Allahabad High Court
Smt.Raj Rani Srivastava vs State Of U.P. & Others on 26 September, 2013
Bench: Rajiv Sharma, Vishnu Chandra Gupta
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
AFR
Reserved
High Court of judicature at Allahabad,
Lucknow Bench, Lucknow
Writ Petition No. - 1804 of 1995 (MB)
Smt. Raj Rani Shrivastav, aged about 61 years, wife of Shri G.P. Shrivastav, resident of Shri Nivas, J-22, Saket, New Delhi ..................... Petitioner
Vs.
1.State of U.P., through Chief Secretary, U.P., Lucknow
2.Lucknow Development Authority through its Vice Chairman, 6, J.C. Bose Marg, Lucknow.
3.The Special Nazul Officer, Lucknow Development Authority, 6, J.C. Bose Marg, Lucknow.
4.Sri Jagdish (Agarwal) Gandhi, S/o Phool Chandra Agarwal, resident of 12 Station Road, Lucknow.
5.Smt. Bharti Gandhi, w/o Shri Jadish Gandhi, resident of 12 Station Road, Lucknow.
6.The City Montessori School having its Registered Office, 12, Station Road, Lucknow, through its President.
7.The learned Munsif South, Lucknow.
8.The learned Civil Judge, Malihabad, Lucknow.
9.The Commissioner Lucknow Division & Chairman, L.D.A. Commissioner House, Lucknow.
10.Shri Atul K. Gupta, I.A.S, Commissioner & Chairman, L.D.A., Commissioners House, Lucknow.
....................... Opposite parties
Counsel for petitioner :-Sri Sanjay Srivastava, Sri Anuj Kudesia, Sri S.K.Banerjee, Sri Surendra Singh, Sri Vishal Singh.
Counsel for opposite parties:- C.S.C., Sri Alok Sinha, Sri Ashish Shukla, Sri G.P.Singh Chauhan, Sri K.B.Sinha, Smt. Kirti Srivastava, Sri P.K.Sinha, Sri R.K. Singh, Sri Rajesh Singh Chauhan, Sri S.L. Vaish, Sri S.Vidyarthi, Sri Shailendra Singh Chauhan, Sri U.Chandra, Sri Virendra Misra.
Hon'ble Rajiv Sharma, J.
Hon'ble Vishnu Chandra Gupta, J.
(Delivered by Hon'ble Vishnu Chandra Gupta, J.) Judgement
1.The original petitioner Raj Rani Srivastava filed this writ petition, who died during the pendency of the same on 14.9.2004 and her legal heirs G.P. Srivastava, Anand Srivastava, Visheshwar Srivastava, Umeshwar Srivastava and Sarveshwar Srivastava were substituted on 28.01.2005 by the order of this Court.
2.This petition has been filed for the following reliefs;
(a) To call for the record of the case including those of respondents 1 to 3 and 7 and 8.
(b) to enforce the petitioner's lease hold rights in the appurtenant garden land developed by petitioner as a garden from a pond and contiguous/forming part of only one property A-91 (Faizabad Road) as delineated in the zonel Plan for converting into freehold as per the rates specified for residential area;
(c) to prohibit the respondents 2-3 from auctioning any part of the property A-91, Faizabad Road including the garden land.
(d) to quash the proceedings before opposite party No.7 in R.S. 64/1992, R.S.-138 of 1993 and before opposite party No.8 in Suit No. R.S. 173 of 1994 and vacate all the interim orders passed therein;
(e) to prohibit running of a High School at A-91, Faizabad Road, Mahanagar, Lucknow which shall be in violation of the provisions of U.P. Intermediate Education Act and U.P. Education Code;
(f) to direct the enforcement and strict compliance of G.O. No. 1773/9-AA-1-1995 dated 18.05.1995 (Annexure-16 hereto) without any discrimination in favour of respondents 4 to 6.
(g) to direct the enforcement of the Rules and bye laws and take action in accordance with law and initiate prosecution and punish the person/persons who made the constructions and encroachments on the property without any authority;
(h) Award exemplary and deterrent costs on respondents and such other officials who are found to be either have connived or have neglected or favoured in the violation of the law and bye laws;
(i) to direct the compliance of the undertaking given to H.E. the Governor in the letter of respondents 5 and 6 dated....../1993 (Annexure-15 hereto)
(j) grant a writ of certiorari or any other writ in the nature of certiorari quashing G.O. Nos.48-/9-Aa-96-39N/91 dated 12.01.1996 and all other G.Os. empowering respondents 1 to 3 to enter into the purported agreement dated 12.01.1996.
(k) grant a writ of mandamus or any other writ in the nature of mandamus directing respondents 1 to 3 not to give effect to the purported agreement dated 12.01.1996.
