# Parsi Panchayat, Surat v. State of U.P. & Anr

- **Citation:** (2019) 4 ILRA 718
- **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/parsi-panchayat-surat-v-state-of-u-p-anr-45026
- **Pages:** 56

## Headnote

C.S.C., Sri Ajit Kumar Singh (Addl.
Advocate General), Sri Nimai Das &
Sudhanshu Srivastava (Addl. C.S.C.)

A. Nazul property - Nature and meaning
- 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‟ - It was neither acquired nor
purchased after making payment - In
Legal Glossary 1992 meaning of the term
„Nazul‟ has been given as „Rajbhoomi‟ - 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. (Para 23, 24 and 25)

B. Constitution of India - Article 296 -
Principle of escheat/ bona vacantia/
Doctrine of lapse - Empowering the king
to take property - Recognized under
common law of England - These principle
would have been applicable prior to
enforcement of Constitution of India -
Article 296 has retained power of State to
get ownership of such land, in respect
whereof principle of 'escheat', 'lapse' or
'bona vacantia' applied - This 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. (Para 27 and 30)

Held - 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 forms the 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 manner or to
some selected groups or in a whimsical
manner etc.

C. Civil Law - Government Grant Act, 1895
- Preamble - Purpose of enactment -
Doubts have arisen to the extent and
operation of TP Act, 1882 and to the power
of Crown (later substituted by word
4 All. Parsi Panchayat, Surat Vs. State of U.P. & Anr..
719
"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. (Para 47)

D. Civil Law - Government Grant Act,
1895 - Section 2 and 3 - Transfer of
Property Act, 1882 - Grant of Nazul -
Governing factor - Where „Nazul‟ land is
let out to a person by Government under
agreement of lease i.e. Grant, it is
governed by GG Act, 1895 and rights of
parties therefore have to b

## Text

_Characters 0–39,472 of 186,921. This is a partial read: ask again with offset=39472 for what follows._

718 INDIAN LAW REPORTS ALLAHABAD SERIES

101. We, therefore, find no merit in
the writ petition and it is accordingly
dismissed.

102. However, considering the facts
and circumstances and also the fact that
petitioner already enjoyed interim order
passed by this Court and continued in
possession over land in dispute for the last
almost more than a year, we direct
petitioner to vacate disputed land within
one month from the date of delivery of
judgment.

103. No costs.
----------
(2019)12 ILR A718

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: 33740 of 2018

Parsi Panchayat, Surat ...Petitioner
Versus
State of U.P. & Anr. ...Respondents

Counsel for the Petitioner:
Sri Umesh Kumar Gupta, Sri Sunil Dutt
Kautilya, Sri Satya Vrat Sahai

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

A. Nazul property - Nature and meaning
- 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‟ - It was neither acquired nor
purchased after making payment - In
Legal Glossary 1992 meaning of the term
„Nazul‟ has been given as „Rajbhoomi‟ - 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. (Para 23, 24 and 25)

B. Constitution of India - Article 296 -
Principle of escheat/ bona vacantia/
Doctrine of lapse - Empowering the king
to take property - Recognized under
common law of England - These principle
would have been applicable prior to
enforcement of Constitution of India -
Article 296 has retained power of State to
get ownership of such land, in respect
whereof principle of 'escheat', 'lapse' or
'bona vacantia' applied - This 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. (Para 27 and 30)

Held - 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 forms the 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 manner or to
some selected groups or in a whimsical
manner etc.

