Distt. Committee Of U.P. Crime ... vs Ix A.D.J. Kanpur & Another
2013 Latest Caselaw 1367 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

AFR
 
Court No. - 34
 

 
1. Case :- WRIT - C No. - 33630 of 1997
 

 
Petitioner :- Distt. Committee Of U.P. Crime Prevention Society
 
Respondent :- Ix A.D.J. Kanpur & Another
 
Petitioner Counsel :- Atul Dayal,Pramod Jain
 
Respondent Counsel :- C.S.C.,A.K. Singh,P. Bharti,Rajesh Kumar
 

 
2. Case :- WRIT - C No. - 52779 of 2011
 

 
Petitioner :- Kanpur Development Authority
 
Respondent :- Sri Aayurvedic Vidyalaya
 
Petitioner Counsel :- V.K. Mishra,Pradeep Kumar Tripathi,Shashi Nandan,Vivek Varma
 
Respondent Counsel :- S.C.
 

 
Hon'ble Sudhir Agarwal,J.

1. Heard Sri Pramod Jain and Sri Atul Dayal, Advocates for petitioner in Writ Petition No. 33630 of 1997 (hereinafter referred to as the "first petition") and Sri A.K. Singh, Advocate for respondent in first petition and for petitioner in Writ Petition No. 52779 of 2011 (hereinafter referred to as the "second petition").

2. The first writ petition has arisen from an order dated 21.12.1996 (Annexure-6 to the writ petition) passed by Vice Chairman, Kanpur Development Authority (hereinafter referred to as the "VC KDA") cancelling lease granted to petitioner in respect to plot No. 1, Block 'C', Scheme II, Juhi Kanpur, area 3.98 acres and the judgment dated 12.09.1997 passed by 9th Additional District Judge, Kanpur Nagar, dismissing petitioner's Misc. Civil Appeal No. 08 of 1997, against the order dated 21.12.1996.

3. The facts, in brief, necessary to understand the dispute in first petition are as under.

4. The petitioner is a registered society. It claims to have been created for the purpose of welfare, rehabilitation and reformation of probationers, ex-convicts and delinquent children. The head office of society is situate at Lucknow and it has various branches in the State of U.P. including at Kanpur. In 1945, the Provincial Legislature, with an objective to provide a separate statute for development and expansion of urban area of Kanpur, enacted Kanpur Urban Area Development Act, 1945 (hereinafter referred to as the "KUAD Act, 1945"). The area of operation of aforesaid statute, as stated in Section 1(2), reads as under:

"1(2) It extends to the area at present administered by the Kanpur Municipal Board, and to an area within 10 miles radius of the General Post office and sought of the river that may be notified by the State Government in the official Gazette, with the exception of the area administered for the time being by the Kanpur Cantonment Board, as to any other area that may from time to time be notified by the State Government as an area to which this Act applies."

5. As a result of aforesaid enactment by virtue of Section 3 of KUAD Act, 1945 the legislature repealed U.P. Town Improvement Act, 1920 and U.P. Town Improvement (Appeals) Act, 1920, in so far as they apply to the area to which KUAD Act, 1945 applies The effect of repeal was provided in Section 4 of KUAD Act, 1945, which reads as under:

"4. Effect of repeal.--With effect from the date this Act comes into force--

(a) the Trust shall be deemed to have been dissolved, and the trustees shall vacate their office, and

(b) all properties, funds, and dues which are vested in or realizable by the Trust and its Chairman respectively shall vest in and be realizable by the Board and its President, respectively, and

(c) all liabilities enforceable against the Trust shall be enforceable only against the Board, and

(d) for the purpose of completing the execution of any scheme sanctioned under the Uttar Pradesh Town Improvement Act, 1919, the functions of the Kanpur Improvement Trust and the Chairman of the said Trust shall be discharged by the Kanpur Development Board and the President of the Board respectively, and

(e) the management of all land classed as Special Nazul shall be transferred to the Board."

6. It is not in dispute that, as contemplated in Section 5 of KUAD Act, 1945, a body, i.e., Kanpur Development Board (hereinafter referred to as the "KDB") was established. Several duties and powers which otherwise would have been exercised by Municipal Board under U.P. Municipalities Act, 1916 (hereinafter referred to as the "Act, 1916") were assigned to KDB by narrating its duties and powers under Sections 14 and 15.