(l) grant a writ of mandamus or any other writ in the nature of mandamus directing respondents 1 to 3 not to transfer the possession of the garden land situate at A-91, Faizabad Road, Lucknow-6 to respondents 4 to 6 or create any third party rights in the said land till the disposal of the petition by way of an interim order,
(m) to grant such other further and or ancillary relief to which the petitioner may be deemed entitled to;
3.Earlier to this petition the petitioner had filed one writ petition having No. 1402(MS) of 1995 aggrieved with the order of accepting the tender bid of opposite party No.6, City Montessori School (for short 'CMS') in open auction of the garden land 91A/B754 in pursuance of the auction notice issued, but later on the writ petition was withdrawn in terms of order dated 14.07.1995. The present writ petition has been filed during the earlier petition for relief (a), (d), (g), (h), (i) and (m). Later on the writ petition was amended vide order dated 27.10.1995 and relief (b), (c), (e) and (f) were added with consequential amendment. The writ petition was further amended vide order of the court dated 16.04.1999 and relief (j) (k) and (l) were added with consequential amendment in the petition.
4.The petition was contested by the opposite parties 1, 2 and 3, the State of U.P, Lucknow Development Authority (for Short 'LDA') and Special Nazul Officer respectively. The petition was also contested by opposite parties 4, 5 and 6 , Sri Jagdish (Agarawal) Gandhi, his wife Smt. Bharti Gandhi and City Montessori School which is being managed by respondents 4 and 5.
5.The opposite parties filed their counter affidavits. The opposite parties also filed supplementary counter affidavits. The opposite parties 4 to 6 moved an application for transposition in place of the petitioner. In the present petition, the petitioner also filed an application under section 151 CPC read with Articles 226 and 227 of Constitution of India. Pleadings were already exchanged between the parties. The parties also filed their written submissions.
6.The facts, in brief, as per the pleadings of parties are that original petitioner Smt. Raj Rani Srivastava was allotted a plot having No. A-91 area of 11625 Sq. Ft. situated in Mahanagar, under residential scheme Faizabad Road, Lucknow, on the basis of hire purchase lease for 90 years w.e.f. 1.12.1958 with provision of automatic renewal on completion of every 30 years for two times on 50% enhanced rent vide registered lease-deed dated 8.7.1960 (Annexure N. 1 to the writ petition). A built up house on aforesaid plot no. A-91 also let out to her by lessor through another lease-deed dated 6.8.1960 (Annexure No. 2 to the writ petition) for 30 years. One more lease-deed was executed in favour of petitioner for a plot of garden land measuring 4819 Sq.Ft. for a period of seven years (Annexure No. 3 to this petition and Annexure CA-1 to the counter affidavit of opposite parties 4 to 6). All these deeds were executed in favour of petitioner Smt. Raj Rani Srivastava by the LDA, the opposite party no.2 .
7.The petitioner shifted to Delhi in 1961 as her husband was transferred to Delhi. The petitioner let out the aforesaid three properties in July, 1962 to opposite party no. 4 Jagdish (Agarwal) Gandhi on rent. The opposite party no. 4 constructed a school thereon within a period of one and half year. According to the petitioner, the construction was done after encroaching upon other land with connivance of opposite party no. 2.
8.The petitioner filed a suit for eviction of opposite party no. 4 having Regular Suit No. 73 of 1969 on the ground of default in payment of rent and also causing material alteration in the building. The suit was decreed by Civil Judge (Malihabad), Lucknow. Opposite party no.4 filed appeal before District Judge, which was dismissed. Against order of eviction and dismissal of appeal second appeal has been filed before this Court. This court vide its order dated 21.2.1975 (Annexure CA-II to counter affidavit of opposite parties 4 to 6) allowed the second appeal and set aside the decree of ejectment and remanded the matter with direction to the trial court to decide it afresh. The suit was dismissed for want of prosecution after its remand by the Civil Judge, Malihabad, Lucknow on 23.9.1977. The petitioner filed a restoration application having Misc. Case No. 151 of 1977 which was allowed by the Civil Judge, Malihabad, Lucknow by its order dated 5.1.1981. Opposite party no. 4 and Principal of school filed Civil Revision No. 95 of 1981 before District Judge against the order dated 5.1.1981. This revision was allowed vide order dated 5.8.1982 (Annexure CA III) and the order of dismissal of suit was maintained. Petitioner filed a writ petition having writ petition no. 3121 of 1983 against the order passed in revision. This writ petition is alleged to be pending before this court.
