# Hari Babu Jain & Ors v. State of U.P. & Ors

- **Citation:** (2019) 4 ILRA 626
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2019-10-31
- **Bench:** Sudhir Agarwal, Virendra Kumar Srivastava
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/hari-babu-jain-ors-v-state-of-u-p-ors-45023
- **Pages:** 63

## Headnote

A. Civil Law - Government Grants Act,
1895 - Section 3 - 'Nazul' - a land
owned and vested in State - land which
has vested in State by virtue of its
'Sovereignty'
and
incidence
of
'Sovereignty' i.e. annexation, lapse and
bona vacantia - 'Grant' - transfer of
property by a deed in writing and
includes within its ambit, an instrument
of lease/lease deed. (Para-81)

Entry of petitioners over land in dispute was
wholly unauthorized -, their status is of 'rank
trespassers' - they have no right over land in
dispute - respondent's authority has given
opportunity to petitioners by means of notice
in question - Even otherwise, if petitioners
would have been a valid leaseholder, their
rights
under
lease
would
have
been
contractual. (Para 168 & 205)

Held: - In the matter of contract principles of
natural justice are not applicable. (Para 168 &
205)

B. Civil Law - Government Grants Act,
1895 - Section 3(repealed by Act of
2017) - Nazul land - Resumption of land
by Government.

Resumption
of
land
in question
is
in
accordance with law and petitioners have no
right
whatsoever
to
claim
continued
possession over land in dispute. Even scheme
of
freehold
as
governed
by
various
Government Orders shows, wherever land is
required by State Government for 'public
purpose' for own use, it shall not allow
freehold. (Para 201)

Held:-
Petitioners
had
no
right,
legal,
contractual
or
otherwise
in
respect
of
possession of land in dispute; they were not
holding possession of land validly; once State
exercises right of re-entry, question of
conversion of freehold also would not arise,
hence
notice
in
question
warrants
no
interference.- by means of impugned notice,
petitioners have been given enough time to
vacate the land and thereafter only State shall
take steps for possession, if vacant possession
is not given by petitioners-Petitioners already
enjoyed interim order passed by this Court and
continued in possession over land in dispute
for last almost more than a year - petitioners
directed to vacate disputed land within one
month . (Para - 202, 208 & 211)

Writ petition dismissed. (E-7)

List of cases cited: -

1.Anand Kumar Sharma Vs. State of U.P. 2014
(2) ADJ 743

2.Hajee S.V.M. Mohd. Jamaludeen Bros. & Co.
vs. Govt. of T.N., (1997) 3 SCC 466;

3.State of U.P. vs. Zahoor Ahmad (1973) 2
SCC 547;

4.Chintamani Ghosh and another vs. State of
U.P. and others, 2001 (2) UPLBEC 1003;

5.State of Andhra Pradesh vs. Kaithala
Abhishekam, AIR 1964 AP 450;

6.Union of India and others vs. Harish Chand
Anand, AIR 1996 SC 203;

7.Smt. Shakira Khatoon Kazmi and others vs.
State of U.P. and others, 2002 (1) AWC 226;

8.Azim Ahmad Kazmi and others vs. State of
U.P. and others (2012) 7 S

## Text

_Characters 0–39,888 of 207,321. This is a partial read: ask again with offset=39888 for what follows._

626 INDIAN LAW REPORTS ALLAHABAD SERIES

143. So far as validity of resumption
of land for 'public purpose' is concerned,
it could not be disputed that land has been
sought to be required by State for 'public
purpose'.
Allahabad
City
has
been
selected for development as a Smart City
and
respondents
have
pleaded
that
demand of huge land has been made by
various Government departments since
various
Offices,
Workshops,
Parks,
Parking places etc. have to be constructed.
The land in dispute has been found
suitable for "Nurseries for Horticulture
Department,
Homeopathic/Ayurvedic/Unani Hospital,
Office of Information Department and
Office of Central Ground Water Board"
which are public purpose. In fact, on this
aspect, no substantial argument has been
made and in our view, resumption of land
by State is for 'public purpose'.

144. Now, we may also observe that
litigation initiated by petitioner on the one
hand has given enough time to it to
continue to hold and enjoy land in dispute
and simultaneously denied opportunity to
respondent authorities to take possession
of land in question for the purpose of
carrying out developmental activities
where time is a matter of essence. The
impugned
notice
was
issued
on
18.08.2018 and for more than twelve
months have already been availed by
petitioner to enjoy benefit of possession
of land in dispute. It has enjoyed the same
without spending even a single penny
towards rent, damages, compensation for
such enjoyment. Land in question is
required for developmental activities in
furtherance of developing Prayagraj City
as "Smart City". Developmental activities
require an early action, but, by indulging
in
litigation,
petitioner
has
already
delayed it sufficiently, therefore, even if
what petitioner claims that it should have
been given notice or sufficient time to
vacate, the same has already been
achieved as petitioner had already enough
time. It is, thus, a fit case where we do not
find that any other technicality should be
allowed to intervene and, earliest is the
better
that
possession
of
land
is
transferred
to
respondents
so
that
developmental activities may proceed
without any further delay. Considering the
facts and circumstances and also the fact
that
petitioner
has
already
enjoyed
continued possession over land in dispute
for the last almost more than a year after
issue of impugned notice, we direct
petitioner to vacate disputed land within
one month from the date of delivery of
judgment.

145. In view of above discussion,
we do not find any merit in the petition.
Subject to above direction with respect to
period of vacating land in dispute, writ
petition is dismissed.