7. Section 15 gave overriding power to KDB over Municipal Board to give effect to duties and powers under Section 14. Sections 14 and 15 read as under:

"14. Duties and powers of the Board.--It shall be duty of the Board to develop, execute and maintain, all works, and to carry out all operations, in connection with the following, namely,-

(a) The provisions of water supply.

(b) All the public drains and sewers within the Board's limits, and the disposal of all waste and refuse relating thereto, as may be notified by the board from time to time.

Explanation.--For the purposes of this clause the disposal of waste and refuse shall not include house scavenging as defined in Section 195 of the Municipalities Act.

(c) Such public streets under the control of the Municipal Board and the District Board, Kanpur, as may be notified by the Board from time to time, including the removal of encroachments.

(d) Subject to the provisions of the Indian Motor Vehicles Act, 1939, all matters relating to the regulation of speed limits for vehicular traffic, the provision of islands, refugees, and lighting in so far as it affects traffic, and the provision of traffic signs, direction posts and halting places.

Explanation.-- For the purposes of this clause the words "lighting in so far as it affects traffic" shall not include the ordinary arrangements for the lighting of streets.

(e) Any matter relating to the general control and regulation of traffic, both pedestrian and vehicular.

(f) Town planning including slum clearance.

(g) The organization of transport.

(h) River training.

(i) The framing and execution of schemes under Chapter VII, including the provision of adequate housing.

(j) The collection of such information and statistics as may be necessary for the purposes of this Act, including the taking of a census.

(k) The location of markets and the provision of sites where hawkers and street vendors may carry on their trade.

(l) Any other function of the Municipal Board, or any function of the Kanpur District Board, which the State Government may hereinafter decide to transfer to the Board."

"15. Effect of Board's powers on the Municipal Board.--(1) Notwithstanding anything contained in the Municipalities Act, all duties, powers responsibilities and functions of the Municipal Board in respect of the matters specified in Section 14, except the duty and power of collecting such taxes and charges as may from time to time be assessed in respect of water supply, shall cease from the commencement of this Act, and except as otherwise directed by the Board all byelaws made under head B clauses (a), (b) and (c), head D clause (a) and (b), head E clauses (a), (b) and (c), head H clauses (b) and (g) of List I of sub-Section (2) of Section 298 of the Municipalities Act shall be deemed to have been cancelled.

(2) The Board shall make byelaws consistent with this Act for the purposes of carrying out its duties under the Act, and in particular and without prejudice to the generality of the aforesaid powers, the Board shall, in respect of an area comprised in a scheme under Chapter VII of this Act, make byelaws for any of the matters referred to in Section 298 of the Municipalities Act."

8. Certain supervisory powers were also conferred upon KDB vide Section 18, which reads as under:

"18. Supervisory powers of the Board.--The Board may have an investigation or inspection made through its own agency, or may issue any direction to the Municipal Board, in respect of the following:

(a) Nazul (other than Special Nazul).

(b) Public Health including arrangement for the sanitation and ventilation of houses and buildings, and the prevention of diseases.

(c) Building activities.

(d) Any function of the Municipal board that the State Government may hereinafter decide to transfer to the supervision of the Board."

9. The provisions with respect to development scheme to be undertaken by KDB were given in Chapter VII and at this stage I am not going into details thereof.

10. Section 70 of KUAD Act, 1945 empowered KDB to enter into an agreement for purchase, lease or exchange of any land or interest in such land which the Board is authorised to acquire. Section 73 declared KDB as a "local authority", as defined in Local Authorities Loans Act, 1914. Sections 70 and 73, read as under:

"70. Power to purchase or to lease by agreement.--The Board may enter into an agreement with any person for the purchase, leasing or exchange by the Board of any land or any interest in such land which the Board is authorised to acquire."

"73. Definition of Board as Local Authority.--(1) The Board shall be deemed to be a local authority as defined in the Local Authorities Loans Act, 1914, and shall be subject to all its provisions and the rules thereunder, for the purpose of borrowing money under that Act.

(2) The making and execution of any scheme under this Act shall be deemed to be a work which such local authority is legally authorised to carry out."