C. Civil Law - Government Grant Act, 1895
- Preamble - Purpose of enactment -
Doubts have arisen to the extent and
operation of TP Act, 1882 and to the power
of Crown (later substituted by word
4 All. Parsi Panchayat, Surat Vs. State of U.P. & Anr..
719
"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. (Para 47)

D. Civil Law - Government Grant Act,
1895 - Section 2 and 3 - Transfer of
Property Act, 1882 - Grant of Nazul -
Governing factor - Where „Nazul‟ land is
let out to a person by Government under
agreement of lease i.e. Grant, it is
governed by GG Act, 1895 and rights of
parties therefore have to be seen in the
light of stipulations contained in the
document of „Grant‟ - „Grant‟ includes a
property transferred on lease though in
some cases, „Grant‟ may result in wider
interest i.e. transfer of title etc. -
Whatever may be nature of document of
transfer i.e. instrument of „Grant‟, the
fact remains that terms and conditions of
„Grant‟
shall
be
governed by such
document and it shall prevail over any
other law including TP Act 1882 - One
cannot take resort to TP Act, 1882 to
wriggle out of any condition or limitation
etc. imposed in terms of document of
„Grant‟. (Para 63)

E. Civil Law - Government Grant Act,
1895 - Section 3 - Nazul Land -
Procedure to take possession - Where a
lease has been granted under the terms
of GG Act, 1895, then what procedure
has to be followed is provided by Section
3 of GG Act, 1895 which says that 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 enactments of
the
Legislature,
to
the
contrary
notwithstanding. (Para 68)

Held - Above discussion, therefore, leaves no
manner of doubt that Grant/Lease of Nazul
land
shall
be
exclusively
governed
by
stipulations/conditions/terms
contained
in
Grant/Indenture of Lease and no Statute can
be resorted to govern rights of parties over
Nazul land, which will be governed by
aforesaid Grant/Indenture of Lease.

F. Lease of Nazul land - Determination -
Effect of transfer of lease - Any transfer
by Lessee in any manner without prior
permission of Lessor i.e. Government or
its Authorized Agent will result in
determination of lease without any
further
notice
-
Meaning
thereby,
transfer of lease was clearly prohibited
under terms of lease unless permission
of
Government
has
already
been
obtained. (Para 74)

G. Nazul land - Entitlement to freehold -
Effect of pendency of application -
Merely by making an application for
grant of freehold right, applicant did not
acquire a vested right. (Para 123)

Held - We repeatedly inquired from learned
counsel for petitioner as to which G.O. applies
to the present case so as to entitle petitioner
to claim conversion of lease rights of land in
dispute
into
freehold,
particularly
when
petitioner is virtually a rank-trespassor and is
not covered by any of aforesaid G.Os., none
could be shown to us.

H. Civil Law - Transfer of Property Act,
1882 - Application to the Government
Grant - In the matter of Government
Grant, it is governed by provisions of GG
Act, 1895 and no other Statute including
TP Act, 1882 will have any application -
Procedure prescribed under lease deed
for re-entry / resumption of land is a
special procedure and that can be
followed for reentry and no other Statute
and
no
other
procedure
is
to
be
observed. (Para 128)

Held - So far as application of Section 116 of
TP Act, 1882 is concerned we find nothing to
show that Section 116 of TP Act, 1882 has any
application in the case in hand. It is attracted
only when an assent of landlord has been
obtained for continuation of lease after expiry
of lease period, which is not the case in hand.

I. Possession - de facto possession and
de jure possession - Protection of
720 INDIAN LAW REPORTS ALLAHABAD SERIES
possession - De facto possession is when
a
person
being
in
actual
physical
possession and de jure possession is
possession
in
law.
Constructive
possession
would
be
a
possession
through a representative, agent, tenant
or a trustee. A person in de facto
possession
could
be
in
adverse
possession - Possession is a good title of
right against anyone who cannot show a
better title. However, when a person in
possession may not be lawful, recovery
of possession by owner must have
sanction of law and it cannot proceed to
dispossess the other in a forcible manner
not recognized in law. (Para 133 and 135)

Held - In some authorities, possession of a person,
who has entered therein initially, validly, but
subsequently become unlawful, has been given a
different meaning i.e. juridical possession. A tenant
holding over without consent of landlord would be a
juridical possession though his possession is not
lawful. It is said that possession of tenant, post
efflux of lease period, would not be treated as
lawful possession still he would not be treated as a
rank trespasser. Thus, here concept of possession
as juridical possession has been introduced.

