Professor Ali Ahmed Fatmi vs State Of U.P. And 3 Others
2021 Latest Caselaw 3189 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

Court No. - 40
 

 
Case :- WRIT - C No. - 9352 of 2021
 

 
Petitioner :- Professor Ali Ahmed Fatmi
 
Respondent :- State Of U.P. And 3 Others
 
Counsel for Petitioner :- Sarveshwari Prasad
 
Counsel for Respondent :- C.S.C.
 
And
 
Case :- WRIT - C No. - 9353 of 2021
 

 
Petitioner :- Baby Maimuna
 
Respondent :- State Of U.P. And 3 Others
 
Counsel for Petitioner :- Sarveshwari Prasad
 
Counsel for Respondent :- C.S.C.
 
And
 
Case :- WRIT - C No. - 9354 of 2021
 

 
Petitioner :- Naila Fatmi
 
Respondent :- State Of U.P. And 3 Others
 
Counsel for Petitioner :- Sarveshwari Prasad
 
Counsel for Respondent :- C.S.C.
 
And
 
Case :- WRIT - C No. - 9355 of 2021
 

 
Petitioner :- Zulfiquar Haider And Another
 
Respondent :- State Of U.P. And 3 Others
 
Counsel for Petitioner :- Sarveshwari Prasad
 
Counsel for Respondent :- C.S.C.
 
And 
 

 
Case :- WRIT - C No. - 9356 of 2021
 

 
Petitioner :- Vijay Kumar Singh
 
Respondent :- State Of U.P. And 3 Others
 
Counsel for Petitioner :- Sarveshwari Prasad
 
Counsel for Respondent :- C.S.C.,Anand Prakash Paul
 

 
Hon'ble Manoj Misra,J.

Hon'ble Rohit Ranjan Agarwal,J.

1. As all these petitions question the demolition notice dated 01.03.2021 alleged to have been served on 06.03.2021 in respect of certain constructions standing over a portion of Nazul Plot No. 19, Lukerganj, P.S. Khuldabad, District Prayagraj and make common prayer to quash the notice and restrain the respondents from interfering in the possession of the petitioners over a portion of Nazul Plot No. 19, with the consent of the learned counsel for the parties have been heard together and are being decided by a common judgment.

2. At the outset, it may be put on record that these five petitions have been placed before us as matters nominated to this Bench by Hon'ble the Chief Justice vide order dated 07.03.2021.

3. The facts common to all these five petitions are as under:-

Nazul Plot No. 19 at Lukerganj in Municipality of Allahabad in the district of Allahabad (Now Prayagraj) was leased out to one Shakir Hussain on 19.03.1906 by the Collector of District Allahabad, acting on behalf of the Secretary of State. The lease was initially for a block period of 30 years, renewable for 2 successive block periods of 30 years each, subject to an aggregate of 90 years. Some of the relevant terms of the lease as could be found in the lease document placed on record as Annexure 5 in Writ C No. 9352 of 2021 are as follows:-

"......... the lessee doth hereby covenant with the Secretary of State that he will during the term hereby granted pay unto the Secretary of State the yearly rent hereby reserved on the days and in manner herein before appointed AND ALSO will from time to time and at all times during the said term pay and discharge all rates taxes charges and assessments of every description which are now or may at any time hereafter during the said term be assessed charged or imposed upon the said premises hereby demised or the buildings to be erected thereupon or the landlord or tenant in respect thereof AND ALSO will within two years next after the date of these presents at his own cost and at an outlay and expense of Rs. 2,000/- at the least in a good substantial and wokmanlike manner and to the satisfaction of the said Collector erect and completely finish fit for habitation and use on such parts of the said demised premises as are marked out on the plan hereto annexed a dwelling-house with suitable out-buildings according to a plan and elevation to be approved of by the said Collector AND ALSO will not without the previous consent in writing of the said Collector erect or suffer to be erected on any part of the said demised premises any building other than and except the dwelling-house and out-buildings hereby covenanted to be erected AND will not without such consent as aforesaid make any alteration in the plan or elevation of the said dwelling-house and out-buildings or carry on or permit to be carried on on the said premises any trade or business whatsoever or use the same or permit the same to be used for any purpose other than that of a private dwelling-house AND ALSO that the lessee will from time to time and at all times during the said term repair and keep the dwelling-house and out-buildings so to be erected as aforesaid in good and substantial repair and condition both externally and internally AND the said demised premises with the said dwelling-house and out-buildings in such good and substantial repair on the expiration or sooner determination of the said term peaceably surrender and yield up unto the Secretary of State AND ALSO will not assign or transfer by sale mortgage lease gift or any other means whatsoever either the interest of the lessee created by these presents in the said plot of land or the said dwelling-house and out-buildings thereon to be erected as aforesaid or any part thereof without the previous consent in writing of the said Collector AND ALSO will upon every assignment of the said premises hereby demised or any part thereof or within one calender month thereafter deliver a notice of such assignment to the said Collector stating forth the names and description of the parties to every such assignment and the particulars and effect thereof............