146. No costs.
----------
(2019)12 ILR A626

ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 31.10.2019

BEFORE
THE HON'BLE SUDHIR AGARWAL, J.
THE HON'BLE VIRENDRA KUMAR
SRIVASTAVA, J.

Writ C No: 32687 of 2018

Hari Babu Jain & Ors. ...Petitioners
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioners:
Sri Ishwar Chandra Tyagi, Sri Nirvikar Gupta
4 All. Hari Babu Jain & Ors. Vs. State of U.P. & Ors.
627
Counsel for the Respondents:
C.S.C., Sri Ajit Kumar Singh (Addl. A.G.),
Sri Nimai Das & Sudhanshu Srivastava
(Addl. C.S.C.)

A. Civil Law - Government Grants Act,
1895 - Section 3 - 'Nazul' - a land
owned and vested in State - land which
has vested in State by virtue of its
'Sovereignty'
and
incidence
of
'Sovereignty' i.e. annexation, lapse and
bona vacantia - 'Grant' - transfer of
property by a deed in writing and
includes within its ambit, an instrument
of lease/lease deed. (Para-81)

Entry of petitioners over land in dispute was
wholly unauthorized -, their status is of 'rank
trespassers' - they have no right over land in
dispute - respondent's authority has given
opportunity to petitioners by means of notice
in question - Even otherwise, if petitioners
would have been a valid leaseholder, their
rights
under
lease
would
have
been
contractual. (Para 168 & 205)

Held: - In the matter of contract principles of
natural justice are not applicable. (Para 168 &
205)

B. Civil Law - Government Grants Act,
1895 - Section 3(repealed by Act of
2017) - Nazul land - Resumption of land
by Government.

Resumption
of
land
in question
is
in
accordance with law and petitioners have no
right
whatsoever
to
claim
continued
possession over land in dispute. Even scheme
of
freehold
as
governed
by
various
Government Orders shows, wherever land is
required by State Government for 'public
purpose' for own use, it shall not allow
freehold. (Para 201)

Held:-
Petitioners
had
no
right,
legal,
contractual
or
otherwise
in
respect
of
possession of land in dispute; they were not
holding possession of land validly; once State
exercises right of re-entry, question of
conversion of freehold also would not arise,
hence
notice
in
question
warrants
no
interference.- by means of impugned notice,
petitioners have been given enough time to
vacate the land and thereafter only State shall
take steps for possession, if vacant possession
is not given by petitioners-Petitioners already
enjoyed interim order passed by this Court and
continued in possession over land in dispute
for last almost more than a year - petitioners
directed to vacate disputed land within one
month . (Para - 202, 208 & 211)

Writ petition dismissed. (E-7)

List of cases cited: -

1.Anand Kumar Sharma Vs. State of U.P. 2014
(2) ADJ 743

2.Hajee S.V.M. Mohd. Jamaludeen Bros. & Co.
vs. Govt. of T.N., (1997) 3 SCC 466;

3.State of U.P. vs. Zahoor Ahmad (1973) 2
SCC 547;

4.Chintamani Ghosh and another vs. State of
U.P. and others, 2001 (2) UPLBEC 1003;

5.State of Andhra Pradesh vs. Kaithala
Abhishekam, AIR 1964 AP 450;

6.Union of India and others vs. Harish Chand
Anand, AIR 1996 SC 203;

7.Smt. Shakira Khatoon Kazmi and others vs.
State of U.P. and others, 2002 (1) AWC 226;

8.Azim Ahmad Kazmi and others vs. State of
U.P. and others (2012) 7 SCC 278;

9.Anand Kumar Sharma vs. State of U.P. and
others, 2014 (2) ADJ 742

10.Writ Petition No. 62588 of 2010 (M/s Madhu
Colonizers Pvt. Ltd. vs. State of U.P. and others)

11.Dyke v. Walford 5 Moore PC 434= 496-13
ER 557 (580)

12.Pierce Leslie and Co. Ltd. Vs. Miss Violet
Ouchterlony Wapsnare, AIR 1969 SC 843

13.Collector of Masulipatam v. C. Vencata
Narainapah 8 MIA 500, 525;
628 INDIAN LAW REPORTS ALLAHABAD SERIES
14.Ranee Sonet Kowar v. Mirza Himmut
Bahadoor (2) LR 3 IA 92, 101,

15.Bombay Dyeing and Manufacturing Co. Ltd.
v. State of Bombay [1958] SCR 1122, 1146,

16.Superintendent and, Legal Remembrancer
v. Corporation of Calcutta [1967] 2 SCR 170.

17.Cook v. Sprigg (1899) AC 572

18.Raja Rajinder Chand v. Mst. Sukhi, AIR
1957 SC 286.

19.Nayak Vajesingji Joravarsingji v. Secretary
of State for India in Council AIR 1924 PC 216

20.Dalmia Dadri Cement Co. Ltd. v. CIT [1958]
34 ITR 514 (SC) : AIR 1958 SC 816,

21.Promod Chandra Deb v. State of Orissa AIR
1962 SC 1288

22.Amarsarjit Singh v. State of Punjab AIR
1962 SC 1305

23.Thakur Amar Singhji v. State of Rajasthan
AIR 1955 SC 504

24.State of Rajasthan vs. Sajjanlal Panjawat
AIR 1975 SC 706

25.Director
of
Endowments,
Govt.
of
Hyderabad vs. Akram Ali, AIR 1956 SC 60,

26.Sarwarlal vs. State of Hyderabad, AIR 1960
SC 862.

