Pramod Kumar Gupta vs State Of U.P. And 3 Ors.
2018 Latest Caselaw 1389 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

AFR
 
Reserved on 19.01.2018
 
Delivered on 06.07.2018
 
Court No. - 34
 

 
Case :- WRIT - C No. - 21035 of 2015
 

 
Petitioner :- Pramod Kumar Gupta
 
Respondent :- State Of U.P. And 3 Ors.
 
Counsel for Petitioner :- Monica Vaish,Chandan Sharma,Rahul Agarwal,Umesh Narain Sharma
 
Counsel for Respondent :- C.S.C.,Kunal Ravi Singh,Manjari Singh,R.K. Mishra,Shivam Yadav
 

 
Hon'ble Sudhir Agarwal,J.

Hon'ble Shashi Kant,J.

(Delivered by Hon'ble Sudhir Agarwal,J.)

1. Heard Sri Rahul Agarwal, Advocate, assisted by Ms. Monica Vaish, learned counsel for the petitioner, Sri Shivam Yadav, learned counsel for Kanpur Development Authority, Sri Rahul Jain, Advocate, holding brief of Sri Kunal Ravi Singh, learned counsel for respondents 5 to 8, Sri R.K.Mishra, Advocate for newly impleaded respondents 9 to 15 and learned Standing Counsel for the State.

2. This writ petition under Article 226 of Constitution of India has been filed by sole petitioner Pramod Kumar Gupta son of Late Puttu Lal Gupta. Initially, while filing present writ petition, petitioner had sought two main reliefs. Subsequently, by way of amendment application, allowed vide order dated 06.10.2017, prayer (A) has been deleted and prayer (B) has been amended and sole prayer (B), now remains on record, reads as under:

"Issue a writ, order or direction in the nature of mandamus commanding upon the respondents to forthwith grant freehold the land bearing Plot No.11, Block R-1, Scheme-4, Yojana Sisamau, Kanpur in favour of the petitioner and hand over the possession of the same to the petitioner in accordance with the decision of the State Government dated 27.8.2014 within a period of 3 months."

3. The dispute in present writ petition relates to Plot No.11, Block R-1, Scheme-4, Yojana Sisamau, Kanpur (hereinafter referred to as "disputed property"). A lease in respect of aforesaid disputed property was executed on 24.06.1952 in favour of M/s Jasodanandan Puttu Lal, a registered Partnership Firm registered under Indian Partnership Act, 1932 (hereinafter referred to as "Act, 1932") for a period of 999 years. The area of land was 334 square yards. After the death of Puttu Lal in 1973, petitioner being his son, applied for mutation of leasehold rights of disputed property in his favour. The order for mutation was passed and disputed property was mutated in petitioner's name on 19.10.2010. On the basis of a forged documents, one Mukesh Kumar Pandey, a Land-Mafia, intervened, claiming rights over disputed property. In respect of forged document, a Criminal Case No.03/73 of 2005 (Mukesh Pandey Vs. S.K.Jaiswal, Joint Secretary, Kanpur Development Authority, Kanpur) is pending in the Court of Additional District Judge, Court No.13, Kanpur. At the instance of Mukesh Kumar Pandey, mutation of disputed property made in faovur of petitioner was cancelled by Vice-Chairman, Kanpur Development Authority, Kanpur (hereinafter referred to as "KDA") on 30.11.2010. Petitioner made several representations but in vain. Petitioner then filed Writ Petition No.16168 of 2011 (Pramod Kumar Gupta Vs. State of U.P. & Ors.) challenging order dated 30.11.2010. Vide judgment dated 10.10.2011, order dated 30.11.2010 and consequential communication dated 13.12.2010 were quashed observing that dispute of title over disputed property, claimed by respondent 5 in the said writ petition, based on a Will, is pending adjudication in a Court of law, hence, so long as rights of parties are not decided, KDA ought not to have create cloud on the title of petitioner to own and possess disputed property. Ultimately, in respect of disputed property, mutation was restored in the name of petitioner.

