Brijbhan Singh Yadav [P.I.L.] vs State Of ...
2018 Latest Caselaw 2369 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 


 
Reserved
 
A.F.R.
 

 
Court No.-19
 
Case :- MISC. BENCH No. - 9252 of 2013 [P.I.L.]
 
Petitioner :- Brijbhan Singh Yadav 
 
Respondent :- State Of U.P.Thr.Prin.Secy.Housing & Tonw Planning,Lko.& Ors
 
Counsel for Petitioner :- Rajeev Singh,Kshemendra Shukla
 
Counsel for Respondent :- C.S.C.,Gaurav Mehrotra,Hemendra Shukla,I.P.Singh,Laltaprasad Misra,Mukund Tewari,Shailendra Singh Chauhan,Shashi Prakash Singh,Upendra Nath Mishra
 
with
 
Case :- MISC. BENCH No. - 11374 of 2015 [P.I.L.]
 
Petitioner :- Brij Bhan Singh Yadav 
 
Respondent :- State Of U.P.Thru Prin.Secy.(Housing & Urban Planning) & Ors
 
Counsel for Petitioner :- Hari Shankar Jain
 
Counsel for Respondent :- C.S.C.,Gaurav Mehrotra,Shailendra Singh Chauhan,Sri Mukund Tewari,Upendra Nath Mishra
 
Hon'ble Dilip B. Bhosale,Chief Justice
 
Hon'ble Vivek Chaudhary,J.

(Per- Vivek Chaudhary, J.)

1. These two Public Interest petitions, connected together, relate to Gata nos. 249, 250 and 251, situated at village Qila Mohammadi Nagar, Lucknow. They are filed alleging that the said plots, belonging to State, are in unauthorized occupation of a private respondent, Sri Sharda Pratap Shukla, who is a local leader and politician and has been a Member of Legislative Assembly (M.L.A.) for three terms, since the year 1985 and Minister of State with independent charge in Samajwadi Party Government from 2012 to 2017.

2. First Writ Petition No. 9252 (M/B) of 2013 [P.I.L.] is filed for the following reliefs:-

"I. Issue a writ, order or direction in the nature of mandamus commanding the opposite parties No. 1 to 5 to remove the illegal and unauthorized encroachment of the opposite party No. 6 over the plot No. 249, 250 & 251 recorded in the name of Lucknow Development Authority, situated at Qila Mohammadi Nagar, Lucknow, which is reserved for future development.

II. Issue a writ, order or direction in the nature of Mandamus commanding the Director, Vigilance, Establishment, Govt. of U.P., Lucknow, the opposite party No. 8 to conduct and enquiry for fixing the liability of the accountable officers of Lucknow Development Authority under whose supervision, the land in question was encroached by the opposite party No. 6 by way of raising construction of shops and rooms etc. and the same have been given on rent and the rent approximately Rs. 70,000/- per month is being realized by the opposite party No. 6 and also order for criminal prosecution against the responsible persons."

3. Second Writ Petition No. 11734 (M/B) of 2015 [P.I.L.] is filed for the following reliefs:-

(a) Issue a writ, order or direction in the nature of certiorari quashing the impugned order dated 08.01.2015 as contained in Annexure No. 15 to the writ petition.

(b) Issue a writ, order or direction in the nature of certiorari quashing the entries made in revenue records pursuant to order dated 08.01.2015 and nullify every action taken in pursuance of the said order by any of the opposite parties.

(c) Issue a writ, order or direction in the nature of mandamus directing the opposite parties no. 4 to 6 to hand over possession of Khasra No. 249 to LDA within the time provided by the Hon'ble Court.

(d) Issue a writ, order or direction in the nature of mandamus commanding the opposite parties to recover the land Khasra No. 249 from private respondents within the time provided by the Hon'ble Court and demolish the existing construction over the land in question in accordance with law."

4. A third Writ Petition No. 2765(M/B) of 2014 was also filed by Sri Sharda Pratap Shukla for the following reliefs:-

"(i) issue a writ, order or direction in the nature of MANDAMUS thereby commanding the Opposite Parties to ascertain and accept the adjustment charges/development charges forthwith to meet the ends of justice.

(ii) issue a writ, order or direction in the nature of MANDAMUS thereby commanding the Opposite Parties not to interfere in the peaceful possession of the Petitioner in any manner to meet the ends of justice.

(iii) issue a writ, order or direction in the nature of CERTIORARI thereby quashing of the impugned Notice dated 05.12.2013 issued by the Opposite Party No. 7 and contained in Annexure No. 11 to the Writ Petition."

This third writ petition filed by Sri Sharda Pratap Shukla was withdrawn by him on 24.04.2018, when hearing started, as having become infructuous but, since, record of the same is relevant for the proper disposal of present two petitions, thus the same was kept as connected and referred to during hearing.

5. The allegations in the public interest litigations are that Sri Sharda Pratap Shukla, in violation of the provisions of Transfer of Property Act, 1882 (T.P. Act), U.P. Zamindari Abolition and Land Reforms Act, 1950 (U.P. Z.A.& L.R. Act) and other laws, has illegally occupied the said three plots. The allegation is that Sri Sharda Pratap Shukla, being a local politician, a Member of Legislative Assembly for three terms since 1985 and a minister, under his clout and political influence, illegally occupied the said land and has influenced the authorities not to evict him from the same. Despite the land stood vested in the State under the U.P. Z.A & L.R. Act and also its acquisition by the State, he has continued his unauthorized possession of the said land and the State authorities are not taking any action, thus, the public interest litigations are filed.