11. It is not in dispute that KDB executed a lease deed dated 20.09.1957, registered on 24.12.1957, in favour of petitioner, in respect to the land in dispute. Copy of lease deed is on record as Annexure-1 to the writ petition and I shall refer the relevant stipulations therefrom when occasion comes. The lease was granted for a period of 99 years and lease rent determined was Rs. 199/- per year. The petitioner claims to had submitted a plan for construction, on the land in dispute, but nothing proceeded further, which, according to petitioner, due to inaction on the part of concerned authorities, in sanctioning map/plan. Another reason for non-construction is said to be, the paucity of funds on the part of petitioner. However, it is said that there were several temporary structures using tin shed etc., raised on the disputed land in the meantime.

12. The provincial legislature enacted U.P. Municipal Corporations Act, 1959 (hereinafter referred to as the "Act, 1959") for establishment of Municipal Corporations in certain cities. Under Section 4 thereof Municipal Corporation Kanpur (now renamed as Nagar Nigam, Kanpur) was constituted by by virtue of Sections 574, 575, 576 and 577 of Act, 1959 all the powers, duties, obligations, functions etc. of KDB stood transferred to Nagar Mahapalika, Kanpur (hereinafter referred to as the "NMP Kanpur"). Act, 1945 stood repeal w.e.f. appointed date, i.e., the date on which NMP Kanpur came to be constituted and the notification was with respect to area of operation thereof. Section 581 of Act, 1959, reads as under:

"581. Repeal.--The U.P. Municipalities Act, 1916, the U.P. Town Areas Act, 1914, the U.P. Town Improvement Act, 1919, the U.P. Town Improvement (Appeals) Act, 1920, the U.P. Town Improvement (Adaption) Act, 1948, the U.P. District Boards Act, 1922, the U.P. Local Bodies (Appointment of Administrator) Act, 1953 and the Cawnpore Urban Area Development Act, 1945, shall, with effect from the appointed day, stand repealed in so far as they may be applicable to any area included in the City."

13. I find it appropriate to refer here itself another subsequent enactment to which KDA owe its existence. The State Legislature enacted U.P. Urban Planning and Development Act, 1973 (hereinafter referred to as the "Act, 1973") with an objective of establishing development authorities in certain areas for development thereof in a planned manner. Section 3 enables the State Government to declare by notification and gazette an area to be a development area which in its opinion needs to be developed according to plan. Section 4 talks of the constitution of development authority by State Government for a development area notified under Section 3. A notification was issued in respect of Kanpur declaring it development area under Section 3 and KDA was constituted sometimes in 1975-76. The consequence as a creation of KDA by way of repeal etc. and savings are provided in Section 59 of Act, 1973. I propose to discuss this aspect of the matter a bit later.

14. On 03.07.1996, petitioner submitted an application to VC KDA, requesting for permitting free hold of disputed land. The respondent no. 2, however, served a show cause notice dated 18.10.1996 that petitioner has violated terms of lease deed and, therefore, must show cause, within fifteen days, why the lease deed be not cancelled, and Kanpur Development Authority (hereinafter referred to as the "KDA") may not re-enter so as to take possession of disputed land. The petitioner objected to show cause notice vide representation dated nil (Annexure-4 to the writ petition) stating that disputed property had not vested with KDA, therefore, it had no jurisdiction either to cancel lease deed or to re-enter the premises and the notice is wholly without jurisdiction. Thereafter the VC KDA passed order dated 21.12.1996 (Annexure-6 to the writ petition), which is one of the impugned order in first writ petition. The petitioner preferred appeal which has been dismissed by respondent no. 1, in the first petition, and this is the another impugned order.

15. The real question up for consideration in first petition is "whether the land in dispute had vested in KDA entitling it to take action and pass appropriate order in respect to a lease deed executed by erstwhile KDB under Act, 1945 by revoking the same".

16. The second petition has been filed by KDA itself. It has arisen from the order dated 24.02.2010 passed by District Judge, Kanpur Nagar in an appeal preferred under Section 18(6) of U.P. Urban Planning and Development Act, 1973 (hereinafter referred to as the "Act, 1973") whereby the learned District Judge, allowing Misc. Appeal No. 10 of 2008 of respondent no. 1, has set aside order dated 28.11.2007 passed by VC KDA.

