# Indian Press Pvt. Ltd v. State of U.P. & Ors

- **Citation:** (2019) 4 ILRA 587
- **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/indian-press-pvt-ltd-v-state-of-u-p-ors-45021
- **Pages:** 40

## Headnote

A. Civil Law - Public Premises (Eviction of
Unauthorized
Occupants)
Act,
1971-
Section 4 - Issue of notice to show cause
against order of eviction - section 5 -
Eviction of unauthorised occupants -
Nazul Land - Resumption of land by state
for public purpose - validity.

Litigation initiated by petitioner has given
enough time to continue to hold and enjoy
land in dispute - respondent authorities were
denied opportunity to take possession of land
in question for the purpose of carrying out
developmental activities where time is a
matter of essence -. 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
588 INDIAN LAW REPORTS ALLAHABAD SERIES
action, but, by indulging in litigation, petitioner
has already delayed it sufficiently. (Para 144)
Held: - Petitioner has already enjoyed
continued possession over land in dispute for
the last almost more than a year - petitioner
directed to vacate disputed land within one
month. (Para 144)

Writ petition dismissed. (E-7)

List of cases cited: -

1.Purushottam Dass Tandon and others vs.
State of U.P., Lucknow and others AIR 1987
All 56

2.Hajee S. V. M. Mohd. Jamaludden Bros. And
Co. vs. Government 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
PradeshVs.
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
and

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

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

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

11.Collector of Masulipatam v. C. Vencata
Narainapah 8 MIA 500, 525;

12.Ranee Sonet Kowar v. Mirza Himmut
Bahadoor (2) LR 3 IA 92, 101,

13.Bombay Dyeing and Manufacturing Co. Ltd.
v. State of Bombay [1958] SCR 1122, 1146,
14.Superintendent and, Legal Remembrancer
v. Corporation of Calcutta (1967) 2 SCR 170.

15.Cook v. Sprigg (1899) AC 572

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

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

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

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

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

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

## Text

_Characters 0–39,900 of 131,113. This is a partial read: ask again with offset=39900 for what follows._

4 All. Indian Press Pvt. Ltd. Vs. State of U.P. & Ors.
587
present case, and reason assigned in the order
impugned in the present writ petition, I find
that the District Inspector of Schools
disapproved the selection and appointment
only on the ground that the post had lapsed
under the relevant regulations and that
advertisement was not proper as per the
provisions contained under the Regulations
and the procedure prescribed for preparation
for select list and now applying the law as
discussed above, the reasons assigned in the
order, therefore, cannot be sustained.

18. The District Inspector of Schools
has not held anywhere in the order that the
petitioner who was duly selected and
appointed, did not possess the minimum
qualification prescribed for under the
Appendix (A) to the Regulations of Chapter
II of the Intermediate Education Act, 1921.
Accordingly, the order dated 7th October,
2017 and 13th October, 2017 passed by the
District Inspector of Schools cannot be
sustained and are hereby quashed.

19. The District Inspector of Schools
is directed to reconsider the matter of
approval, however he can exercise his
discretion of enquiry only to the limited
extent as to whether the petitioner did
possess the requisite qualification for
holding post on the date of his selection
and appointment or not.

20. It is made clear that in case if the
petitioner is found to have possessed the
requisite qualification on the date of
selection and appointment, the District
Inspector of Schools shall proceed to issue
positive directions approving appointment
order and also for payment of salary.

21. The writ petition is, thus, allowed in
terms of the order passed hereinabove.
----------
(2019)12 ILR A587

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: 32096 of 2018

Indian Press Pvt. Ltd. ...Petitioner
Versus
State of U.P. & Ors.. ...Respondents

Counsel for the Petitioner:
Sri Komal Mehrotra, Sri Maya Shankar
Srivastava, Sri Pramod Kumar Jain

Counsel for the Respondents:
C.S.C., Sri Ajit Kumar Singh (Addl.
Advocate General), Sri Nimai Das Addl.
C.S.C.

A. Civil Law - Public Premises (Eviction of
Unauthorized
Occupants)
Act,
1971-
Section 4 - Issue of notice to show cause
against order of eviction - section 5 -
Eviction of unauthorised occupants -
Nazul Land - Resumption of land by state
for public purpose - validity.