4. Petitioner then deposited requisite amount and prayed for making disputed property "freehold" and also moved representations dated 19.11.2011 and 18.01.2012. Petitioner also claimed delivery of possession of disputed property to him. Petitioner pleaded that disputed property, presently, is in possession of illegal occupants and this fact is also known to respondents KDA but they are not taking any steps for eviction of unauthorized occupants from disputed property. Petitioner came to know that KDA is proposing to impose or demand non-construction charges though possession of disputed property was never handed over to petitioner, hence by representation dated 27.02.2012, petitioner requested not to charge non-construction charges. Secretary, KDA forwarded report dated 30.03.2012 recommending conversion of disputed property into freehold in favour of petitioner. Thereafter nothing was done though petitioner made representations dated 10.05.2012 and 26.07.2012. Since respondents continued in their plan to charge non-construction charges, petitioner filed Writ Petition No.44422 of 2012, which was disposed of vide judgment dated 04.09.2012 permitting petitioner to make representation and Vice-Chairman, KDA was directed to decide the same by a speaking order. Consequently, a representation dated 11.09.2012 was submitted by petitioner. KDA vide order dated 20.09.2012 informed petitioner that he himself has admitted possession of disputed property in a document executed on 13.11.2009 i.e. Power of Attorney executed by petitioner in favour of one Manish Gupta. Petitioner however pleaded that though he executed Power of Attorney on 13.11.2009 but it was cancelled 07.05.2012 and a new Power of Attorney was executed in which factum about possession was changed. KDA, however, demanded a sum of Rs.19,53,153/- for non raising construction over property in dispute vide order orders dated 04.08.2012 and 29.09.2012.

5. Assailing aforesaid two orders, petitioner filed writ petition No.53518 of 2012 which was disposed of vide order dated 09.01.2014 relegating petitioner to avail alternative remedy under Section 41 of U.P. Urban Planning and Development Act, 1973 (hereinafter referred to as "Act, 1973") by filing revision before State Government.

6. Petitioner thereafter approached State Government vide application/memo of revision dated 06.02.2014. Since nothing was done by State Government, petitioner again made representation dated 08.05.2014 and thereafter preferred Writ Petition No.2431 of 2015, which was disposed of vide order dated 22.01.2015 directing KDA to search lost files in respect of disputed property and also initiate appropriate proceedings against responsible officers. Consequently, KDA lodged a first information report dated 23.03.2015 at Police Station Swarup Nagar, which was registered as Case Crime no.77 of 2015 under Section 409 IPC.

7. The present writ petition was filed by petitioner initially challenging orders dated 04.08.2012, 29.09.2012 and 27.08.2014 but the aforesaid prayer has now been deleted.

8. A counter affidavit has been filed on behalf of respondents 2 to 4 i.e. KDA and its authorities. It is said that initially disputed property was allotted to one Puttu Lal, by way of auction held on 12.03.1951 and subsequently in favour of M/s Jasodanandan Puttu Lal, a registered Firm under Act, 1932, in 1952. The Firm had two partners namely Jasodanandan and Puttu Lal.

9. Puttu Lal son of Lakshman Prasad separated from the Firm and instead one Putti Lal son of Late Manni Lal Pandey along with Puttu lal entered into an Acknowledgment deed dated 14.05.1956 wherein Puttu Lal son of Lakshman Prasad relinquished his rights in respect of disputed property and rights were settled in favour of Jasodanandan and Putti Lal, who were both real brothers being sons of Manni Lal Pandey. Lease of disputed property was given in auction to purchaser for 999 years with specific condition of raising residential building thereon. As per Acknowledgment Deed, area of plot was mentioned as 334 square yards. Petitioner executed a Power of Attorney, registered on 13.11.2009, in favour of Manish Kumar Gupta in which he mentioned that disputed property is in his possession. Subsequently, with ulterior reason, he cancelled said Power of Attorney on 07.05.2012 and executed another one on the same date and in newly executed Power of Attorney, words "possession and title" were not mentioned. The name of petitioner was allowed to be mutated on 02.12.2011 since at that time he was in possession of disputed property, otherwise mutation would have never allowed by Nagar Nigam Kanpur. Unless person seeking mutation is in possession of property in respect whereto he is seeking mutation, no mutation is permissible. Time and again Government Orders were issued to levy penalties from Allottes who failed to abide by conditions of lease in respect of construction thereon. No construction was raised over disputed property by initial Allottees or their Successors. Petitioner's claim over disputed property is neither admitted nor can be replied directly in absence of relevant material on record placed by petitioner in this regard. The fact remains that no construction was raised over disputed property and hence there was clear violation of conditions of lease for which lease was granted hence demand of penalty for non-construction was justified.