17. Here the dispute relates to plot No. 196 situated in Block 'E', Scheme-II, Babupurwa, Kanpur, area 6.5 acres. The KDB, as it then was, executed a registered lease deed dated 11.09.1957 in respect to plot No. 196, in favour of Sri Mahesh Bhatt Vidyalaya Society. The Society was to construct a School and develop a playground on the land in question. It was to commence construction within one month from the date of registration of lease deed and to complete the same within one year. No construction of school as required was made. The Society submitted a plan for construction of School to KDB on 15.04.1958 which was duly sanctioned whereafter it constructed only four rooms. The Society transferred the land in favour of "Ayurvedic Vidyalaya, Kanpur" by a registered lease deed dated 30.07.1963. The said transfer was approved by NMP Kanpur which in the meantime had come into existence under Act, 1959. No construction of School, however, was made. The Ayurvedic Vidyalaya submitted a revised plan to KDA which had come into existence in the meanwhile pursuant to Act, 1973 and the same was sanctioned by KDA on 03.11.1980. No construction still commenced. Another revised plan was submitted in 1998. It was also approved by KDA on 04.09.1998 on payment of Rs. 3,31,136/- which was deposited by respondents on 04.09.1998. It is said that a boundary wall was constructed thereafter but no further construction took place since a Public Interest Litigation was pending before this Court in 1999 wherein an order of status quo was passed on 04.05.1999. The said writ petition was ultimately dismissed as withdrawn sometimes in 2005.

18. The respondents thereafter submitted another revised plan for sanction, to KDA, in 2005. The said plan was not sanctioned for want of some information though a proposal was made for its sanction on imposing a penalty of Rs. 85 lacs and odd. One Anil Kumar, Vice Chairman, KDA on 18.06.2005 passed an order, restraining any new construction on the plot in question and also directed for issuing notice to respondents lease holder for cancellation of lease deed. There is a noting dated 19.06.2006 on record. However, revised map submitted by petitioner was sanctioned on payment of penalty of Rs. 83 lacs but the letter of demand was not issued to petitioner.

19. In the meantime, it appears that State Government required U.P. Vigilance Establishment to make investigation into certain frauds and illegalities committed by statutory authorities and in particular KDA regarding valuable land in Kanpur and pursuant thereto S.P., U.P. Vigilance Establishment, Kanpur issued a letter dated 06.08.2005 requiring petitioner KDA to submit record pertaining to land in question alongwith others before him. Some further information was sought by S.P. Vigilance by another letter dated 29.12.2005. What happened therein to the said Vigilance inquiry is not clear from the record.

20. The order dated 18.06.2005 of Sri Anil Kumar, the then Vice Chairman, KDA for issuing notice for cancellation of lease deed also remain unattended.

21. One Mohd. Mustafa, Joined as Vice Chairman, KDA in the year 2007 and he observed on 17.08.2007 in a note as to why despite order dated 18.06.2005 no further action was taken and who are the persons responsible. Secretary, KDA vide note dated 21.07.2007 informed that two petty officials, namely, Prem Singh, Clerk and M.P. Vajpayee, Accountant are prima facie responsible for total inaction. Sri Mohd. Mustafa, Vice Chairman on the same date's noting, enquired whether Sri Nagendra Prasad Pandey, Deputy Secretary, Pramod Kumar, Deputy Secretary and Sri G.S. Goel, Chief Town Planner are not responsible. Thereupon, the Secretary, KDA submitted note dated 25.08.2007 holding that all these three persons are also prima facie responsible. The VC, KDA ordered for disciplinary action against these three. The notings dated 14.09.2007 and 20.09.2007 show that charge sheet was submitted against these three officials, namely, two Deputy Secretary and one Town Planner but what happened actually thereon is not on record.

22. So far as Vice Chairman, KDA's note dated 18.06.2005 and 17.08.2007 are concerned, regarding notice for cancellation of lease deed, the authorities acted, on and after 17.08.2007, very quickly, and issued a show cause notice on 17.08.2007 itself, for cancellation of lease deed and exercising right of re-entry under Section 18(4) of Act, 1973. This notice was issued by Sri Ram Narayan, Joint Secretary, KDA and was served upon respondent on 30.08.2007. The respondent submitted reply dated 14.09.2007 stating that his revised plan was sanctioned on 19.06.2006 subject to payment of penalty of Rs. 83 lacs to which he is agreeable and a demand note be issued to him for enabling him to pay the said amount. It appears that KDA, instead issued another notice on 03.10.2007.

23. On 28.11.2007 the Vice Chairman, KDA passed order cancelling lease deed and making re-entry over the land in question. On 29.11.2007, KDA executed document taking possession of land in question.