9.The opposite parties 4 to 6 moved an application for transposition under Order 22 Rule 10 read with section 151 CPC in the aforesaid Suit No. 73 of 1969 on the ground that opposite party no.4 and petitioner entered into a compromise vide compromise deed dated 31.01.2002 which was accepted by the court vide order dated 11.2.2002 and a compromise degree has been passed in the suit. According to this compromise, the petitioner relinquished all rights in the property in dispute including all other properties for consideration of Rs. 65,00,000/-(Sixty Lacs). In pursuance of the compromise, the petitioner received a sum of Rs. 13,00,000/- but later on started avoiding the terms of compromise. The opposite party No.4 was compelled to file an Execution Petition having No. 13 of 2003, which is still pending.
10.In year 1979, husband of petitioner was again posted in Lucknow, but the bungalow was not vacant as the same was in occupation of the opposite party no. 4, thus, husband of petitioner and petitioner herself remained in a rented house and again shifted to Delhi in 1983.
11.The petitioner when shifted to Delhi, the opposite party no. 4 unsuccessfully tried to mortgaged the property 91A with bank to take financial assistant for construction. The opposite party no., 4 demolished the servant block and also raised construction over garden land. Lucknow Development Authority (for short 'LDA') issued notice to opposite party no. 4 for demolition. When the notice was not replied by opposite party no. 4, an ex parte order for demolition was passed on 21.12.1987 by LDA.
12.In year 1988, the petitioner applied for renewal of lease. The petitioner also moved an application for approval of Map for construction of Ist floor over bungalow situate in plot No.91-A. The LDA also issued another notice to petitioner for making illegal construction over the leased property. LDA declined the renewal of lease as well as refused to approve the map for construction. The LDA passed order of demolition vide its order dated 7.5.1988 against petitioner. The petitioner gave in writing that she has no objection if illegal construction is removed and demolished. The petitioner filed a writ petition No. 4008 of 1991 (M/B) for issuing mandamus against LDA/Prescribed Authority to decide the matter of renewal of lease expeditiously and further to pass an order on the application of sanction of map submitted by the petitioner in 1988. This writ petition was disposed off vide order dated 7.12.1991 (Annexure no. 6 to the petition) directing the Prescribed Authority to decide the matter within one month and also to decide the application for sanction of Map of petitioner within one month from the date of receipt of order. This court on 18.2.1992 recalled the order dated 7.12.1991 passed in writ petition No. 4008 (M/B) of 1991. This Court passed another order dated 18.2.1992 (Annexure No.7) directing the LDA to decide the application of petitioner pending for sanction of map for construction within one month and also to decide the renewal of lease within six weeks. This order has been challenged by the petitioner in SLP before Apex Court. However, Authority vide its order dated 4.8.1992 (Annexure No. 9) rejected the application for approval of map. The proposal/application for renewal of lease was already rejected by LDA vide its order dated 1.2.1990 which was again communicated to the petitioner vide letter dated 4.8.1992 (Annexure No. 9). By the order dated 04.08.1992, the request of renewal made by the petitioner in respect of lease hold property having plot No.91A area 11625 Sq Ft. was refused alongwith the request of sanction of the construction plan submitted by the petitioner. However, these orders declining the request of renewal of lease hold property of the petitioner and refusal of sanction of map were not challenged by the petitioner and the same were allowed to become final. However, indirect relief (b) inserted in the petition subsequently without seeking relief of setting aside the order dated 1.2.1990 which was again communicated by the letter dated 4.8.1992.
13.It is also pertinent to mention here that the application given by the petitioner for free hold (Annexure 13 to this petition) was not in respect of Garden land having Plot No.91A/B754 as is evident from the application moved by the petitioner from making the plot No.91A free hold.
14.After 04.08.1992 the opposite parties 4 to 6 filed another suit having Regular Suit No. 138 of 1993 impleading therein Nagar Mahaplika and sought injunction from demolishing the property in question. An interim order dated 19.03.1993 (Annexure CA-VI to the counter affidavit of opposite parties 4 to 6) was passed against Nagar Mahaplika restraining the demolition of alleged construction.
15.The opposite parties 4 to 6 filed appeal against the orders of demolition passed on 21.12.1987 and 7.5.1988 before Commissioner/Chairman, LDA. This appeal was decided vide order dated 24.7.1989 (Annexure CA IV) whereby the order of demolition was set aside and the matter was remanded back to the Prescribed Authority to decide the controversy afresh.
16.However the opposite parties 4 to 6 filed a revision against the order of Commissioner/Appellate Authority dated 24.07.1989 before State Government. The State Government dismissed the revision vide order dated 14.08.1991/05.09.1991. The opposite party no. 5, Smt Bharti Gandhi filed a writ petition No. 99/1992 (M/B) against the order passed by Prescribe Authority, Appellate Authority and State Government. Another writ petition was also filed by opposite party no.4, Jagdish (Agarwal) Gandhi challenging the aforesaid orders. It was alleged that both writ petitions are pending disposal before this court.
