Allahabad High Court
Furquan Waheed And Others vs Nagar Palika Parishad Khairabad , ... on 1 February, 2024
Author: Vivek Chaudhary
Bench: Vivek Chaudhary
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
Neutral Citation No. - 2024:AHC-LKO:9457-DB
Reserved
Case :- WRIT - C No. - 11721 of 2023
Petitioner :- Furquan Waheed And Others
Respondent :- Nagar Palika Parishad Khairabad , Sitapur Thru. Chairman And Others
Counsel for Petitioner :- Ankit Pande,Mohammad Yusuf Siddiqui
Counsel for Respondent :- Sriniwas Bajpai,C.S.C.
Hon'ble Vivek Chaudhary,J.
Hon'ble Om Prakash Shukla,J.
1. This writ petition has been filed under Article 226 of Constitution of India by petitioners, praying for a writ of mandamus for restraining the respondents from interfering in petitioners' peaceful possession over plot nos.4436 and 4437 situated at Mohalla Mian Sarai, Kasba Khairabad, Tehsil and District Sitapur and for payment of compensation for destruction of the boundary wall alleged to be constructed by the petitioners.
2. Learned Senior Advocate appearing for the petitioner submits that a perpetual rent-free lease over some portions of a Nazul Land was granted in favour of one Abdul Razzak, the ancestor of the petitioners, in the year 1904. This perpetual lease of Nazul land was specifically authorized under clause 5(d) of the land manual and encompasses the land situated within the municipal limits of Khairabad, Sitapur. He claims that since it is a perpetual lease therefore, it is inheritable, passing down to the petitioners as heirs and successors of Abdul Razzak, whose names were duly recorded in the municipal records. Petitioners' pedigree showing their descent from Abdul Razzak is contained as Annexure No.2 in the paper book. Counsel for the petitioners further submits that successors of Abdul Razzak had constructed a boundary wall around the said land and were using it for various purposes and as such the said land has remained in their possession. In support of petitioners' claim of possession over the said land, learned senior advocate for petitioners relies upon Khatauni extract from 1422 Fasli Year contained in the writ petition as Annexure No. 6. He further submits that opposite parties, without cancelling the perpetual lease and without giving any notice and providing any opportunity of hearing to petitioners, have demolished the said boundary wall, and have fixed a board declaring the said land as Nazul Land. In the absence of any order cancelling the perpetual lease, demolition carried out by the respondents is per se illegal, and therefore the petitioners are entitled for compensation for demolition of the boundary wall and since the lease has not been cancelled, the possession of the petitioners over the said land cannot be interfered by respondents. In support of his submissions learned counsel for petitioners places reliance upon the following judgments:-
I. Rame Gowda (DEAD) By Lrs. Vs M. Varadappa Naidu (Dead) By Lrs. And Another. (2004)1Supreme Court Cases 769
II. Bheekam Chandra Vs State Of U.P.[2012(116) RD 430]
III. Haseen Ahamd Khan Vs State of U.P. 2006(8) ADJ 200.
3. Learned Standing Counsel for Respondent State disputes grant of any perpetual lease in favour of petitioners or their predecessors. He relies upon Rule 67 of the Nazul Manual which specifically prohibits granting of a lease in perpetuity in respect of any Nazul land on any terms. Therefore, no inheritable perpetual lease over a Nazul Land could have been granted in favor of Abdul Razzak. The Respondent State contends that these are disputed questions of fact beyond the scope of determination under Article 226 of the Constitution of India.
4. We have heard Dr. R.S. Pande, learned Senior Advocate assisted by Shri Ankit Pande, appearing for petitioners, learned Standing Counsel for respondent State, Sri Sriniwas Bajpai, learned counsel for the Nagar Palika Parishad and perused the record with their assistance.
5. The only document filed by the petitioners in support of thier case is an entry from the Nazul register and lease deed itself is not filed before this Court. In absence of the acutal lease deed, it is not possible to determine whether the same was a perpetual lease or not. Further Rule 67 of the Nazul Manual reads as follows:
"67. Prohibition of the grant of perpetual lease.- The granting of a lease in perpetuity in respect of any nazul land on any terms is prohibited."
6. A perusal of Rules 67 shows that perpetual lease canot be granted in any terms whatsoever. Therefore, this Court does not agree with the submission of learned counsel for petitioners that perpetual lease is granted in favour of Abdul Razzak. Further, there is no substitution of names in the Nazul register. The only substituion is shown in the khatauni extract of 1422 fasli. The khatauni does not even note the order on the basis of which, said substitution has taken place. Merely mentioning of name of petitioners in the khatauni without any proper order directing substitution of names of petitioners in the khatauni is not valid. Further, though the petitioners claim to be falling in the padegree of Late Abdul Razzak, but there is no proof such as Ration Card, Pariwaar Register, School Certificate etc., filed with regard to the same. There is nothing on record to prove relation of petitioners with Late Abdul Razzak, except for a scatch of family tree filed along with the writ petition. These are all disputed question of facts.
7. In the given facts and circumstances of the case, even the judgments relied upon by learend counsel for petitioners are not applicable. Since there are disputed question of facts involved with regard to which, petitioners have not filed any substantial evidence, this Court does not find it a fit case for exercise of its extra-ordinary discretionary jurisdiction.
8. Present writ petition, therefore, is dismissed with liberty to the petitioners to approach the appropriate Court in accordance with law.
[Om Prakash Shukla,J.] [Vivek Chaudhary,J.]
Dated: February 01, 2024
Sachin
