# Mata Deen Bhagwan Das & Ors v. State of U.P. & Ors

- **Citation:** (2020) 1 ILRA 1992
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2020-01-10
- **Case number:** Writ-C No. 30353 of 2014
- **Bench:** Pankaj Mithal, Vipin Chandra Dixit
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/mata-deen-bhagwan-das-ors-v-state-of-u-p-ors-45679
- **Pages:** 6

## Headnote

C.S.C.

A. Application for grant of freehold rights -
pending since 11 years-such right granted
on the same plot to one charitable trust
which right arose out of the PetitionerPetitioner's case was lingered without
sufficient cause-directed to apply same rate
that applied to the Trust.

Writ Petition allowed. (E-9)

List of cases cited: -

## Text

1 All. Sudhir Kumar Singh Vs. State of U.P. & Ors.
1993
judicial review is not entirely excluded, but
very limited. It has also been said that powers
conferred by the royal prerogative are
inherently unreviewable but since the speeches
of the House of Lords in Council of Civil
Service Unions Vs. Minister for the Civil
Service this is doubtful. Lords Diplock,
Scaman and Roskili (sic.) appeared to agree
that there is no general distinction between
powers, based upon whether their source is
statutory or prerogative but that judicial
review can be limited by the subject matter of a
particular power, in that case national
security. Many prerogative powers are in fact
concerned with sensitive, nonjusticiable areas,
for example, foreign affairs, but some are
reviewable
in
principle,
including
the
prerogatives relating to the civil service where
national security is not involved. Another
nonjusticiable power is the Attorney General's
prerogative to decide whether to institute legal
proceedings on behalf of the public interest."
[emphasis supplied]

35. Order impugned is basically
based on the enquiry report prepared by
the Managing Director himself and that the
enquiry was conducted in the ex parte
manner and the Managing Director failed
to offer any opportunity of hearing to the
petitioner
before
passing
the
order
impugned which has the effect of
terminating
the
agreement
for
no
justifiable reason to hold that the petitioner
was at fault at any point of time. Element
of bias therefore, under the circumstances
at the end of Managing Director, cannot be
ruled out. The order impugned, therefore,
terminating the agreement dated 26.7.2019
cannot be sustained in law.

36.

Thus,
for
the
forgoing
discussions writ petition succeeds and is
allowed. The order dated 26.7.2019
(Annexure-13) to the writ petition and the
enquiry report dated 14.6.2019 submitted
by the Managing Director as well as the
order passed by the Special Secretary
dated 16.7.2019 are also hereby quashed.

37. The consequential action if taken
pursuant to the impugned order is also
quashed. The consequences to follow,
however, there will be no order as to costs.
----------
(2020)1ILR 1992

ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 10.01.2020

BEFORE
THE HON'BLE PANKAJ MITHAL, J.
THE HON'BLE VIPIN CHANDRA DIXIT, J.

Writ-C No. 30353 of 2014

Mata Deen Bhagwan Das & Ors.
 ...Petitioners
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioners:
Sri Swapnil Kumar

Counsel for the Respondents:
C.S.C.

A. Application for grant of freehold rights -
pending since 11 years-such right granted
on the same plot to one charitable trust
which right arose out of the PetitionerPetitioner's case was lingered without
sufficient cause-directed to apply same rate
that applied to the Trust.

Writ Petition allowed. (E-9)

List of cases cited: -

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

2.Amar Nath Bhargava Vs. State of U.P. and
others
,2019
(8)
ADJ
442(DB)
1994 INDIAN LAW REPORTS ALLAHABAD SERIES
3.Dr. Ashok Tahiliani Vs. State of U.P. and
others 2019 (9) ADJ 176

(Delivered by Hon'ble Pankaj Mithal,J.
& Hon'ble Vipin Chandra Dixit,J.)

1. Heard Sri Swapnil Kumar, learned
counsel for the petitioners and Sri Mata
Prasad, learned Standing Counsel.

2. The petitioners have invoked the
writ jurisdiction of the court for issuance
of a writ in the nature of mandamus
commanding the respondents to execute a
freehold deed in their favour in respect of
the land plot No.71, Block No.79 (House
No.79/75), Area 3213.76 Sq. Mtrs. situate
in Bansmandi Kanpur, pursuant to their
application dated 29.01.1999 for grant of
freehold rights in the said land.

3. The petitioners at the same time
have also prayed for the quashing of the
Government Orders dated 04.03.2014 and
28.09.2011 and Clause 2(i) of the
Government
Order
dated
15.01.2015
which provides for applying the circle rate
prevailing on the date of disposal of the
freehold application instead of the date of
submitting the application.