17.In pursuance of order of Commissioner a fresh notice was issued by the Prescribed Authority and Prescribed Authority passed the order of demolition vide its order dated 7.12.1991.
18.The opposite parties 4 to 6 filed another Civil Suit in the court of Munsif South, Lucknow having Regular Suit No.64 of 1992 on the basis of apprehension of demolition of school and got injunction order dated 7.2.1992 (Annexure CA-V to counter affidavit of opposite parties 4 to 6).
19. The State Government decided to auction certain land including the Garden land in question having No.91A/B 754 and published an auction notice on 24.11.1994 in pursuance of G.O. Dated 3.10.1994. CMS submitted a tender in this auction by tender bid dated 13.12.1994 of Rs. 15,68, 902.50. However, this auction was cancelled on the ground that land use of garden land was changed from residential to commercial and fresh notice of auction was published on 20.12.1994.
20.The opposite party No.6 ,CMS aggrieved with the action of cancelling the auction, issued fresh notice of auction and against change of land use filed a writ petition No.11(MB) of 1995. In this writ petition the court vide order dated 09.01.1995 issued notice to the opposite parties as no interim order was passed staying the fresh auction, but permitting the petitioner (CMS) to participate in fresh auction proceedings. The opposite party no.6 participated in this auction and submitted a tender bid of Rs. 23,53,353.75. This tender bid was relating to garden land 91A/B754. Being the highest bidder the offer was accepted by LDA vide order dated 12.11996. An agreement to this effect was also entered in between the opposite party no.6 and LDA. In this agreement facility of instalment was allowed to opposite party No.6 vide resolution of Board of LDA dated 13.05.1995, copy of which is annexed as Annexure A-II with 2nd Supplementary counter affidavit filed on behalf of O.P. No.4 to 6.
21.It is important to mention here that neither in the first auction or in the second auction petitioner participated in auction proceedings nor submitted any tender bid.
22.The petitioner vide first amendment in petition adding relief clause (c) vide order dated 27.10.1995 whereby the petitioner sought writ of prohibition against the opposite party from auctioning the garden land No.91/A/B 754. Though by that time, the tender bid of opposite party no.6 was already accepted being the highest bid. Later on vide amendment dated 16.04.1999 relief (j) challenging the auction finalization in favour of opposite party no. 6 vide order dated 12.01.1996 was added.
23.During pendency of this writ petition, the petitioner filed another writ petition having No.5031 (M/B) of 2012 during summer vacation which was decided on 21.06.2012. In this writ petition the petitioner alleged that illegal construction has been raised by opposite parties 4 to 6 taking the advantage of vacation on the garden land by the opposite parties 4 to 6. The court vide its order dated 21.06.2012 decided the petition finally issuing direction to the Vice Chairman of LDA to look into the matter of illegal construction and to take appropriate action.
24.After disposal of this petition, the petitioner moved application having application No.63432 of 2012 seeking relief under Articles 226 and 227 of Constitution of India read with Section 151 CPC for issuing direction to Vice-Chairman of LDA to carry out "Kam Roko" and demolition notice forthwith and to submit action taken report in the matter. It was further prayed that Vice Chairman of LDA be directed to explain his act of omission and commission tantamount to contempt of court. The objections were filed by opposite parties 4 to 6 to this application.
25.The application for transposition moved by the opposite parties 4 to 6 was also contested by the petitioner and filed counter affidavit in respect thereof. From perusal of compromise filed in suit No. 73 of 1969 on 31.01.2002 a compromise decree has been passed by the court after recording the statement on oath of the petitioner No.1/1 Sri G.P. Srivastava. According to the compromise, the petitioner agreed to sell her interest in property No. 91A and the building constructed over it including garden land for a sale consideration of Rs.65,00,000/- in favour of opposite party no.4. A sum of Rs. 4,00,000/- and Rs. 9,00,000/- vide bank drafts dated 08.02.2002 and 27.03.2002 was paid to petitioner on 13th February, 2002 and on 30th February, 2002 respectively. Apart from the aforesaid amount of Rs. 13,00,000/- a sum of Rs. 7,03,314/- was deposited by bank draft dated 12.06.2002 issued in the name of Smt. Raj Rani, the petitioner by opposite party no. 4 in part performance of the aforesaid agreement for getting the plot No. A-91 having area 11625 sq. ft. freehold. However Sri G.P.Srivastava petitioner No.1/1 issued notice of demand of the rest amount under agreement of Rs. 52,00,000/- apart from the amount of Rs.5,60,000/- for making the property free hold on the ground of change of land use as commercial, the entire rent commencing from September, 1972 to January 1983 and further asked for withdrawal of all cases pending against the petitioner in different courts. The notice was replied by Sri Jagdish (Agarwal) Gandhi and stated that the case will be withdrawn only after execution of the sale deed in terms of the agreement. When the objection persisted on behalf of the petitioner an application for execution of decree has been filed in the court by opposite party no.4, in which objection under Section 47 CPC was filed by the petitioner of this writ petition. The matter said to have been pending in the civil court. However after compromise the property plot no. 91A having area 11625 sq.ft. has now been converted into free hold property by deed dated 31.03.2003 in favour of petitioner as is evident from the supplementary counter affidavit dated 21.03.2007 filed by opposite party No.2 and 3 as Annexure SCA-1.
