# Ashwani Pratap v. State of U.P. & Ors

- **Citation:** (2022) 7 ILRA 113
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2022-05-24
- **Case number:** Writ C No. 41628 of 2018
- **Bench:** Manoj Kumar Gupta, Dinesh Pathak
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/ashwani-pratap-v-state-of-u-p-ors-48736
- **Pages:** 6

## Headnote

A. Land Law - UP Municipal Corporation
Act, 1959 - Sections 3 & 126 - UP
Zamindari Abolition and Land Reforms
Act, 1950 - Section 117(6) - Lease of the
banjar land - Power of Nagar Nigam -
After
auction,
the
highest
bidder
deposited 25% premium amount - Nonexecution of the lease - Permissibility -
Held, since, Nagar Nigam is now having no
right, title or interest in the subject land,
it also cannot transfer any right in favour
of the petitioner, nor is competent to
execute any lease deed. (Para 11)
B. Compensation - Fault committed by the
Nagar Nigam - Petitioner acted bona fide
by depositing amount of Rs. 14,25,000/-
and lease rent - Deprivation of use and
enjoyment
of
the
subject
land
-
Entitlement of adequate compensation -
High Court directed the Nagar Nigam for
payment of compensation of Rs. 5 Lakhs
and refund of entire amount with 8% per
annum simple interest and release of 25%
bid amount as well. (Para 14 and 15)
Writ petition disposed of. (E-1)

## Text

7 All. Ashwani Pratap Vs. State of U.P. & Ors.
113
receiving such application, the respondent
no.2 is directed to carry out the desired
change of name in the mark-sheet and
Certificate. However, it is clarified that in
the fresh certificate and mark-sheet issued to
the petitioner, it would contain the name
'Rashmi
Srivastava
alias/nee,
Rajni
Shrivastava'. The said exercise shall be
completed by the respondent no.2 within six
weeks from the date of filing of the
application. The petitioner shall thereupon
be entitled to file the application before the
respondents no.3 and 4 along with original
records who shall also make the necessary
corrections
in
the
educational
certificates/records issued to the petitioner in
the light of the said fresh certificate issued to
the respondent no.2. It is further directed
that the respondent no.2 shall carry out the
necessary corrections in the intermediate
examination records of the petitioner also
which shall be in consonance with the name
change, as recorded in the High School
Certificate in terms of the directions given
above.

12. With the aforesaid observations,
the writ petition stands disposed off.
----------
(2022)07ILR A113
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 24.05.2022

BEFORE

THE HON'BLE MANOJ KUMAR GUPTA, J.
THE HON'BLE DINESH PATHAK, J.

Writ C No. 41628 of 2018

Ashwani Pratap ...Petitioner
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Sri Vinayak Mithal
Counsel for the Respondents:
C.S.C., Sri Pankaj Srivastava

A. Land Law - UP Municipal Corporation
Act, 1959 - Sections 3 & 126 - UP
Zamindari Abolition and Land Reforms
Act, 1950 - Section 117(6) - Lease of the
banjar land - Power of Nagar Nigam -
After
auction,
the
highest
bidder
deposited 25% premium amount - Nonexecution of the lease - Permissibility -
Held, since, Nagar Nigam is now having no
right, title or interest in the subject land,
it also cannot transfer any right in favour
of the petitioner, nor is competent to
execute any lease deed. (Para 11)
B. Compensation - Fault committed by the
Nagar Nigam - Petitioner acted bona fide
by depositing amount of Rs. 14,25,000/-
and lease rent - Deprivation of use and
enjoyment
of
the
subject
land
-
Entitlement of adequate compensation -
High Court directed the Nagar Nigam for
payment of compensation of Rs. 5 Lakhs
and refund of entire amount with 8% per
annum simple interest and release of 25%
bid amount as well. (Para 14 and 15)
Writ petition disposed of. (E-1)

(Delivered by Hon'ble Manoj Kumar
Gupta, J.
&
Hon'ble Dinesh Pathak, J.)

