# Hari Shankar Mishra v. Vice Chairman/ K.D.A., Kanpur and another

- **Citation:** (2001) 2 ILRA 237
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2001
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/hari-shankar-mishra-v-vice-chairman-k-d-a-kanpur-and-another-39868
- **Pages:** 6

## Text

2All] Hari Shankar Mishra V. Vice Chairman/ K.D.A., Kanpur and another
237
operate till it is recalled, vacated or
modified. The rules also do not provide
for time bound stay orders. Yet the
confusion prevails and every day large
numbers of applications are filed for
extension of such orders consuming lot of
Court's time. In the circumstances it has
become necessary not only to dispose of
this application but also to issue following
directions to the office.

1.
The request for extension of
interim order is disposed of by saying that
no order is necessary as the time bound
interim orders do not exhaust after expiry
of time mentioned in the order.

2.
The Registrar General of the
Court is directed to issue necessary
directions to the office within one week
that in view of the decisions of this Court
the applications for extension of time
bound interim orders need not be listed.
But if the petitioner applies for question -
answer from the office to find out whether
his application was pending and interim
order was continuing even after expiry of
time mentioned in the order the answer by
given by the office in the affirmative.

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By the Court

1. This writ petition under Article
226 of the Constitution has been filed
praying that a writ of mandamus be issued
directing
the
Kanpur
Development
Authority to give possession of plot no.
32, block O, Govind Nagar Scheme I, to
the petitioner in pursuance of deed of
exchange executed on 25.02.1999.

2. The case of the petitioner is that
prior to enforcement of U.P. Urban
Planning and Development Act, 1973 the
development of building sites in Kanpur
was done by Kanpur Development Board,
which had been constituted under U.P.
Nagar
Mahapalika
Adhiniyam.
The
Kanpur Development Board acquired
land, and after developing the same let
out
plots
on
long-term
lease. The
petitioner claims that plot no. 47-B,
Block-J, Govind Nagar was allotted to the
him though the date of allotment is not
mentioned, and according to the terms
and conditions of the allotment, he
deposited one fourth of the cost of the plot
forthwith and the remaining three-fourth
was to be paid in installments. However,
the physical possession of the said plot
was not delivered to the petitioner and as
such he did not deposit the balance threefourth amount. After the enforcement of
U.P. Urban Planning and Development
Act., 1973 a development authority
known as Kanpur Development Authority
(hereinafter referred to as the KDA) was
constituted which became successor -ininterest of the Kanpur Development
Board. The petitioner approached the
KDA for delivery of possession of the
plot, but it was revealed that the same had
been illegally occupied by a third person
who had also raised construction over the
same. The KDA had also introduced a
scheme for providing an alternate plot and
in
pursuance
thereof
the
petitioner
deposited the balance amount along with
the interest and thereafter a deed of
exchange was executed on 25.02.1999,
under which plot no. 32, block O, Govind
Nagar Scheme I, was allotted in his
favour and the deed was registered on
23.03.1999. Even after registration of the
deed, the possession of the plot was not
delivered to him though he made several
representations
in
this
regard.
The
principal relief claimed in the writ petition
is that the respondents may be directed to
deliver the possession of the plot allotted
to the petitioner.

3. The respondents have contested
the writ petition on the ground, inter alia,
that plot no. 47B, Block J, Govind Nagar
had never been allotted to the petitioner
nor any lease-deed of the said plot was
executed in his favour. The deed of
exchange under which the lease-deed of
plot no. 32, Block O, Govind Nagar
Scheme I, was executed in favour of the
petitioner
on
25.02.1999,
had
been
obtained by playing fraud and in collusion
with the lower staff of the KDA.
According
to
the
respondents,
the
aforesaid deed of exchange is a void
document as neither plot no. 47-B, Block
J, Govind Nagar had been allotted nor any
2All] Hari Shankar Mishra V. Vice Chairman/ K.D.A., Kanpur and another
239
lease-deed of the said plot had been
executed in favour of the petitioner.

4. The petitioner has filed a
supplementary affidavit (sworn by Prem
Shankar Sachan) on 10.11.2000, wherein
a photostat copy of the proposal to amend
the scheme relating to allotment of plots
in pursuance of the Government Order
dated 06.01.1993 has been filed and
according to the petitioner the deed of
exchange was executed in his favour on
the basis of the aforesaid amended
scheme. Item No. 20 of the said scheme
relates to delivery of alternate plot /
house. This provides that normally no
alternate plot shall be given to anyone if a
plot allotted to an allottee comes under a
dispute. This further provides that in case
there is no fault on the part of the allottee
and he has made complete payment or upto-date payment of instalments and has
got the agreement executed or registration
has been done within the time period
fixed, he may be given an alternate
plot/house, provided a plot/house is lying
vacant and is available for allotment in
the same scheme. This proposal provides
for giving an alternate plot only where the
plot allotted by Kanpur Development
Authority comes under a dispute and it
further requires that the allottee should
have made up-to-date payments and had
got an agreement executed in his favour
or the deed of transfer had been
registered. The claim of the petitioner is
founded upon the alleged allotment of
plot no. 47-B, block J, Govind Nagar, by
Kanpur Development Board, sometime in
the year 1953. The Kanpur Development
Authority had been constituted under the
U.P. Urban Planning and Development
Act, 1973 and obviously, it was not in
existence in 1953. The scheme of giving
an alternate plot relates to a situation
where the original allotment itself had
been made by Kanpur Development
Authority and it does not relate to a case
where the original allotment of plot was
made by some other body. It may also be
noticed here that in paragraph 3 of the
writ petition it is averred that the Kanpur
Development Board had been constituted
under
the
U.P.
Nagar
Mahapalika
Adhiniyam, The U.P. Nagar Mahapalika
Adhiniyam (UP Act No. 2 of 1959) came
into force on 24.01.1959 and as such the
Kanpur Development Board could not
have been constituted under the aforesaid
Act in the year 1953 when the petitioner
claims to have been allotted plot no. 47-B,
block J, Govind Nagar.