Litigation initiated by petitioner has given
enough time to continue to hold and enjoy
land in dispute - respondent authorities were
denied opportunity to take possession of land
in question for the purpose of carrying out
developmental activities where time is a
matter of essence -. 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
588 INDIAN LAW REPORTS ALLAHABAD SERIES
action, but, by indulging in litigation, petitioner
has already delayed it sufficiently. (Para 144)
Held: - Petitioner has already enjoyed
continued possession over land in dispute for
the last almost more than a year - petitioner
directed to vacate disputed land within one
month. (Para 144)

Writ petition dismissed. (E-7)

List of cases cited: -

1.Purushottam Dass Tandon and others vs.
State of U.P., Lucknow and others AIR 1987
All 56

2.Hajee S. V. M. Mohd. Jamaludden Bros. And
Co. vs. Government 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
PradeshVs.
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
and

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

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

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

11.Collector of Masulipatam v. C. Vencata
Narainapah 8 MIA 500, 525;

12.Ranee Sonet Kowar v. Mirza Himmut
Bahadoor (2) LR 3 IA 92, 101,

13.Bombay Dyeing and Manufacturing Co. Ltd.
v. State of Bombay [1958] SCR 1122, 1146,
14.Superintendent and, Legal Remembrancer
v. Corporation of Calcutta (1967) 2 SCR 170.

15.Cook v. Sprigg (1899) AC 572

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

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

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

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

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

21.Thakur Amar Singhji v. State of Rajasthan
AIR 1955 SC 504
22.State of Rajasthan vs. Sajjanlal Panjawat
AIR 1975 SC 706

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

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

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

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

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

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

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

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

31.Shakira Khatoon Kazmi vs. State of U.P.,
AIR 2002 All 101
4 All. Indian Press Pvt. Ltd. Vs. State of U.P. & Ors.
589
32.Writ Petition No. 44517 of 1998, Sayed
Shah Khursheed Ahmad Kashmi vs. State of
U.P.

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

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

35.Purshottam Dass Tandon and others vs,
State of U.P. And others, AIR 1987 All 56

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

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

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

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

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

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

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

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

44.R.V. Bhupal Prasad v. State of A.P. (1995)
5 SCC 698.

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

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

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

48.Wazir Chand Vs. The State of Himachal
Pradesh AIR 1954 SC 415
49.Express Newspapers Pvt. Ltd. and others
Vs. Union of India (1986) 1 SCC 133

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

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

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

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

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

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

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

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

1. 'Prayagraj' has an old historicity
tracing back to Vedic period. Lord Rama
while in exile, rested in Rishi Bharadwaj
Ashrama, on the bank of river Ganga. It is
also known for King Harshvardhana, who
used to come every twelve years to donate
his entire wealth to needy and poor
people. From the time of Lord Buddha, it
is also a well known centre of education
which
continued
when
Allahabad
University
was
founded
on
23rd
September, 1887 and reached its glory
called "Oxford of East". A large number
of social Reformers, Literary Scholars and
Political personalities have their birth
place at Allahabad. In 1575, when Akbar
came to Allahabad and built a big fort, he
was so fascinated by cultural, spiritual
and also strategic location that he named
it as "Abode of God" i.e. "Alhabas",
which later changed to Allahabad under
590 INDIAN LAW REPORTS ALLAHABAD SERIES
Shah Jahan and now again as 'Prayagraj'.
City lies close to "three-river confluence"
i.e. Triveni Sangam, Originally known as
"Prayag" i.e. place of sacrifice or offering.
It plays a central role in Hindu Scriptures.
The city was also called Kaushambi (now
a separate district) by Kuru rulers of
Hastinapur, who developed it as their
capital. In 17th century under the reign of
Jahangir, it was a Provincial capital. In
1580, Akbar created "Subah of Ilahabas"
with Allahabad as its capital. In mid 1600,
Salim had made an abortive attempt to
seize Agra's treasury and came to
Allahabad, seizing its treasury and setting
himself up as a virtually independent
Ruler. He however, reconciled with
Akbar and returned to Allahabad where
he stayed before returning to Royal Court
in 1604. In 1833, it became the seat of
ceded and conquered Provinces region
before its capital was moved to Agra in
1835. Allahabad became the capital of
North-Western Provinces in 1858 and was
capital of India for a day. It was capital of
United Provinces from 1902 to 1920. It
had remained at the forefront of national
importance during struggle for Indian
independence and even thereafter till date.
It has given three strong and most popular
Prime Minister to the country namely Pt.
Jawahar Lal Nehru, Smt. Indira Gandhi
and Sri Vishwanath Pratap Singh.