27.Promod Chandra Deb vs. State of Orissa
AIR 1962 SC 1288

28.Biswambhar Singh vs. State of Orissa 1964
(1) SCJ 364

29.State of U.P. vs. Zahoor Ahmad, 1973(2)
SCC 547

30.Hajee S.V.M. Mohamed Jamaludeen Bros.
& Co. vs. Government of Tamil Nadu (1997) 3
SCC 466

31.Azim Ahmad Kazmi and others vs. State of
U.P. and Another (2012) 7 SCC 278
32.State of U.P. and others vs. United Bank of
India and others (2016) 2 SCC 757

33.Mohsin Ali vs. State of M.P. AIR 1975 SC
1518

34.Pradeep Oil Corporation vs. Municipal
Corporation of Delhi and others (2011) 5 SCC
270

35.Shakira Khatoon Kazmi vs. State of U.P.,
AIR 2002 All 101

36.Writ Petition No. 44517 of 1998, Sayed
Shah Khursheed Ahmad Kashmi vs. State of
U.P

37.State of U.P. vs. Zahoor Ahmad, 1973(2)
SCC 547

38.The State of U.P. vs. Zahoor Ahmad and
Another, 1973(2) SCC 547,

39.Delhi Development Authority Vs. Anant Raj
Agencies Pvt. Ltd. (2016) 11 SCC 406

40.State of U.P. and others vs. United Bank of
India and others (2016) 2 SCC 757

41.R.V. Bhupal Prasad vs. State of A.P. (1995)
5 SCC 698

42.Sevoke Properties Ltd. vs. West Bengal
State Electricity Distribution Company Ltd. AIR
2019 SC 2664

43.Purushottam Dass Tandon and others vs.
State of U.P. & Ors. AIR 1987 All. 56,

44.State of U.P. and others vs. Purshottam Das
Tandon and others 1989 Supp.(2) SCC 412

45.Shanti Prasad Devi and others vs. Shankar
Mahto and others (2005) 5 SCC 543

46.Bishan Das and others Vs. State of Punjab
and others AIR 1961 SC 1570,

47.Express Newspapers Pvt. Ltd. and others
Vs. Union of India (1986) 1 SCC 133,

48.Yar Mohammad and another vs. Lakshmi
Das and others AIR 1959 Allahabad 1
4 All. Hari Babu Jain & Ors. Vs. State of U.P. & Ors.
629
49.Lallu Yeshwant Singh (dead) by his legal
representative vs. Rao Jagdish Singh and
others, AIR 1968 SC 620.

50.Bishan Das and others Vs. State of Punjab
and others AIR 1961 SC 1570

51.Thakoor Chunder Parmanick Vs. Ramdhone
Bhuttacharjee (1866) 6 W.R. 228;

52.Lala Beni Ram Vs. Kundan Lall (1899) L.R.
26 I.A. 58

53.Narayan Das Khettry Vs. Jatindranath
(1927) L.R. 54 I.A. 218.

54.Wazir Chand Vs. The State of Himachal
Pradesh AIR 1954 SC 415

55.Express Newspapers Pvt. Ltd. and others
Vs. Union of India (1986) 1 SCC 133

56.Bishan Das and others Vs. State of Punjab
and others (supra) and State of Orissa Vs.
Ram Chandra Dev AIR 1964 SC 685.

57.Mohammed Hanif Vs. State of Assam
(1969) 2 SCC 782.

58.Yar Mohammad and another vs. Lakshmi
Das and others AIR 1959 Allahabad 1

59.Lallu Yeshwant Singh (dead) by his legal
representative vs. Rao Jagdish Singh and
others, AIR 1968 SC 620

60.Jnanendra Nath Nanda vs. Jadu Nath
Banerji AIR 1938 Cal 211

61.Secretary of State for India in Council vs.
Lal Mohan Chaudhuri, AIR 1935 Cal 746

62.Lala Kishun Chand vs. Sheo Dutta, AIR
1958 All. 879

63.Bhawanji Lakhanishi vs. Himatlal Jamnadas
AIR 1972 SC 819

64.Ratan Lal vs. Farshi Bibi (1907) ILR 34 Cal
396

65.Govindaswami vs. Ramaswami (1916) 30
Mad LJ 492
66.Christian vs. Hari Prasad AIR 1955 Pat 158
and Pritilata Devi vs. Banke Bihari Lal AIR
1962 Pat 446

67.Gordhan vs. Ali Bux AIR 1981 Raj 206

68.Ashoka Marketing Ltd. And another vs.
Punjab National Bank and others, (1990) 4
SCC 406

69.Sarup Singh Gupta vs. S. Jagdish Singh and
others (2006) 4 SCC 205

70.Anand Kumar Sharma vs. State of U.P. and
others 2014(2) ADJ 742

71.Writ Petition No.62588 of 2010, M/s Madhu
Colonizers Pvt. Ltd. vs. State of U.P. & Ors.,

72.State of Gujarat and Ors. vs. Meghji Pethraj
Shah Charitable Trust and Ors., 1994(3) SCC
552

73.Pimpri Chinchwad Municipal Corporation
and Ors. vs. Gayatri Construction Company
and Anr., 2008(8) SCC 172

(Delivered by Hon'ble Sudhir Agarwal, J.)

1. Heard Sri Nirvikar Gupta, learned
counsel for petitioners and Sri Ajit Kumar
Singh,
Additional
Advocate General
assisted by Sri Nimai Das and Sri
Sudhanshu Srivastava, Additional Chief
Standing Counsel.