10. A separate counter affidavit has been filed on behalf of respondents 5 to 8 sworn by Sanjiv Arora alias Vijay Arora, Son of Vasudeo Arora, claiming himself Pairokar of respondents 5 to 8. He has stated that lease rights over disputed property were obtained by M/s Jasodanandan Puttu Lal vide registered lease deed dated 24.06.1952, executed by Cawnpur Development Board. Subsequently, a relinquishment/ Acknowledgment Deed dated 14.05.1956 was executed between partners of the registered Firm i.e. Jasodanandan and Puttu Lal and one Putti Lal Pandey, who was inducted as partner in the business Firm and Puttu Lal retired. The retiring partner Puttu Lal relinquished his share in joint property of Firm, including disputed property, in the name of Putti Lal Pandey. The newly constituted Firm comprising of Jasodanandan and Putti Lal Pandey sons of Manni Lal Pandey raised constructions over disputed property which was numbered as Premises No.109/416A, Nehru Nagar, Kanpur. The disputed property was in possession of the said two partners and they exercised all rights and interest therein and enjoyed the same without any hindrance. In Municipal records also their names were shown. Both partners namely Jasodanandan and Putti Lal Pandey authored two Wills separately on 24.02.1978 and half of their share in the disputed property, which was numbered as 109/416A, Nehru Nagar Kanpur, was bequeathed to Mukesh Pandey. Putti Lal Pandey died on 02.02.1980 and Jasodanandan died in 1982. After their death, Mukesh Pandey became exclusive owner of disputed property and got his name mutated in the record of Nagar Mahapalika, Kanpur. Sri Mukesh Pandey transferred a portion of disputed property, measuring 161.73 Sq.mts., to his wife Smt. Ruchi Pandey vide sale deed dated 26.08.2003. Another sale deed was executed in favour of Smt. Ruchi Pandey on 24.03.2006, transferring 60 Sq.mts. of land of disputed property. The remaining 57.46 Sq.mts. was transferred to Smt. Ruchi Pandey vide sale deed dated 19.09.2007 and that is how Smt. Ruchi Pandey became owner of disputed property and got her name mutated in the Municipal Records. She executed a sale deed dated 22.02.2008 transferring entire disputed property to respondents 5 to 8, who thereafter applied for mutation of their names and also grant of freehold rights on 23.06.2010. Since no action was taken with regard to sanction of leasehold rights into freehold by KDA, a declaratory suit being original suit no.278 of 2011 (Vijay Kumar Malhotra & Ors. Vs. KDA & Ors.) was filed in the Court of Civil Judge (Senior Division), Kanpur Nagar, which is pending. In the aforesaid suit, petitioner, Pramod Kumar Gupta, is also arrayed as defendant 2. Petitioner used to file several writ petitions without impleading proper parties and obtained various orders. Respondents 5 to 8, actual lawful claimants with regard to disputed property, were never impleaded. Petitioner also filed false complaint against respondents 5 to 8 under Sections 420, 467, 468, 471, 447 IPC in which Investigating Officer submitted final report. Petitioner's protest petition was dismissed by Trial Court. Criminal Revision No.5033 of 2011 filed by petitioner is pending in this Court but no interim order has been passed therein. In this writ petition since petitioner has not disclosed material facts and, therefore, is guilty of concealment. He has approached this court with unclean hand and for this reason, above writ petition deserves to be dismissed.

11. In reply to the counter affidavit filed on behalf of respondents 2 to 4, petitioner has filed rejoinder wherein in reply to para 5 in which KDA and its authorities have referred to Acknowledgment Deed dated 14.05.1956, nothing has been said whether such deed was ever executed or not and only after a bare denial, it is said that Pramod Kumar Gupta is the only legal and natural heir of original Allottee, late Puttu Lal Gupta son of late Lakshman Prasad Gupta. It is further said that Sri Puttu Lal Gupta died on 15.11.1993 and thereafter petitioner got mutation in his favour on 19.10.2010. In the rejoinder affidavit it is admitted that property in dispute is in possession of Mukesh Pandey and some strangers. Petitioner's claim that he is entitled for ouster of those occupants from property in dispute and delivery of possession to petitioner. It is also said that construction raised on disputed property was illegal and unauthorized. KDA had issued demolition notices on 01.07.2004 and 08.07.2004 whereagainst Mukesh Pandey had filed Original Suit no.4 of 2005, which was dismissed and thereafter Appeal No.17 of 2005 was dismissed for want of prosecution on 16.10.2008.