5. A copy of the surrender-cumfresh free-hold deed executed in favour of
the petitioner on 25.02.1999 has been
filed as annexure-4 to the writ petition.
The very first sentence of this deed
mentions that it is a deed of exchange. In
the second paragraph it is mentioned that
a lease-deed of plot-no. 47-B, block J,
Scheme I, Govind Nagar for 999 year was
executed in favour of the petitioner, Hari
Shanker Mishra, on 13.1.1953 and the
said deed was registered in the office of
the Sub-Registrar, Kanpur, on 29.1.1953
at Sl.No. 11, Bahi No.1, Jild 645/673, on
page
73/93/113.
According
to
the
respondents after the surrender-cum-fresh
free-hold deed had been executed and
registered in favour of the petitioner, an
enquiry was made on 19.5.1999 from the
Addl. District Magistrate (Finance and
Revenue), Kanpur Nagar who is the head
of registration department of the district,
regarding the deed relating to plot no. 47B, Block J, Govind Nagar Scheme I. The
Addl. District Magistrate (Finance and
Revenue) then wrote a letter dated
28.05.1999 to the Secretary of the KDA
INDIAN LAW REPORTS ALLAHABAD SERIES [2001
240
informing him that no such lease-deed,
reference of which had been made in the
surrender-cum-fresh free-hold deed dated
25.02.1999, had been registered in the
office of the Sub-Registrar, Kanpur
Nagar. A copy of this letter has been filed
as annexure - 1 to the counter affidavit.
This document knocks the bottom out of
the petitioner's case that the lease of plot
no. 47-B, block J, Govind Nagar Scheme
I, had been executed in his favour on
13.01.1953
and
was
registered
on
29.01.1953.

6. During the course of hearing of
the writ petition, Sri D.B. Mukherji,
learned
counsel
for
the
petitioner,
challenged the correctness of the facts
mentioned in the letter dated 28.05.1999
of the Addl. District Magistrate (Finance
and Revenue) by which he had informed
that no lease deed in favour of the
petitioners was found to have been
registered in the office of the SubRegistrar on 29.01.1953. Learned counsel
admitted that the petitioner is not in a
position to produce the original leasedeed of plot no. 47-B, block J, Govind
Nagar Scheme I. A detail order was
passed
on
15.12.1999
directing the
petitioner to file a certified copy of the
lease-deed which he claims to have been
executed in his favour with regard to plot
no. 47-B, block J, Govind Nagar Scheme
I, within 3 weeks. The writ petition
thereafter was listed on several dates, but
every time the hearing was adjourned on
the request of the learned counsel for the
petitioner. An order was passed on
29.08.2000 for listing of the case on
28.09.2000 and for compliance of the
order regarding filing of the certified copy
of the lease-deed. The petitioner did not
comply with the said order and a
supplementary affidavit has been filed on
10.11.2000 where a Photostat copy of an
unregistered lease deed has been filed. In
paragraph
4
of
this
supplementary
affidavit it is stated that the lease-deed of
plot no. 47-B, block J, Govind Nagar, had
not been registered but had only been
executed. The Photostat copy does not
show that it had been executed on stamp
paper and it appears to be a Photostat
copy of some proforma of lease-deed
wherein the name of the petitioner and the
plot number appear to have been typed
out.

7. Section 107 of the Transfer of
Property Act (hereinafter referred to as
the TP Act) provides that lease of an
immovable property from year to year or
for any term exceeding one year or
reserving a yearly rent can be made only
by a registered instrument. Section 49 of
the Indian Registration Act provides that
no document required by section 17 of the
said Act or by any provision of the TP
Act to be registered shall affect any
immovable property comprised therein or
be
received
as
evidence
on
any
transaction affecting such property unless
it has been registered. In view of this
statutory provisions, there can be no
manner of doubt that the lease-deed of
plot no. 47-B, block J, Govind Nagar
Scheme I, which the petitioner claims to
have been executed in his favour, could
only be executed by means of a registered
document and not otherwise. The letter
dated 28.05.1999 of the Addl. District
Magistrate
(Finance
and
Revenue),
Kanpur Nagar clearly establishes that no
such deed, as claimed by the petitioners
was
registered
in
his
favour.
The
petitioners was also given opportunity by
us to file a certified copy of the lease-deed
in order to substantiate his claim, but he
has failed to produce the same and has
2All] Hari Shankar Mishra V. Vice Chairman/ K.D.A., Kanpur and another
241
now come out with a case that no such
deed was registered. The petitioner has
also not filed a copy of the letter of
allotment on the basis of which he claims
that the said plot was allotted to him by
the Kanpur Development Board, and in
paragraph 5 of the writ petition he has
himself averred that the letter of allotment
is not available with him. The irresistible
conclusion, therefore, is that no leasedeed of plot no. 47-B, block J, Govind
Nagar was ever executed in favour of the
petitioner. In such a situation, the
petitioner could not have obtained a
surrender-cum-fresh-free-hold
deed
for
plot no. 47-B, block J, Govind Nagar
Scheme I, having an area of 356 sq. yards
and it shows that the said deed was
registered in his favour on account of
collusion of lower staff of the KDA and
by playing fraud.

8. The surrender-cum-fresh-freehold deed contains a clause that in case it
is found that the purchaser had obtained
the deed on the basis of incorrect facts or
by playing fraud, then the said deed
would be void and ineffective at the
option of the KDA. It also mentions that
is such a situation the decision of the
KDA would be final, and it would also
have the right to forfeit the amount
deposited by the petitioner. The petitioner
has failed to establish that any allotment
order with regard to plot no. 47-B, BlockJ, had been made in his favour and it is
also established beyond any shadow of
doubt that no lease deed with regard to the
said plot had been registered in his favour.
The very basis of the surrender-cum-fresh
free-hold deed is the alleged execution
and registration of the lease deed of plot
no. 47-B, Block J in favour of the
petitioner and as it is found that no such
deed was ever executed in his favour and
he is not the allottee or the owner of the
said plot, there is no question of his
surrendering the said plot in favour of the
KDA and getting plot no. 32, block 0,
Govind Nagar Scheme I, in exchange in
its place. The stand of the KDA is that the
surrender-cum-fresh free -hold deed had
been obtained on wrong facts and by
playing fraud and is a void document. In
view of the specific clause to that effect in
the deed, the said deed is void and can
confer no right or title upon the petitioner.
The petitioner is, therefore, not entitled to
get possession on the basis of the
aforesaid deed.

9. Sri Ateeq Ahmad, learned counsel
for the respondents, has also relied upon
Sections 118 and 119 of the TP Act and
has urged that the Kanpur Development
Authority
is
entitled
to
retain
the
possession of plot no. 32, block 0, as it is
established that the petitioner had no title
over plot no. 47-B, block J. Section 118
lays dows that when two persons mutually
transfer the ownership of one thing for the
ownership another, neither thing or both
things being money only, the transaction
is called an 'exchange'. Section 119
provides that if any party to an exchange
is by reason of any defect in title of the
other party deprived of the thing or by any
part of the thing received by him in
exchange, then unless a contrary intention
appears from the terms of the exchange
such other party is liable to him for loss
caused thereby or at the option of the
person so deprived for the return of the
thing transferred. This provision gave the
right to the KDA to recover possession of
plot no. 32, block 0, from the petitioner in
case he had got possession of the said
plot. In view of the fact that the
possession has not been delivered to the
petitioner and the same is still with the
INDIAN LAW REPORTS ALLAHABAD SERIES [2001
242
KDA, the KDA is legally entitled to retain
possession of the plot and not to deliver
the same to the petitioner. We are
supported in our view by a decision of
Madras High Court in Chinnathambi
Gounder Vs. Royal Gounder, AIR 1979
Madras 285, where it was held as follows:

"Where a party to an agreement for
exchange of property lost possession of
the property received in exchange due to
defect in title of the other party, the
former would be entitled to retain
possession of the property he gave in
exchange if he happened to be in
possession thereof.....

The right to get the return of the
thing transferred under Section 119 will
certainly take into its fold the right to
retain the same if such property were to
continue in the possession of a person
who was deprived of his possession due
to defect in the title of the order party to
the exchange. The right to claim the thing
transferred is a larger right which will
certainly embrace the right to continue to
be in possession."
10. In Seetaraswamy Vs. Narsingha
Panda, AIR 1975 Orissa 73, a Division
Bench held that there is no reason why the
principle should not apply to a case where
instead of a subsequent deprivation of the
property transferred, there is no transfer at
all and it impliedly followed from the
section that when a party to an exchange
has failed to obtain possession of the
property which he was entitled to receive
in exchange, then also he is entitled at his
option for the return of the property
transferred by him.

11. No direction can, therefore be
issued to the KDA to deliver possession
of plot no. 32, block 0, to the petitioner
merely on the ground that a surrendercum-fresh-free-hold
deed
has
been
executed in his favour for the said plot as
the petitioner has been found to have no
title over plot no. 47-B, block J, which he
purportedly surrendered in favour of the
KDA by way of exchange for the said
plot.

12. For the reasons mentioned
above, we find no merit in this writ
petition which is dismissed with costs of
Rs. Two thousand.

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