J. Constitution of India - Article 19(1)(a)
and 19(1)(g) - Right to land - Right to
land and to construct building is not
derived
from
Articles
19(1)(a)
or
19(1)(g) of Constitution, but springs
from promise of contract between the
parties. (Para 159)

Held - Whether there has been breach of
contract of lease or there has been breach of
any provision regulating lease rights and
construction
of
building
etc.
are
such
questions which can be properly decided by
taking detailed evidence involving examination
and cross examination of witnesses and
therefore, such rights can be enforced in
common law proceedings by filing suit. In the
present case, the right of re-entry is being
enforced as per terms of Grant which
prevailed over any other Law.

K. Civil Law - Transfer of property Act,
1882
-
Section
106
-
Tenant
at
sufferance - After expiry of lease, status
of
lessee,
who
has
continued
in
possession,
is
that
of
„Tenant
at
sufferance‟ - The tenant at sufferance is
one
who
wrongfully
continues
in
possession after extinction of a lawful
title - It does not create relationship of
landlord and tenant - Therefore, even a
quit notice is not necessary to be given
and Section 106 TP Act, 1882 is not at all
attracted. (Para 184 and 185)

Writ Petition dismissed (E-1)

List of cases cited:-

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

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

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

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

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

6. Superintendent and, Legal Remembrancer
v. Corporation of Calcutta [1967] 2 SCR 170,
204

7. Cook v. Sprigg (1899) AC 572

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

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

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

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

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

13. Thakur Amar Singhji v. State of Rajasthan
AIR 1955 SC 504
4 All. Parsi Panchayat, Surat Vs. State of U.P. & Anr..
721
14. State of Rajasthan vs. Sajjanlal Panjawat
AIR 1975 SC 706

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

30. Lallu Yeshwant Singh (dead) by his legal
representative vs. Rao Jagdish Singh and
others, AIR 1968 SC 620
31. Azim Ahmad Kazmi and others vs. State of
U.P. and Another (2012) 7 SCC 278

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

33. Delhi Development Authority Vs. Anant Raj
Agencies Pvt. Ltd. (supra)

34.
Thakoor
Chunder
Parmanick
Vs.
Ramdhone Bhuttacharjee (1866) 6 W.R. 228

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

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

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

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

39. State of Orissa Vs. Ram Chandra Dev AIR
1964 SC 685

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

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

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

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

44.
Bhawanji
Lakhanishi
vs.
Himatlal
Jamnadas AIR 1972 SC 819

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

46. Govindaswami vs. Ramaswami (1916) 30
Mad LJ 492

47. Christian vs. Hari Prasad AIR 1955 Pat 158
48. Pritilata Devi vs. Banke Bihari Lal AIR 1962
Pat 446

49. Gordhan vs. Ali Bux AIR 1981 Raj 206
722 INDIAN LAW REPORTS ALLAHABAD SERIES
50. Secretary of State Vs. Narain Khanna AIR
1942 Privy Council 35

51. Md. Wajeeh Mirza vs. Secretary of State
for India in Council, AIR 1921 Oudh 31

52. Sharda Devi Vs. State of Bihar and
another, 2003 (3) SCC 128

53. Collector of Bombay Vs. Nusserwanji
Rattanji Mistri (1996) 10 SCC

54. State of U.P. and another Vs. Lalji Tandon
(dead) through Legal Representatives (2004) 1
SCC 1

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

56. Sevoke Properties Ltd. vs. West Bengal
State Electricity istribution Company Ltd. AIR
2019 SC 2664

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

1. This writ petition has been filed
under Article 226 of Constitution by Parsi
Panchayat,
Surat,
through
its
General
Attorney and Executor, Sri V.S. Pandey being
aggrieved by order dated 18.08.2018 passed
by District Magistrate, Allahabad (i.e.
respondent-2) whereby he (respondent-2) has
informed petitioner and two others that State
Government has approved resumption/reentry over land in dispute and therefore, it
should be vacated by petitioners within fifteen
days, whereafter possession shall be taken
forcibly by respondents at the cost of
petitioners.

