HIGH COURT OF JUDICATURE AT ALLAHABAD AFR Court No. - 9 Case :- WRIT - C No. - 46499 of 2015 Petitioner :- Shahadat Hussin And 2 Others Respondent :- State Of U.P. And 5 Others Counsel for Petitioner :- H.P. Srivastava Counsel for Respondent :- C.S.C.,Vishnu Gupta Hon'ble Arun Tandon,J.
Hon'ble Shashi Kant,J.
Heard counsel for the parties.
Notice on behalf of respondents no.1, 2 and 3 have been accepted by learned Standing Counsel. Respondent no.4 is represented by Sri Shashi Nandan, Senior Advocate, assisted by Sri Vishnu Gupta, Advocate, who has also filed a short counter affidavit, which is taken on record.
Issue notice to respondents no.5, 6 and 7 fixing 28th September, 2015 as the date. Steps be taken by speed post within three days.
List this matter on 28th September, 2015.
All the respondents may file counter affidavit by that date.
It is made clear that the writ petition itself may be decided on the next date, if possible.
This petition has been nominated to the Bench to be presided by one of us (Hon'ble Arun Tandon, J.) under the order of Hon'ble the Chief Justice dated 21.8.2015.
While considering the present writ petition on 24.08.2015, this Court required the Standing Counsel to summon the original record pertaining to the execution of free hold deed, which was under challenge in the present writ petition. Accordingly, records were so produced before us.
From the records we find that plot No.A-10, Civil Station, Allahabad was a Nazul property comprising of total area approximately 13000 sq.m. The records reflect that in terms of a deed of compromise dated 02.08.2004, half of the area i.e. approximately 6809 Sq.Yards fell in the share of John Eric Drummond. On the basis of Power of Attorney, the said half share has been sold in favour of Ganpati Sahkari Awas Samiti. Ganpati Sahkari Awas Samiti made an application for free hold rights being granted in respect of the portion of land, so transferred, in its favour. After excluding the land, to be used for the purpose of road widening, free hold deed was executed by the Collector, Allahabad in favour of Ganpati Sahkari Awas Samiti on 05.11.2005 for an area of 5543.79 sq. meters. We are not concerned with the said part of the land holding.
So far as other half of the plot is concerned, it is stated to have fallen in the share of three persons, namely, Alan Henry Drummond, Smt. Zora Margery Drummond and Smt. Mureen Hasan. Part of the land holding is stated to have been sold by Smt. Zora Margery in favour of Kamjor Varg Avam Karmchari Sahkari Grih Nirman Samiti. This sale has been declared to be null and void under order of the Civil Judge, Allahabad dated 11.10.1984. Writ petition filed against the said judgment has also been dismissed. The Special Leave Petition being S.L.P. No.20565 of 2003 filed against the order of High Court, is said to have been rejected vide order dated 14.02.2012.
In respect of 5693.44 sq.m. of the petitioner, twelve applications were made for grant of free hold rights. The name of the applicant, date and the area, for which the free hold rights had been applied for, are mentioned at page 126 of the paper book. We need not reproduce the same.
From the chart, so appended, we find that petitioner before this Court had made an application on 23.02.1999 for grant of free hold rights in respect of 2875 sq.m. of the land on the basis of nomination by the person having half share. He deposited 25 per cent of the self-assessed value for the purpose of grant of free hold rights along with application through treasury challan.
While all these applications were pending, the State Government came out with the Government Order dated 04.03.2014, which provided that all the applications for free hold rights, which were pending for a period of more than six months, shall be deemed to have been rejected.
The respondent no.4 is stated to have made an application on 02.8.2014 for grant of free hold rights in respect of 3795 sq.m. of the same land holding on the basis of a sale deed dated 23.11.2013 executed by Smt. Zora Margery and Smt. Mureen Hasan.