6. Facts of the present case are, that, in the year 1979, the ownership of plot no. 249 was recorded in the name of Sri Jangli Prasad, plot no. 250 was recorded in the name of Sri Nanha and plot no. 251 was recorded in the name of Sri Om Prakash, all sons of Sri Munni Lal. The said plots were recorded as agriculture land on which provisions of U.P. Z.A. & L.R. Act were applicable. The said three brothers belonged to Pasi Caste, a schedule caste in State of U.P. So far as plot no. 249 is concerned, it is claimed by Sri Sharda Pratap Shukla, that, on 06.11.1979 an agreement to sell was executed by Sri Jangli Prasad in his favour. The said document reads:-

"eSa taxyh izlkn iq= eqUuhyky xzke mljh etjk lkysguxj ijxuk o rglhy o ftyk y[kuÅ fodzsrk rFkk Jh 'kkjnk izrki iq= jkexksiky fuoklh y[kuÅ dzsrk gS fodzsrk dks viuh fuEu vkjkth gLrkarfjr djus dk vf/kdkj gS vkSj dj ldrk gS blfy;s fodszrk vkSj dszrk ds e/; fuEufyf[kr bdjkj gqvk gS&

1& ;g fd fodzsrk iqjkuk Hkwfe ua0 [email protected]] [email protected]] [email protected] u;k uacj 249 rk oknh jdck [email protected] cqerkfcdlh0 ,p0 QkeZ 23 okdS ekStk fdyk eksgEEknh uxj ijxuk o rglhy o ftyk y[kuÅ dk Hkwfe/kkj gS vkSj dkfct o nkf£y gS mDr Hkwfe dks dszrk ds gkFk eq0 [email protected]& :i;s AA ckbl gtkj :i;s AA esa ftlds vk/ks 11][email protected]& :i;sAA X;kjg gtkj :i;s gksrs gS] esa cspuk r; gqvk FkkA

2& ;g fd mDr vkjkth gj rjg ls ikd lkQ gS ,oe~ Hkkj ls eqDr gSA

3& ;g fd fodszrk us ct:r dqy tj leu eq0 22][email protected]& :i;k ckbl gtkj :0 ftlds vk/ks X;kjg gtkj :i;k gksrs gS jftLVªh djus ds iwoZ gh bdjkj ukes ds le; :c: xokgku fnukad 6&11&79 dks izkIr dj fy;k gS vkSj fodzhr Hkwfe dk dCTkk o n[ky ekfydkuk dszrk dks ns fn;k gS dszrk tSlk pkgs mls vius bLrseky esa yk;s fodzsrk dks mlesa fdlh izdkj dk n[ky nsus dk vf/kdkj u gksxk vkSj u gh dksbZ gd vc ckdh gSA

4& ;g fd fodzsrk mDr fodzhr vkjkth cspus dh vuqefr l{ke vf/kdkjh uxj Hkwfe lhek jksi.k dk;kZy; y[kuÅ ls izkIr djds dszrk dks rqjar jftLVªh dj nsa ;fn fodzsrk fdlh izdkj dk ghyk gokyk jftLVªh djus esa djrk gS rks dszrk dks vf/kdkj gksxk fd og vnkyr ls jftLVªh djk ys fodzsrk dks dksbZ vkifRRk u gksxhA vr% bdjkjukek fodzsrk vkSj dszrk ds njfe;ku :c: xokgku fy[kk x;k fd lun jgs vkSj oDr t:jr ij dke vk;sA

fnukad 6&11&79

VkbidrkZ& egsUnz flag] ykblsaLk VkbfIkLV] dysDVsªV] y[kuÅ"

7. For the purposes of possession, constructions raised on all the three plot and its status from time to time, suffice would be to quote paragraph-7 of the Writ Petition No.2765 (M/B) of 2014 filed by Sri Sharda Pratap Shukla, which reads:-

"7. That over the Khasra Plot No. 249, Six shops have been constructed and one Ayurvedic Hospital has been constructed by the Petitioner behind the shop. On the north direction four rooms, one staircase, one toilet, one store room and other rooms have been constructed and the land is surrounded by a boundary wall. Over the Plot No. 250 there is a temple of Lord Shiva and the same has been constructed by the petitioner. Over the another adjoining Khasra Plot No. 251, there is a temple, six shops have been constructed, there is also a Gaushala and these construction are surrounded by a boundary wall. There is big orchard containing six trees of Bel, eight trees of Ashoka, Ten Trees of Amla, Five Tree of Guavas and 03 tress of Neem, Four trees of buts and three trees of Peepal have been planted by the Petitioner and the same are fully grown up and old trees. All the aforesaid construction and plantation of trees was constructed before the year, 1982. Though the Petitioner remained in physical possession and raised the construction as above and planted trees, but land remained recorded in the village record in the name of Late Jangali Prasad, because Jangli Prasad was Pasi by caste and was thus schedule caste and the sale deed could not be executed as the permission under Section 157-'A' of U.P. Z.A. and L.R. Act as the requisition permission for transfer of agricultural land had to be obtained according to statutory and mandatory instruction contemplated under the aforesaid section.

It is, however, relevant to state that before the year 1979 the land of Plot No. 249 was recorded as agricultural land and a construction being raised over plot in question and others areas came to be recorded in village revenue recorded as abadi land. The true copy of Khasra extract of 1392 Fasli is being filed herewith as Annexure no.2 to this Writ Petition."

Sri Sharda Pratap Shukla has filed counter affidavit in other petitions also with similar pleadings.

8. With regard to plot no. 250 and 251, there is no averment made, either by Sri Sharda Pratap Shukla or by any other person, that any deed of any nature was ever executed. Thus, Sri Sharda Pratap Shukla claims to have taken possession of the said plots and raised constructions as an owner prior to 1982. In 1392 Fasli (year 1984) all the plots are claimed to be recorded as Abadi in revenue records. Thus, till the year 1984 the provisions of U.P. Z.A. & L.R. Act were applicable on them.

9. The said three plots, along with other neighboring land, were acquired for the purposes of urban development by Lucknow Development Authority, for its Scheme known as Kanpur Road Nagar Pariyojna-III. The award of the said acquisition notes the date of Section 4 read with Section 17 as 08.03.1985 and the date of declaration under Section 6 read with Section 17 as 11.03.1985. It further notes different dates for taking possession as 19.03.1985, 27.03.1985, 28.03.1985, 01.03.1986 and 15.07.1986. The award itself is dated 07.03.1987. The said award regarding ownership of the aforesaid three plots records:-

(1) Plot No. 249 is recorded in revenue record in the name of Sri Jangli Prasad, minor aged 16 years, son of Munni Lal, under guardianship of Smt. Sukh Dei, (internal page 36 of award);

(2) Plot No. 250 is recorded in revenue record in the name of Sri Nanha, aged 10 years, son of Munna Lal, under guardianship of Smt. Sukh Dei, mother (internal page 42 of the award);

(3) Plot No. 251 is recorded in revenue record in the name of Sri Om Prakash, aged 13 years, son of Munni Lal, under guardianship of Smt. Sukh Dei, mother, (internal page 24 of the award).

