Allahabad High Court
Executive Committee Maulana Mohamad ... vs State Of U.P. And 6 Others on 25 May, 2023
Author: Surya Prakash Kesarwani
Bench: Surya Prakash Kesarwani
HIGH COURT OF JUDICATURE AT ALLAHABAD ?Neutral Citation No. - 2023:AHC:117455-DB Court No. - 3 Case :- WRIT - C No. - 7022 of 2023 Petitioner :- Executive Committee Maulana Mohamad Ali Jauhar Trust Respondent :- State Of U.P. And 6 Others Counsel for Petitioner :- Imran Ullah,Mohammad Khalid,Sr. Advocate,Vineet Vikram Counsel for Respondent :- CSC Hon'ble Surya Prakash Kesarwani,J.
Hon'ble Anish Kumar Gupta,J.
1. Heard Shri Shashi Nandan, learned Senior Advocate assisted by Shri Kunal Shah, learned counsel for the petitioner, Shri Ajit Kumar Singh, learned Additional Advocate General assisted by Shri Sudhanshu Srivastava, learned Additional Chief Standing Counsel for the State-respondents.
2. Shri Shashi Nandan, learned Senior Counsel for the petitioner submits as under:-
i) No show cause notice or opportunity of hearing was ever afforded by the respondents to the petitioner before passing the impugned order dated 31.01.2023, whereby the decision dated 20.11.2014 to grant lease, certain office memorandums, lease deed and correction lease deed, granting lease of the land and building lease to the petitioner.
ii) The main impugned order dated 31.01.2023 does not contain any reason, therefore, the main impugned order as well as all consequential orders/notices are wholly invalid.
iv) The impugned order suffers from breach of principle of natural justice and therefore, all the impugned orders and the notices deserve to be quashed.
v) Clause 16 of the original sale-deed providing for arbitration is neither applicable in the present controversy, inasmuch as, by the main impugned order dated 31.01.2023, the decision dated 20.11.2014 has been withdrawn and as a consequence thereof, several office memorandum lease deed and correction lease deed have been cancelled. That apart the arbitrator specified under clause 16 is much below the rank of the officer who passed the impugned order. Besides the arbitrator specified cannot be appointed in view of the provision of section 12(5) read with Schedule V of the Arbitration and Conciliation Act, 1996.
vi) No material or document on the basis of which the decision dated 20.11.2014 has been withdrawn or the lease deed has been cancelled, have been supplied to the petitioner. Thus the impugned order has been passed without any opportunity of hearing. The materials on the basis of which, the impugned order has been passed, have not been disclosed nor any violation of terms of lease has been narrated in the impugned order.
vii) Since the impugned order has not been passed on merit and does not contain any reason, therefore, the petitioner is unable to advance his argument on merit because no ground of cancellation emerges from the impugned order.
viii) Impugned order cannot be supplemented by counter affidavit particularly when neither any show cause notice was issued nor the petitioner was confronted with any material nor any opportunity of hearing was afforded before passing the impugned order.
3. Shri Shashi Nandan, learned Senior Advocate has relied upon a judgment of the Hon'ble Supreme Court in Harbanslal Sahnia and another Vs. Indian Oil Corporation Ltd. and others, AIR 2003 Supreme Court 2120. Paragraph (7).
4. While replying, to reliance placed on the judgment of the Hon'ble Supreme Court in the case of Bishambhar Prasad Vs. Arfat Petrochemicals Pvt. Ltd. and others, 2023 SCC OnLine SCC 458 (9) by the Additional Advocate General, he relied upon paragraph nos.35,, 39, 79, 83, 111, 113 (c/ d/ e) to demonstrate that the said judgment is of no help to the respondents as the principles of law laid down in the said judgment are not against the petitioner.
5. Shri Ajit Singh, learned Additional Advocate General submits as under:
i) Since the decision for grant of lease and the lease deed from the very inception were fraudulent act therefore the State Government is well within its authority to withdraw the lease deed and correction lease deed. In this regard, a policy decision dated 28.01.2023 as referred in paragraph no.7 of the counter affidavit was taken by the Cabinet to cancel the lease deed dated 04.02.2015 with all subsequent amendment therefore the action of the respondents is wholly valid and lawful.
ii) No opportunity of hearing was required to be afforded to the petitioner inasmuch as the entire act to grant of lease was void ab-initio and is being based on fraud.
iii) The Chairman of the petitioner society was the Cabinet Minister of Urban Development & Parliamentary Affairs and Minister of Minority Welfare and Waqf Department and as such the decision to grant lease was completely under his influence and was not a conscious decision of the State Government.
iv) The project of Maulana Mohammad Ali Jauhar Training & Research Institute, Rampur was the project of State Government as referred in paragraph nos.8 & 9 of the counter affidavit but under influence it was transferred to a private person i.e. the petitioner without any conscious decision and without any statutory backing. Reference has also been made to paragraph nos. 5 to 8 of the counter affidavit. Since original lease-deed does not contain any clause for running a primary or secondary school, it is only by means of a correction deed that clause 16 was inserted permitting the petitioner to make arrangements for primary and secondary education. The lease rent fixed premium @ Rs.1000 yearly, and rent was fixed at Rs.100 for the land and building without approval of the Cabinet or event without approval of Chief Minister. The Chairman of the petitioner society, who himself was the Minister of the concerned department had granted the approval. Therefore, the entire exercise of fixing rent or premium or grant of lease etc. were all the result of fraudulent acts of the petitioners' Chairman.
v) No opportunity of hearing required to be afforded inasmuch the entire decision including the grant of lease were invalid and void- ab- initio, which is based on record. Reliance is placed in the the judgment of the Hon'ble Supreme Court in the case of Bishambhar Prasad (supra), paragraph nos. 73, 75, 76, 79, 80, 82, 83 and 113(g).
6. No reasons are required to be recorded inasmuch the impugned order is communication of the decision of the Cabinet which discussed the matter and took decision to cancel the lease on the basis of material on record, in fact it cited the report dated 12.12.2019/31.01.2020 (filed as Annexure No.CA10 to the counter affidavit) .
7. The conditions contained in the decision for grant of lease of the property in question, has been summarised in paragraph no.20 of the counter affidavit, which have been violated by the petitioner. He also referred the paragraph no.25 of the counter affidavit with regard to the fixation of the premium and rent.
8. Learned Additional Advocate General has also placed reliance on the following judgments;
i) Institution of Law, Chandigarh and others Vs. Neeraj Sharma and others, (2015)1 SCC 720 (relevant paragraph No.25, 27, 28 and 31).
ii) Moon Tehcnologies Limited (formerly known as Financial Technologies India Limited and others Vs. Union of India and others), (2019)18 SCC 401 ( relevant paragraph Nos.100, 101, 102).
iii) Durgawati Singh and others Vs. Deputy Registrar, Firms, Societies & Chits Lucknow and others), Special Appeal No.497 of 2021 in Writ Petition No.36672 (M/S) of 2018. (Paragraph nos.33-35)
iv) State of Tamil Nadu and another Vs. National South Indian River Interlinking Agriculturist Association, Civil Appeal No.6764 of 2021. (Paragraph No.10)
v) S.K. Associates Vs. State of U.P. and 2 others, Writ-C No.19391 of 2022 (Paragraph No.15)
vi) Sachidanand Pandey and another Vs. State of West Bengal and others, (1987)2 SCC295 ( Paragraph nos.27, 48-52).
9. Judgment reserved.
Order Date :- 25.5.2023 SFH