26.From the perusal of the record it reveals that the record of writ petition No.1200 (MB) of 1992 filed by Jagdish (Agarwal) Gandhi, Manager of CMS against State of U.P., Prescribed Authority, Lucknow Development Authority and the petitioner Smt. Raj Rani against show cause notice 29.02.1992 issued by LDA was dismissed as infructuous vide order dated 24.04.2008.
27.The another writ petition which also available with this petition having writ petition No.11(MB) of 1995 filed by CMS against State of U.P. ,Vice-Chairman LDA, Secretary LDA, and Joint Secretary, Nazul Department on 03.01.1995 seeking relief of quashing the notice inviting fresh tender dated 31.12.1994 and issued mandamus not to change the zone development plan in respect of garden land in question to commercial and further request to issue mandamus to opposite parties to accept the tender bid of petitioner dated 13.12.1993 submitted to opposite parties on 26.12.1993 and to complete the formalities of land on concessional rate. This writ petition was also dismissed in non-prosecution vide order dated 20.05.1999.
28. So far as the writ petition No.4008 of 1995 (M/B) is concerned, it has been finally decided vide order dated 18.02.1992 as stated above.
29.The opposite parties 2 and 3 supported the case of opposite parties 4 to 6. so far as it relates to auction proceeding and finalization of the auction in favour of opposite party No.6 vide order dated 12.01.1996 and asked for dismissal of writ petition.
30.The opposite parties 4 to 6 also sought dismissal of the writ petition on the following grounds:-
(i) petitioner has not participated in auction proceedings and as such has no locus to challenge the auction proceedings.
(ii) The right of petitioner in respect of garden land was limited. The lease hold right was given only for 7 years without any clause of renewal. Hence the same finally comes to an end on 15.11.1966. The rights of petitioner, if any, were extinguished.
(iii) That on the ground of compromise arrived at in R.S. No. 73 of 1969 and the compromise decree passed therein ,whatever rights the petitioner was possessing in the properties having plot No.91A and bungalow built thereon were come to an end and right to sue does not survive in the present writ petition. Consequentially the application moved for transposition by opposite parties 4 to 6 in place of petitioner deserved to be allowed.
(iv) That the orders passed in different civil suit pending in between the parties cannot be challenged in the present writ petition as efficacious and effective alternative remedy by way of appeal or revision etc. is available to the petitioner.
31.The parties filed written submissions and also advance oral arguments.
32.We have heard at length the learned counsel for the opposite parties and the petitioner G.P. Srivastava in person for himself and on behalf of other petitioner being power of attorney holder. We have also gone through the record of the case with the help of the counsel for the opposite party and petitioner Sri G.P.Srivastava .
33.From the fact mentioned above the status of civil suit pending appears to be as follows:-
34.Suit No. 73 of 1969 which was initially decreed, but in second appeal the order of enactment was set aside and matter was sent back for deciding afresh vide order dated 21.02.1975 passed in Second Appeal No. 46 of 1973. The suit was dismissed in non-prosecution. Against that order, restoration application was moved by the plaintiff/ petitioner and the suit was restored but the order of restoration of suit was challenged by opposite party no. 4. He filed revision No.95 of 1981 and the order was set aside in this revision. Against the order of dismissal of restoration application the petitioner filed writ petition but status of that writ petition has not been brought on record by the petitioner. In the suit compromise has been arrived at as stated herein above in between the parties to suit and the suit was finally disposed of in terms of compromise and it is alleged that an execution application 13 of 2003 is pending before the Civil Court.
35.So far as three suits filed by opposite parties 4 to 6 having suit No.64/1992, against the petitioner Smt. Raj Rani, her husband G.P. Srivastava, LDA, Prescribed Authority and Bharti Gandhi said to have been pending wherein an interim order dated 7.02.1992 was passed staying the demolition over the disputed property.
36.Another suit having No. 138 of 1993 filed against Municipal Corporation, Lucknow was also said to have been pending, in which an interim order dated 19.03.1993 has been passed staying the demolition of the disputed property.