1. Heard Sri Vinayak Mithal, learned
counsel for the petitioner, learned standing
counsel for respondents No. 1, 3 and 4, Sri
Pankaj Srivastava for respondent No. 2 and
perused the record.

2. At the outset, Sri Vinayak Mithal,
learned counsel for the petitioner states that
he does not wish to rebut the additional
counter affidavit filed on behalf of the
second respondent and prays that the
instant petition be heard and decided.
114 INDIAN LAW REPORTS ALLAHABAD SERIES

3. The facts, which are not in dispute,
are that the respondent Nagar Nigam issued
an advertisement on 16.10.2004 inviting
bids for auction of 25 plots to be settled on
lease hold basis. One Jai Prakash Agarwal
was the highest bidder for plot No. 604 as
he had offered a premium of Rs.
23,50,000/- for obtaining the lease. It seems
that twenty five percent of the premium
amount
was
deposited
by
him
on
22.12.2004 as earnest money on fall of the
hammer.
As
per
terms
of
auction,
remaining amount was to be deposited
within fifteen days of approval of the bid.
Thereafter, the allottee had to take steps for
execution of the lease deed within one
month. On 7.3.2005, Jai Prakash Agarwal
was informed that his bid had been
accepted. Thereafter, it is alleged that he
inspected the plot and came to know that it
was
under
litigation
and
in
illegal
occupation of certain person. It also
appears from the material placed on record
that Nagar Nigam made efforts to obtain
possession of the plot by requesting the
Senior Superintendent of Police, Meerut to
take action against illegal occupants. It is
also an admitted fact that on 9.11.2009, Jai
Prakash Agarwal submitted an application
along with affidavit before respondent No.
2 for transfer of allotment in favour of the
petitioner. The said request, it seems, was
made in terms of Clause 17 of the auction
document. By a communication dated
30.3.2012, the petitioner was informed that
the request for transfer of the allotment in
favour of the petitioner had been approved
by Nagar Ayukt by order dated 6.3.2012
and the petitioner was required to deposit
the remaining premium amount i.e. a sum
of Rs.14,25,000/- along with 15% lease
rent i.e. Rs. 3,52,500/-, in all a sum of Rs.
17,77,500/- to facilitate execution of lease
deed in favour of the petitioner. The
petitioner deposited Rs. 17,77,500/- on
7.12.2012, however, the lease was not
executed in his favour. This compelled the
petitioner to file the instant writ petition
praying for a mandamus commanding the
second respondent no. 2 to execute lease
deed in favour of the petitioner and hand
over vacant possession of the subject land
within stipulated period.

4. According to respondent-Nagar
Nigam, initially the original allottee Jai
Prakash Agarwal moved an application on
19.3.2005 that he was no more interested in
the plot and that the money deposited by
him be returned to him. Thereafter, on
23.10.2009, he made request for allotment
to be transferred in favour of one Surendra
Pratap, followed by another application
dated 9.11.2019 for transfer of the
allotment in favour of the petitioner herein.

5. The case set up by Nagar Nigam,
Meerut before this Court is that now it is
not in a position to execute the lease deed.
It is alleged that a gazette notification was
issued on 11.9.1987 extending the limits of
Nagar Nigam, Meerut so as to include the
disputed plot as well. The said land,
according to respondent No. 2, was banjar
land and consequently vested in the
government. On its inclusion within limits
of Nagar Nigam, it came under the
management of Nagar Nigam. In support of
said stand, copy of Khatauni has been
brought on record wherein the entry is
'Banjar-Nagar Nigam'.

6. The respondent Nagar Nigam
contends that by virtue of section 128 of
the Uttar Pradesh Municipal Corporation
Act, 1959, it did not had any right to
transfer the land without prior permission
of the State Government and that no such
permission was ever granted. It is also the
case
of
the
said
respondent
that
7 All. Ashwani Pratap Vs. State of U.P. & Ors.
115
subsequently, the State Government by
another
notification
dated
14.9.2011
resumed the said plot in exercise of power
under Section 117 (6) of the UP Zamindari
Abolition and Land Reforms Act, 1950 for
the Home Department, Uttar Pradesh to
establish office of Anti-Terrorism Squad,
Meerut Unit. In support of the said plea,
copy of Khatauni of 1422-1427 Fasli has
been brought on record. It is submitted that
as a consequence of above, the Nagar
Nigam was divested of all its rights. In
other words, the contention is that the
Nagar Nigam now does not have any right
in the subject land nor is empowered to
execute lease deed as has been prayed for
in the writ petition.