2. Geographically, it lies at
peninsula of Island having on three sides,
two major rivers of India namely Ganga
and Yamuna. During British period, they
developed it as a strong military centre
and what we called today "Civil Lines
Area", was developed as Civil Station for
civilians having huge land which was
owned by Government in the form of
Nazul. At that time, the then Government
allotted land on long lease to its well
wishers
and
others
to
oblige
and
otherwise pamper. The terms of lease
though
given
enough
control
to
Government towards its title but premium
and rent was almost negligible. With the
passage of time, population influx from
nearby rural area increased number of
local inhabitant multifold causing huge
scarcity of land availability in the city.

3. Recently newly elected Central
Government
evolved
a
policy
of
developing various cities as 'Smart City'
and for this purpose Allahabad, (now
named as 'Prayagraj'), is also chosen to be
developed as 'Smart City'. This has
resulted in demand of huge land by
various Government departments for own
establishments necessary to develop the
city as 'Smart City'. Since most of the
State's land is in the hands of individuals,
it has given rise to a virtual clash of
interest and this High Court is witnessing
a lot of litigations on this account.

4. The present writ petition is
outcome of such dispute where State has
sought to resume/re-enter its own land i.e.
Nazul for public purpose and that is being
opposed by petitioner. Land in dispute is
sought to be resumed/re-entered by State,
is required for developing as "Nurseries
for
Horticulture
Department,
Homeopathic/Ayurvedic/Unani Hospital,
Office of Information Department and
Office of Central Ground Water Board".

5. Indian Press Private Limited, sole
petitioner has filed this writ petition under
Article 226 of the Constitution of India
with a prayer for issue of writ of certiorari
to quash order dated 18.08.2018 passed
by
District
Magistrate,
Allahabad
(respondent 2) (Annexure-1 to the writ
petition) whereby petitioner has been
4 All. Indian Press Pvt. Ltd. Vs. State of U.P. & Ors.
591
informed that land in dispute has been
approved by State Government for
resumption/re-entry
of property and,
therefore, petitioner must vacate the same.
Further a writ of mandamus has been
prayed directing respondents to consider
petitioner's application dated 31.08.2016
for renewal of lease in the light of this
Court's judgment in Purushottam Dass
Tandon and others vs. State of U.P.,
Lucknow and others AIR 1987 All 56,
affirmed by Supreme Court, and also not
to evict petitioner from disputed land.

6. Land in dispute in present writ
petition is Nazul, area 3609 square yard
(i.e. 3017.48 square meter) situate in Intra
Municipal Land at Bhardwaj Fatehpur
Bichuwa
(Hospital
and
Garden)
(hereinafter referred to as "Disputed
Nazul Land").

7. Facts in brief as stated in the
petition are that petitioner-Indian Press
Private Limited was established in 1884
by Sri Chintamani Ghosh, resident of
Bengal who made his own home at
Allahabad and the premises is now
occupied by Art faculty of Allahabad
University.
Petitioner-Press
was
transferred to 36 Panna Lal Road,
Allahabad on 17.05.1922 since earlier
premises was taken over by State to
establish Allahabad University. Land on
which Petitioner-Press was transferred to
function
on
17.05.1922
became
insufficient for expanding its work of
printing and publication of books and
journals. There was an adjoining plot,
area 3017.48 square meters, which was on
north east side of Petitioner-Press. This
land was ,Nazul,. Therefore, Secretary of
State for India in Council executed a lease
deed dated 20.09.1926 in favour of
Manager, Indian Press Private Limited,
leasing out disputed land for a period of 30
years commencing from 15.09.1926 for
construction of building, garden and hospital.
Lease was renewed by lease deed dated
06.03.1961 and 29.01.1996. Latest renewal
of lease deed dated 29.01.1996 was given
effect from 15.09.1986. Since Lease was
going to expire on 14.09.2016, hence,
petitioner applied for fresh lease on
31.08.2016. When the matter was in process,
respondent 2 passed impugned order dated
18.08.2018 stating that State Government
has exercised right of resumption under
provisions of Government Grants Act, 1895
(hereinafter referred to as "GG Act, 1895").