2. This writ petition under Article
226 of Constitution of India has been filed
by three petitioners namely Hari Babu
Jain, Ajit Kumar Jain and Praveen Kumar
Jain, all real brothers and sons of Late Sri
Panna Lal, resident of 3-A/3, P.D. Tandon
Road, Civil Lines, Allahabad. They have
prayed for issue of a writ of certiorari to
quash order dated 14.08.2018 (Annexure
1 to the writ petition), passed by District
Magistrate,
Allahabad
communicating
that
State
has
exercised
right
of
resumption in respect of Nazul land
630 INDIAN LAW REPORTS ALLAHABAD SERIES
no.127, Civil Station, Allahabad area 2
acres 3947 Sq. Yards. Letter/notice of
aforesaid order is addressed to 21 persons
including three petitioners, who are at
Serial No.5 in the aforesaid notice.

3. Petitioners have also prayed for
issue of a writ of mandamus directing
respondents 1 and 2 not to dispossess
petitioners from area of 1204.23 Sq.
Meters, in Bungalow No.3, P.D.Tandon
Road, (Old Kanpur Road), Civil Lines,
Allahabad, which is part of Nazul Plot
No.127, Civil Station, Allahabad and also
not to demolish dwelling house and
constructions,
superstructures,
sheds,
office etc., raised by petitioners on the
aforesaid land.

4. Facts in brief as set out in writ
petition are that Nazul Plot No.127, Civil
Station, Allahabad (hereinafter referred
to as "Disputed Nazul Land") is a very big
plot having area of 2 acres 3947 Sq. Yard
i.e. total 11393.53 Sq. Meters. It was
initially leased out to one 'E.J.Lazarus' by
Secretary of State for India in Council
through Collector, District Allahabad vide
lease deed dated 02.04.1862. The period
of lease was 50 years. After expiry of
initial period of 50 years on 01.4.1912,
another lease deed was executed on
18.06.1912 for a further period of 50
years and period of lease commenced
from 02.4.1912. This lease deed was
executed by Secretary of State for India in
Council through Collector Allahabad in
favour of 'Evelyn Constance Trisham'.
The lease was executed for allowing
lessee to raise a dwelling house, garden or
pleasure grounds. Period of lease expired
on 01.4.1962.

5. Disputed Nazul Land was let out
by erstwhile lessee i.e. E.C.Trisham to
Vishun Nath son of Shambhu Nath and
his name was also recorded in Nazul
Register. Vishun Nath died in 1958
leaving behind his widow Smt. Jamuna
Devi and three sons namely Harihar Nath
Dhar, Triloki Nath Dhar, and Sri Dhar.
Since lease expired on 01.4.1962, Sri
Dhar son of Vishun Nath submitted
application dated 04.5.1962 requesting for
grant of fresh lease of Disputed Nazul
Land. Superintendent Municipal Estates
and Nazul Properties, Nagar Mahapalika,
Allahabad vide letter dated 26.5.1962
informed him that no subdivision of
Disputed Nazul Land would be allowed
and all co-lessees have to apply jointly for
fresh lease for entire site measuring 2
acres 3947 Sq. Yards. Fresh lease could
not be executed, as is evident from letter
dated
13.8.1969
sent
by
Nazul
Superintendent,
Nagar
Mahapalika,
Allahabad requiring Smt. Jamuna Devi
and Shri Dhar to file affidavit on behalf of
all the legal heirs. Heirs of Vishun Nath,
however, inducted in 1980, petitioners as
tenant over 1204.23 Sq. Yards, allocated
in Northern part of P.D.Tandon Road at
the rent of Rs.250/- per month. Petitioners
raised various constructions etc. over the
said land and continuously paid rent to
Harihar Nath Dhar, who issued rent
receipts being Karta of family. Petitioners
constructed wood shop by the main
P.D.Tandon Road in which they started a
Furniture Showroom in the name of
"Shree Digamber Traders". In the other
portion, family members of petitioners
were residing. Petitioners are also paying
house tax and water tax of property in
their possession.

6. Special Nazul Officer, Allahabad
issued a letter dated 05.01.1981 addressed
to Harihar Nath Dhar requiring him to
produce following documents :
4 All. Hari Babu Jain & Ors. Vs. State of U.P. & Ors.
631

^^1- eSfVad iz.kkyh ij cuk gqvk lkbV
dk uD'kk ftlesa iwjk fufeZr {ks=Qy iwjs uki ds
lkFk fn[kk;k x;k gksA ;fn Hkwfe dk ,d ls vf/kd
mi;ksx gks jgk gS rks fofHkUu Hkw mi;ksxksa dk uD'ks
ij Li"V :i ls iznf'kZr fd;k tk; vkSj ;fn lkbV
dk foHkktu gqvk gS rks bls Hkh uD'ks ij fn[kk;k
tk;A

2- foHkktu dh fLFkfr esa foHkktu
Lohd`r djkus lEcU/kh ftyk/kh'k @ 'kklu dk
vkns'k Hkh izLrqr djsaA

3- vius LoRo ds leFkZu esa vko';d
nLrkost izLrqr djsaA

4- ;fn lekIr yht ds dbZ iV~Vsnkj Fks
vkSj vkids vfrfjDr vU; yksx u;k iV~Vk ysus ds
bPNqd ugha gSa rks vkids i{k esa iV~Vk fn, tkus gsrq
mudk fyf[kr laLrqfr @ lgefr gsrq izLrqr djsaA**

"1- The site-map be made on the
basis of the metric system, in which whole
constructed area be shown with all
dimensions. If the land is used for more
than one purpose, then all different
usages be specifically shown in the map,
and if the site has been partitioned, then it
be also shown on the map.