2. Impugned order states that land in
dispute
is
required
by
State
for
development of 'Parking place' in view of
fact that Allahabad has been declared as
'Smart City' and has to be development
accordingly and therefore, right of reentry/resumption has been exercised by
State.

3. Dispute relates to Nazul land, Plot
H-1, Civil Station, area 1 Acre 2576
Square Yards whereupon a house is also
constructed numbered as House No.24,
Elgin Road, Allahabad.

4. A lease was executed by the
Secretary of State for India in Council in
favour of 'Roberston Karr' on 01.04.1862
in respect of Nazul Plot-H-1, Civil
Station, area 3 acres, for a period of 50
years. After expiry of initial period of
lease, it was renewed in favour of 'Marry
Augustus Woolston' on 01.04.1912 for a
period of 50 years which expired on
31.03.1962. Woolston transferred by sale,
above plot in two parts, inasmuch as, vide
sale deed dated 11.12.1945, House No.24
constructed on Nazul Plot H-1, Civil
Station, area one acre and 2576 square
yard, was transferred in favour of Sri K.
S. Gandhi and his wife Smt. Tahmenna.
Sri K. S. Gandhi applied for renewal of
lease but no order was passed thereon. He
died on 31.01.1978. Thereafter his legal
heirs filed Writ Petition No.17616 of
1993 which came to be decided vide
judgment dated 29.05.1998. As the case
was covered by judgment of this Court in
Purshottam Dass Tandon and others
vs, State of U.P. And others, AIR 1987
All 56, a direction was issued by this
Court to renew lease of disputed land.
However, application for renewal was
rejected by District Magistrate, Allahabad
by order dated 11.07.1998. Petitioner filed
Writ
Petition
No.34324
of
1998
challenging order dated 11.07.1998 but
the same was dismissed on 29.11.2010 on
the statement made by counsel for
petitioner-Parsi
Panchayat
that
writ
petition has become infructuous.

5. State Government, in the
meantime, brought in policy of allowing
4 All. Parsi Panchayat, Surat Vs. State of U.P. & Anr..
723
free hold of Nazul Land. Pursuant to
Government Order (hereinafter referred
to as "G.O.") dated 01.12.1998, petitioner
deposited
Rs.6,19,980/-
as
requisite
amount for claiming property in dispute to
be converted into free hold.

6. Petitioner's application for free
hold was rejected by Additional District
Magistrate (Nazul), Allahabad by order
dated 01.09.2003 observing that Nazul
plot in dispute was given on lease on
24.07.1912 to Marry Augustus Woolston
for a period of 50 years and, therefore,
sale deed dated 11.12.1945 could have
resulted in transferring only lease rights
and not title or ownership of property in
dispute
which
belong
to
State
Government. Further lease expired on
31.03.1962 and erstwhile lessee thereafter
had no right to make "Will" of Nazul land
in
dispute,
vide
Will
Deed
dated
09.10.1972, and that too by imposing
conditions upon State Government. No
rights, therefore, could have flown from
'Will' dated 09.10.1972 in respect of
Nazul plot in question to anyone. Hence
petitioner's claim for renewal of lease on
the basis of above "Will" was already
rejected
and
for
the
same
reason
petitioner's claim for making disputed
land free hold, was also found not
sustainable. This order dated 01.09.2003
was challenged by petitioner in Writ
Petition No.4716 of 2004. It was disposed
of vide judgment dated 29.11.2010
directing Collector, Allahabad to reconsider petitioner's application and pass
fresh order ignoring earlier order of
rejection. Judgment dated 29.11.2010
reads as under :

"The
grievance
of
the
petitioners are that the petitioner have
applied for grant of free hold right of the
land in dispute, though the State has given
no objection to declare it free hold. It has
further been submitted that similarly
situated persons have been granted free
hold right.

Considering
the
facts
and
circumstances of the case we direct the
Collector, Allahabad to re-consider and
decide the application of the petitioner
ignoring the earlier order of rejection,
within a period of three months in the
light of observations made above.