.......... PROVIDED ALWAYS and it is hereby declared that if the said yearly rent hereby reserved or any part thereof shall at any time be in arrear and unpaid for the space of one calender month next after any of the said days whereon the same shall have become due whether the same shall have been lawfully demanded or not or if there shall be any breach or non-observance by the lessee of any of the covenants hereinbefore contained on his part to be observed and performed then and in any such case it shall be lawful for the Secretary of State notwithstanding the waiver of any previous cause or right of re-entry to enter into and upon the said demised premises the dwelling-house and out-buildings so to be erected as aforesaid or any part thereof in the name of the whole and thereupon the same shall remain to the use of and be vested in the Secretary of State and this demise shall absolutely determine..."

(Emphasis Supplied)

4. According to the case of the petitioners, the original lessee Shakir Ali in the year 1960 transferred his rights in the demised premises to Mrs. Kulsoom Begum, Mrs. Mahmooda Begum, and Mrs. Kannez Fatima with due permission of District Magistrate. Later, Mrs. Kulsoom Begum and Mrs. Kannez Fatima by Will transferred their rights in favour of one Hazi Firoz Ahmad, father of so-called Mafiosi Ateeq Ahmad whereas Mrs. Mahmooda Begum did not transfer her right to Hazi Firoz Ahmad rather she sold out her portion to different people.

5. The facts specific to Writ C No. 9352 of 2021 are:

The petitioner purchased a portion of Nazul Plot No. 19 vide sale-deed dated 03.02.1989 executed by Mahmooda Begum. The constructions standing thereupon were more than 50 years old, that is standing since before the commencement of U.P. Urban Planning and Development Act, 1973. On 06.03.2021, at about 6:30 pm, petitioner was served with a notice dated 01.03.2021 which recited that a demolition notice dated 08.01.2021 was served on the petitioner requiring him to demolish the unauthorized constructions by or before 27.01.2021 but as the demolition was not carried out, now, demolition would be carried out at the expense of the petitioner. It is the specific case of the petitioner that the earlier notice dated 08.01.2021 was not served upon the petitioner; that he had moved an application for conversion of the plot purchased by him into freehold by making a deposit of 25% of the freehold amount in the Treasury on 01.07.1997; and that, till date, no decision on his application has been taken. It is also the case of the petitioner that although there is an alternative remedy available to the petitioner under Section 27 (2) of the U.P. Urban Planning and Development Act, 1973 against the demolition notice but since the demolition notice has been issued without giving opportunity of hearing to the petitioner, he has directly rushed to this Court for relief.

6. The facts specific to Writ C No. 9353 of 2021 are :

The petitioner purchased a portion of Nazul Plot No. 19 on 10.06.2013 from one Ahmad Ali son of late Masood Ali. On 01.07.1997, Mahmooda Begum had applied for conversion of her portion into freehold by making deposit of 25% of the freehold amount; and that the application for conferment of freehold right is pending. The constructions on the plot are standing since more than 50 years, much before the commencement of U.P. Urban Planning and Development Act, 1973. The demolition notice dated 01.03.2021 which was served on 06.03.2021 makes a wrong recital that a previous demolition notice dated 08.01.2021 was served. Other than above, same grounds have been taken as by the petitioner of Writ C No. 9352 of 2021 to seek relief as above.

7. The facts specific to Writ C No. 9354 of 2021 are:

The petitioner purchased a portion of Nazul Plot No. 19 on 13.08.2013 from one Hamid Ali Tariq son of late Masood Ali. The constructions have been standing since much before the commencement of U.P. Urban Planning and Development Act, 1973. The demolition notice dated 01.03.2021 which was served on 06.03.2021 makes a wrong recital that a previous demolition notice dated 08.01.2021 was served. Other than above, same grounds have been taken as by the petitioner of Writ C No. 9352 of 2021 to seek relief as above.

8. The facts specific to Writ C No. 9355 of 2021 are:

The petitioners purchased a portion of Nazul Plot No. 19 on 15.07.2014 from one Saleha Khatoon wife of Manzoor Ahmad. The constructions have been standing since much before the commencement of U.P. Urban Planning and Development Act, 1973. The demolition notice dated 01.03.2021 which was served on 06.03.2021 makes a wrong recital that a previous demolition notice dated 08.01.2021 was served. Other than above, same grounds have been taken as by the petitioner of Writ C No. 9352 of 2021 to seek relief as above.