2- In case of partition, order of
District Magistrate/ Government relating
to approval of partition be also produced.

3- In support of the title,
necessary documents be produced.

4- If there were many other
lease-holders, and except you, no one is
prepared to take new lease, then written
recommendation/consent for allotting
lease in your favour be produced."

 (Emphasis added)

 (English Translation by Court)

7. Vishun Nath died in 1958. His
wife Smt. Jamuna died in 1974. An
agreement was executed on 08.11.1988
between Harihar Nath as Karta of family
and petitioners Hari Babu Jain, Ajit
Kumar Jain and Praveen Kumar Jain for
transfer of portion of land and structure
i.e. area 1204.23 Sq.meters subject to
permission of Government, on payment of
sale consideration of Rs.84,297.50 by
petitioners to Harihar Nath. Relevant
stipulations of agreement contained in
paras 3, 6, 7 and 10 are as under :

3. That the 2nd party will be
responsible to obtain the permission of
the Government for the transfer of the
portion of the land shown red in the
attached plan at his own cost and
expenses.

6. That the 1st party will
transfer the land under the possession of
the 2nd party after the permission was
granted by the government after the
grant of the fresh lease.

7. That in case the fresh lease
was not granted in favour of the 1st party
by including the land proposed to be
transferred the 2nd party will have the
rights to get the fresh lease granted to
them direct from the government on
payment of premium and fixed annual
ground
rent
demanded
by
the
government and in that case the 1st party
will have no objection.

10. That the 1st party including
his heirs, executors, administrators and
assigns will have no objection in case the
2nd party got the fresh lease executed in
their favour direct from the government."

 (Emphasis added)

8. The entire consideration was paid
by petitioners to Harihar Nath. They are
transferees/assignees and co-lessees of
part of Disputed Nazul Land measuring
1204.23 Sq. meters. In the light of State
Government's policy of making freehold
of lease rights enshrined in Government
Order (hereinafter referred to as "G.O.")
dated 01.12.1998, petitioner-1 Hari Babu
Jain, being Karta of family and on behalf
of all other petitioners, filed application
dated
28.01.1999
before
Collector
632 INDIAN LAW REPORTS ALLAHABAD SERIES
Allahabad for freehold and also deposited 25
percent of circle rate i.e. Rs.1,08,260/- vide
Treasury Challan dated 28.01.1999. Since no
decision was taken, petitioners served notice
dated 09.6.2003 on Collector, Allahabad,
requesting
him
to
decide
petitioners'
application for freehold. Another reminder
notice was sent on 21.8.2013 by petitioners
to Collector Allahabad. Petitioners also filed
Original Suit No.392 of 2015, impleading
Omeshwar
Nath,
Brijeshwar
Nath,
Kamleshwar Nath and Gyaneshwar Nath, all
sons of late Harihar Nath, and State of Uttar
Pradesh
through
District
Magistrate,
Allahabad as defendants 1 to 5 and sought
following reliefs:

^^11- ;g fd ekuuh; U;k;ky; }kjk
tfj;s ?kks"k.kkRed fMdzh Hkou la0 3,@ 3 ih0Mh0
V.Mu jksM flfoy ykbu bykgkckn dks oknhx.k ds
gd esa ?kks"k.kk dj nh tkosA mDr Hkou ds ekfyd
dkfct nkf[ky oknhx.k gSa izfroknhx.k ls dksbZ
okLrk ugha gSA

12- 1⁄4v1⁄2 ;g fd izfroknhx.k ls oknhx.k
dks eqdnek [kpkZ fnyk;k tk;A

1⁄4c1⁄2 ;g fd djhu fgalk cgd oknhx.k
fo:) izfroknhx.k lkfcr dj fy;s tk;sA**

"11.
That
a
decree
of
declaration for building no. 3A/3, PD
Tandon Road, Civil Lines, Allahabad may
kindly be passed by the Hon'ble Court in
favour of the plaintiffs to the effect that he
plaintiffs are owners having possession
over the said building and the defendants
have no concern with it.

12 (a) That the cost of the case
may kindly be awarded to the plaintiffs
from the defendants.

b) That share of plaintiff against
defendants be declared.
 (Emphasis added)
 (English Translation by Court)

9. The aforesaid suit is still pending.
In the meantime, now respondent-2 has
passed impugned order dated 14.08.2018.

10. The order has been assailed on
various grounds, i.e. notice contains
names of some persons who are already
dead; petitioners had applied for freehold
but their application has not been decided;
in an abrupt manner, impugned order has
been
passed
without
giving
any
opportunity; it is illegal and arbitrary
particularly when in number of cases
freehold has been allowed; respondents
could have acquired land following
procedure laid down in Right to Fair
Compensation and Transparency in Land
Acquisition,
Rehabilitation
and
Resettlement Act, 2013 (hereinafter
referred to as Act, 2013") but the said
procedure has not been followed and
therefore, resumption is wholly illegal; lot
of land is available for developing as
'Sports Complex' besides the fact that a
'Sport Complex' is already available in the
city
hence
alleged
requirement
for
development of 'Sports Complex' is not
genuine
and
against
public
policy;
petitioners cannot be ousted forcibly
without resorting to procedure prescribed
in
Uttar
Pradesh
Public
Premises
(Eviction of Unauthorized Occupants)
Act, 1972 (hereinafter referred to as
"U.P. Act, 1972"); and, petitioners having
been allowed to stay in land in dispute
despite expiry of lease in 1962, bring in
doctrine of estoppel against respondents
and now they cannot take a somersault by
asking petitioners to vacate land in
dispute over which several developments
by raising constructions have been made
by petitioners.