With the aforesaid observations
the writ petition is disposed of finally."

(Emphasis added)

7.

Petitioner
then
made
representation dated 16.12.2010. District
Magistrate, Allahabad vide letter dated
28.07.2011 made certain queries, i.e. :
 (1) Whether Nazul land in
dispute is being used as desired in Will
Deed dated 09.10.1972 as Nariman Home
or is being used by anyone else and in
what manner it is being used, should be
informed?

(2) Whether D. F. Gandhi who
has submitted various applications on
behalf of Parsi Panchayat claiming
himself to be General Attorney has got
the said power of attorney registered, and
if yes, its copy should be made available?

(3) Whether Sri D. F. Gandhi
son of F. S. Gandhi resident of Gulista
18/30 Elgin Road, Lal Bahadur Shastri
Marg, Allahabad is alive and if not, his
death certificate be produced?

8. Petitioner submitted reply dated
18.08.2011 through his counsel wherein it
was stated that building in question had
several tenants and income from rent is
used by Parsi Panchayat for running
'Nariman Home'; in the "Will" dated
09.10.1972 it is not mentioned anywhere
724 INDIAN LAW REPORTS ALLAHABAD SERIES
that building on the disputed Nazul land
shall be run as 'Nariman Home'; Power of
attorney of D. F. Gandhi was not
registered and D. F. Gandhi has died,
whose death certificate was not available
with petitioner but must be available with
legal heirs of D. F. Gandhi.

9. Since no further action was taken
by respondent 2 with respect to claim of
petitioner for freehold of disputed Nazul
land, Writ Petition No.1305 of 2012 was
filed wherein an interim order was passed
directing parties to maintain status quo on
10.01.2012. During pendency of above
writ petition, respondent 2 passed order
dated
18.08.2018
which
has
been
challenged on the ground that respondents
have allowed free hold in respect of
several other properties and petitioners
have been discriminated; resumption of
land
is
violative
of
petitioner's
constitutional right under Article 300 A of
Constitution;
without
acquiring
land
under the provisions of "The Right to Fair
Compensation and Transparency in Land
Acquisition,
Rehabilitation
and
Resettlement Act, 2013" (hereinafter
referred to as "Act, 2013), it could not
have been taken by respondent 2;
resumption cannot be made forcibly;
procedure
of
Uttar
Pradesh
Public
Premises
(Eviction
of
Unauthorised
Occupants)
Act,
1972
(hereinafter
referred to as "U.P. Act, 1972") has not
been followed; petitioner's right of free
hold cannot be defeated by exercising
right of resumption and re-entry by
respondents in a colourable manner;
petitioner was allowed to deposit requisite
amount for freehold, now respondents
cannot turn otherwise; petitioner is
entitled to freehold of land in dispute in
the light of various Government Orders
issued from time to time and the order
impugned
amounts
to
eviction
of
petitioner from house, standing on land in
dispute and demolition thereof where they
are residing for the last 30 years, it is
arbitrary and illegal; similar orders were
passed earlier in case of M/s Madhu
Colonisers Pvt. Ltd Vs State of U. P. and
others; and, Chintamani Ghose Trust and
another Vs. State of U.P. and others,
which were challenged in Writ Petitions
No.31153 of 2009 and 35269 of 2009,
and Division Bench of this Court vide
judgment dated 27.05.2010 allowed writ
petitions and set aside orders of District
Magistrate and he was directed to pass
fresh order with respect to claim of
petitioners in those cases for conversion
of lease right into free hold in accordance
with law.