8. This order has been challenged on
the ground that GG Act, 1895 has been
repealed by Repealing and Amending
(Second) Act, 2017 (hereinafter referred
to as "Repeal Act, 2017"), hence reference
to GG Act, 1895, is illegal; it has been
passed in violation of principles of natural
justice; no opportunity was given to
petitioner;
Commissioner
was
only
competent authority to consider question
of
renewal
of
lease
and
District
Magistrate had no such power; the alleged
public purpose is superficial and eye
wash; petitioner's Homeopathic Hospital
is running on land in dispute; petitioner
has right to renewal in view of judgment
in Purushottam Dass Tandon and
others vs. State of U.P., Lucknow and
others (supra); procedure prescribed in
Uttar Pradesh Public Premises (Eviction
of Unauthorised Occupants) Act, 1972
(hereinafter referred to as "U.P. Act,
1972") has not been followed; petitioner
has been discriminated, inasmuch as, in
other matters lease has been renewed.

9. In para 43 of petition it is
however stated that certain area of the
building in which earlier Allopathic
592 INDIAN LAW REPORTS ALLAHABAD SERIES
dispensary was running upto the year
2000, was given to Mitra Prakashan,
which is now under custody of Official
Liquidator.

10. On behalf of respondents-2 and
3, a counter affidavit has been filed sworn
by Sri Gore Lal Shukla, Additional
District Magistrate (Nazul), Allahabad. It
is said that Nazul Plot, Intra Municipal
Land, at Bhardwaj Fatehpur Bichuwa,
area 3609 square yard (i.e. 3017.48 square
meter) was demised by an Indenture of
lease dated 20.09.1926 executed by
Collector,
Allahabad
on
behalf
of
Secretary
of
State
in
favour
of
Management of Indian Press Private
Limited. Lease was for a period of 30
years. It was granted for the purpose of
Hospital and Garden and no other
purpose. Lastly, lease was renewed in
1996
for
a
period
of
30
years
commencing from 15.09.1986 which
ended on 14.09.2016. Renewal of lease
was in same terms in which initial lease
was granted. Lease was governed by GG
Act, 1895 and there
was specific
condition in lease, permitting lessor i.e.
State Government for re-entry on the land
in dispute. Petitioner's application for
renewal of lease has been rejected since
land is required for public purpose by
State
namely
for
development
of
Nurseries for Horticulture Department,
Homeopathic/Ayurvedic/Unani Hospital,
Office of Information Department and
Office of Central Ground Water Board.
District Magistrate is competent to pass
impugned
order
which
simply
communicates decision of Government
for resumption and re-entry. Respondents
have placed reliance on judgments in
Hajee S. V. M. Mohd. Jamaludden
Bros. And Co. vs. Government 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 and Azim
Ahmad Kazmi and others vs. State of
U. P. and others, 2012 (7) SCC 278.

11. We have heard Sri Pramod
Kumar Jain, Senior Advocate, assisted by
Sri Komal Mehrotra, learned counsel for
petitioner and Sri Ajeet Kumar Singh,
Additional Advocate General, assisted by
Sri Nimai Das and Sri Sudhanshu
Srivastava, learned
Additional Chief
Standing Counsel for State of U.P. and its
authorities.

12. The facts, as noticed above,
show that this is an admitted position that
land in dispute is 'Nazul'. Further terms
and conditions of lease, as contained in
initial lease deed, have continued broadly
in all subsequent renewed lease deeds and
two relevant terms contained in lease
deeds are as under :