11. Respondent -2 contesting the
writ petition has filed counter affidavit
sworn by Sri Gore Lal Shukla, Additional
District Magistrate (Nazul), Allahabad.
He has pleaded that Disputed Nazul Land
was leased out to E.C.Tresham vide lease
4 All. Hari Babu Jain & Ors. Vs. State of U.P. & Ors.
633
deed dated 18.6.1912 executed for a
period of 50 years with effect from
02.04.1912. In terms of Government
Grants Act 1895 (hereinafter referred to
as "GG Act, 1895") rights of parties are to
be governed by the said lease deed and
not by any other contrary statutory law.
With respect to surrender after expiry of
period of lease, relevant stipulations in
lease deed reads as under :-

"....And also shall and will at
the end, expiration or other sooner
determination of the said term peaceably
and quietly leave surrender and yield up
to the said Secretary of State, his
Successors or Assigns the said piece or
parcel of land or ground together with all
such of the said erection or building and
all fixtures and fittings which at any time
and during the said term shall be affixed
or set up within or upon the said demised
premises as the said Secretary of State,
his Successors and Assigns shall desire
to take over at a valuation according to
the option hereinafter reserved to them,
subject
however
to
the
conditions
hereinaftercontained." (Emphasis added)

12. With respect to resumption by
State Government, lease deed contains a
clause, which reads as under:-

"Provided always and it is
hereby declared and agreed that no
compensation or payment shall be
claimable
by
the
said
lessee
his
Executors, Administrators or Assigns for
any buildings, erections, or fixtures,
erected affixed, or placed by him, them
or any of them in or upon the said
premises or any part thereof, in case
these premises shall be determined by reentry for forfeiture in which case the
buildings, erections and fixtures shall
vest absolutely in the said Secretary of
State, his Successors and Assigns as his
own property without any compensation
or payment in respect there (Emphasis
added)

13. Land is required for public purpose
of developing a 'Sports Complex' in the city
of Allahabad, which has been chosen to be
developed as "Smart City". A proposal sent
to State Government on 19.6.2018 for
resumption/re-entry has been approved by
State Government vide letter 9.8.2018 and in
terms thereof order dated 14.8.2018 has been
passed by District Magistrate, Allahabad. No
lease deed was ever executed in favour of
Vishun Nath son of Shambhu Nath and there
is no renewal of lease after 1.4.1962. The
alleged induction of petitioners in 1980 is
wholly unauthorized as it was never
approved
or
sanctioned
by
State
Government. Mere application for 'freehold'
does not confer any vested right in
petitioners as held by the Full Bench of this
Court in Anand Kumar Sharma Vs. State
of U.P. 2014 (2) ADJ 743. In any case,
petitioners have no right over land in dispute
on the basis of agreement dated 8.11.1988
since, Executors at that time did not possess
any transferable right at all. Power of
resumption is consistent with terms of lease
read with provisions of GG Act 1895. It is
also said that GG Act, 1895 has been
repealed by Repealing and Amending
(Second) Act, 2017 (hereinafter referred to
as "Act, 2017") but rights etc. in respect of
effect and consequences etc. of act already
done or suffered have been saved. Section 2
provides that enactment specified in First
Schedule are hereby repealed. Reference of
GG Act, 1895 is in First Schedule. Section 4
of Act, 2017 reads as under :

"4. Savings.- The repeal by this
Act of any enactment shall not affect any
634 INDIAN LAW REPORTS ALLAHABAD SERIES
other enactment in which the repealed
enactment has been applied, incorporated
or referred to;

and this Act shall not affect the
validity,
invalidity,
effect
or
consequences or anything already done
or suffered, or any right, title, obligation
or liability already acquired, accrued or
incurred, or any remedy or proceeding in
respect thereof, or any release or
discharge of or from any debt, penalty,
obligation, liability, claim or demand, or
any indemnity already granted, or the
proof of any past act or thing;

nor shall this Act affect any
principle or rule of law, or established
jurisdiction, form or course of pleading,
practice or procedure, or existing usage,
custom, privilege, restriction, exemption,
office or appointment, notwithstanding
that the same respectively may have been
in any manner affirmed or recognized or
derived by, in or from any enactment
hereby repealed;

nor shall the repeal by this Act
of any enactment revive or restore any
jurisdiction, office, custom,
liability,
right,
tittle,
privilege,
restriction,
exemption, usage, practice, procedure or
other matter or thing not now existing or
any force."

(Emphasis added)

14. In view of GG Act, 1895 read
with Section 4 of Act, 2017, respondents
1 and 2 have exercised power of
resumption. The respondents, in their
counter affidavit have placed reliance
upon Hajee S.V.M. Mohd. Jamaludeen
Bros. & Co. vs. Govt. of T.N., (1997) 3
SCC 466; State of U.P. vs. Zahoor
Ahmad (1973) 2 SCC 547; Chintamani
Ghosh and another vs. State of U.P.
and others, 2001 (2) UPLBEC 1003;
State of Andhra Pradesh vs. Kaithala
Abhishekam, AIR 1964 AP 450; Union
of India and others vs. Harish Chand
Anand, AIR 1996 SC 203; Smt. Shakira
Khatoon Kazmi and others vs. State of
U.P. and others, 2002 (1) AWC 226;
Azim Ahmad Kazmi and others vs.
State of U.P. and others (2012) 7 SCC
278; Anand Kumar Sharma vs. State of
U.P. and others, 2014 (2) ADJ 742 and
judgment of this Court in Writ Petition
No. 62588 of 2010 (M/s Madhu
Colonizers Pvt. Ltd. vs. State of U.P.
and others) decided on 2.4.2013.