10. It appears that in the year 1986, when the acquisition proceedings were finalized and actual possession was to be taken by State Government, for the first time, Sri Sharda Pratap Shukla faced difficulty. Therefore, two applications were moved before the Special Land Acquisition Officer, Nagar Mahapalika, Lucknow. The first application dated 22.05.1986 is filed by Sri Jangli Prasad along with a supportive affidavit. In the said application and affidavit, Sri Jangli Prasad submitted that as per the agreement between him and Sri Sharda Pratap Shukla, he has already given the possession of Plot No.249 to Sri Sharda Pratap Shukla with absolute rights of ownership therein and he does not have any further rights in the same. He further stated that now a house is constructed on the said land by Sri Sharda Pratap Shukla, who is also having his government telephone etc. In his affidavit, he specifically states that he has handed over "absolute rights as an owner to the purchaser" and "he has no rights of any kind." Sri Sharda Pratap Shukla also filed an application dated 24.05.1986 claiming that he is absolute owner and in possession of the property on the basis of agreement to sell and his ration card is also issued and his government telephone is also installed on the said property and Sri Jangli Prasad has no concern of any kind with the said land. In his application, Sri Sharda Pratap Shukla prayed that his land may be released from acquisition or, in case the same is not possible, then, he may be paid compensation at the rate of Rs. 20 per square yard along with solitium, interest and cost of the construction of house etc. The said application finds reference in award. It appears that he also moved similar application before the minister for Town Development. By his letter dated 12.05.1986, the minister forwarded his application/letter to Secretary, Town Development. Thereafter, by letter dated 06.11.1986, the Secretary of Lucknow Development Authority informed Sri Sharda Pratap Shukla that the development authority has decided to adjust his house constructed on plot no. 249, on condition that he would deposit the cost of the land as per the terms and rates of the scheme in the account of development authority. The said letter seeks acceptance of condition from Sri Sharda Pratap Shukla. However, by his letter dated 13.02.1987, Sri Sharda Pratap Shukla, instead of granting his consent, requested that his land/house should be left out without any charges. Again a letter dated 22.12.1987 was sent by the development authority to Sri Sharda Pratap Shukla, informing him that his land can be accommodated, on his depositing Rs. 219.40 per square meter, and seeking his approval for the same. The same was also not accepted by Sri Sharda Pratap Shukla and by his letter dated 08.04.1988 he again inquired as to on what basis the said rate is fixed.

11. Thus, in the year 1986, for the first time, the alleged agreement dated 06.11.1979 saw the light of the day, when it was placed before the Land Acquisition and Development Authorities. Sri Sharda Pratap Shukla continued in possession and enjoyment of the property, as no interference was made by any authority and developed the same by raising constructions, as he desired, though maps for such constructions were never got sanctioned or at least no such record of sanction of any map is placed before this Court.

12. A part of the house/rooms on Plot No. 249 was also given on rent to Government Ayurvedic Hospital in April, 1991, and the same also continued to pay rent to Sri Sharda Pratap Shukla. In the year 2013, first public interest litigation was filed before this court, followed by a Writ Petition, filed in the year 2014, by Sri Sharda Pratap Shukla for release of said plots, followed by another public interest litigation in the year 2015, which are now being considered by this Court.

13. Since, a reply was sought by the court in the present litigation, therefore, Lucknow Development Authority conducted an inquiry and a report dated 29.11.2015 was submitted by the Joint Secretary, Acquisition. The said report, found that the constructions and possession of Sri Sharda Pratap Shukla, on all the three plots, is illegal and recommended that steps be taken for removal of the unauthorized constructions and the Court should be informed of the correct facts by filing a counter affidavit.

14. Thus, on 05.12.2013, a notice was issued by the competent authority, under Section 26A(4) of U.P. Town Planning and Development Act 1973, to Sri Sharda Pratap Shukla to show cause why eviction order should not be passed for property no. 249, 250 and 251, on which after making unauthorized occupation shops, houses and temple have been constructed by him and he be evicted and cost of eviction be also recovered from him.

15. A reply to the said show cause notice was given by Sri Sharda Pratap Shukla on 07.01.2014, regarding all the three plots. In the said reply, keeping his submissions vague, Sri Sharda Pratap Shukla claimed, that, he is in occupation of the plots on the basis of agreement to sell dated 06.11.1979, executed by Sri Jangli Prasad. Reliance was also placed upon the earlier letters of different authorities requiring Sri Sharda Pratap Shukla to deposit the cost of the land and development charges. It was also submitted in the reply, that temple on the said plots already existed and, hence, it was stated that he is not in unauthorized occupation and plot no. 249 be released after re-fixing the development charges on the same and getting the same deposited. Further plots no. 250 and 251 be released, as their acquisition is by mistake, there being temple on the same. On 09.10.2014, Sri Sharda Pratap Shukla again moved an application before the Principal Secretary (Housing), Lucknow under Section 24(2) of the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013 (hereinafter referred to as 'Right to Fair Compensation Act, 2013'), submitting that he is the owner of plot no. 249 by way of an agreement to sell of the year 1979. Sri Sharda Pratap Shukla, in his application submitted that since the compensation of the land is not paid and since physical possession is not taken, hence, land be released under Section 24(2) of The Right to Fair Compensation Act, 2013. Another application was moved by Smt. Bindeshawri Devi, wife of late Sri Jangli Prasad, supported with an affidavit of Sri Sanjeev Kumar, son of late Sri Jangli Prasad. In the said application they submitted that compensation of the Plot No. 249 was not received till date and even the physical possession is not taken by the development authority/State Government, though award was made on 07.03.1987. She further submitted that physical possession of plot no. 249 was given to Sri Sharda Pratap Shukla on 06.11.1979 and since then, the same is being used by Sri Sharda Pratap Shukla. By the said application it was prayed that plot no. 249 be released from acquisition in favour of Sri Sharda Pratap Shukla. In the affidavit it was specifically stated by Sri Sanjeev Kumar, that, after the agreement to sell Sri Sharda Pratap Shukla continued to be in possession and the deponent has no concern with the said plot. The said applications were allowed by the Principal Secretary by his order dated 08.01.2015 and the land was declared to be out of acquisition, under Section 24(2) of The Right to Fair Compensation Act, 2013, but in favour of Smt. Bindeshwari Devi, despite the fact that no prayer for release of land in favour of Smt. Bindeshari Devi was ever made. After order dated 08.01.2015 was passed Sri Sharda Pratap Shukla got a sale deed from Smt. Bindeshwari Devi and Sri Sanjeev Kumar of plot no.249 executed on 18.11.2015. In the said sale deed, though the valuation of property is shown as Rs. 1,05,99,369/- but sale consideration is Rs. 22,000/-only claimed to be paid many years earlier.