9. The facts specific to Writ C No. 9356 of 2021 are:

The petitioner purchased a portion of Nazul Plot No. 19 on 19.06.2020 from one Arif Masood. The constructions have been standing since much before the commencement of U.P. Urban Planning and Development Act, 1973. The demolition notice dated 01.03.2021 which was served on 06.03.2021 makes a wrong recital that a previous demolition notice dated 08.01.2021 was served. Other than above, same grounds have been taken as by the petitioner of Writ C No. 9352 of 2021 to seek relief as above.

10. We have heard Sri Sarveshwari Prasad for the petitioner; Sri A.P. Paul for the Prayagraj Development Authority; and have perused the record carefully.

11. Learned counsel for the petitioners urged that demolition notice is illegal. No prior opportunity of hearing was given and the recital in the demolition notice that earlier notice was served is incorrect.

12. Sri A.P. Paul, who appears for the Prayagraj Development Authority, passed on a letter dated 15.09.2020, issued from the office of the District Collector, Prayagraj. The said letter shall be kept on record.

13. On instructions and on the basis of the letter dated 15.09.2020, Sri A.P. Paul has submitted that demolition of the unauthorized constructions have already been carried out yesterday i.e 07.03.2021. He submits that in respect of Nazul Plot No. 19, admittedly, the lease has expired in the year 1996. However, there were six applications for conferment of freehold rights on Nazul Plot No. 19. One application was rejected on 15.06.2015 and the remaining five applications were rejected on 30.11.2019. On rejection of the applications, the name of the patta holder has been struck off and the land, consequent to determination of the lease, vests in the State. He also states that the plot has now been earmarked for public use and the possession of the plot was already taken and whatever constructions that stood before demolition were nothing but unauthorized made with a view to grab State land. He further submits that the petitioners have no right over the plot because they are neither original lessee nor successors of the original lessee. Though they claim to have purchased portion of that plot but as there was no permission granted by the District Collector for such sale, as per the terms and conditions of the lease, the sale confers no right on the petitioners and, otherwise also, since the application for conferment of freehold rights has been rejected and there is no prayer in these petitions to set aside the order rejecting the application for conferment of freehold rights, the petitions filed by the petitioners are liable to be dismissed on that very ground.

14. Sri Sarveshwari Prasad, who appears for the petitioners in all the five petitions, admits that partial demolition has been carried out on 07.03.2021 but claims that such demolition is illegal. He, however, could not bring to our notice any document which may suggest that the sale-deed executed in favour of any of the petitioners was with the prior written permission of the District Collector as is the requirement of the lease deed.

15. Upon consideration of the rival submissions and perusal of the record, we find that it is not in dispute that the demolition notice to which challenge has been laid in these petitions relate to constructions standing over Nazul Plot No. 19 at Lukerganj, Allahabad (now Prayagraj). It is undisputed that the lease of the said plot was in favour of one Shakir Hussain which expired in the year 1996. One of the conditions of the lease was that the lessee shall not transfer or assign the demised premises without the permission of the State/District Collector. Although the petitioners have stated that the original lessee transferred his interest in the demised premises in the year 1960 with the permission of the District Collector but there is no averment in the petition and no document has been brought on record to demonstrate that the transfer made in favour of any of the petitioners was with the permission of the District Collector or of any officer of the State authorized to act on its behalf. More over, except the petitioner of Writ C No. 9352 of 2021 all the other petitioners made purchase of the plot after its lease term had come to an end. Therefore, under the circumstances, there was no valid transfer of any right over the demised premises in favour of any of the petitioners who are before this Court. Further, there is nothing on record to demonstrate that the constructions that stood or stand on the land were raised with the previous sanction of the municipal or local authority or the Development Authority. No doubt, all the petitioners claim that the constructions are old, standing since much before the commencement of U.P. Urban Planning and Development Act, 1973, but, nothing has been brought to our notice that those constructions were raised with the permission of the District Collector as was the specific requirement of the lease.

16. Under the circumstances, once we find that the lease has expired in the year 1996 and the transfers made in favour of the petitioners were not in accordance with the terms and conditions of the lease, inasmuch as the petitioners have failed to demonstrate that such transfers were with the previous written consent of the District Collector, in our considered view, the petitioners would derive no right over the demised premises to maintain a claim against the State and its instrumentalities. More so, when from the letter of the District Collector dated 15.09.2020, which has been placed before us by Sri A.P. Paul, learned counsel for the Prayagraj Development Authority, it appears that applications for conferment of freehold rights over Nazul Plot No. 19 have already been rejected.

17. For all the reasons mentioned above, we are of the view that the petitioners have failed to establish any valid or subsisting right over the land in dispute, which is admittedly Nazul Land, and as such they have no right to resist State action which is with a view to protect State property. All the petitions are therefore dismissed.

Order Date :- 8.3.2021

Sunil Kr Tiwari