The application made by the respondent no.4 along with pending applications before the District Magistrate have specifically been taken note of in the note sheet, which bears the signature of District Magistrate himself dated 30.12.2014. The relevant part of the note sheet, referred to at page 135-136 of the paper book, relevant for our purposes, reads as follows :
**;g Hkh mYys[kuh; gS fd fnukad 16-09-2014 dks 'kklu Lrj ij utwy Hkwfe dks Qzh & gksYM fd;s tkus dh njksa ,oa uhfr esa la'kks/ku fo"k;d fuxZr 'kklukns'k la[;k& [email protected]@8&4&14&137,[email protected] fnukad 04-03-2014 ds dfri; fcUnqvksa ds lEca/k esa la'kks/ku fd;s tkus ds vkSfpR; ij fopkj foeZ'k fd;s tkus gsrq izeq[k lfpo vkokl ,oa 'kgjh fu;kstu foHkkx dh v/;{krk esa vkgwr cSBd dh dk;Zo`fRr vkokl ,oa 'kgjh fu;kstu vuqHkkx &4 ds i= la[;k&[email protected]&4&2014&137,u @2013 fnukad 29 flrEcj &2014 }kjk izsf"kr dh x;h gSaA ftlesa ;g mfYyf[kr gS fd %& **fnukad 28-09-2014 ds izkfo/kkuksa ds vUrxZr yfEcr vkosnu i=ksa ds fof/kekU; u jg tkus ,oa muds Lor% fujLr gksus rFkk Qzh&gksYM djkus gsrq u;k vkosnu i= fn;s tkus dh vfuok;Zrk gksus ds mYys[k gS] ds lEca/k es fofHkUu fjV ;kfpdkvksa esa mBk;s x;s iz'uksa rFkk fjV ;kfpdk la[;k &41958] 2008 vkuUn dqekj 'kekZ cuke LVsV esa ikfjr vkns'k fnukad 15-02-2014 ds n`f"Vxr ;g fudk; fd;k fd yfEcr vkosnu i= dks fof/kekU; Lohdkj djrs gq, bldk fuLrkj.k] fuLrkj.k dh fRkfFk dks izHkkoh lfdZy jsV ykxw Qzh&gksYM dh njksa ,oa izHkkoh egk;kstuk esa fu/kkZfjr Hkw&mi;ksx ds vuqlkj Qzh&gksYM fd;k tk;sxkA lkFk gh ;g fu'p; fd;k x;k fd u;s vkosnu i=ksa dk fuLrkj.k Hkh mDr fjV ;kfpdk la[;k&[email protected] vkUkUn dqekj 'kekZ cuke LVsV esa ikfjr vkns'k fnukad 15-02-2015 ds n`f"Vxr fuLrkj.k dh frfFk dks izHkkoh lfdZy jsV ds vuqlkj fd;k tk;sxkA blds fy, 'kklukns'k fnukad 04-03-2014 es ;Fkk LFkku la'kks/ku fd;k tk;sxkA vHkh rd mDr 'kklukns'k fnukad 04-03-2014 la'kks/ku ugha fd;k x;k gSaA ,slh fLFkfr esa orZeku esa mDr 'kklukns'k fnukad 04-03-2014 ds izLrj &7 ¼1½ esa izkfo/kkfur O;oLFkk ds vuqlkj vkosnd 'kk'or bUQzkbLVsV izk0 fyfeVsM Qzh&gksYM ds fy, ik= O;fDr gSA vr% vkosnd ds i{k eas mDr 'kklukns'k fnukad 04-03-2014 ds izLrj &7¼1½ esa izkfo/kkfur O;oLFkk ds vUrxZr fMek.M uksfVl tkjh dh tk ldrh gS ijUrq ;fn 'kklukns'k fnukad 04-03-2014 eas mijksDrkuqlkj la'kksf/kr fd;s tkus ds QyLOk:i mijksDr 01 yxk;r 12 rd iwoZ es izkIr vkosnu i=ksa ds iquthZfto gksus dh fLFkfr esa mudk xq.knks"k ij fUkLrkj.k ds mijkUr gh iz'uxr izdj.k esa Qzh&gksYM dh dk;Zokgh dh tk;sxhA mijksDr ds vk/kkj ij Jh vafdr esgrk }kjk izLrqr vkifRRk ij ;fn vko';d le>ssa rks lquokbZ dk volj nsus ds mijkUr vU;Fkk dh n'kk es 'kk'or bUQzkbLVsV izk0 fy0 }kjk izLrqr vfHkys[kh; lk{; ds vkyksd esa vkifRr fujLr djrs gq, 'kk'or bUQzkbLVsV izk0 fyfeVsM Jh ujs'k dqekj rqyfl;kuh iq= Lo0 lh0,y0 rqyfl;kuh fuoklh [email protected] vyksihckx iatkch dkyksuh] bykgkckn ds i{k esa utwy Hkw[k.M la[;k 7,&10 flfoy LVs'ku bykgkckn {ks=Qy 3708-22 oxZehVj Hkwfe gsrq ekax i= tkjh fd;s tkus dh Lohd`fr iznku djuk pkgsaA g0 v0 [email protected]@14 g0v0 [email protected]@14 30&12&2014 utwy Hkw[k.M la[;k ,&10 flfoy LVs'ku ds vkaf'kd {ks=Qy 3795&44 oxZehVj ds Qzh&gksYM djkus gsrq 'kk'or bUQzkbLVsV ¼izk0½ fyfeVsM }kjk izLrqr vkosnu i= la[;k 58 fnukad 02-08-2014 ij Jh vafdr esgrk dh vkifRr ds lEca/k esa lquokbZ gsrq fuEufyf[kr i{k lquokbZ gsrq mifLFkr vk;sA 1& ftykf/kdkjh egksn; ehfVax esa O;Lr gksus ds dkj.k vHkh rd lquokbZ ugh gqbZ gSaA g0 v0 vafdr [email protected]@2014 lquokbZ gqbZA nksuksa i{kksa dks funsZ'k fn;k x;k fd fnukad 01-01-2015 rd viuk & viuk fyf[kr lk{; izLrqr djsaA g0 v0 [email protected]@2014 ** From the reading of the aforesaid note sheet, it is apparent that District Magistrate