15. A rejoinder affidavit has been
filed by petitioners denying all averments
made in the counter affidavit which are
contrary to pleadings of petitioners in writ
petition. Basically averments in rejoinder
affidavit are repetition of pleadings of
writ petition, hence, we are not dealing
with the same but may refer the same at a
later stage whenever it is required.

16. Learned counsel for petitioners
argued that petitioners are in possession
of land in dispute since 1980. No step was
taken by State of U.P. or Collector,
Allahabad to dispossess petitioners from
land
in
dispute,
hence
petitioners'
possession over land in dispute cannot be
said to be wholly illegal. They cannot be
treated as mere trespasser. In accordance
with policy of freehold, petitioners have
also applied for conversion of lease rights
into freehold but no decision has been
taken thereon and abruptly impugned
order has been passed, that too, without
any show cause notice to the petitioners
or giving opportunity, hence it is wholly
illegal and in violation of principles of
natural justice. It is also said that
resumption,
in
effect,
amounts
to
acquisition of land and therefore, taking
land of petitioners without following
procedure prescribed under Act, 2013 is
4 All. Hari Babu Jain & Ors. Vs. State of U.P. & Ors.
635
patently illegal. He further submitted that
respondents
have
discriminated
petitioners
by
keeping
petitioners'
application for conversion of lease rights
into freehold pending while in various
other matters such conversion has been
allowed. Lastly, it is said that resumption
on the ground of 'public purpose' i.e. for
development of 'Sports Complex' is
nothing but illusory and pretext to oust
petitioners from land in dispute over
which
petitioners'
residence
and
commercial establishments are existing,
providing shelter and source of earning
livelihood, hence petitioners' ouster in
such manner violate their fundamental
right under Articles 14 and 21 of
Constitution of India.

17. Sri Ajit Kumar Singh, learned
Additional Advocate General said that
petitioners
are
wholly
unauthorised
occupants over land in dispute; have no
right at all whatsoever; writ petition at the
instance of petitioners in respect of land
in dispute is not maintainable and
deserves to be dismissed for this reason
alone. He further reiterated all the
conditions and arguments, which have
been pleaded in counter affidavit and
relied on authorities, which are cited in
counter affidavit, which we have noticed
above.

18. From rival submissions, issues
which, in our view, require to be
adjudicated in these writ petitions are :

i. What is "Nazul"?

ii.
What
is/are
Statute(s)
governing Crown (later amended as
"Government") Grant of land owned by
Crown (Government) i.e. Nazul? Its status
and effect.

iii.
Whether
lease
right
governed by instrument of lease read with
GG Act, 1895 is transferrable and if so,
whether it is subject to any condition and
any transfer made not consistent with
such conditions, whether would be valid
and confer an actionable right upon
Transferree?

iv. What was the status of
Lessee after expiry of lease-deed and any
subsequent Transferee inducted by such
Lessee on the land in respect whereof
Grant was executed, whether such person
brought in possession before expiry of
lease or subsequently, would have any
legally enforceable right over such
premises?

v. Whether petitioners had right
to get land in dispute freehold on mere
submission of application form and such
right will override right of State for
resumption/re-entry on disputed Nazul
land?

vi. Whether right of resumption
exercised by State in the present case is
valid and in accordance with law and is it
open to State Government to seek
resumption by giving notice to occupant
of the land in accordance with terms of
lease deed or State is bound to follow
procedure of filing suit for eviction or
procedure laid down in U.P. Act, 1972?

vii. Whether impugned notice
and
order
of
approval
of
State
Government for resumption/re-entry over
land in dispute is invalid on account of
lack of opportunity to petitioners. In other
words, whether principles of natural
justice
are
applicable
when
State
Government chose to exercise right of
resumption/re-entry in respect of land
owned by it?

19. We have framed above questions
in the light of the fact that it is admitted
636 INDIAN LAW REPORTS ALLAHABAD SERIES
by all the parties that land in dispute is
'Nazul' and owned by State Government.

20. Questions (i) and (ii), in our
view, can be taken together hence we
proceed to discuss both these questions (i)
and (ii) together.

21. Every land owned by State
Government is not termed as 'Nazul' and
therefore it has become necessary to
understand, what is 'Nazul'.

22. State Government may own land
by having acquired and vested in various
ways, which includes vesting of land in
the capacity of a Sovereign body and
having right of bona vacantia. Property
may also be acquired and owned by State
by way of acquisition under the Statute
relating to acquisition of land or by
purchase through negotiation or gift by an
individual or in similar other manner. All
such land, which is owned and vested in
State Government results in making the
State, owner of such land, but in legal
parlance, the term
"Nazul" is not
applicable to all such land.

23. It is only such land which is
owned and vested in the State on account
of
its
capacity
of
Sovereign,
and
application of right of bona vacantia,
which is covered by the term 'Nazul', as
the term is known for the last more than
one and half century. In Legal Glossary
1992, fifth edition, published by Legal
Department of Government of India, at
page 589, meaning of the term 'Nazul' has
been
given
as
'Rajbhoomi,
i.e.,
Government land'.

24. Nazul is an Arabic word. It
refers to a land annexed to Crown. During
British Regime, immoveable property of
individuals, Zamindars, Nawabs and
Rajas when confiscated for one or the
other reason, it was termed as 'Nazul
property'. The reason being that neither it
was acquired nor purchased after making
payment. In old record, when such land
was referred in Urdu, this kind of land
was shown as 'Jaidad Munzabta'.