10. The writ petition has been
contested by respondents and counter
affidavit has been filed on behalf of
respondent 2, sworn by Sri Gore Lal
Shukla, Additional District Magistrate
(Nazul), Prayagraj. It is said that Nazul
Plot H-1, Civil Station initially demised
by
an
Indenture
of
Lease
dated
01.04.1862 to one Mr. Robert Carr.
Disputed Nazul land, area 3 acres, was
leased out for a period of 50 years for
purpose of constructing a dwelling house.
Thereafter lease was renewed by lease
deed dated 24.07.1912 for a period of 50
years commencing from 01.04.1912.
Lease was splitted into two parts
comprising of Bungalow No.24, Elgin
Road and Bungalow No.3, Strachey Road.
In respect of site H-1, Bungalow No.24,
Elgin Road, as desired by erstwhile
lessee, in terms of earlier lease, another
lease was executed on 18.06.1937 by
Secretary of State for India in Council in
favour of Mr. K.P. Modwell; period of
lease remained the same and lease deed
4 All. Parsi Panchayat, Surat Vs. State of U.P. & Anr..
725
dated 18.06.1937 was only to recognize
split of lease land; lease came to an end
on 31.03.1962; aforesaid lease was
governed by provisions of Government
Grants Act, 1895 (hereinafter referred to
as
"GG
Act,
1895");
Lease
deed
contained provision of re-entry and also
obligation of surrender by lessee after
expiry of period of lease; land in question
was required for development as Parking
Place and, therefore, a proposal was made
to the Government for its resumption
which was approved vide order dated
16.08.2018
and
pursuant
thereto,
impugned order dated 18.08.2018 has
been passed. It is further said that over
land in dispute, illegally, a banquet hall
namely 'Gangotri Garden' is being run;
Government has right of resumption, and
mere filing of application for free hold
does not confer any right and in any case,
the same has already been rejected. It is
also pointed out that in respect of Nazul
Plot 33 Civil Station, Allahabad land was
resumed which was challenged by "M/S
Madhu Colonisers Private Limited" in
Writ Petition No.62588 of 2010 and
reliance was placed on this Court's
judgment dated 27.05.2010 in Writ
Petitions 35269 of 2009 and 31153 of
2009 but Division Bench of this Court
held that policy decision taken by
Government for conversion of lease rights
into free hold, will not have any adverse
effect on the power of government to
resumption of land under Clause 3 (c) of
lease deed; this Court upheld the order of
resumption by order dated 02.04.2013 and
operative part of judgment reads as under
:

"On a consideration of all the
relevant materials, this Court finds that
the State Government through the District
Magistrate has committed no illegality in
issuing the impugned notice and passing
the impugned order. It is not possible to
hold that the decision that the Multi Layer
Parking facility is required to be
constructed for public purpose suffers
from any error or that the requirement is
not for public purpose. It is also found
that as nominee of the lessee, the
petitioner-Company cannot have any
larger rights that the lessee and once the
order of the District Magistrate for
resumption the land in exercise of power
under Clause 3 (c) of the lease deed is
held to be valid, the petitioner-Company,
as a nominee, cannot have any surviving
right to claim conversion of the lease
hold rights into free hold. Infact, on
valid resumption order being passed, the
lease hold rights cease to exist and there
can be no occasion for conversion of
lease hold rights into freehold rights in
such circumstances.

As a result, we find no merit in
this petition. It is, accordingly, dismissed,
Interim order of stay shall stand vacated.
There shall be no order as to costs."

(Emphasis added)

11. Respondents have also placed
reliance on Chintamani Ghosh and
another vs. State of U. P. and others,
2001 (2) UPLBEC 1003, Anand Kumar
Sharam vs. State of U. P. and others,
2014 (2) ADJ 742, 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, 202
(1) AWC 226 and Azim Ahmad Kazmi
and others vs. State of U. P. and others,
2012 (7) SCC 278.

12. In the rejoinder affidavit,
petitioners have not stated anything new
726 INDIAN LAW REPORTS ALLAHABAD SERIES
but reiterated what they have already said
in the writ petition, therefore, we are not
repeating the same.

13. We have heard Sri Satya Vrat
Sahai, Advocate, holding brief of Sri
Sunil Dutt Kautilya, learned counsel for
petitioner, and Sri Ajit Kumar Singh,
Additional Advocate General assisted by
Sri Nimai Das, Additional Chief Standing
Counsel and Sri Sudhanshu Srivastava,
Additional Chief Standing Counsel for
State Authorities.

