Ram Anuj Mishra vs High Court Allahabad Thru' Its ...
2015 Latest Caselaw 3652 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

?AFR 
 
Court No. - 10
 

 
Case :- WRIT - C No. - 59550 of 2015
 

 
Petitioner :- Ram Anuj Mishra
 
Respondent :- High Court Allahabad Thru' Its R.G. And 4 Others
 
Counsel for Petitioner :- Prakash Chandra Srivastav,Rajive Kumar
 
Counsel for Respondent :- C.S.C.,Manish Goyal
 

 
Hon'ble Arun Tandon,J.

Hon'ble Vipin Sinha,J.

Heard learned counsel for the petitioner and learned Standing Counsel.

Petitioner before this Court seeks a writ of certiorari for quashing the order dated 4.4.2014 passed by the State Government copy of which has been annexed as annexure no. 9 to the petition. Under the order impugned, the State Government after resumption of the Nazool Property plot No. 16/14 (Bungalow no. 10) total area 9747.01 Sq. Meter situated at Thornhill road, Naseebpur Bakhtiyar, Allahabd has decided to allot the same to the law department of the State of Uttar Pradesh so that it could be utilized for the purposes of constructions as required by the High Court at Allahabad.

Learned counsel for the petitioner challenging the order of the State Government submits that originally the bungalow in question being nazool property was given on lease to one Mr. F. Carlton on 12.2.1981 under registered deed dated 6.3.1891. Later on the lease is said to have been renewed in favour of Smt. M.I.Siyarns on 15.1.1948 and thereafter the lease hold rights are said to have been transferred in favour of Rai Bahadur Ram Babu Saxena on 25.1.1950. After the death of Rai Bahadur Ram Babu Saxena, the name of his son Sri. Virendra Saxena was mutated over the nazool property. Sri. Virendra Saxena on his behalf as well as on behalf of his mother and sister transferred the nazool land in favour of Prayag Up Niveshan Awas Evam Nirman Sahakari Samiti Limited, Bangalow No.2. Balrampur House, Allahabad on 29.4.1988, which deed is said to be registered. The petitioner is stated to have purchased a small plot measuring 249.54 Sq. Yards (208.61 Sq. Meter) for a sum of Rs.92,330/- from the said housing cooperative society. This deed is said to have been registered on 24.12.1994.

According to the petitioner, he was assured about the delivery of the possession of the plot by the housing cooperative society after developing the land/plot as per the development scheme but such development could not take place. The petitioner is stated to have received a letter from the housing cooperative society for deposit of 50 per cent of the free hold charges in respect of 304.36 Sq. Meter of land. The petitioner deposited a sum of Rs.76,090/- in the government treasury on 30.1.1999 for grant of free hold charges in respect of the area mentioned above. It is stated that the District Magistrate did not execute any free hold deed in favour of the petitioner.

It has been contended that even though in pursuance of the sale deed dated 16.12.1994, petitioner has deposited free hold charged on 30.1.1999 but the District Magistrate, Allahabad did not execute the free hold deed in favour of the petitioner despite his completing all the formalities. It has been further contended that in furtherance of the letter dated 14.3.2007 wherein there was direction to the then District Magistrate, Allahabad to find out the genuine required land for Irrigation Department and then to initiate legal proceedings, however, the then A.D.M. Nazool, Allahabad deleted the name of the previous allottee namely Virendra Saxena and mutated the name of Belan Nahar Division Irrigation Department, Allahabad vide order dated 24.1.2009. It has been contended that A.D.M. Nazool, Allahabad has passed an illegal order dated 24.1.2009 directly mutating the name of Belan Nahar Division Irrigation Department, Allahabad. It has also been contended that an order was passed on 4.6.2014 by the District Magistrate, Allahabad informing the general public that unauthorised construction existing over the said property shall be demolished on 5.6.2014 by the district administration and as per paragraph no. 29 of the petition, the unauthorised constructions so existing were demolished on 6.6.2014.

The Allahabad High Court made a request to the State Government for allotment of the entire land of the said bungalow for construction of offices etc. After correspondence between the High Court and the State Government, the State Government vide order dated 3.4.2014/4.4.20014 has allotted the said bungalow measuring total area 9747.014 Sq. Meter in favour of Nyaya Vibhag, for construction of record room and office of Allahabad High Court.