"PROVIDED
ALWAYS
and
these presents are executed on this
express condition that if and whenever the
said rent or any part thereof shall be in
arrear and unpaid for the space of one
calendar month whether the same shall
have been lawfully demanded or not or if
there shall be a breach or non-observance
of any of the covenants by the Lessees
hereinbefore contained then and in any
such case the Secretary of State
notwithstanding the waiver of any cause
or right of re-entry may re-enter upon
4 All. Indian Press Pvt. Ltd. Vs. State of U.P. & Ors.
593
the said premises and expel the lessee
and all occupiers of the same therefrom
and
this
demise
shall
absolutely
determine and the lessees shall forfeit all
rights
to
remove
or
recover
any
compensation for any buildings erected
by him on the said premises AND the
Secretary of State hereby covenants with
the lessee that he will at the request and
cost of the lessee at the end of the said
term of years and so on fresh time to time
hereafter at the end of each successive
term of years that may be granted execute
to the lesseee a new lease of the said
premises by way of renewal for the term
of thirty years PROVIDED ALWAYS that
such renewed terms of years as may be
granted shall not with the original term of
years exceeding the aggregate the period
of ninety years and that the Secretary of
State shall not be bound to grant any
renewal except at the rate of rent then
being paid for the said premises or as he
may elect at such enhanced rate not
exceeding 50 per cent, of the rent payable
during the period immediately granting
the renewal as may be assessed by such
Collector regard being had to the
circumstances of the demised plot and to
the market value of similar plots in the
neighbourhood which assessment shall be
final save that where the estimated value
of the plot shall exceed Rs. 300 the lessee
shall have a right of appeal to the
Commissioner of the Allahabad division."

 (Emphasis added)

13. Initial lease deed was granted on
20.09.1926
commencing
from
15.09.1926. It was twice renewable for 30
years each. 90 years period expired
admittedly on 14.09.2016. Therefore,
maximum period for which lease could
have been granted and renewed has
already expired. It is now in these
circumstances, we have to examine claim
of petitioner for renewal of lease or to
retain possession of land in dispute,
opposing resumption/re-entry of State, is
how far legal, valid and justified. In this
aspect, the first question, which we
propose to consider is, "what is Nazul"?
Every land owned by State Government is
not termed as 'Nazul' and therefore it has
become necessary to understand, what is
'Nazul'.

14. 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 manners. 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.

15. 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'.

16. Nazul is an Arabic word. It
refers to a land annexed to Crown. During
British Regime, immoveable property of
individuals, Zamindars, Nawabs and
594 INDIAN LAW REPORTS ALLAHABAD SERIES
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'.

17. 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.

18. 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 of the
cases, land escheated to Crown as the
'Lord 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.

19. 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.

20. The above provisions 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 continue above provision and
say :

'Subject as hereinafter provided,
any property in the territory of India
which, if this Constitution had not come
into operation, would have accrued to
4 All. Indian Press Pvt. Ltd. Vs. State of U.P. & Ors.
595
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)

21. 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.

22. 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".
(Emphasis added)

23. Court also 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.

24. 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)

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

26.

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 a treaty, it may be by
occupation
of
territory
hitherto
unoccupied by a recognised ruler. In all
cases the result is the same. Any
inhabitant of the territory can make good
in the municipal courts established by the
new sovereign only such rights as that
sovereign has, through his officers,
596 INDIAN LAW REPORTS ALLAHABAD SERIES
recognised. Such rights as he had under
the rule of predecessors avail him
nothing."

27. In Dalmia Dadri Cement Co.
Ltd. v. CIT [1958] 34 ITR 514 (SC) :
AIR 1958 SC 816, Court said (page 523
of 34 ITR) :

"The expression 'act of State'
is, it is scarcely necessary to say, not
limited to hostile action between rulers
resulting in the occupation of territories.
It includes all acquisitions of territory by
a sovereign State for the first time,
whether it be by conquest or cession."

(Emphasis added)

28. In Promod Chandra Deb v.
State of Orissa AIR 1962 SC 1288,
Court said, 'Act of State' is the taking over
of sovereign powers by a State in respect
of territory which was not till then a part
of its territory, either by conquest, treaty
or cession, or otherwise.

29. To the same effect was the view
taken by a Constitution Bench in
Amarsarjit Singh v. State of Punjab
AIR 1962 SC 1305, where in para 12,
Court said :

"It is settled law that conquest is
not the only mode by which one State can
acquire sovereignty over the territories
belonging to another State, and that the
same result can be achieved in any other
mode which has the effect of establishing
its sovereignty."

30. In Thakur Amar Singhji v.
State of Rajasthan AIR 1955 SC 504, in
para 40, Court said :

"The status of a person must be
either that of a sovereign or a subject.
There is no tedium quid. The law does not
recognise an intermediate status of a
person being partly a sovereign and
partly a subject and when once it is
admitted that the Bhomicharas had
acknowledged the sovereignty of Jodhpur
their status can only be that of a subject.
A subject might occupy an exalted
position and enjoy special privileges, but
he is none the less a subject..."