12. A separate rejoinder affidavit has been filed in reply to the counter affidavit filed by respondents 5 to 8. It is said that original suit no.278 of 2011 has been dismissed on 21.02.2015 since plaintiff was absent. It is also said that Mukesh Pandey is not son of Putti Lal Pandey but his father's name is Bajrang Bali Pandey and his grand father was Ramdeen Pandey. Sri Bajrang Bali Pandey was resident of 109/241, Ram Krishna Nagar, Kanpur. Petitioner is the only son of late Puttu Lal Gupta, who was resident of 1/168 Transport Nagar, Kanpur Nagar and died on 15.11.1993. He has also filed a copy of judgment dated 17.08.2005 passed by Sri Ishwar Dayal, Additional District Judge, Court No.13, Kanpur Nagar in Misc. Civil Appeal No.17 of 2005 whereby appeal was allowed and parties were directed to maintain status quo in respect of disputed property.

13. It is also pointed out that against demolition notice dated 30.07.2004, Mukesh Pandey filed Appeal no.108 of 2005 before Commissioner, Kanpur Division Kanpur which has been rejected vide order dated 05.06.2006 holding that construction over disputed property is clearly unauthorized and no otherwise material was shown that the same was raised after getting map and plan sanctioned, hence no interference is called for in demolition notice. However, it has been observed that since Civil Court has already passed order for maintaining status quo hence execution of demolition order would be in the light of subsequent order passed by the Court.

14. Basically, in the rejoinder affidavit, claim of title made by respondents 5 to 8 has been seriously disputed.

15. In this writ petition we are not called upon to decide issue of title. Even otherwise since this dispute requires documentary and oral evidence of concerned parties, proper remedy is in Civil Court by seeking a proper declaration and under Article 226 of Constitution neither we are inclined to decide this disputed question of fact nor even otherwise it is within the ambit of relief prayed by petitioner.

16. In the present case, we are required to examine, "whether petitioner is entitled for relief i.e. mandamus commanding official respondents to allow conversion of disputed property into freehold."

17. In view of pleadings of the parties, and facts, borne out therefrom, certain undisputed facts emerge which are :

18. The disputed property belong to erstwhile Cawnpur Development Board and subsequently it is being managed by KDA. Lease rights of aforesaid property, as per own admission of KDA, were initially given to Sri Puttu Lal Gupta son of Lakshman Prasad. Sometime in 1952, Sri Puttu Lal Gupta entered into a partnership Firm with one Jasodanandan son of Manni Lal Pandey and it is admitted by parties that lease deed was executed in the name of aforesaid Firm in respect of disputed property on 24.06.1952. This execution of lease deed was in favour of registered Firm "M/s Jasodanandan Puttu Lal" and it transferred leasehold rights in respect of disputed property to the Firm. Sri Puttu Lal Gupta, in his individual capacity, ceased to have any claim, which he might have got before execution of lease deed dated 24.06.1952. The leasehold rights stood transferred to registered Firm M/s Jasodanandan Puttu Lal and partners of the Firm to the extent of their share in the Firm and in the manner provided in partnership deed read with provisions of Act, 1932.