The petitioner has come up before this Court for quashing of the order dated 4.4.2014 as well as order dated 24.1.2009 and for a mandamus commanding the respondents to execute free hold deed in respect of 208.61 Sq. Meter of the part of the aforesaid bungalow in favour of the petitioner and in the alternative to pay compensation to the petitioner.

At the very outset, we may record that the writ petition is completely silent about the terms and conditions on which the nazool property was leased in favour of Mr. F. Carlton and later on in favour of Smt. M.I. Siyarns nor the period of validity of the said lease has been disclosed in the writ petition.

From the document filed as annexure 1 to the writ petition we find that State of U.P. vide letter dated 13.8.1987 is stated to have accorded sanction for renewal of the lease for a period of 30 years with further provisions for renewal of two further period of 30 years each. It is not known as to whether the lease holders had been granted any right to transfer of the lease hold property and if so under what conditions and with whose permission. It is also not known as to whether the lease deed contained a clause for re-entry/resumption in favour of the State Government or not.

Admittedly, the petitioner was not delivered possession of the plot which is said to have been transferred in his favour by the housing cooperative society at any point of time. It is also not in dispute that under order of the State Government dated 14.3.2007 made with reference to the provisions of G.O. dated 14.10.2004 the entire bungalow was allotted in favour of the Irrigation Department and that the name of the Irrigation Department was mutated in the Revenue Records under order dated 24.1.2009.

The order dated 14.3.2007 is not under challenge in the present writ petition. In absence of challenge to the order dated 14.3.2007, there is no reason to question the consequential order dated 24.1.2009 whereunder the name of the Irrigation Department was mutated in the Revenue Records because of the said transfer.

The Apex Court in the case of Azim Ahmad Kazmi and others v. State of U.P. and another reported in 2012 (7) SCC 278 has examined in great detail the rights of the lease holders under the Government Grants Act, 1985 and the rights of the State to resume possession in terms of the lease deed executed. The Apex Court has held that the State has the power to resume the land in terms of the clauses of the lease deed and to resume any building constructed thereon for public purpose.

Probably it is for this reason the petitioner has chosen not to bring on record the lesae deed executed by State in respect of bungalow in question and further there is no averment in the writ petition qua the right and the power of the State to resume the lease hold land.

In view of law laid down by the Apex Court in the case of Azim Ahmad Kazmi (Supra), it cannot be disputed that the resumption of the land and transfer of the same in favour of the Irrigation Department then in favour of High Court for the purposes of construction of office etc. is  for a public purpose.

So far as the parity claimed with the free hold deed said to have been executed in favour of P. P. Srivastava is concerned, we find that neither P.P. Srivastava nor his legal heir have been made a party to the present writ petition and it is also not disclosed as to on what conditions the said free hold rights were granted in favour of P.P. Srivastava and as to whether the order for such grant was proper to the order dated 14.3.2007 or not. 

It is also not disclosed as to whether at any point of time the recorded lease holder Sri. Virendra Saxena or his transferee Prayag Up Niveshan Awas Evam Nirman Sahakari Samiti Limited challenged the order dated 14.3.2007 and order dated 24.1.2009 before appropriate forum or not.

In the facts of the case, we are also not in a position to examine as to whether the transfer affected by Sri. Virendra Saxena in favour of housing cooperative society and further transfer effected by the housing cooperative society in favour of the petitioner has any sanctity of law or not for want of lease document.

After examining the record of the writ petition, we find that what could have been purchased by the petitioner from the said housing cooperative society could at best be the lease hold rights in respect of remaining period of lease and nothing beyond. No vendor can transfer any right beyond the one possessed by him. The petitioner at best can become the lease holder of the part of the nazool land on the basis of transferred deed executed by the housing cooperative society but on same terms as was provided by the government under its lease to Virendra Saxena. 

It is also recorded that the housing cooperative society is not a party to the present petition. Mere filing of an application for grant of free hold rights by the petitioner will confer no right upon him.

In view of the aforesaid, we find absolutely no right in the petitioner to challenge the resumption of the land by the State Government and its transfer to the Law Department. The writ petition is accordingly dismissed.

In case the petitioner has deposited any amount along with his free hold application, it is always open to the petitioner to approach the State Government or the District Magistrate for refund of the same.

Order Date :- 30.10.2015

Kuldeep