was made aware of the minutes of the meeting, which had taken place in the presence of Principal Secretary, Housing and Urban Development, as communicated vide letter dated 29.9.2014, which records that large number of writ petitions have filed before the High Court including Writ Petition No.41958 of 2008 (Anand Kumar Sharma Vs. State of U.P.) wherein an order has been passed by the High Court on 13.02.2014 for consideration of pending applications lawfully made in accordance with the relevant circle rate applicable, master plan applicable and the land user permissible. It was specifically mentioned that in view of the said order dated 13.02.2014 of the High Court, a positive decision shall be taken by the State Government for consideration of all pending applications on the basis of applicable circle rate and that necessary amendments in the Government Order dated 04.3.2014 shall also be made.
The office note, therefore, records that in case decision of State Government is received, the pending applications of all the twelve applicants including the petitioner would be required to be decided on their merits before grant of free-hold rights in respect of the plot in question.
But why the Collector would wait when there is a builder on the other side. Ignoring the pending applications, ignoring the office note so put up, the Collector, Allahabad fixes a date for hearing of the objections of one individual namely Sri Ankit Mehta in respect of the application made by the builder namely respondent no.4. The records reflect that the Collector, on 14.01.2015, records that the objections raised by Sri Ankit Mehta have no substance and free hold rights can be granted in favour of the respondent no.4. The note sheet records that demand note be accordingly issued, which may be approved. This note sheet bears the signature of the District Magistrate and the clerk Ram Palat only. There are no signatures of Additional District Magistrate (Nazul) on the aforesaid note sheet.
On the very next date i.e. 15.01.2015 the State Government came out with a Government Order, restoring all pending applications, which would include the twelve applications which were pending in respect of property in question before the Collector, Allahabad. This Court prima facie records that the demand note has been anti-dated at the hands of the Collector, Allahabad, inasmuch as, the note dated 14.01.2015 was put up before the Additional District Magistrate (Nazul) with another note as to whether he would like to approve the demand note and the office note dated 14.01.2015. It is on 15.01.2015 that the Additional District Magistrate (Nazul) signs the office note.
We fail to understand that when the Additional District Magistrate (Nazul) signs the office note on 15.01.2015, approving the demand note to be issued to respondent no.4, how could it be that the earlier part of the note dated 14.01.2015 was not read by the Additional District Magistrate qua other applications being considered if the Government revives the pending applications.
The dispatch register which has been produced before us, shows that demand note had been served upon the respondent no.4 on 16.01.2015 personally i.e. subsequent to the issuance of the Government Order dated 15.01.2015.
The petitioner, on coming to know of the issuance of the demand note, approached this Court by means of writ petition no.16076 of 2015. The writ petition was dismissed vide order dated 26.03.2015 with the observations that the petitioner may file his objections before the District Magistrate against issuance of demand notice in favour of respondent no.4 and the petitioner may pursue the same.