14. Learned counsel for petitioner
broadly advanced his submissions as under :

i. It is true that lease expired on
31.03.1962 but before that disputed
premises was already transferred to Sri
K.S. Gandhi and his wife Smt. Tahmenna,
therefore it has been succeeded by Sri
D.F.Gandhi and in terms of Will of
K.S.Gandhi, petitioner got possession and
has applied for conversion of freehold.
Petitioner has right of conversion of land
in dispute as freehold, therefore, without
taking any decision on said aspect,
respondents cannot re-enter/resume land
in dispute by means of impugned order.

ii. Petitioners' possession over
property in dispute after expiry of lease
was never obstructed and no action was
taken for eviction or ejectment of
petitioners from land in dispute. Meaning
thereby respondents by conduct admitted
lease rights of petitioners and valid
possession over land in dispute. That
being so, land in dispute could not have
been resumed by exercising power with
reference to GG Act, 1895 which was
already repealed before impugned order
was passed.

iii. State Government framed
policy of conversion of lease into freehold
and pursuant thereto petitioners submitted
application for freehold of lease land but
the said application was not decided for
long. Petitioners are entitled to have lease
rights converted into freehold as per
relevant Government Orders.

iv. In any case, if petitioner's
continuated possession after expiry of
lease on 31.03.1962 was unauthorized in
view of provisions of Uttar Pradesh
Public
Premises
(Eviction
of
Unauthorised
Occupants)
Act,
1972
(hereinafter referred to as "U.P. Act,
1972"), he cannot be evicted or ejected
from disputed land without following
procedure prescribed in the said Act.

v. Right of resumption exercised
by respondents under lease-deed, which
has expired long back is illegal since in
2018
no
deed
was
operating
and
resumption by State vide impugned order
cannot be read in continuation with lease
deed
which
had
already
expired
31.03.1962.

vi. Impugned order has been
passed without any show cause notice or
opportunity to petitioner, therefore, it is
illegal.

15. Per contra, learned Additional
Advocate General appearing for State of
U.P. and Senior Counsel appearing on
behalf of A.D.A. advanced argument
virtually in the light of pleadings and
objections raised in the counter affidavit,
which we have already given in detail
hereinabove and will further elaborate
while discussing issues raised in this writ
petition.

16. Before going into merits of rival
submissions, some glaring important
facts, we find necessary to recapitulate at
this stage. Except lease deed dated
18.06.1937, copy of other lease-deeds
4 All. Parsi Panchayat, Surat Vs. State of U.P. & Anr..
727
have not been placed on record. Lease
deed dated 18.6.1937 was executed to
recognize splitting of land in two parts,
but, for remaining lease term, it is not
disputed that terms and conditions of said
lease was same as contained in lease deed
dated 01.4.1862. Subsequent renewal was
in continuation of same terms and
conditions. Some of the relevant terms
and conditions of lease deed, therefore,
which govern relationship of Lessor and
Lessee in this case, are reproduced as
under :

AND ALSO will not without the
previous consent in writing of the said
Collector erect or set up or suffer to be
erected or set up on any part of the said
premises hereby demised any messuage
or building other than and except the
messuage and buildings already erected
and delineated upon the map hereto
annexed.

AND THAT if in breach of the
said preceding covenant any messuage or
building is erected or set up or suffered to
be erected or set up without such
permission as aforesaid it shall be lawful
for the Collector or for any person or
persons duly deputed by him to cause
such messuage or building to be pulled
down after the expiration of fourteen
days of his giving or causing to be given
notice to the said lessee his Executors,
Administrators and Assigns to remove the
same which notice may be given either
verbally or in writing upon the said
premises. AND will not without the
previous consent in writing of the said
Collector make any alteration in the plan
or elevation of the said buildings and out
buildings or carry or permit to be carried
on the said premises any trade or
business whatsoever or use the same or
permit the same to be used for any
purpose other than that of a dwelling
house