4. The petitioners allege that in
respect of Nazul land of plot No.71
aforesaid having an area of 3351.31 Sq.
Mtrs. a lease deed was executed on
01.03.1897 for a period of 99 years in
favour of Babu Murlidhar and two others.
The said lease rights were inherited by
Smt. Pranpati @ Kishan Rani, who
transferred the said rights vide sale deed
dated 03.02.2016 in favour of Lala Rang
Lal and Ram Gopal. Later Ram Goptal
vide sale deed dated 10.10.2017 purchased
the entire rights in the said property and
became the exclusive lessee of it.

5. The petitioners purchased the
leasehold rights in the said property on
01.07.1921 from Ram Gopal. Ever-since
then they are in actual physical possession
of the aforesaid plot. However, the
petitioners vide registered sale deed dated
29.01.1972 transferred their rights in a
small portion of the said property to the
extent of 137.55 Sq. Mtrs. in favour of
Ganpat Rai Moti Ram Charitable Trust.

6. In view of the above, the
petitioners remain to be the lease of
3213.76 Sq. Mtrs. of the said plot of land
whereas the above Charitable Trust
became the lessee of an area of 137.55 Sq.
Mtrs. of it.

7. The State Government came out
with a policy for converting Nazul land
into freehold by issuing Government
Orders from time to time and finally a
Government Order dated 01.12.1998 was
issued in this regard.

8. The petitioners in accordance with
the terms and conditions of the aforesaid
Government Order deposited 25% of the
self-assessed market value of the said land
amounting to Rs.7,35,182/- and submitted
application dated 29.01.1999 for the grant
of freehold rights in the aforesaid land of
plot No.71 having an area 3213.76 Sq.
Mtrs.

9. Simultaneously, vide application
dated 30.01.1999 Ganpat Rai Moti Ram
Charitable Trust also applied for grant of
freehold rights in respect of 137.55 Sq.
Mtrs. of the land of the aforesaid plot
No.71 which it had purchased from the
petitioners.

10. The Charitable Trust has been
granted freehold rights in the said portion
1 All. Mata Deen Bhagwan Das & Sons Vs. State of U.P. & Ors.
1995
of land and a freehold deed in its favour
has been executed on 29.03.2012 on being
satisfied that its rights over it as claimed
by it are not in doubt.

11. In regard to the application of the
petitioners for grant of freehold rights,
Additional District Magistrate (F & R)
vide letter dated 20.01.2003 made certain
inquiries with regard to the manner in
which the petitioners have acquired rights
in the above property. The petitioners in
response to the said query supplied all
documents
pertaining
to
their
title/leasehold rights over the said land.

12. Despite the above, the District
Magistrate vide letter dated 05.12.2007
required the petitioners to produce all
documents of their rights which were
again produced before him on 02.01.2018
by
the
petitioners.
Then
certain
clarifications were sought which were duly
clarified
by
means
of
an
affidavit
submitted on 03.08.2010. Thereafter the
petitioners were given personal hearing
and they appeared on 26.10.2010 but the
respondents failed to issue the demand
letter for the balance amount so as to
convert the land into freehold.

13. In the meantime pending the
above proceedings a Government Order
was issued on 28.09.2011 directing the
authorities
to
decide
all
pending
applications for freehold within six months
and if they remain undecided they shall
stand rejected. Another Government Order
dated 04.03.2014 provided that for the
purposes
of
disposal
of
all
such
applications circle rate on the date of
submission of applications as per the land
use according to the master plan shall
apply subject to the area of the plot. The
rejection clause was withdrawn by the
Government vide another Government
Order dated 15.01.2015 and it was
provided that for the purpose of grant of
freehold rights the circle rate of the land as
per
the
Government
Orders
dated
28.09.2011 and 04.03.2014 shall be
applicable.

14. One Sanjiv Kumar Shakya, the
then Tehsildar Ghatampur, District Kanpur
Nagar has filed a counter affidavit on
behalf of the respondents. In addition to it
a separate counter affidavit has been filed
by one Virag Karvariya, Naib Tehsildar,
Tehsil Sadar, District Kanpur in response
to the amended paragraphs of the above
writ petition.