16. It is pertinent to note that application filed by heirs of Sri Jangli Prasad, under Section 24(2) of Right to Fair Compensation Act, 2013, was only with regard to plot no.249. Brothers of Sri Jangli Prasad/owners of Plot No. 250 and 251 or Sri Sharda Pratap Shukla, never moved any application for releasing the same from acquisition and the same were also never released.

17. In the first writ petition bearing Writ Petition Misc. Bench No.9252 of 2013 [P.I.L.] an interim order dated 05.10.2013 was passed. Relevant part of the said interim order reads:-

"Till the next date of listing, respondent nos. 2, 3, 4 and 5 are directed to ensure that no further construction is done on the plots in question."

Thereafter, again in the said writ petition, an order for removal of encroachments was passed on 03.02.2016. The order dated 03.02.2016 reads:-

"Instructions placed before the Court by the learned Addl. Advocate General are taken on record.

Learned Additional Advocate General on the basis of instructions states that genuineness of the encroachment on Khasra Nos.250 & 251 has been found to be correct and date of removal of the encroachment has also been fixed by the LDA on 11.02.2016.

Let the required exercise may be undertaken by the LDA for removing the encroachment on the said date.

List this matter on 12.02.2016.

Authorities concerned are directed to provide necessary assistance for removal of the encroachment."

The said orders are in force till date. It is also admitted that encroachments from plots no. 250 and 251 are not removed till date.

18. Two impleadment applications are filed in the first petition, one by four persons and another by ten persons, all claiming to be resident of the area from which the dispute arises and having right to worship in the temple in plots no. 250 and 251. Both the applications are filed by Sri Kshemendra Shukla, counsel for interpleaders.

19. We have heard learned counsels for petitioner, learned counsel for private respondent, learned counsel of Lucknow Development Authority, learned Standing Counsel for the State and learned counsel for interpleaders.

20. Submission of counsel for petitioner is that the entire conduct of the State authorities in the present matter has been illegal and the State authorities have out and out violated the law to support the respondent, Sri Sharda Pratap Shukla. They have done so because of his political influence, being a local leader. Submission of the petitioner is that the property in dispute stood vested in the State, as per the provisions of U.P. Z.A & L.R. Act, as the land of a Scheduled Caste was purchased by Sri Sharda Pratap Shukla without the permission of the appropriate authorities. Further submission is that the State authorities neither complied with the interim orders passed, from time to time, by this Court nor complied with law, under which they were required to immediately take action against Sri Sharda Pratap Shukla. Learned standing counsel and counsel for the development authority submitted that State authorities acted in accordance with law, as and when required, and always have been ready and willing to take action. Learned counsel for Sri Sharda Pratap Shukla submits that there is no illegality committed by Sri Sharda Pratap Shukla and he acted in accordance with law. His further submission is that he has not violated the provisions of U.P. Z.A. & L.R. Act or any other law. He further submits that the present writ petition cannot be heard in view of order of the Supreme Court dated 21.02.2018 passed in SLP No. 8453 of 2017; State of Haryana And Ors. Vs. M/S G.D. Goenka Tourism Corporation Limited and Anr., as the Supreme Court has required the High Courts "not to deal with any cases relating to the interpretation of or concerning Section 24 of the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013." His Submission is that in this case, ultimately, the land is released under Section 24 of the Right to Fair Compensation Act, 2013, therefore, the proceedings in this case should be stayed in compliance of aforesaid order of the Supreme Court. Learned counsel for Sri Sharda Pratap Shukla and for interpleaders raised objections with regard to the petitioner capacity to maintain the public interest litigation claiming that the petitioner himself is a land graber and there are number of cases pending against him. Counsel for interpleaders further submits that interpleaders are conducting puja in the temple since its constructions in early 80s' on plot no.250 and 251. He claim that interpleaders have a right to conduct puja and the temple is legally constructed.

21. The first preliminary objection which arises, is whether the proceedings should be stayed in view of the aforesaid order dated 21.02.2018 of the Supreme Court? In this case, there is no interpretation or issue required to be decided concerning Section 24 of the Right to Fair Compensation Act, 2013. The dispute involved is, as to whether, much prior to the notification of Right to Fair Compensation Act, 2013, the land stood vested in the State, as per provisions of the U.P. Z.A. & L.R. Act. Since there is no issue with regard to interpretation of or concerning Section 24 of the Right to Fair Compensation Act, 2013, hence, this Court does not find that the proceedings are required to be stayed. So far as the second preliminary objection with regard to maintainability of the public interest litigation by the petitioner is concerned, this court, looking into the facts and circumstances of the case detailed in this judgment, does not find it proper to refuse to entertain this petition. The facts of the case show that there are very serious charges of illegal influence of a local political leader and inaction on part of government officials. Once charges of such serious illegalities have come in the knowledge of the court, we find it proper to decide the same on pleadings, evidence and admissions of the respondents. We are not making any observations with regard to the petitioner herein.