37.Another suit No.173 of 1993 filed by opposite party No.4 to 6 against the petitioner, her husband and LDA, in which the interim order was passed on 06.04.1994 was also said to have been pending.
38.In view of the above, no other writ petition is pending before this Court except the present writ petition . Apart from this writ petition, the civil suits are pending wherein the relief sought was of restraining the defendants from demolishing the property in dispute .
39.It is not in dispute that prayer for renewal of lease in respect of plot No. 91A measuring 11625 sq. ft. has been rejected by L.D.A. under communication to the petitioner vide Annexure 10 to the writ petition. It is also not in dispute that property 91A having area 11625 sq.ft. has now been converted into free hold property by deed dated 31.03.2003 in favour of petitioner as is evident from the supplementary counter affidavit dated 21.03.2007 filed by opposite parties 2 and 3 as Annexure SCA-1 which probably taken place in pursuance of the amount deposited in terms of the compromise arrived at in between the parties.
40.This fact is also not in dispute that three properties; namely; plot No. 91A, the built up house over plot No.91A and the garden land plot No.91/B 754 are three distinct properties which were leased out to the petitioner by three different documents. plot No.91A measuring 11,625Sq.ft. was initially allotted for 30 years with two renewal of 30 years each which later on converted into free hold property by deed dated 31.03.2001 in favour of petitioner. The second property is constructed house over plot No.91A having bungalow No.1 known as bungalow has been leased out to the petitioner for a period of 30 years but the petitioner got the sale deed of bungalow by depositing the entire amount in advance for getting the sale-deed executed ,as is evident from Annexure 5 which was executed on 28.01.1978.
41.The third property is garden land of 4819 sq. ft. was for the period of 7 years with no clause of renewal. This plot was auctioned and ultimately purchased by CMS by an agreement dated 12.01.1996 in open auction by sealed tender.
42.All the aforesaid three properties were let out by the petitioner to the opposite party No.4 on rent to run a school when petitioner was shifting to Delhi in 1961. The actual and physical possession of properties to opposite party No.4 was handed over. The opposite parties 4 to 6 also raised certain construction to meet the need of the school. A civil suit has been filed having Regular Suit No. 73 of 1969 for eviction on the ground of material alteration and default which was ultimately dismissed in non-prosecution. A writ petition has been filed in regard to that by the petitioner having writ petition No. 3121 of 1983, is said to have been pending. During pendency of this writ petition, the parties entered into compromise in the aforesaid suit and the suit was decided in terms of compromise in year 2002 by a compromise decree. Compromise decree is under execution proceedings having execution No. 13 of 2003. The fact of entering into compromise resulted into extinguishment of the right in the property for a consideration of Rs. 65,00,000/- is not in dispute. It is a fact that all properties in question are in actual physical possession of opposite parties 4 to 6.
43.According to the petitioner, the matter is still under execution and yet not final, hence, the compromise becomes inoperative. It was also submitted by the petitioner (in person) that the plot No. 91A has become free hold property, hence the right has not yet vested in opposite party no. 4. As the matter is pending in executing court, hence the transposition application cannot be allowed.
44.The petitioner has further contended that the auction settled in favour of opposite party No. 6 in respect of garden land is not enforceable because there is no provision in the scheme to deposit the amount of tender bid in instalment. It was further submitted that the auction bid is not liable to be accepted because the opposite party No. 6 has misused the property by raising illegal permanent construction for running the school which was meant for garden purpose.
45.On the contrary, the counsel for opposite parties submitted that the petitioner has no locus to challenge the auction proceeding, which has been finally settled in favour of opposite parties 4 to 6 by executing an agreement in their favour after accepting the tender bid being highest one. It is a matter between the LDA/Nazul department on one side and opposite party No.4 to 6 , the other side. The LDA/Nazul department is not disputing the correctness of the auction proceeding, hence the petitioner has no right to challenge the same on any of the ground. It was further submitted by counsel for the opposite parties that the auction bid was relating to garden land, the lease of which has already been expired and the petitioner had lost the rights in that property. It cannot be said that the garden land is land appurtenant to the house and part and parcel of bungalow built on plot No.91A. Moreover, the right of easement or other rights cannot be decided in this writ petition and the appropriate forum for this is civil court.
46.It was further contended by learned counsel for the opposite parties that so far as alleged constructions, in respect of which the civil suits are pending in the civil courts, the demolition proceeding initiated by LDA was subject matter of dispute in the civil suits and demolition is stayed of alleged construction. Therefore, no relief can be sought by the petitioner in respect of alleged construction raised over the property in dispute.
47.It is submitted that so far as constructions alleged to be raised in year 2012 during summer vacation are concerned, the notice has been issued on the false allegation. The petitioner was instrumental in getting the proceeding initiated by LDA/Nazul department against the opposite parties,which are subject to legal process. This Court while dealing with the specific dispute relating to this writ is not supposed to pass any order in respect of alleged constructions over the property in dispute in which the petitioners admittedly have lost their right. In view of the above, the petition deserves to be dismissed.