15. In the counter affidavit it has not
been disputed that the petitioners have
applied for grant of freehold rights in the
Nazul land as stated by them. In
paragraphs 10 and 16 of the first counter
affidavit it has been admitted that the
application of the petitioners was complete
and a proposal was got prepared for
getting the land converted into freehold
but the freehold rights could not be
granted as in the meantime a notification
was issued declaring elections of the U.P.
Vidhan Sabha. It further states that the
application
of
the
petitioners
stood
rejected in view of the Government Order
dated 28.09.2011.

16. It has also been averred that as the
application of Ganpat Rai Moti Ram
Charitable Trust was complete the Distrcit
Magistrate in April, 2007 accorded approval
for conversion of its Nazul land into freehold.
Consequently,
a
freehold
deed
dated
19.03.2012 was executed in its favour.

17. In the counter affidavit filed in
reply to the amended paragraphs of the
1996 INDIAN LAW REPORTS ALLAHABAD SERIES
writ petition it has been stated that in
accordance with the Government Order
dated 15.01.2015 which provides that all
pending applications for freehold shall be
treated as valid and therefore, shall be
decided in accordance with the circle rate
prevailing at the time of the disposal.

18. Despite complete pleadings on
record vide order dated 21.08.2019,
learned Standing Counsel was granted
indulgence to seek instructions as to
whether actually the application of the
petitioners was complete in all respect
before the declaration of the general
elections of Vidhan Sabha of the State of
U.P. and as to why the immediate action
was not taken on it.

19. Learned Standing Counsel, thus
obtained instructions and accepted it that
the application was complete as mentioned
in paragraphs 10 and 16 of the counter
affidavit but action could not be taken as it
was treated to have been rejected.

20. On the basis of the above
instructions he proposed to file an
additional counter affidavit which we
refused to accept at this stage of final
hearing as the court had not required filing
of any further or additional counter
affidavit. It is well settled that a party is
entitle to file reply in response to the
petition only once and that successive
counter affidavits are not to be permitted
as a matter of course.

21. In view of the stand taken by the
respondents
in
the
above
counter
affidavits, it is clear that the respondents
have initially treated the application of the
petitioners to have been rejected and that
presently the application is said to be
pending but no final decision thereof could
be taken for the reason that now the
demand note has to be issued as per the
prevailing circle rate.

22. The bone of contention is as to
why the application of the petitioners for
grant of freehold rights could not be
finalised earlier when the subsequent
application of another party in respect of a
small portion of the same very plot of land
has been considered and the freehold deed
dated 19.03.2012 was executed in respect
to said portion of the land and as to the
rate on which the petitioners are entitled to
get the freehold rights.

23. There is not dispute to the fact
that the petitioners have applied for grant
of freehold rights in accordance with the
terms and conditions of the Government
Order dated 12.01.1998 and accordingly,
they are entitle to freehold rights on
fulfillment of the conditions laid down
therein and as modified by the subsequent
government orders.

24. The counter affidavit makes it
abundantly clear that the application of the
petitioners for grant of freehold rights was
complete but it could not be finalised due to
implementation of the Model Code of
Conduct. The Model Code of Conduct had not
remained in operation for long and despite its
lifting the application of the petitioners was not
processed and finalised.

25. There is nothing on record to
show inability on part on part of the
respondents in not granting the freehold
rights to the petitioners on or before
28.09.2011 except for the implementation
of the Model Code of Conduct for which
purpose no relevant dates as to when it
was
enforced
and
lifted
has
been
mentioned.
1 All. Mata Deen Bhagwan Das & Sons Vs. State of U.P. & Ors.
1997

26. The above excuse is apparently
an eyewash. We do not find any valid or
logical reason on part of the respondents in
keeping the application of the petitioners
for grant of freehold rights pending since
January, 1999 till September, 2011 i.e. for
a period of 11 years except for making
inquiries regarding the rights of the
petitioners on the said land when in
respect of the application of one another
person, who claims rights from the
petitioners no such query or inquiry was
made and freehold rights were granted.

27. In the event the holder of a small
portion of the land of the same plot in
respect of which the petitioners are
claiming freehold rights has been granted
freehold rights there appears to be no
justification on part of the respondents in
not considering the application of the
petitioners. It is not the case of the
respondents that the petitioners do not
fulfill or satisfy the conditions set out in
the Government Order dated 12.01.1998
or their title/rights are in doubt. In fact, the
title or rights of the petitioners in the said
land can not be doubted when the person
deriving rights from them has already been
recognised for grant of freehold rights.

28. The contention that the petitioners
never accepted for grant of freehold rights on the
prevailing circle rate or on the higher rate is
neither here nor there as the respondents never
issued any demand notice to the petitioners
demanding any amount at any rate much less the
prevailing circle rate.