24. Thereafter the things proceeded in a real strange but surprising pace. On 03.12.2007 a proposal was submitted for change of user of land, i.e., instead of School, for constructing a shopping mall-cum-multiplex and fully developed mini stadium. On the same date, all officers of KDA, namely, Land Scrap Architect, Town Planner, Chief Engineer, Superintending Engineer, District Magistrate, Vice Chairman and Commissioner signed the proposal, approving change of user. The proposal was placed before KDA Board and change of user resolution was passed on 12.12.2007, signed by VC, Commissioner, District Magistrate, Joint Director Treasury and Pension, M.D. KESCO and Superintending Engineer, U.P. Jal Nigam on the same date.

25. There appears to be some advertisement for auction of land for the said commercial user though it is not a part of record produced before me. The record shows the earliest application was submitted by one SDS Developers Pvt. Ltd. Delhi on 15.12.2007, for allotment of land. The auction of land, however, took place on 07.12.2007 wherein SDS Developers' bid was found highest, i.e., Rs. 21,000/- squire meter and it was confirmed vide allotment letter dated 27.12.2007. There are certain documents on record which give different dates inasmuch as in File No. 7, there is a draft letter at page 10 mentioning date of auction as 15.11.2007 corrected as 17.12.2007.

26. The respondent thereafter filed appeal against order dated 28.11.2007 before District Judge, Kanpur where an order of status quo was passed. The auction purchaser, i.e., M/s SDS Developers thereafter withdrew his offer which was allowed by KDA vide letter dated 05.12.2008 and a sum of Rs. 17,97,62,709/- alongwith interest of Rs. 41,54,990/- was refunded to him.

27. There are some more interesting facts in regard of second writ petition. It was filed with an extraordinary delay of more than one year and three months. In absence of any explanation whatsoever this Court required the petitioner-KDA to place before this Court, relevant record, to give reasons for such extraordinary delay and also the justification to file writ petition when apparently this Court did not find any substantial ground taken therein to justify a continued litigation at the instance of a statutory body, like KDA. It is in furtherance thereof the entire record was produced before this Court, wherefrom the aforesaid facts were borne out and were noticed by this Court in its order dated 21.09.2011. This Court also noticed that land in question is quite large and is very valuable, inasmuch as the bid itself was for about 27 crores. The Court also enquired about what happened in the investigation entrusted to Vigilance Department but got no answer.

28. However, pursuant to order dated 21.09.2011, strange things happened. An affidavit was filed by Sri Nagendra Prasad Pandey, Joint Secretary, KDA stating that he has not signed the writ petition at all and signatures contained thereon are forged. He said that he had not come to Allahabad on 06.09.2011 when the writ petition was sworned. The signatures thereon alleged to be of Sri Nagendra Prasad Pandey are all forged. This affidavit put Sri V.K. Mishra, learned counsel appearing for petitioner-KDA in second petition in a very embarrassing position. He contradicted the above affidavit and said that second petition was actually signed by Sri Nagendra Prasad Pandey. He on the contrary challenged affidavit of Sri Nagendra Prasad Pandey and said that affidavit is forged. It is in these circumstances this Court having no other option directed Registrar General to get a report lodged with police for investigation into the matter as to who has committed forgery. The directions contained in paras 5, 6 and 8 of the order dated 30.09.2011, read as under:

"5.Registrar General is directed to lodge a first information report in this case and the Police, after registering the case, shall investigate the matter and submit its progress report within one month to this Court besides report to the competent Court.

6.It is made clear that for the purpose of investigation of the matter, if the Police finds necessary to take any action against any one including arrest, it will be free to do so, whether he is a private person or a public servant, and would not wait for anybody's order, but if it finds any problem otherwise, can come to this Court for clarification etc.

8. However, since the vakalatnama which has been signed by Sri C.P. Tripathi, Joint Secretary, is not disputed and it is also not disputed that Kanpur Development Authority had decided to file writ petition, petitioner is permitted to file a fresh affidavit in support of the writ petition whereafter the matter will be listed before this Court for further orders."

29. A fresh Vakalatnama has been filed on behalf of KDA by Sri Vivek Verma, Advocate. Sri M.C. Tripathi, Advocate has also put in appearance, filing a supplementary affidavit, sworn by Sri Om Narayan Singh, VC KDA. Thereafter an amendment application was filed on behalf of petitioner-KDA seeking major amendment in the writ petition which was allowed on 08.11.2011. Thereafter an amended copy of writ petition has also been filed on 17.11.2011.