AND ALSO will not without the
previous consent in writing of the said
Collector grow any crops/ or keep any
horses, cattle or other animals for hire or
profit or allow the same to be done in or
upon the said demised premises but shall
use the same for the purposes of a garden
or pleasure grounds attached to the said
dwelling house

AND ALSO upon the breach of
any of the aforesaid covenant the said
lessee his Executors, Administrators or
Assigns shall and will on demand pay or
cause to be paid to the Secretary of State
the sum of Rs. 500 by way of liquidated
damages and not penalty and that on a
second breach of the same it shall be
lawful for the said Secretary of State his
Successors or Assigns into and upon the
same demised premises or any part
thereof in the name of the whole to reenter and the same to have again
repossess and enjoy as in their former
estate anything herein contain to the
contrary notwithstanding

AND ALSO that the said lessee
his Executors, Administrators and Assigns
will not without the permission in writing
of the said Collector or of some person
authorized by him in that behalf construct
thatch or cover or cause or permit to be
constructed thatched or covered with
grass
reeds
or
other
inflammable
materials any building which shall or may
be erected or constructed upon the said
piece or parcel of land or ground, unless
such thatch or roof or inflammable
material shall be protected by a covering
of tiles. And that if in breach of the said
lastly preceding convent any building
which shall or may be erected or
constructed upon the said piece or parcel
of land or ground be thatched or covered
728 INDIAN LAW REPORTS ALLAHABAD SERIES
with grass reeds or other inflammable
materials without such permission as
aforesaid and without being protected by
a covering of tiles, it shall be lawful for
the said Collector or for any person duly
deputed by him to cause such building,
shed, roof, covering or other inflammable
material to be pulled down after the
expiration of twelve hours from the time
of his giving or causing to be given notice
to
the
said
lessee
his
Executors,
Administrators or Assigns to remove the
same, which notice may be given either
verbally or in writing upon the said
premises

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 things 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
hereinafter contained.

PROVIDED ALWAYS and it is
hereby understood and agreed that in
case the said Secretary of State shall not
at the expiration of the said term desire
to take over the said buildings, erections
or fixtures or things which shall have at
any time during the said term granted
under the lease dated 24th day of July,
1912 or during the said term hereby
granted affixed to or set up within or
upon the said premises it shall be lawful
for the said lessee his Executors,
Administrators or Assigns to remove and
take away the same as and for his and
their absolute property, but in case the
said Collector shall at the expiration of
the said term hereby granted give notice
to
the
said
lessee
his
Executors,
Administrators or Assigns of his intention
to take over the buildings, erections,
fixtures or things which shall have been at
any time during the said term granted
under the lease dated 24th day of July,
1912 or during the said term hereby
granted set up within or upon the said
premises or any part thereof, it shall be
lawful for the said Secretary of State, his
Successors and Assigns to take over the
said buildings, erections, fixtures and
things or any part thereof with the land,
and in that case the said Secretary of
State, his Successors and Assigns shall
pay unto the said lessee his Executors,
Administrators or Assigns the value of
such buildings, erections, fixtures or other
things or of such part thereof as they shall
so take over as aforesaid, such value to be
ascertained in case the parties themselves
cannot agree, by the arbitration of two
arbitrators, the one to be named by the
Secretary of State, his Successors and
Assigns and the other by the said lessee
his Executors, Administrators, or Assigns,
and in case they shall differ by an umpire
to be appointed by the said two
arbitrators, or in case either of the parties
hereto shall neglect to appoint an
arbitrator for more than one fortnight
after notice has been served upon them or
him by the other party to appoint such
arbitrator, then by the sole arbitration of
the arbitrator appointed by such other of
the parties hereto which arbitration shall
be final.

PROVIDED ALWAYS and it is
hereby declared and agreed that no
compensation or payment shall be
claimable
by
the
said
lessee
his
4 All. Parsi Panchayat, Surat Vs. State of U.P. & