Ghaziabad Development Authority vs Indian Public Charitable
2023 Latest Caselaw 15139 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

Neutral Citation No. - 2023:AHC:106694
 
                        
 
Judgement Reserved on 01.05.2023
 
Judgement Delivered on 15.05.2023
 
Court No. - 5
 

 
Case :- MATTERS UNDER ARTICLE 227 No. - 4244 of 2023
 

 
Petitioner :- Ghaziabad Development Authority
 
Respondent :- Indian Public Charitable
 
Counsel for Petitioner :- Arun Kumar
 
Counsel for Respondent :- Rahul Pandey
 

 
Hon'ble Prakash Padia,J.

1. Heard Shri Arun Kumar, learned counsel for the petitioner/Ghaziabad Development Authority, Ghaziabad and Shri H. R. Mishra, learned Senior Counsel assisted by Shri Rahul Pandey, learned counsel for the contesting respondent and Shri Bipin Bihari Pandey, learned Chief Standing Counsel assisted by Shri Vijay Shankar, learned Standing Counsel who was required to assist the Court.

2. The petitioner has preferred the present petition under Article 227 of the Constitution of India with the prayer to set aside the order dated 13.12.2022 passed by the Additional District Judge, Court No.3 Ghaziabad.

3. Facts in brief as contained in the petition are that the respondent namely Indian Public Charitable Society Sanstha Ghaziabad through Up Pradhan Resident of K.M. 34 Kavinagar Ghaziabad is a Society registered under the Societies Registration Act, 1860, on 10.10.1974, incorporated with an object to establish institution for imparting education to children according to Indian Culture. The State Government vide its Government Order dated 11.11.1986, permitted the Development Authorities and U.P. Awas Evam Vikas Parishad, for allotment of land on concessional rate for establishing School/Colleges within their development schemes. The petitioner, i.e., Ghaziabad Development Authority, Ghaziabad, vide its letter dated 17.09.1987, allotted 4465.81 sq. meter of land in Nehru Nagar Yojana, Second-A to the respondent at concessional rate for establishing a school. The value of the allotted land was determined as Rs.7,20,132/-. Under the allotment letter, 25% of the aforesaid amount, i.e., amounting to Rs. 1,18,033/- had to be deposited by the respondent within one month and rest 75% of remaining amount in five instalment along with interest at the rate of 17.5% per annum. The respondent in pursuance of the letter of allotment dated 17.09.1987, deposited the 25% of the value of the land, on 01.05.1989 and obtained possession of the Plot in question and the map of the school building was sanctioned.

4. After completing all the formalities, a registered lease deed was executed between the Ghaziabad Development Authority, Ghaziabad and Indian Public Charitable Society, on 16.12.2003, with the condition that if the School building was not constructed within five years, the lease shall stand cancelled and the Ghaziabad Development Authority, Ghaziabad, (hereinafter referred to as "Authority") shall re-enter possession. The respondent Society obtain a revised Building Plan from the petitioner on 01.06.2004 and 'No Objection Certificate' was also obtained from the petitioner on 20.10.2004, for obtaining a loan from Punjab and Sindh Bank.

5. A complaint was received by the petitioner that no School is being run over the property in question for the last 10 years thereafter a notice dated 25.04.2013, was issued to the respondent under Section 111(g) of the Transfer of Property Act, 1882 for determination of the lease, on the ground of breach of condition provided in the lease agreement. In response to the same, the respondent submitted his explanation through its reply dated 20.05.2014, claiming that the School Building has been constructed and the teaching is going on through duly appointed qualified teachers. The respondent sent a letter dated 11.08.2014 to the District Magistrate, Ghaziabad requesting him to get an inspection of the School Premises, for ascertaining the proper functioning of the School. Thereafter a Committee consisting of an Officer on Special Duty, Ghaziabad Development Authority, Ghaziabad, Zila Basic Shiksha Adhikari and Nagar Shiksha Adhikari, was constituted which made the inspection of the property in question, on 14.08.2014 and submitted their joint report dated 28.08.2014. In the Joint Report dated 28.08.2014, it was stated that the School premises was found to be locked from inside and the School Building had brick walls with roof of Teen Sheets. The Committee came across an employee who claimed to be a gardener who told that, the Management had sold the Institution and no student read in the School. The aforesaid facts established that no School had been run in the land in question according to the terms of the lease which amounted to breach of terms and condition of the lease deed, therefore, the Vice Chairman, Ghaziabad Development Authority, Ghaziabad in exercise of its power under Section 18(4) of the U.P. Urban Planning and Development Act, 1973 cancelled the lease deed dated 16.12.2003 vide his order dated 03.02.2015 and directed re-entery over the Plot in question. Aggrieved with the aforesaid order, the respondent filed Misc. Appeal No. 16 of 2015, before the District Judge, Ghaziabad under Section 18(6) of the U.P. Urban Planning & Development Act, 1973. The Misc. Appeal No. 16 of 2015 was allowed by the Additional District Judge Court No.3 Ghaziabad vide its judgement and order dated 13.12.2022 and the the order dated 03.02.20215 of Vice Chairman, Ghaziabad Development Authority, Ghaziebad was set aside. Aggrieved with the order passed in the Misc. Appeal, the petitioner-Authority preferred the present petition.

6. It is argued by learned counsel for the petitioner that the order of Additional District Judge, Court No.3, Ghaziabad dated 13.12.2022, is totally arbitrary, manifestly illegal, unfair and perverse. It is further argued that though the order passed by the Vice-Chairman of the Authority was set aside on the ground that it was passed in violation of principles of natural justice but the Appellate Court has filed to relegate the matter to the competent authority for reconsideration of the matter. It is further argued that conditions of the lease deed dated 16.12.2003 according to which the School Building should be constructed within five years was not complied with, hence the decision was rightly taken by the Authority to cancel the lease deed but this aspect of the matter was not taken into consideration by the Appellate Court while allowing the Appeal. Learned counsel for the petitioner relied upon a judgment dated 22.02.2023 passed by Division Bench of this Court in the case of M/s Vaid Organics and Chemical Industries Ltd. Vs. State of U.P. and others reported in 2023 (4) ADJ 115 (DB) (LB).

7. On the other hand, it is argued by learned counsel for the respondent that the order dated 03.02.2015 was passed by the Vice Chairman, Ghaziabad Development Authority, Ghaziabad, only on the basis of report submitted by the Inspection Committee dated 28.08.2014. It is argued that though the aforesaid report was the basis of cancellation of the aforesaid lease but the copy of the aforesaid report was never provided to the appellant-respondent. It is further argued that since the inspection was an ex-parte inspection as such after providing copy of the inspection report, the objection/explanation be called for from the respondent before passing any order against him.

8. It is argued by the counsel for the respondent that in the appeal filed by the answering respondents, various opportunities were provided to the Authority but no written objections were filed by them at any point of time. Learned counsel for the respondent relied upon the following observations made in the order impugned which reads as follows:-

"अपीलार्थी ने आवंटित भूखण्ड पर 25 कमरों का निर्माण कराया जाना बत'या तथा अपने कथनो के समर्थन में अपील के साथ संलग्न शपथ पत्र 4ग का उल्लेख किया जिसमें वित्तीय वर्ष 2004-05 से 2008 तक के आय व्यय का हिसाब है। जिसकी आय के कालम टयूशन फी दर्ज की गयी है तथा जी 0डी0ए0 की जो फाईल तलब होकर प्राप्त हुई है उस पर अंकित नोट शीट संख्या 63 व 64 के अवलोकन से यह सिद्ध होता है कि नोट शीट 63 के अनुसार जी डी0ए0० ने स्वयं स्वीकार किया है कि वर्तमान में मौके पर स्कूल निर्मित है ग्रीष्म अवकाश होने के कारण सभी स्कूल बन्द हैं । इण्डियन पब्लिक स्कूल में वर्तमान में समर कैम्प चल रहा है , शिक्षण कार्य बन्द है । मौके का फोटो ग्राफ पत्रावली में दायी ओर संलग्न है । जहां तक स्कूल में नियमित शिक्षण कार्य हो रहा है या नहीं, के सबंध में बेसिक शिक्षा अधिकारी गाजियाबाद से जानकारी प्राप्त करना उचित होगा ।

नोट शीट 64 में जी0 डी0ए0 ने अंकित किया है कि "इंण्डियन पब्लिक स्कूल में वर्तमान में समर कैम्प चल रहा है शिक्षण कार्य बन्द है तथा प्रवर्तन खण्ड द्वारा मौके की फोटो सम्मुख क्रमाक 449 पर सलग्न किया गया है । प्रवर्तन खण्ड द्वारा स्कूल में नियमित शिक्षण कार्य के संबंध में बेसिक शिक्षा अधिकारी से जानकारी प्राप्त करने की बात कही गयी है 1 प्रवर्तन खण्ड की आख्या व नगर निगम में जमा जलकर व भवन कर की ज़मा रसीद से यह स्पष्ट होता है कि भूखण्ड पर भवन निर्मित है । प्रवर्तन खण्ड की आख्या के अनुसार स्कूल में समर कैम्प चल रहा है ।"

9. On the basis of the aforesaid observations, it is argued that there is not such denial in the entire petition regarding observations made in this regard in the impugned order, hence the petition is liable to be dismissed. Learned counsel for the respondents placed reliance upon the case of Chandra Sheikhr Pathsaria Vs. State of U.P. reported in 1996 Law Suit (All) 105 and in the case of Chandrashekhar Tiwari Vs. State of U.P. and others reported in 2023 (3) ADJ 316 (DB).

10. Heard learned counsel for the parties and perused the record.

11. The order dated 13.12.2022 passed by the Additional District Judge, Court No. 3, Ghaziabad is based on the ground that the proper notice and opportunity of hearing to the appellant/respondent has not been provided. The order dated 03.02.2015 was passed on the basis of the inspection carried on by a team consisting of District Basic Education Officer, City Education Officer & Special Officer on duty of Ghaziabad Development Authority. The said inspection was carried on 14.8.2014 and a report by the Joint Committee was submitted on 28.8.2014. Therefore, the order dated 03.02.2015 was passed by the Vice-Chairman of Ghaziabad Development Authority cancelling the lease deed granted in favour of the respondent. The copy of the inspection report has been annexed as annexure-5 to the present petition.

12. In the said report, it is nowhere mentioned that any authorized person of the respondent-society was present. There is no averment even in the present petition that the inspection was carried on by inspecting team in presence of any of the authorized representative or responsible person of the society. There is also no averment in the petition that the copy of the aforesaid inspection report dated 28.8.2014 was provided to the respondent asking him to submit his explanation/reply to the said inspection report.

13. Thus, it is clear that the order dated 3.2.2015 was passed by the Vice-Chairman of the development authority, without providing the copy of the report of Joint Inspection to the respondent. Inspection report being the basis of the order dated 3.2.2015, copy of the said inspection should have been provided to the respondent especially when the inspection was an ex-parte inspection and before conducting the said inspection, no notice or information was given to the respondent. Thus, it is clear that the findings of the learned Appellate court to the extent that the order dated 3.2.2015 was passed in violation of principle of natural justice are just and lawful finding.

14. So far as judgment relied upon by the counsel for the petitioner, i.e., M/s Ved Organic Chemical Ltd. Vs. State of U.P. & others, reported in 2023 (4) ADJ 115 (DB)(LB). in the said case, the lease was cancelled on the ground that no construction, as per the terms of the lease was made, despite extension granted by the development authority. The lease was cancelled by the Corporation after giving him notice to show cause as to why the allotment be not cancelled, as he has failed to raise construction within the stipulated time. This Court affirm the cancellation of the lease holding that the lease was governed by statute or statutory regulation and if such statute expressly reserved the power of cancellation or revocation to lessor, it will be permissible for an authority as lessor to cancel the duly extended and registered lease deed even if the possession has been delivered on specific ground of cancellation provided in the statute. The Court has confirmed the cancellation of the lease. In paragraph 4 of the judgment, the issuance of show cause notice is clearly mentioned.

15. In the present case, the notice was issued to the respondent on 25.4.2013 and the said notice is alleged to have been issued under section 111(g) of the Transfer of Property Act.

16. The reply to the said notice was submitted by the respondent on 20.5.2014. The petitioner not being satisfied with the reply, has constituted a committee to hold spot inspection. The said spot inspection was carried out without any notice to the respondent. No responsible person or authorized person of the respondent was present at the time of inspection. The order dated 3.2.2015 has been passed on the basis of the aforesaid inspection dated 14.8.2014 and consequential report dated 28.08.2014. Thus it was incumbent upon the petitioner to provide adverse relied upon the material to the respondent before cancelling the lease.

17. The judgment relied upon by the respondent, i.e., 2023 (3) ADJ 316 Chandra Shekhar Tiwari Vs. State of U.P. & others and Chandra Shekhar Pathsaria Vs. State of U.P. & others, reported in 1996 (Lawsuit) Alld. 1105.

18. In case of Chandra Shekhar Tiwari (supra), the learned Single Judge has allowed the writ petition on the ground that fresh material submitted by the authorities was not supplied before passing the order. The relevant paragraphs 14, 15 & 16 of the said judgment are as under:-

14. Sri GK. Singh, learned Senior Counsel 1 for the petitioners has not disputed before us that the State Government heard the parties on 24.6.2021 and 28.12.2021. He also does not dispute that the hearing on the aforesaid dates was preceded by a recommendation dated 27.5.2021 , by the Director of Education (Secondary), Uttar Pradesh for superseding the Committee of Management in exercise of power under Section 16D(4) of the Act.

15. The purpose of affording hearing is to provide opportunity to the Committee of Management to place its defence in context of the recommendation made by the Director of Education. It would get opportunity to impress upon the State Government that on the basis of material available on record, the law does not warrant appointment of an Authorized Controller.

16. Albeit, in the instant case, there was a previous recommendation superseding the Committee of Management, followed by hearing, but thereafter, as is evident from the impugned order, the State Government instead of applying its own independent mind to the objection submitted by the petitioners and taking decision in the matter, called for a fresh report from the Director of Education (Secondary). He, in turn, called for the comments from the Joint Director of Education, Gorakhpur and District Inspector of Schools, Kushinagar and submitted a fresh recommendation on 21.3.2022. Based on the same, the State Government had proceeded to supersede the Committee of Management. The order does not indicate that the fresh recommendations and the reports called for, were made available to the petitioners, as specifically pleaded in paragraphs 48 and 49 of the writ petition and which fact is not disputed by counsel for the appellant and learned Standing Counsel.

19. In case of Chandra Shekhar Patharasia (supra), the Division Bench of this Court has held that the cancellation of mining lease is violation of principle of natural justice and is violation of Articles 14 & 21 of the Constitution of India. The relevant paragraph is reproduced below:-

"In view of the discussion and the reasoning recorded, we are of the view that fair procedure was not adopted in cancelling the lease deed and the principles of natural justice were also not observed. It was essential to act upon the lease deed executed by the competent authority as it created rights of livelihood in favour of the petitioner for a particular period, which cannot be snatched by the arbitrary action. There is violation of Articles 14 and 21 of the Constitution."

20. In view of the aforesaid facts and law mentioned above, the order passed by the Additional District Judge, Court No. 3, Ghaziabad did not suffer from any infirmity or Perversity.

21. The petition devoids of merits and the same is hereby dismissed.

22. No order as to costs.

Order Date :-15.05.2023/saqlain