 (Emphasis added)

31. In State of Rajasthan vs.
Sajjanlal Panjawat AIR 1975 SC 706 it
was held that Rulers of the erstwhile
Indian States exercised sovereign powers,
legislative, executive and judicial. Their
firmans were laws which could not have
been challenged prior to the Constitution.
Court relied on earlier decisions in
Director of Endowments, Govt. of
Hyderabad vs. Akram Ali, AIR 1956
SC 60, and Sarwarlal vs. State of
Hyderabad, AIR 1960 SC 862.

32. In Promod Chandra Deb vs.
State of Orissa AIR 1962 SC 1288 "act
of the State" was explained in the
following words :

'an "act of State" may be the
taking over of sovereign powers either by
conquest or by treaty or by cession or
otherwise. It may have happened on a
particular date by a public declaration or
proclamation, or it may have been the
result of a historical process spread over
many years, and sovereign powers
including the right to legislate in that
territory and to administer it may be
acquired without the territory itself
merging in the new State.'

33. This decision has been followed
later in Biswambhar Singh vs. State of
4 All. Indian Press Pvt. Ltd. Vs. State of U.P. & Ors.
597
Orissa 1964 (1) SCJ 364, wherein Court
said :

16. Thus, a territory acquired
by a sovereign State is an Act of State
but the land comprising territory does
not become the land owned by State. The
land owned by State may come to it in
various
ways,
like
confiscation,
purchase, escheat or bona vacantia, gift,
etc. In such a case the ownership vests in
State, like any other individual and State
is free to deal with the same in a manner
like any other owner may do so.

17. Thus 'Nazul' is a land
vested in State for any reason whatsoever
that is cession or escheat or bona
vacantia, for want of rightful owner or
for any other reasons and once land
belong to State, it will be difficult to
assume that State would acquire its own
land. It is per se impermissible to acquire
such land by forcible acquisition under
Act, 1894, since there is no question of
any transfer of ownership from one
person to another but here State already
own it, hence there is no question of any
acquisition.

(Emphasis added)

34. Thus the land in question which
is admittedly 'Nazul', belonged to the
category as discussed above i.e. it came to
be vested and owned by State in its
capacity of Sovereign and right of bona
vacantia. When acquisition is made under
the provisions of a Statute, purpose of
acquisition is already known and State
pay its price but when land is owned by
State, which is Nazul, objective of use of
such land is not predetermined but it can
be utilized by State for larger public
welfare and its benefit, as necessitated
from time to time. In other words 'Nazul'
land form assets owned by State in trust
for the people in general who are entitled
for its user in the most fair and beneficial
manner for their benefit. State cannot be
allowed to distribute such largesse by pick
and choose or to some selected groups
etc.

35. First question, therefore, is
answered accordingly.

36. The second question up for
consideration
is
"lease
in
question
whether
governed
by
provision
of
Transfer
of
Property
Act,
1882
(hereinafter referred to as "TP Act,
1882") or GG Act, 1895 and what is interrelationship of the two?"

37. Historical documents, record as
also authorities discussed above show that
earlier
Government
i.e.
East
India
Company upto 1858 and thereafter British
Government used to allot "Nazul land" to
various persons, who had shown their
alliance to such Government in various
ways, sometimes by deceiving their
Indian counter parts who had raised voice
against
British
Rule,
or
otherwise
remained faithful to British regime and
helped them for their continuation in
ruling this country. Sometimes land was
given on lease without any condition and
sometimes restricted for certain period
etc., but in every cases, lease was given to
those persons who were faithful and had
shown complete alliance to British Rule.
The reason was that in respect of Nazul,
no predetermined objective was available
as was the case in respect of land acquired
by State by way of acquisition under
Statute of Acquisition, after paying
compensation
or
purchase.
Such
allocation of land by British Government
used to be called "Grant".
598 INDIAN LAW REPORTS ALLAHABAD SERIES

38. In other words, we can say that
initially land owned by State used to be
allotted in the form of 'Grant' by the then
British Government. No specific statutory
provisions were available to govern it. TP
Act, 1882 was enacted to govern transfer
of immovable property. Sections 10 - 12
of TP Act, 1882 made provisions
invalidating, with certain exceptions, all
conditions for forfeiture of transferred
property on alienation by transferee and
all limitations over consequent upon any
such alienation or any insolvency of or
attempted alienation by him.