19. The contention of petitioner that disputed property solely belong to Puttu Lal Gupta, who was original Allottee and thereafter transferred to him after his death is contrary to record and in the teeth of facts discussed above hence cannot be accepted. A copy of registered acknowledgment deed has been filed in both counter affidavits filed by respondents 2 to 4 and 5 to 8, but interestingly in the rejoinder affidavit there is a bare denial of concerned paragraphs of counter affidavit. There is not even a whisper/suggestion that no such acknowledgment deed was ever executed between partners of the Firm i.e. Jasodanandan, Puttu Lal Gupta and Putti Lal Pandey Son of Manni Lal Pandey, real brother of Jasodanandan. The aforesaid deed is also a 'registered deed'. In the absence of any assertion by petitioner that no such 'acknowledgment deed' was ever executed, for the purpose of present writ petition, without expressing any final opinion on the matter, we are clearly of the view that Puttu Lal Gupta retired from the Firm and surrendered his rights over disputed property in favour of newly reconstituted Firm in which Putti Lal Pandy son of Manni Lal Pandey was inducted as a new partner along with Jasodanandan. How and in what manner disputed property was settled by partners of Firm, in absence of any relevant material and also with respect to dispute of parentage of Mukesh Kumar Pandey, whether he was son of Putti Lal Panday or Bajrang Bali Pandey, we find appropriate not to express any final opinion on this aspect but suffice it to mention that petitioner's right over property in dispute lacks a clear chain of evidence and, therefore, his claim over disputed property even to the extent of leasehold rights cannot be accepted.

20. Then comes the question of possession. Original Allottee or subsequent transferree Firm and their partners at no point of time ever complained to KDA that disputed property was not given in their possession. They remained alive for quite a long period, inasmuch as, Sri Jasodanandan Pandey and Putti Lal Pandey survived till 1982 and 1980 respectively. Sri Puttu Lal Gupta, father of petitioner, as he claimed, survived till 1993. In this long period of almost thirty years and more, neither Original Allottee, Puttu Lal Gupta, nor subsequent transferree registered Firm nor partners of registered Firm ever raised any complaint to Kanpur Development Authority that possession of disputed property was not given to them.

21. Moreover, theory of non handing over of possession is contrary to concept of lease. Lease deed transfers an interest in the property for enjoyment of property as per terms and conditions of the lease deed. The original lease deed has not been brought on record by any of the party. Since factum about possession is used to be mentioned in lease deed, hence non-placement of lease deed, which admittedly was a registered document, justify an inference to be drawn by us against person who is claiming otherwise benefit under the said lease deed.

22. Petitioner admits that he is not in possession over disputed property. He has built up a story that possession over property was never handed over by Kanpur Development Authority though no such complaint was made by initial Lease Holder(s) for decades altogether. Petitioner, for the first time, after more than 30 years of execution of lease deed on 24.02.1952 has attempted to raise this dispute, which we find difficult to accept.

23. Now coming to the question of conversion of leasehold land into freehold, in the entire writ petition there is no pleading as to how petitioner is entitled, as a matter of right, to get leasehold rights converted into freehold and also for issue of mandamus for the said purpose. In presenti, statutory order passed by Lessor i.e. Kanpur Development Authority is in existence showing that Lessee has violated terms and conditions of lease and subsequently some persons had raised unauthorized construction, therefore, either to regularize lease-deed, lessee must pay penalty charges otherwise continuance of possession over disputed property is unauthorized. Moreover, in absence of any provisions entitling petitioner to claim conversion of leasehold right into freehold and corresponding obligation upon State-respondents, no mandamus can be issued. It is well settled that a writ of mandamus would lie only if petitioner is enforcing a legal right and respondents, who are under statutory obligation to do or not to do something, have failed to do so.

24. In Oriental Bank of Commerce Vs. Sunder Lal Jain and another (2008) 2 SCC 280, Court after referring to its earlier judgments in Bihar Eastern Gangetic Fisherman Cooperative Society Ltd. Vs. Sipahi Singh (1977) 4 SCC 145; Lekhraj Sathramdas Lalvani Vs. N.M. Shah, AIR 1966 SC 334, and Dr. Uma Kant Saran Vs. State of Bihar 1993(1) SCC 485 observed as under:

"There is abundant authority in favour of the proposition that a writ of mandamus can be granted only in a case where there is a statutory duty imposed upon the officer concerned and there is a failure on the part of that officer to discharge the statutory obligation."

25. The petitioner neither referred to any statutory provision nor executive order so as to show that he satisfy all requirements therein and is entitled to claim a mandamus to respondents KDA to convert leasehold right into freehold. Hence, mandamus as sought for, cannot be granted.

26. In view of the above, we find no merit in the writ petition.

27. The writ petition lacks merit. Dismissed with cost, which we quantify to Rs.10,000/-.

 
Order Date :- 06.07.2018
 
KA
 

 
(Shashi Kant,J.)       (Sudhir Agarwal,J)