30. Besides other, here also one of the question involved is, "whether the land leased out by KDB vested in KDA so as to entitle it to cancel lease deed and exercise its right of re-entry on the dispute land".

31. Another question which is common in both the writ petitions, "whether proceedings under Section 18(4) could have been initiated against any "other land" not covered by Section 18(1). In other words, whether Section 18(4) is confined to the land acquired by KDA under Section 18(1) or any other land which has come or vested in its under other provisions of Act, 1973 would be within its ambit.".

32. I propose to deal with first question, whether the land in question in both the writ petitions, initially vested in erstwhile KDB and stood transferred and vested in NMP, Kanpur has come in the hands of KDA so as to justify the orders of cancellation of lease deed in respect to land in dispute. On the creation of NMP, Kanpur, the property and contracts of existing bodies, namely, Municipality Improvement Trust or other local authorities, how shall stand governed, is provided in Chapter VI of Act, 1959. Section 126, as it stood in 1959, i.e., on the appointed day. In respect to NMP Kanpur, it reads as under:

"126. Succession to property, assets, rights, liabilities and obligations in certain cases.--(1) As from the appointed day and subject to any direction of the State Government in this behalf--

(a) all property, interests in property and assets including cash balances, wherever situate which immediately before such day were vested in any Municipal Board, Improvement Trust or other local authority established for the area included in the City or any part of such area or in any local authority having jurisdiction both within and outside such area shall vest in and be held by the Mahapalika of such City, for the purposes of this Act, and

(b) all rights liabilities and obligations of the aforesaid Municipal Board, Improvement Trust or other local authority in relation to the area included in the city whether arising out of any contract or otherwise, existing immediately before such day shall be the rights, liabilities and obligations of such Mahapalika.

(2) Where any doubt or dispute arises as to whether any property, interest or asset has vested in the Mahapalika under sub-section (1) or any rights, liabilities or obligations have become the rights, liabilities or obligations of a Mahapalika such doubt or dispute shall be referred by the Mukhya nagar Adhikari to the State Government whose decision shall unless superseded by any decision of a court of law be final."

33. Learned counsel appearing for respective parties have not disputed before this court that disputed land stood transferred to NMP, Kanpur, by virtue of Section 126 of Act, 1959.

34. Under Section 59, sub-section (6)(c) of Act, 1973 the property which vested in development authority is that which vested in improvement trust, constitute to exist when notification under Section 3 of Act, 1973 was issued, and as a result thereof, in respect to area governed by improvement trust, the same came to be governed by development authority constituted under Section 4 of Act, 1973 and not otherwise. It is not placed before this Court by learned counsel for KDA that entire land vested in NMP Kanpur would stood transferred or vests in KDA on its constitution. There is no reference to Section 126 of Act, 1959 in Section 59 of Act, 1973 or any other provision of the aforesaid Act of 1973.

35. So far as the acquisition and disposal of land by KDA is concerned, I find that Section 17 confer power upon the State Government to acquire any land which is needed for the purpose of development or for any other purpose under Act, 1973 by following the procedure prescribed in Land Acquisition Act, 1894. Such land after acquisition can be transferred by State Government to concerned development authority. Section 18 deals with only such land as it goes in the hands of KDA after acquisition by State Government. Section 19 empowers the State Government to place at the disposal of development authority, the Nazul land, which is again a land owned and vested in the State Government.

36. It is not disputed before this Court that disputed land in both writ petitions is not that which satisfy the kind of land referred to in Sections 17 and 18 of Act, 1973. The land in dispute since its commencement was a Government land and, therefore, for the purpose of both these cases even if both lands are treated to be Nazul land, it is not the case of KDA that disputed land has been placed at the disposal of KDA by State Government by issuing any notification in the gazette under Section 19 of Act, 1973.

37. In these facts and circumstances and the undisputed factual state of affairs, I find it absolutely clear that the land in question is not one vested in KDA in respect whereto it can exercise the right of cancellation of lease deed and re-entry. Such right can be exercised only by an authority, body or person who stands in the shoes of lessor. The initial lessor was KDB under Act, 1945 and NMP Kanpur came to enter into shoes of KDB under Act, 1959 and became lessor but thereafter though KDA has been established under Act, 1973 but the land in dispute has not come into its hand so as to give it the status of lessor in respect of aforesaid land. Whether the petitioner in first writ petition and respondents in second writ petition has violated any condition of lease or not and whether the lessor has a right of re-entry or not, may be the questions relevant as and when raised by competent person, namely, the lessor to whom the property belong but so far as KDA is concerned it lacks the status of lessor to exercise such power and, therefore, the orders issued by VCKDA cancelling lease deed of the lease holders, ex facie lack jurisdiction, authority and competence and, hence, are void ab initio and wholly without jurisdiction.