22. On merits, it is strongly argued by counsel for Sri Sharda Pratap Shukla that the document dated 06.11.1979 is an agreement to sell and is not a sale deed. While opposing him submission is that the same amounts to a sale deed and that too, being unregistered, can not be looked into. Therefore, two aspects require consideration of this Court. First, as to whether the said document is an agreement to sell or a document of sale and second as to whether the same is a valid document and if not, its impact. On the first question, it would be necessary to read the real intent of the parties. The said document, as noted above, clearly declares that the entire sale consideration is received by the seller and he has also transferred and the purchaser has received all rights in the property. No ownership rights remains in the seller. Such a declaration amounts to a sale of property. Had the parties got the documents registered, purchaser would never have required any other document, to exercise his rights as an owner of the property over the same. Further the conduct of the parties after the execution of document itself shows that the purchaser had dealt with the property as a true owner, with total support and declaration of purchaser's ownership by the seller before all. In fact, after acquisition of the property, before all the authorities concerned, they both declared, that, by the said document dated 06.11.1979, the property stood owned by the purchaser and the seller had no right of any nature in the same. Both the parties maintained the said stand for all times to come. For interpreting a document, the interpretation given to the document by the parties and their conduct is of much relevance in law. In case of Re Harmsworth (deceased) [1967] Ch.826, at p.833, where on a question whether a particular transaction was a "purchase" within the Section 3(1) of the Finance Act 1894, Buckely J. said:

"For this purpose, it is, I think, right to have regard to substance rather than form in this sense but no further; that is to say, conveyancing forms will not inhibit the court from holding the transaction to be a sale and purchase if its true legal nature and effect, regarding the transaction as a whole, is that of a sale and purchase, but it is insufficient merely to say that the effect of the transaction could have been achieved by a sale and purchase."

Further reference can also be made to the following judgments of Supreme Court:-

(i) Bharat Aluminium Company Vs. Kaiser Aluminium Technical Services INC.; (2016) 4 SCC 126, in paragraph-10 the Supreme Court held:-

"10. In the matter of interpretation, the court has to make different approaches depending upon the instrument falling for interpretation. Legislative drafting is made by experts and is subjected to scrutiny at different stages before it takes final shape of an Act, Rule or Regulation. There is another category of drafting by lawmen or document writers who are professionally qualified and experienced in the field like drafting deeds, treaties, settlements in court, etc. And then there is the third category of documents made by laymen who have no knowledge of law or expertise in the field. The legal quality or perfection of the document is comparatively low in the third category, high in second and higher in first. No doubt, in the process of interpretation in the first category, the courts do make an attempt to gather the purpose of the legislation, its context and text. In the second category also, the text as well as the purpose is certainly important, and in the third category of documents like wills, it is simply intention alone of the executor that is relevant. In the case before us, being a contract executed between the two parties, the court cannot adopt an approach for interpreting a statute. The terms of the contract will have to be understood in the way the parties wanted and intended them to be. In that context, particularly in agreements of arbitration, where party autonomy is the grundnorm, how the parties worked out the agreement, is one of the indicators to decipher the intention, apart from the plain or grammatical meaning of the expressions and the use of the expressions at the proper places in the agreement." (emphasis added)

(ii) Ram Gopal Vs. Nand Lal and Others; AIR 1951 SC 139. In paragraph-7 of the said judgment, the Court held:-

"7. In construing a document whether in English or in vernacular the fundamental rule is to ascertain the intention from the words used; the surrounding circumstances are to be considered, but that is only for the purpose of finding out the intended meaning of the words which have actually been employed......................."(emphasis added)

Thus, since all rights of ownership are transferred by the said document and looking into conduct of parties after its execution, this court finds no difficulty in holding the same to be a document of out right sale.

23. So far as the validity of the said document is concerned, admittedly the same is not a registered document. In State of U.P., Section 54 of the Transfer of Property Act was amended by Section 30 of U.P. Act No.57 of 1976, w.e.f. 01.01.1977. After the aforesaid amendment, the same reads:-

"54. "Sale" defined.--''''Sale" is a transfer of ownership in exchange for a price paid or promised or part-paid and part-promised.

Sale how made.--*Such transfer, in the case of tangible immoveable property or in the case of a reversion or other intangible thing, can be made only by a registered instrument.

Contract for sale.--A contract for the sale of immoveable property is a contract that a sale of such property shall take place on terms settled between the parties.

It does not, of itself, create any interest in or charge on such property.

"Such contract can be made only by a registered instrument."[Vide U.P. Act 57 of 1976, Section 30 w.e.f. 01.01.1977]" (Emphasis added)

Therefore, after 01.01.1977 even an agreement for sale is required to be registered in State of U.P. Admittedly, the document dated 06.11.1979 is not a registered document, therefore, whether the same is treated to be an agreement to sell or a sale deed, it necessarily required registration under law. The effect of non registration of a document is provided under Section 49 of the Registration Act. In State of U.P. Section 49 of the Registration Act was amended by Section 34 of U.P. Act No.57 of 1976, w.e.f. 01.01.1977. After amendment, Section 49 of the Registration Act reads:-

"49. Effect of non-registration of documents required to be registered.--No document required by section 17 or by any provision of the Transfer of Property Act, 1882 or of any other law for the time being in force (4 of 1882), to be registered shall--

(a) affect any immovable property comprised therein, or

(b) confer any power or create any right or relationship, or

(c) be received as evidence of any transaction affecting such property or conferring such power or creating such right or relationship

unless it has been registered:

Provided that an unregistered document affecting immovable property and required by this Act or the Transfer of Property Act, 1882 (4 of 1882), to be registered may be received as evidence of any collateral transaction not required to be effected by registered instrument.[Vide Uttar Pradesh Act 57 of 1976, sec. 34 (w.e.f. 1-1-1977)]."