39. Apprehending that above
provisions of TP Act, 1882, may be
construed as a fetter upon discretion of
Crown in creation of inalienable Jagirs in
'Grants', acting upon advice that it would
not be competent for Crown to create an
inalienable and impartible estate in the
land comprised in the Crown Grant,
unless such land has heretofore descended
by custom as an impartible Raj, it was
sought to make a separate statute to give
supremacy to the provisions contained in
Crown's Grant, notwithstanding any other
law including TP Act, 1882. With this
objective, 'GG Act 1895' was enacted.

40. Preamble of GG Act, 1895 gives
purpose of its enactment stating that
doubts have arisen to the extent and
operation of TP Act, 1882 and to the
power of Crown (later substituted by
word
"Government")
to
impose
limitations and restrictions upon grants
and other transfers of land made by it or
under its authority, hence to remove such
doubts, GG Act, 1895 was enacted.

41. Section 2 of GG Act, 1895, as it
was initially enacted, read as under :

"2. Transfer of Property Act,
1882, not to apply to Government grants.-
Nothing in the Transfer of Property Act,
1882, contained shall apply or be deemed
ever to have applied to any grant or other
transfer of land or of any interest therein
heretoforce made or hereafter to be made
by or on behalf of Her Majesty the Queen
Empress, Her heirs or successors, or by
or on behalf of the Secretary of State for
India in Council to, or in favour of, any
person whomsoever; but every such grant
and transfer shall be construed and take
effect as if the said Act had not been
passed." (Emphasis added)

42. The above provision was
amended in 1937 and 1950 and the
amended provision read as under :

"2. Transfer of Property Act,
1882, not to apply to Government grants.-
Nothing in the Transfer of Property Act,
1882, contained shall apply or be deemed
ever to have applied to any grant or other
transfer of land or of any interest therein
heretoforce made or hereafter to be made
by or on behalf of the Government to, or
in favour of, any person whomsoever; but
every such grant and transfer shall be
construed and take effect as if the said
Act
had
not
been
passed."
(Emphasis added)

43. Section 3 of GG Act, 1895 read
as under :

"Government grants to take
effect according to their tenor.- All
provisions, restrictions, conditions and
limitations over contained in any such
grant or transfer as aforesaid shall be
valid and the effect according to their
tenor, any rule of law, statute or
4 All. Indian Press Pvt. Ltd. Vs. State of U.P. & Ors.
599
enactment of the Legislature to the
contrary notwithstanding."

44. In the State of Uttar Pradesh,
vide
Government
Grants
(U.P.
Amendment) Act, 1960 (U.P. Act No.XIII
of 1960), Sections 2 and 3 of GG Act,
1895, were substituted by Section 2, as
under :

"2. (1) Transfer of Property Act,
1882, not to apply to Government
Grants.- Nothing contained in the
Transfer of Property Act, 1882, shall
apply or be deemed ever to have applied
to any grant or other transfer of land or
of any interest therein, heretoforce made
or hereafter to be made, by or on behalf
of the Government to or in favour of any
person whomsoever; and every such
grant and transfer shall be construed
and take effect as if the said Act had not
been passed."

(2) U.P. Tenancy Act, 1939 and
Agra Tenancy Act, 1926 not to affect
certain leases made by or on behalf of the
Government.- Nothing contained in the
U.P. Tenancy Act, 1938, or the Agra
Tenancy Act, 1926, shall affect, or be
deemed to have ever affected any rights,
created, conferred or granted, whether
before or after the date of the passing of
the
Government
Grants
(U.P.
Amendment) Act, 1960, by leases of land
by, or on behalf of, the Government in
favour of any person; and every such
creation, conferment or grant shall be
construed
and
take
effect,
notwithstanding anything to the contrary
contained in the U.P. Tenancy Act, 1939,
or the Agra Tenancy Act, 1926.

(3) Certain leases made by or
on behalf of the Government to take effect
according to their tenor.- All provisions,
restrictions, conditions and limitations
contained
in
any
such
creation,
conferment or grant referred to in Section
2, shall be valid and take effect
according to their tenor, any decree or
direction of a court of law or any rule of
law,
statute
or
enactment
of
the
Legislature,
to
the
contrary
notwithstanding :