29. Thus, on the ground of parity
alone the petitioners are also entitle for
freehold rights in the land in question from
the date i.e. 19.03.2012 on which Ganpat
Rai Moti Ram Charitable Trust has been
granted freehold rights.

30.

The
condition
that
all
applications which have remained pending
for over six months from the issuance of
Government Order dated 28.09.2011 stand
automatically rejected has lost all its
efficacy and is meaningless as the said
condition of the Government Order dated
28.09.2011 was subsequently recalled vide
Government Order dated 15.01.2015 and
the applications were restored.

31. The issue as to the validity of Clause
2(i)
of
the
Government
Order
dated
15.01.2015 which provides for applying the
circle rate as provided in Government Orders
dated 28.09.2011 & 04.03.2014 i.e. the rate
prevailing on the date of the disposal of the
application of freehold rights, it is pertinent to
mention that the issuance is res integra as it is
squarely covered by the Full Bench decision in
the case of Anand Kumar Sharma Vs. State
of U.P. and others, 2014(2) ADJ 742 wherein
it has been categorically held that mere making
of an application for freehold rights does not
give rise to any vested right and if in the
meantime there is a change in policy, the
application has to be decided as per the policy
in existence at the time of passing of the order
and consequently for the purpose of freehold
rights, the applicant has to deposit the amount
as per the circle rate prevailing on the date of
the application.

32. In view of above, we have no
hesitation to say that the petitioners are
also liable for the payment of the amount
at the circle rate prevailing on the date of
disposal of the application.

33. The challenge to the Government
Orders dated 04.03.2014 and 28.09.2011 is
only to a limited extent in so far as they
directed for the disposal of the freehold
applications within six month failing
which they would stand automatically
1998 INDIAN LAW REPORTS ALLAHABAD SERIES
rejected. Since the said condition of
rejection
has
been
withdrawn
the
challenge to the said orders to the above
extent is of no avail.

34. It may not be out of context to
mention that a Division Bench of this
court in which of us (P. Mithal, J.) was a
member of in the case reported in 2019 (8)
ADJ 442(DB) Amar Nath Bhargava Vs.
State of U.P. and others has issued
general
directions
to
the
District
Authorities of Allahabad to finalise all
pending applications for grant of freehold
rights
filed
in
pursuance
to
the
Government Order dated 01.12.1998 most
expeditiously latest by 31 December,
2019.

35. In Dr. Ashok Tahiliani Vs. State of
U.P. and others 2019 (9) ADJ 176 another
Division Bench of this court in the matter
concerning grant of freehold rights in Nazul land
on an application submitted in accordance with
Government Order dated 01.12.1998 issued a
general mandamus commanding all District
Magistrates throughout the State of U.P. to take a
decision on all pending applications within a time
bound period not exceeding six months.

36. In the case at hand, we do not
find that the petitioners were in any way
responsible for the delay in consideration
of their application for freehold rights.
There application was complete in all
respect. It was not rejected or even treated
to be rejected as the 25% amount
deposited by the petitioners were never
offered to be returned. There is no
allegation anywhere that the petitioners
were not taking interest and have delayed
the proceedings.

37. In view of the aforesaid facts and
circumstances, we are of the opinion that
there is an inordinate and unexplained delay on
part of the respondents in dealing with the
application of the petitioners for grant of
freehold rights. Since the respondents have
executed freehold deed in favour of
Ganpat Rai Moti Ram Charitable Trust
that has purchased a small portion of the
aforesaid plot from the petitioners on
19.03.2012, the petitioners are also entitled
for freehold rights as on the aforesaid date
and at the rate on which the rights were so
conferred upon the said trust or in the
alternatively to pay damages to the
petitioners at the rate of difference
between the circle rate prevailing as on
date and that which has been applied for
grant of freehold rights to the aforesaid
trust.

38. Accordingly, we issue a writ in
the nature of mandamus commanding the
respondents to issue a demand note to the
petitioners by applying the same rate that
had been applied for grant of freehold
rights to the aforesaid Trust or the rate
prevailing as on date within a period of
one month from today and on the
petitioners depositing the said amount to
execute the sale deed within a further
period of one month from the date of
deposit of the amount by the petitioners. In
the event, the circle rate prevailing today is
applied the respondents shall compensate
the loss to the petitioners by paying
damages as observed above.

39. The Writ Petition is allowed with
no order as to costs.
----------
(2020)1ILR 1997

ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 19.11.2019

BEFORE