Since the said document is not registered, therefore, it is not a valid document in the eyes of law. The said document cannot be relied upon for creating or transferring any right in the property. Thus, all three plots no. 249, 250 and 251 stand on same footing. The possession of all the three plots was taken over by Sri Sharda Pratap Shukla without any valid document being executed and constructions were also raised after taking over by him prior to 1982 as a true owner. The earlier owners either gave their consent that the ownership stands transferred to Sri Sharda Pratap Shukla or at least never came before any authority or objected in any manner to the possession and ownership of Sri Sharda Pratap Shukla and his claim that he is enjoying the plots as an owner. Therefore, this Court has no hesitation in coming to the conclusion that Sri Sharda Pratap Shukla and the earlier owners treated the land transferred, as an owner, to Sri Sharda Pratap Shukla between 1979 and 1982. It is also admitted by Sri Sharda Pratap Shukla, in paragraph-7 of his writ petition as quoted above, that it was in 1392 fasli (year 1984) that the land was noted as Abadi in the revenue records and till then the same was agriculture land. Thus, till the year 1984, the provisions of U.P. Z.A. & L.R. Act were admittedly applicable upon the land in dispute. Therefore, we are concerned with the provisions of U.P. Z.A. & L.R. Act, more particularly with Sections 157-A, 166 and 167, as they existed from 06.11.1979 till the year 1984 and their impact.

24. The purpose of U.P. Zamindari Abolition and Land Reforms Act (U.P. Z.A & L.R. Act) was to remove zamindari system and handover the land to the actual tiller. Certain tillers, amongst those poor persons, belonged to socially backward classes. The legislature found that they were unable to hold and were being divested of their land, by persons who were socially better placed. In the said background, protections were provided by making amendments in the U.P. Z.A. & L.R. Act. The first major amendment was made in the year 1969 by bringing Section 157-A to the Act. The rights of tribal people were protected by putting certain restrictions on sale of their holdings to any person other than a tribal. In case of such a transfer, it was provided that the land would vest in the State Government after following certain procedure. The next amendment thereafter came by U.P. Act No.34 of 1974 whereby Section 157-A was modified and along with the word 'Scheduled Tribe" the word "Scheduled Caste" was also included. A minor amendment with regard to description of property i.e. a 'Sirdar' to a 'Bhumidhar with non transferable rights' was made by U.P. Act No.8 of 1977. Certain amendments were also made to the sections 157-A, 166 and 167 by U.P. Act No. 30 of 1975, U.P. Act No.35 of 1976 and U.P. Act No.8 of 1977. After aforesaid amendments, Sections 157-A, 166 and 167, as they stood in the year 1977 (after amendment of U.P. Act No.8 of 1977), read as:-

"157- A Restriction on transfer of land by members of Scheduled Castes, Scheduled Tribes. (1) Without prejudice to the restrictions contained in Sections 153 to 157, no bhumidhar or asami belonging to a Scheduled Caste, Scheduled Tribe shall have the right to transfer by way of sale, gift, mortgage or lease any land to a person not belonging to Scheduled Castes, Scheduled Tribes except with previous approval of the Collector.

Provided that a bhumidhar with transferable rights or asami belonging to a Scheduled caste or Scheduled Tribe may without such approval, transfer by way of mortgage without possession, his interest in any holding as security for a loan taken by way of financial assistance for agricultural purposes (as defined in the Uttar Pradesh Agricultural Credit Act, 1973), from the State Government by way of Taqavi or from a co-operative land development bank, of from the State Bank of India or from any other bank which is a scheduled bank within the meaning of clause (c) of section 2 of the Reserve Bank of India, Act, 1934, or from the U.P. State Agro Industrial Corporation Limited.

(2) On an application being given in that behalf in the prescribed manner, the Collector shall make such inquiries as may be prescribed.

"Explanation;- In this Chapter, the expressions 'Scheduled Castes and Scheduled Tribes' respectively mean the Scheduled Castes and Scheduled Tribes specified in relation to Uttar Pradesh under Article 341 and 342 of the Constitution."

Section 166. Transfer made in contravention of this Chapter to be void. Any transfer made by or on behalf of bhumidhar with non-transferable rights or asami in contravention of the provisions of this Act shall be void.

Section 167.- The consequences specified in clauses (a) to (c) of sub-section (2) of Section 163 shall ensue in respect of every transfer which is void by virtue of Section 166 with the substitution of reference to the date of the order under sub-section (1) of Section 163 by references to the date of such transfer."

Again these sections were amended by U.P. Act No.20 of 1982 (w.e.f. 20.08.1982). After amendment, Sections 157-A, 166 and 167, as they stood in the year 1982 read as:-

"157-A. Restrictions on transfer of land by members of Scheduled Castes.- (1) Without prejudice to the restriction contained in Sections 153 to 157, no bhumidhar, or asami belonging to a Scheduled Caste shall have the right to transfer any land by way of sale, gift, mortgage or lease to a person not belonging to a Scheduled Caste, except with the previous approval of the Collector:

Provided that no such approval shall be given by the Collector in case where the land held in Uttar Pradesh by the transferor on the date of application under this section is less than 1.26 hectares or where the area of land so held in Uttar Pradesh by the transferor on the said date is after such transfer, likely to be reduced to less than 1.26 hectares.

(2) The Collector shall, on an application made in that behalf in the prescribed manner, make such inquiry as may be prescribed.

Section 166. Transfer made in contravention of the Act to be void.- Every transfer made in contravention of the provisions of this Act, shall be void.

Section 167. Consequences of void transfers.- (1) The following consequences shall ensue in respect of every transfer which is void by virtue of Section 166, namely-

(a) the subject-matter of transfer shall with effect from the date of transfer, be deemed to have vested in the State Government free from all encumbrances;

(b) the trees, crops and wells existing on the land on the date of transfer shall, with effect from the said date, be deemed to have vested in the State Government free from all encumbrances; and

(c) the transferee may remove other moveable property or the materials of any immovable property existing on such land on the date of transfer within such time as may be prescribed.

(2) Where any land or other property has vested in the State Government under sub-section (1), it shall be lawful for the Collector to take over possession over such land or other property and to direct that any person occupying such land or property be evicted therefrom. For the purposes of taking over such possession or evicting such unauthorised occupants, the Collector may use or cause to be used such force as may be necessary."

(For Scheduled Tribes, a separate Section 157-B was placed in the Statute putting an absolute bar on their transferring any land to a persons not belonging to Scheduled Tribes.)