38. The second question formulated above with respect to Section 18 sub-section (4) also stands answered in view of the above discussion that it would apply only to such land as come in the hands of KDA by acquisition from State Government and handing over possession under Section 17 of Act, 1973 and not otherwise. Whether such handing over of land is before development or after is wholly irrelevant but suffice it to mention that aforesaid provision does not apply in respect to land which is a land of any other kind but admittedly not one as has come to the hands of development authority under Section 17 of Act, 1973. This question is also answered accordingly.

39. So far as first writ petition is concerned, in view of above discussion, the impugned orders passed therein are bound to fail and the writ petition thus has to succeed.

40. So far as second writ petition is concerned, here the order of cancellation of lease deed having already been set aside by the District Judge, the same may not warrant any interference but once it is held that the land which would be governed by Section 18 can only be such as has come in the hands of KDA under Section 17, technically it also cannot be disputed that appeal under Section 18(4) in respect to such matter also was not competent. However, since the order of cancellation of VC, KDA itself is wholly without jurisdiction, in order to avoid any confusion and complication in the matter, while declining to interfere with the order passed by District Judge, impugned in second writ petition, I make it clear that even otherwise the order dated 28.11.2007 passed by VC, KDA is wholly without jurisdiction, it is void and illegal and would have no legal consequences.

41. In respect to second writ petition the matter, however, cannot rest here. It appears that the attempt on the part of KDA to cancel the lease deed in respect of disputed land was not on account of any bona fide exercise of alleged breach of conditions of lease deed but it was prompted by some other considerations lacking bona fide. The events as have already been discussed above and in this Court's earlier orders dated 21.09.2011 and 30.09.2011, make it abundantly clear that senior and high positioned officials in KDA had acted conjointly in the process of a kind of landloot looking to the fact that disputed property is extremely valuable, situate in a very high cost locality of Kanpur. A consorted effort with private land dealers is apparent from the facts discussed above and this Court's earlier orders dated 21.09.2011 and 30.09.2011 passed in second writ petition.

42. It is also interesting to notice that at the time of arguments neither learned counsel for KDA pressed any argument in the context of second writ petition nor any official was present to assist him so as to pursue the interest of KDA, if any, in the second writ petition. It appears that the petitioners in second petition are keen to wriggle out of the complexity which have come to exist due to misdeeds, noticed and pointed out by this Court on the part of KDA, and its officials, in its various orders passed in second writ petition. The mere dismissal of second writ petition, therefore, would not suffice to meet the ends of justice and the public interest in this case, if this Court fails to take the matter to its logical end, while exercising its extraordinary discretionary and equitable jurisdiction under Article 226 of the Constitution.

43. In view of above discussion and subject to directions given hereunder, the first writ petition, i.e., Writ Petition No. 33630 of 1997 is hereby allowed and the impugned orders dated 21.12.1996 and 12.09.1997 are hereby quashed. So far as second writ petition is concerned, subject to directions hereunder, the same shall stand dismissed:

(1) The Chief Secretary, U.P., Lucknow and Principal Secretary, Nagar Vikas, Lucknow are directed to call for the records in respect to various transactions etc. relating to land in dispute in second writ petition, find our the result of vigilance inquiry as well as departmental inquiry, as noticed above, in respect of land in dispute which was already ordered, and must have proceeded to some extent, but did not reach to its end. They shall get the aforesaid investigation/inquiry concluded and thereafter would take appropriate final decision and also further action, whether departmental, civil and criminal, as the case may be.

(2) However, a compliance report in this regard shall be submitted by them, before this Court, after six months. For this purpose only, the second writ petition shall be listed on 18.11.2013.

44. The petitioner of first writ petition shall be entitled to cost against KDA, the respondent no. 2, which I quantify to Rs. 50,000/-. At the first instance the cost shall be paid by respondent no. 2 but it shall have the liberty to recover the said amount from officials found actually responsible for causing such loss to KDA after making such inquiry as it finds necessary in accordance with extant rules.

45. Since in the second writ petition the respondents are not represented, therefore, here the cost is made easy.

Order Date :- 26.4.2013

AK