From the record, we find that respondent no.4 raised objection with regard to total amount demanded under the demand note bearing the date 15.01.2015. This objection of respondent no.4 came to be rejected under orders of District Magistrate only on 10.04.2015.
What we want to emphasise is that issuance of covering note is only an offer made by the Collector and before the offer could even be communicated/accepted by respondent no.4, the Government Order dated 15.01.2015 had intervened. The Collector was aware of the Government Order, which had the effect of reviving of all the pending applications including that of the petitioner. Even while rejecting the objection made by respondent no.4 in respect of the amount demanded under the cover note, referred to above, vide order dated 10.04.2015, the District Magistrate did not have even the courtesy to notice the Government Order dated 15.01.2015 and examine the applications, which were already pending. We further find that a note in respect of the objections raised by the respondent no.4 was prepared on 07.4.2015 under the signatures of Additional District Magistrate (Nazul), which was counter signed by the District Magistrate on 07.04.2015.
The application made by the petitioner came to be rejected after taking note of the order of High Court, referred to above, in Writ Petition No.16076 of 2015 filed by the present petitioner only on 10.04.2015. The only reason assigned is that a demand note has been issued and that the entire demand, in terms of the demand notice has been deposited.
The free hold deed has been executed on the same date on which the objections of the petitioner was rejected.
It is, therefore, writ large on the record at least on prima facie basis that the District Magistrate and other officers have colluded with respondent no.4 and records have been manipulated so as to make the application of the petitioner, which was pending since 1999 infructuous.
We are thus satisfied that the matter needs inquiry by the Chief Secretary of the State. Therefore, we direct that the records with regards of the present petition and the records, as produced before us in respect of the property in question, be transmitted to the Chief Secretary by the District Magistrate within a week along with certified copy of this order. The Chief Secretary shall pin point the responsibility of the officer/official(s) involved and shall also record his reasons as to how the application of the petitioner could be kept pending for months together even after issuance of the Government Order dated 15.01.2015, and, in the meantime, the District Magistrate proceeded to pursue whatever was being filed by the respondent no.4 only.
We may record that issuance of demand notice is only an offer to be acted upon. It is not a binding contract. If the Government Order had come into picture, to be precise on 15.01.2015, whereby all pending applications were restored and had to be decided on their merits the District Authorities could not have acted in the manner they have done. The Chief Secretary shall also examine as to whether in facts any order was passed on 14.01.2015 for covering note being issued in favour of respondent no.4 or only papers have been prepared for suggesting such an act.
The District Magistrate who was present before us and the State Counsel representing District Magistrate as well as respondent no.4 made a statement before us that final decision for the free hold rights being granted to respondent No.4 was taken on 14.01.2015 so as to suggest that such decision had been arrived at prior to the receipt of the Government Order dated 15.01.2015, while the records reflects that approval to the cover note was granted by the Additional District Magistrate (Nazul) only on 15.01.2015 and actually the demand note had been served upon the respondent no.4 on 16.01.2015, i.e. subsequent to the issuance of the Government Order dated 15.01.2015 to which also respondent No.4 objected. The objections whereof were decided only in April 2015 and money in terms thereof was deposited on 10.4.2015.
We are constrained to record that State authorities cannot be permitted to play with land matters in the manner as has been done in the present case. Absolutely no reason has been given to us as to why District Magistrate took four months after issuance of the Government Order dated 15.01.2015 to pass orders on the application of the petitioner and others and why during all these period the application made by respondent No.4 qua the same land were being proceeded. The Chief Secretary must lay down a uniform policy in the matter of consideration of applications in this regard.
If the Chief Secretary finds that District Magistrate or some other officer had illegality acted in the matter of execution of the free hold deed in favour of respondent no.4, he shall direct not only initiate departmental inquiry against all responsible including the District Magistrate, Allahabad but he shall also direct lodging of a First Information Report.
For the reasons which have been recorded above, we are of the opinion that a case for interim relief is also made out.
We direct that till the next date of listing, no activity shall be undertaken by respondent no.4 in respect of the property covered by free hold deed under challenge without leave of the Court. There should be no attempt to raise any construction, transfer, lease out or mortgage the property in question.
The Chief Secretary shall file his affidavit along with his report before this Court by 28th September, 2015.
The original record be handed over to the Standing Counsel today itself.
(Shashi Kant, J.) (Arun Tandon, J.)
Order Date :- 7.9.2015
KA