot be granted.
23. The writ petition is dismissed with cost, quantified to Rs. 5,000/-.
Dt. 22.05.2018 PS