48.As per contention of learned counsel for the opposite parties 4 to 6, the petitioners have lost their interest in the properties in question and in respect of which compromise decree has been passed, hence their application for transposition in this writ petition is liable to be allowed as the interest of petitioners in the disputed property stands merged in the interest of opposite part no. 4. by virtue of compromise decree.
49.On the basis of pleadings and submissions of the parties following issue are necessary to be decided for deciding this petition.
(i) Whether the petitioners have any right to challenge the auction proceedings in which on the basis of highest bid of opposite party No. 6 the rights over the garden land has been settled in favour of CMS?
(ii) Whether the petitioners are entitled to seek a relief of quashing the proceeding of Regular Suit No. 63 of 1992, Regular Suit No. 138 of 1993 and Regular Suit No. 173 of 1994?
(iii) Whether the petitioners have any right to seek mandamus against opposite party No.2 and 3 for demolition of so called construction raised by opposite party Nos.4 to 6?
Point No.1
50. The petitioner relied upon a judgement of the Apex Court report in Khela Banerjee Vs. City Montessori School and Ors.,2012 (7) SCC 261. It was also a case in which City Montessori School purchased the land belonging to LDA and under lease to one Mani Mohan Banerjee. This was in respect of plot No.92A/C which was also a garden land. This auction was also conducted in pursuance of the same advertisement which is subject matter of this writ petition. The Apex Court in peculiar fact of the case found that the facility of instalment has been extended to the school under the garb of the orders passed by His Excellency, the Governor of Uttar Pradesh and despite of that the instalments so fixed were also not deposited by the Manager of City Montessori School,Sri Jagdish Gandhi opposite party No.1 under the agreement dated 1st February, 1996 but LDA instead of cancelling the plot in default of payment of the instalments and to re-auction the same did not take any action against the school. The Supreme Court further observed that making the plot freehold in pursuance of the court's order passed on the application of legal heir of Mr. Banerjee for a paltry amount of Rs. 1,95,939/- as against market price of Rs. 2 crore cannot be allowed to sustain and ultimately the decision rendered by the Division Bench of this Court extending the concession to the school in the light of Right to Eduction Act, 2009 permitting the school to purchase the property on the existing market price was set aside along with the decision of making the land freehold in favour of legal heirs of Mr. Banarjee, and ordered to re-auction the property by open public auction keeping in view the proposition of law laid down by the Apex Court in Akhil Bartiya Upbhokta Congress Vs. State of M.P. [2011(5) SCC 29] in paras 65 and 66. The relevant paragraphs no.30 and 40 of the judgement are quoted below;
"30. It is significant to note that the agreement dated 12-1-1996 contained an unequivocal stipulation that if opposite party 1 fails to pay the instalments of balance price within the prescribed time-limit then the agreement would become void and LDA will be free to sell the plot to any other person. Admittedly, opposite party 1 did not pay the instalments of balance price. Therefore,the agreement stood automatically terminated and LDA became entitled to dispose of the plot by adopting an appropriate mechanism consistent with the doctrine of equality enshrined in Article 14 of the Constitution. It is rather intriguing as to why the functionaries of LDA remained silent for more than 13 years and did not repossess the plot in question. This was perhaps due to the pressure brought by the Manager of opposite party 1 from different quarters, administrative as well as political."
"40. opposite party1 is directed to hand over possession of Plot No. 92-A/C to the Vice-Chairman, LDA within a period of 15 days. If the appellants have managed to take possession of the plot then they shall surrender the plot to the Vice-Chairman, LDA within 15 days. Thereafter, LDA shall dispose of the plot by public auction keeping in view the propositions laid down by this Court in Akhil Bhartiya Upbhokta Congress v. State of M.P.(2011) 5 SCC 29 (paras 65 and 66). It is needless to say that opposite party1 shall be free to participate in the auction which may be conducted by LDA in compliance with this order. The appellants shall be free to withdraw the amount deposited for conversion of Plot No. 92-A/C."
51. On the strength of this authority, it has been submitted by the petitioners that the Apex Court found that the facility of instalments granted was against the norms, deemed to have been granted without any basis and illegal hence, the agreement entered into on 1st February, 1996 would be inoperative and no right would be created in favour of School (CMS).