7. In paragraph No. 13 of the
additional counter affidavit, it is alleged
that
Municipal
Commissioner,
Nagar
Nigam, Meerut passed an order on
26.7.2019 (during pendency of the writ),
rejecting the claim of the petitioner.
Consequently, cheques representing the
sum realised from the petitioner (Rs.
17,77,500/-) were tendered to counsel for
the petitioner, but he refused to accept. The
said fact is also not disputed by Sri Vinayak
Mithal, learned counsel appearing on
behalf of the petitioner. He states that as the
petitioner was pressing for execution of the
lease deed in his favour, therefore, the offer
to receive back the money, was declined.

8. He further submitted that in any
event, the petitioner not being at fault, he is
entitled to refund of the money with
interest and exemplary compensation for
the losses suffered by him in the process.

9. We have considered the rival
submissions. In the backdrop of the
admitted facts, we proceed to examine as to
whether the petitioner could be granted the
principal relief, i.e. a direction to the
respondent Nagar Nigam, to execute lease
deed in his favour and deliver possession of
the subject land.

10. The notification dated 11.9.1987
published in Government Gazette seeks to
include certain areas within the limits of
Nagar Nigam, Meerut. It was issued in
exercise of power under Section 3 of the
U.P. Municipal Corporation Adhiniyam,
1959 (previously U.P. Nagar Mahapalika
Adhiniyam, 1959). The subject land is plot
no. 604, Village Roshanpur Darauli.
Indisputably, as a consequence of the
notification dated 11.9.1987, the subject
land, Plot No. 604 of revenue Village
Roshanpur Darauli got included in the
territorial limits of Nagar Nigam, Meerut.
As per khatauni, it is recorded as 'banjar' in
name of Nagar Nigam, Meerut. Section 126
of the Act stipulates the manner of
succession to property, assets, rights,
liabilities and obligations of the Municipal
Corporation constituted under the Act. SubSection 1 thereof provides the manner in
which vesting of properties and assets takes
place in favour of the Corporation.
According to it, the plot in dispute,
consequent to issuance of notification
under Section 3 of the Act ceases to be
under the control of the local authority
having jurisdiction immediately preceding
issuance of notification under Section 3 of
the Act and come to be vested in Nagar
Nigam, Meerut. Section 126(1)(a) and (b)
which are relevant, are extracted below: -

"126. Succession to property,
assets, rights, liabilities and obligations in
certain cases. - (1) As from the appointed
day [and subject to any direction of the
State Government in this behalf] -

(a) all property, interests in
property
and
assets
including
cash
116 INDIAN LAW REPORTS ALLAHABAD SERIES
balances,
wherever,
situate
which
immediately before such day were vested in
any [Municipal Council], Improvement
Trust or other local authority established
for the area included in the City or any part
of such area or in any local authority
having jurisdiction both within and outside
such area shall vest in and be held by the
Corporation of such City, for the purposes
of this Act, and

(b) all rights, liabilities and
obligations of the aforesaid [Municipal
Council], Improvement Trust or other local
authority [in relation to the area included
in the City] whether arising out of any
contract or otherwise, existing immediately
before such day shall be the rights,
liabilities
and
obligations
of
such
Corporation."