25. It is strongly argued by counsel for the petitioner that there was restriction on transfer of land by a Scheduled Caste without any approval from the Collector. In the present case, the land stands transferred from a Scheduled Caste to a Non-Scheduled Caste without such approval. It is admitted by Sri Sharda Pratap Shukla, that the same was done to circumvent the provisions of Section 157-A. Submission is that in view thereof, rigors of Section 166 and 167 have to follow and the transfer is void and, the land stands vested in the State Government free from all encumbrances. Counsel for Sri Sharda Pratap Shukla has strongly argued that there is no valid document or sale deed between the parties, with regard to transfer, and in absence of any such document Section 157-A cannot apply. His submission is that the word 'Sale' in Section 157-A amounts to sale as per Section 54 of the Transfer of Property Act and since there is no duly registered sale deed between the parties, therefore, Section 157-A will not come into play.

26. The issue before this Court as to how Section 157-A should be interpreted in the given facts and circumstances of the case. The State found that the Scheduled Caste persons are loosing their agricultural land to Non-Scheduled Caste persons and require protection. Thus, Section 157-A provides that sale of a land by a Scheduled Caste would take place only on approval of the Collector, who is in position to watch and safeguard their interest. Such a condition become necessary, as Scheduled Caste Persons were found to be susceptible to such pressure of Non-Scheduled Castes and being dispossessed of their land. The agricultural land was their only source of livelihood and was the last asset for survival of their families. Loosing the same would make him landless labourer and would bring the entire family in a miserable condition. The State Government has wisely put an restriction for safeguarding the rights of such Scheduled Caste poor person who is literally at the last strata of the society. Thus, the said provision has to be strictly applied so that the rights of such persons are strongly protected. This mischief, of Non-Scheduled Caste person taking away of land of Scheduled Caste person, has to be strongly deprecated and the provision has to be strongly applied. The principle of mischief while interpreting a statute finds mention for the first time in Heydons' Case, (1584) 3 Co Rep 7a : 76 ER 637] which states:-

"that for the sure and true interpretation of all statistics in general (be they penal or beneficial restrictive or enlarging of the common law) four things are to be discerned and considered: (1st) What was the common law before the making of the Act. (2nd) What was the mischief and defect for which the common law did not provide. (3rd) What remedy Parliament hath resolved and appointed to cure the disease of the commonwealth. And, (4th) The true reason of the remedy; and then the office of all the Judges is always to make such construction as shall suppress the mischief, and advance the remedy, and to suppress subtle inventions and evasions for continuance of the mischief, and pro private commodo, and to add force and life to the cure and remedy, according to the true intent of the makers of the Act, pro bono publico."

(ii) Maxwell on the Interpretation of Statutes, 12th edition;Chapter-6, page 137, it is stated:-

""I NEVER understand," said Lord Cranworth L.C. (at p.89), "what is meant by evading an Act of Parliament. Either you are within the Act or you are not; if your are not within it, you are right; if you are within it, the course is clear, and it cannot be said that you are not within it because the very words of the Act may not have been violated." On the other hand, there is no doubt that "the office of the Judge is, to make such constructions as will suppress the mischief, and advance the remedy, and to suppress all evasions for the continuance of the mischief." To carry out effectually the object of a statute, it must be so construed as to defeat all attempts to do, or avoid doing, in an indirect or circuitous manner that which it has prohibited or enjoined:quando aliquid prohibetur, prohibitur et omne per quod denenitur ad illud;

This manner of construction has two aspects. One is that the courts, mindful of the mischief rule, will not be astatute to narrow the language of a statute so as to allow persons within its purview to escape its net. The other is that the statute may be applied to the substance rather than the mere form of transactions, thus defeating any shifts and contrivances which parties may have devised in the hope of thereby falling outside the Act. When the courts find an attempt at concealment, they will, in the words of Wilmot C.J., "brush away the cobweb varnish, and shew the transactions in their true light."

(iii) In Halsbury's Laws of England, Vol. 44(1), 4th Reissue, para 1474, pp. 906-07, it is stated:

"Parliament intends that an enactment shall remedy a particular mischief and it is therefore presumed that Parliament intends that the court, when considering, in relation to the facts of the instant case, which of the opposing constructions of the enactment corresponds to its legal meaning, should find a construction which applies the remedy provided by it in such a way as to suppress that mischief. The doctrine originates in Heydon's case [(1584) 3 Co Rep 7a : 76 ER 637] where the Barons of the Exchequer resolved that for the sure and true interpretation of all statutes in general (be they penal or beneficial, restrictive or enlarging of the common law), four things are to be discerned and considered:

(1) what was the common law before the making of the Act;

(2) what was the mischief and defect for which the common law did not provide;

3) what remedy Parliament has resolved and appointed to cure the disease of the commonwealth; and

(4) the true reason of the remedy;and then the office of all the judges is always to make such construction as shall:

(a) suppress the mischief and advance the remedy; and

(b) suppress subtle inventions and evasions for the continuance of the mischief pro privato commodo (for private benefit); and

(c) add force and life to the cure and remedy according to the true intent of the makers of the Act pro publico (for the public good)."

The Supreme Court has also followed the said principle in large number of cases, some of which are:-

(i) Reserve Bank of India Vs. Peerless General Finance and Investment Co. Ltd. and Others; (1987) 1 SCC 424. Paragraph 33 of the said judgment reads:-

"33. Interpretation must depend on the text and the context. They are the bases of interpretation. One may well say if the text is the texture, context is what gives the colour. Neither can be ignored. Both are important. That interpretation is best which makes the textual interpretation match the contextual. A statute is best interpreted when we know why it was enacted. With this knowledge, the statute must be read, first as a whole and then section by section, clause by clause, phrase by phrase and word by word. If a statute is looked at, in the context of its enactment, with the glasses of the statutemaker, provided by such context, its scheme, the sections, clauses, phrases and words may take colour and appear different than when the statute is looked at without the glasses provided by the context. With these glasses we must look at the Act as a whole and discover what each section, each clause, each phrase and each word is meant and designed to say as to fit into the scheme of the entire Act. No part of a statute and no word of a statute can be construed in isolation. Statutes have to be construed so that every word has a place and everything is in its place. It is by looking at the definition as a whole in the setting of the entire Act and by reference to what preceded the enactment and the reasons for it that the Court construed the expression 'Prize Chit' in Srinivasa and we find no reason to depart from the Court's construction."