25. For dealing with such property,
under the authority of Lt. Governor of
North Western Provinces, two orders
were issued in October, 1846 and
October, 1848. Therein, after the words
"Nazul property", its english meaning was
given as 'Escheats to the Government'.
Sadar Board of Revenue on May 20, 1845
issued a circular order in reference to
"Nazul land" and in para 2 thereof it
mentioned, "The Government is the
proprietor of those land and no valid title
to them can be derived but from the
Government". Nazul land was also termed
as "Confiscated Estate". Under Circular
dated
July
13,
1859,
issued
by
Government of North Western Provinces,
every Commissioner was obliged to keep
a final confiscation statement of each
District and lay it before Government for
orders.

26. Right of King to take property
by 'escheat' or as 'bona vacantia' was
recognized by common law of England.
Escheat of property was Lord's right of reentry on real property held by a tenant,
dying intestate, without lawful heirs. It
was an incident of Feudal Tenure and
based on the want of a tenant to perform
Feudal services. On the tenant dying
intestate without leaving any lawful heir,
his estate came to an end and Lord, by his
own right and not by way of succession or
inheritance from the tenant, re-entered
real property as owner. In most cases,
land escheated to Crown as the 'Lord
4 All. Hari Babu Jain & Ors. Vs. State of U.P. & Ors.
637
Paramount',
in
view
of
gradual
elimination of Intermediate or Mesne
lords since 1290 AD. Crown takes as
'bona vacantia' goods in which no one else
can claim property. In Dyke v. Walford 5
Moore PC 434= 496-13 ER 557 (580) it
was said 'it is the right of the Crown to
bona vacantia to property which has no
other Owner'. Right of the Crown to take
as "bona vacantia" extends to personal
property of every kind. The escheat of
real property of an intestate dying without
heirs was abolished in 1925 and Crown
thereafter could not take such property as
bona
vacantia.
The
principle
of
acquisition of property by escheat, i.e.,
right of Government to take on property
by 'escheat' or 'bona vacantia' for want of
a rightful owner was enforced in Indian
territory during the period of East India
Company by virtue of Statute 16 and 17
Victoria, C. 95, section 27.

27. We may recollect, having gone
through history, that prior to 1857, several
Estates were taken over by British
Company i.e. East India Company by way
of annexation. Doctrine of lapse applied
in Jhansi was another kind of above
mentioned two principles.

28. The above provision had
continued by virtue of Section 54 of
Government of India Act, 1858, section
20(3)(iii) of Government of India Act,
1915 and section 174 of Government of
India Act, 1935. After enactment of
Constitution of independent India, Article
296 now continues above provision and
says:

'Subject as hereinafter provided,
any property in the territory of India
which, if this Constitution had not come
into operation, would have accrued to
His Majesty or, as the case may be, to the
Ruler of an Indian State by escheat or
lapse, or as bona vacantia for want of a
rightful owner, shall if it is property
situate in a State, vest in such State, and
shall, in any other case, vest in the
Union.' (Emphasis added)

29. Article 296, therefore, has
retained power of State to get ownership
of such land, in respect whereof principle
of 'escheat', 'lapse' or 'bona vacantia'
would have been applicable prior to
enforcement of Constitution of India. The
above power continued to apply after
enactment of Constitution with the only
modification that if such land is situate
within the territory of State Government,
it will vest in State and in other cases, it
will vest in Union of India. Vesting of
land and giving ownership to State
Government or Union of India under
Article 296 is clearly in respect of a land,
which will come to it by way of 'escheat',
'lapse' or 'bona vacantia' and not by way
of acquisition of land under some statute
or purchase etc.

30. In Pierce Leslie and Co. Ltd. Vs.
Miss Violet Ouchterlony Wapsnare, AIR
1969 SC 843, Court has considered the
above principles in the context of 'Sovereign
India' as stands under Constitution after
independence, and, has observed :

"....in
this
country
the
Government
takes
by
escheat
immoveable as well as moveable property
for want of an heir or successor. In this
country escheat is not based on artificial
rules of common law and is not an
incident of feudal tenure. It is an incident
of sovereignty and rests on the principle
of ultimate ownership by the State of
all property within its jurisdiction".
638 INDIAN LAW REPORTS ALLAHABAD SERIES
 (Emphasis added)

31. Court placed reliance on
Collector of Masulipatam v. C. Vencata
Narainapah 8 MIA 500, 525; Ranee
Sonet
Kowar
v.
Mirza
Himmut
Bahadoor (2) LR 3 IA 92, 101, Bombay
Dyeing and Manufacturing Co. Ltd. v.
State of Bombay [1958] SCR 1122,
1146,
Superintendent
and,
Legal
Remembrancer
v.
Corporation
of
Calcutta [1967] 2 SCR 170.

32. Judicial Committee in Cook v.
Sprigg (1899) AC 572 while discussing,
'what is an act of State', observed :

"The taking possession by Her
Majesty, whether by cession or by any
other means by which sovereignty can be
acquired, was an act of State."
 (Emphasis added)

33. This decision has been followed
in Raja Rajinder Chand v. Mst. Sukhi,
AIR 1957 SC 286.

34.

In
Nayak
Vajesingji
Joravarsingji v. Secretary of State for
India in Council AIR 1924 PC 216,
Lord Dunedin said :

"When a territory is acquired by
a sovereign State for the first time, that is
an act of State. It matters not how the
acquisition has been brought about. It
may be by conquest, it may be by cession
following on treaty, it may be by
occupation
of
territory
hitherto
unoccupied by a recognised ruler. In all
cases the result is the same.