10. Consequently, on 16.10.2004,
when advertisement was issued, Nagar
Nigam, Meerut was fully competent to
settle it on leasehold basis. It is an admitted
fact on record that for one reason or the
other, the matter remained pending and on
14.9.2011, a notification was issued under
Section 117(6) of the Uttar Pradesh
Zamindari Abolition and Land Reforms
Act, 1950 by the State Government,
resuming the subject land for use by the
Home Department for constructing office
of Anti-Terrorism Squad, Meerut Unit. As a
consequence of the same, Nagar Nigam,
Meerut was divested of its title, right and
interest in the subject land. Section 117(6)
which is relevant, is extracted below: -

"117(6) The State Government
may, at any time, [by general or special
order to be published in the manner
prescribed],
amend
or
cancel
any
[declaration, notification or order] made in
respect of any of the things aforesaid,
whether generally or in the case of any
Gaon Sabha or other local authority and
resume such thing and whenever the State
Government so resumes any such thing, the
Gaon Sabha or other local authority, as the
case may be, shall be entitled to receive
and be paid compensation on account only
of the development, if any, effected by it in
or over that thing :

Provided
that
the
State
Government may after such resumption,
make a fresh declaration under sub-section
(2) vesting the thing resumed in the same or
any other local authority (including a Gaon
Sabha), and the provisions of sub-section
(3), (4) and (5), as the case may be, shall
mutatis
mutandis
apply
to
such
declaration."

11. Since, Nagar Nigam, Meerut is
now having no right, title or interest in the
subject land, it also cannot transfer any
right in favour of the petitioner, nor is
competent to execute any lease deed, the
principal prayer made in the petition. The
submission of learned counsel for the
respondent Nagar Nigam in this behalf is
therefore accepted.

12. However, the matter does not rest
here. Initially, Nagar Nigam, Meerut was
not in position to deliver possession of
subject land to the original allottee on
account of certain rival claim of title in the
subject land. This is evident from a
communication sent by the Municipal
Commissioner, Nagar Nigam, Meerut to the
District Magistrate, Meerut on 7.4.2005,
mentioning that the subject land is recorded
as banjar and consequently it vests in Nagar
Nigam, Meerut. The rival claim relating to
any portion of subject land being part of a
burial ground, was disputed in the said
communication. Another communication
by Municipal Commissioner, Nagar Nigam,
Meerut to Senior Superintendent of Police,
7 All. Ashwani Pratap Vs. State of U.P. & Ors.
117
Meerut dated 10.8.2007 reveals that subject
land was not in possession of Nagar
Nigam, Meerut, as it is admitted therein
that one Mehak Singh Tank and his
accomplices were not permitting the
original allottee to take possession of the
plot and request was made for providing
police aid to facilitate handing over of
possession to the allottee. It is also clear
beyond doubt that the original allottee
being unable to obtain possession, tried to
get rid of the predicament by surrendering
and transferring the allotment. However,
the Nagar Nigam kept dragging its feet in
the matter and ultimately it even approved
transfer of allotment in favour of the
petitioner on 30.6.2012, oblivious of the
notification dated 14.9.2011, under Section
117(6) of the Uttar Pradesh Zamindari
Abolition and Land Reforms Act, 1950,
divesting it of all its rights in the subject
land. On the other hand, the petitioner
bonafidely
acting
on
the
assurance
extended to him by letter dated 30.3.2012,
deposited the balance amount of Rs.
14,25,000/- and 15% lease rent amounting
to Rs. 3,52,500/-, in all a sum of Rs.
17,77,500/-, expecting that it would be
followed by execution of lease deed and
entitlement to use the subject land, but once
again Nagar Nigam, Meerut kept the matter
pending.

13. It appears from the note sheet that
even after 14.9.2011, Nagar Nigam, Meerut
was not certain of the course to be adopted
and
on
20.6.2014,
Municipal
Commissioner, Nagar Nigam made an
endorsement that the matter required
permission of the State Government and
enquired whether it had been obtained or
not. Again note sheet dated 13.6.2014
reveals that there is office noting that on
15.2.2005,
a
Committee
headed
by
Divisional
Commissioner
approved
settlement of the land by auction; that now
no suit was pending in respect of the
subject land; that entire sum was in deposit
with Nagar Nigam; that the land was vacant
and that lease deed could be executed in
favour of the petitioner in terms of Clause
17 of the auction document. On 13.6.2014
again, there is noting by Municipal
Commissioner that in the first instance, a
lease deed would be executed in favour of
original allottee and then original allottee
would execute lease deed in favour of the
petitioner. He also made a query as to why
lease deed had not been executed so far and
also relating to possession/title of the
subject land. It is also the specific case of
the petitioner that in respect of other
adjoining plots, auctioned on the same day,
lease deeds were executed soon after the
auction, but only in respect of petitioner's
plot, the Nagar Nigam authorities had kept
the matter pending.