52. We have considered the fact of this case keeping in view the fact in Khela Banerjee's case (supra). we find that on fact the petitioners would not entitled to any benefit of the aforesaid authority. The Apex Court in para 28 looked into the matter relating to plot No.92A connected with Smt. Rajrani Srivastava (petitioner of this case) in the light of pleadings of writ petition No.11 of 1995. Para 28 of the judgement is quoted herein below;
"28. Before dealing with the respective arguments, we consider it necessary to mention that even though the prayer made in Writ Petition No. 11 of 1995 gives an impression that opposite party1 was claiming relief in respect of plots for which tender notice was issued on 24-11-1994, the contents of Paras 15 to 34 thereof clearly show that opposite party1 was really claiming Plot No. 92-A, Faizabad Road, Mahanagar, Lucknow of which lease was granted to Smt Rajrani Srivastava sometime in 1958. We may also mention that the will executed by Shri Banerjee in favour of the appellants was only in respect of Plot No. 92-A."
53. It is not the case of either of the parties that opposite party No.6 CMS has committed default in making payment of the instalment under the agreement. Therefore, the proceedings which have been finalised on the basis of public auction cannot be set at rest. In Khela Banerjee' case (supra) the Apex Court held in para 37, which is quoted herein below;
"37. It is not in dispute that the term of the garden lease had ended on 31.7.1968 and the same was not extended by the competent authority. Therefore, in view of the stipulations contained in lease deed dated 29.1.1964, he was bound to hand over the plot to the Government. However, Shri Banerjee continued to unauthorisedly occupy the plot till its disposal by LDA in 1994 by inviting bids. Although, opposite partyNo.1 also failed to abide by the terms of agreement dated 12.1.1996, Shri Banerjee was not entitled to take benefit of order dated 17.2.1996 and seek conversion of leasehold rights into freehold because LDA had already accepted the bid given by opposite partyNo.1 and delivered possession of the plot to Shri Jagdish Gandhi."
54. In view of the above, the claim of the petitioner to challenge the agreement dated 12.1.1996 in favour of CMS based on highest bid in open auction cannot be allowed. The reliefs (b),(c),(j),(k)and(l) claimed in this regard deserve to be dismissed.
Point No.2
55. Civil suit No.73 of 1969 has already decided on the basis of compromise and execution proceedings are pending in the light of compromise decree as stated in forgoing paragraphs No.8,9 and 34 of this judgement.
56. Other three civil suits having No. 64 of 1992, 138 of 1992 and 173 of 1993 are still pending as discussed in paragraphs 35,36 and 37 of this judgement. The petitioners have efficacious and effective alternative remedy in regard to proceedings pending in different civil Courts by way of filing the revision, appeal etc. It has not been shown that these suits were entertained by the subordinate courts without jurisdiction or these suits are not legally maintainable on account of any legal impediment or any statutory bar. In exercise of jurisdiction under Article 226 or 227 this court should not normally interfere in the proceedings of legally instituted civil suit before subordinate courts within the purview of section 9 of CPC. Therefore, relief (d) claimed by petitioners cannot be allowed.
Point No.3
57. In view of undisputed facts narrated in forgoing paragraphs of this judgement, the petitioners by entering into compromise with opposite party No.4 in suit No,73 of 1969,had already relinquished rights in properties including garden land which was subject matter of tenancy. Moreover, in respect of garden land the rights of opposite party no.6 has already settled as held under point No.1. It was further held therein that the petitioner have no right to challenge such rights of the opposite party no. 6.
58. Once rights of petitioners are extinguished or the same are relinquished by the petitioner herself she cannot seek any mandamus against opposite parties 2 and 3 for enforcing the compliance of its order against opposite parties 4 to 6 about demolition of alleged illegal constructions, specially when the action taken by opposite parties 2 and 3 were stayed by the competent courts. The relief so sought by the petitioners shows his attitude to harass the opposite parties 4 to 6 on account of despair in lis.
59. Moreover, the authorities are not showing that they are not taking any action against the misdeed of opposite parties 4 to 6, as is evident from the kam-roko notice annexed with application moved by the petitioner under section 151 CPC read with Articles 226/227 of Constitution of India. This Court in writ petition No.5031 of 2012 (M/B) has already issued directions to Vice Chairman of LDA to look into the matter of alleged illegal constructions vide order dated21.06.2012.
60. In the present writ it is not the case of petitioner that alleged constructions are causing public nuisance. Hence on this ground too the petitioner cannot seek mandamus against opposite parties 2 and 3 as claimed in the petition in relief(e),(f),(g),(h),(i) and (m). This is also an impediment in granting the above relief to the petitioner.
61. All the interim applications moved by parties seeking interim relief stand dismissed. The application moved by opposite parties 3 to 6 for transposition is dismissed in the light of facts of this case.
62. In view of the facts and circumstances of this case and discussion made above, we are of the firm view that this petition sans merit.
63. Hence, this petition is dismissed. Costs easy.
GSY/Ajay Dt: 26th September, 2013