(ii) Utkal Contractors and Joinery Pvt. Ltd. and Others Vs. State of Orissa and Others; (1987) 3 SCC 279. In paragraph-9, the Supreme Court held:-

"9. In considering the rival submissions of the learned counsel and in defining and construing the area and the content of the Act and its provisions, it is necessary to make certain general observations regarding the interpretation of statutes. A statute is best understood if we know the reason for it. The reason for a statute is the safest guide to its interpretation. The words of a statute take their colour from the reason for it. How do we discover the reason for a statute? There are external and internal aids. The external aids are Statement of Objects and Reasons when the Bill is presented to Parliament, the reports of Committees which preceded the Bill and the reports of Parliamentary Committees. Occasional excursions into the debates of Parliament are permitted. Internal aids are the preamble, the scheme and the provisions of the Act. Having discovered the reason for the statute and so having set the sail to the wind, the interpreter may proceed ahead. No provision in the statute and no word of the statute may be construed in isolation. Every provision and every word must be looked at generally before any provision or word is attempted to be construed. The setting and the pattern are important. It is again important to remember that Parliament does not waste its breath unnecessarily. Just as Parliament is not expected to use unnecessary expressions, Parliament is also not expected to express itself unnecessarily. Even as Parliament does not use any word without meaning something, Parliament does not legislate where no legislation is called for. Parliament cannot be assumed to legislate for the sake of legislation; nor can it be assumed to make pointless legislation. Parliament does not indulge in legislation merely to state what it is unnecessary to state or to do what is already validly done. Parliament may not be assumed to legislate unnecessarily. Again, while the words of an enactment are important, the context is no less important. For instance, "the fact that general words are used in a statute is not in itself a conclusive reason why every case falling literally within them should be governed by that statute, and the context of an Act may well indicate that wide or general words should be given a restrictive meaning" (see Halsbury, 4th edn. Vol. 44 para 874)."

(iii) Novartis Ag. Vs. Union of India and Others; (2013) 6 SCC 1. In paragraph 28, the Court held:-

"28. In order to understand what the law really is, it is essential to know the "why" and "how" of the law. Why the law is what it is and how it came to its present form? The adage is more true in case of the law of patents in India than perhaps any other law. Therefore, in order to correctly understand the present law it would be necessary to briefly delve into the legislative history of the law of patents in the country."

27. In case this Court accepts the argument raised by counsel for Sri Sharda Pratap Shukla, the same would result in making Section 157-A as redundant. Any Non-Scheduled Caste person would take over agricultural land of a Scheduled Caste person without their being even a document executed for the same. It would create an utter chaos and frustrate the very purpose for which Section 157-A is brought in statute. For giving effect to Section 157-A the word 'sale' in Section 157-A has to mean transfer of property with ownership rights by a Scheduled Caste person to a Non-Scheduled Caste person in any manner whatsoever. Nothing short of that would achieve the purpose of Section 157-A. Thus, this Court has no difficulty in declaring that both Sri Jangli Prasad and his brothers as well as Sri Sharda Pratap Shukla knowingly and willingly violated Section 157 of U.P. Z.A. & L.R. Act while transferring plot nos. 249, 250 and 251. Therefore, under Section 166 the said transfer is void and under Section 167, the land stood vested in the State Government in or around the year 1982 when the land was occupied and constructions were raised by Sri Sharda Pratap Shukla as its true owner. Since, the land stood vested in the State Government as aforesaid, there was no requirement of acquiring the said land in the year 1985 or to pay compensation for the same to any person whomsoever. Thus, all actions taken after the year 1982 with regard to the aforesaid three plots no.249, 250 and 251 are null and void and of no consequence.

28. So far as the duty of the Court is concerned, it is also settled by large number of judgments, that where the authorities fail, this Court is bound to interfere. Suffice would be to refer to the following two of them:

(i) Common Cause Vs. Union of India; (2014) 6 SCC page 552. In paragraph 19 of the said judgment, the Court held:-

"Although, as asserted by the respondents herein that it is not the prima facie jurisdiction of this Court to examine what constitutes as "public purpose" or not however, as per judicial precedents in Kasturi Lal Lakshmi Reddy (supra) and other case laws as stated above, this Court is duty bound to interfere whenever the Government acts in a manner, which is unreasonable and contrary to public interest. In succinct, the Government cannot act in a manner, which would benefit a private party at the cost of the State; such an action would be both unreasonable and contrary to public interest.............."(emphasis added)

(ii) Uddar Gagan Properties Ltd. Vs. Sant Singh; (2016) 11 SCC page 378. In paragraph-23 of the said judgment, Supreme Court held:-

" It is well settled that use of power for a purpose different from the one for which power is conferred is colourable exercise of power. Statutory and public power is trust and the authority on whom such power is conferred is accountable for its exercise. Fraud on power voids the action of the authority[6]-[7]. Mala fides can be inferred from undisputed facts even without naming a particular officer and even without positive evidence[8]." (emphasis added)

29. Therefore, respondent authorities are directed to immediately take possession of the aforesaid three plots no.249, 250 and 251 and evict all occupiers from the same. It is admitted by the respondent authorities that under order of this Court dated 03.02.2016, they are bound to remove all constructions from plot no.250 and 251. In view of findings made above, respondent authority shall remove all unauthorized constructions from plot no.249 also. Looking into the fact that despite orders of this Court being their, demolition has not taken place for such a long time, respondent authority shall ensure compliance of aforesaid order within a period of four weeks from today.

30. With the aforesaid, both the writ petitions are allowed.

Order Date :-07.09.2018

Arti/-

(Dilip B. Bhosale,C.J.)

(Vivek Chaudhary,J.)

Judgment delivered under Chapter VII Rule 1(2) of Allahabad High Court Rules, 1992.

Date:-07.09.2018

(Vivek Chaudhary,J.)