14. It is clear from the facts noted
above that it is Nagar Nigam, Meerut
which was at fault in approving transfer of
allotment in favour of the petitioner on
30.3.2012, despite issuance of notification
under Section 117(6) of U.P.Z.A. & L.R.
Act on 14.9.2011. Nagar Nigam, Meerut, at
that time, ought to have informed the
original allottee that transfer of allotment
was not possible as Nagar Nigam, Meerut
itself had been divested of its title. The
petitioner having deposited huge sum,
acting on the representation of Nagar
Nigam,
Meerut,
is
entitled
to
be
compensated adequately.

15. Accordingly, we direct Nagar
Nigam, Meerut to refund Rs. 17,77,500/-
deposited by the petitioner on 7.12.2012,
with 8% per annum simple interest, till the
date of actual payment and a further sum of
Rs. 5 lakhs as compensation in depriving
118 INDIAN LAW REPORTS ALLAHABAD SERIES
the petitioner of the use and enjoyment of
the subject land. These amounts shall be
paid to the petitioner within one month
from the date of communication of the
instant order, failing which, interest @ 14%
will be payable on the entire sum for the
period in default, till date of actual
payment.

16. In case the petitioner produces
No-Objection
Certificate
along
with
affidavit of the original allottee for release
of 25% of the bid amount deposited by him
as earnest money, the said amount shall
also be released in favour of the petitioner.

17. The petition stands disposed of
accordingly.
----------
(2022)07ILR A118
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 31.08.2017

BEFORE

THE HON'BLE AMRESHWAR PRATAP SAHI, J.
THE HON'BLE RAJIV LOCHAN MEHROTRA, J.

Writ C No. 55173 of 2014

Smt. Anshu Garg & Ors. ...Petitioners
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioners:
Sri Krishna Ji Khare, Sri Mrityunjay Khare

Counsel for the Respondents:
C.S.C., Sri B. Dayal

A. Land Acquisition Law - Right to Fair
Compensation and Transparency in Land
Acquisition,
Rehabilitation
and
Resettlement Act, 2013 - Section 24(2) -
Land Acquisition Act, 1894 - Sections 11
&18 - Compensation - Leeway period of 5
years - Lapse of proceeding initiated
under Act of 1894 - Applicability of S. 24
of Act of 2013 - Relevant factor explained
- Held, for the purpose of calculating the
leeway period of 5 years and for applying
the provisions of lapse, the word 'award'
in Section 11 would be attracted and not
the words 'reference under Section 18' -
The definition clause, which defines 'cost
of acquisition' has no relevance at all so
far as the applicability of provisions of
Section 24 are concerned. (Para 6)
Writ petition dismissed. (E-1)
(Delivered by Hon'ble Amreshwar Pratap
Sahi, J.
&
Hon'ble Rajiv Lochan Mehrotra, J.)

1. Heard Sri Krishn Ji Khare, learned
counsel
for
the
petitioners
and
Sri
Bhupeshwar Dayal, learned counsel for the
respondent.

2. The petitioners have come up with
a plea that the provisions of the Right to
Fair Compensation and Transparency in
Land
Acquisition,
Rehabilitation
and
Resettlement Act, 2013 would be attracted
on the facts of the present case, firstly
because the award will be deemed to have
been finally made only when the final
amount
came
to
be
determined
on
compromise in the proceedings which
according to Sri Khare cannot be termed as
proceedings of reference ending in the
judgment under Section 18 of the 1984 Act.
The second argument of Sri Khare is that
the word compensation is included in the
definition of the words "cost of acquisition"
as defined Section 3(i) of the 2013 Act. The
acquisition proceedings where the earlier
compromise of 2003 was given effect to,
should be read in continuity and therefore
the consequential order will relate back to
the date of the award under Section 11. He
therefore, submits that this will amount to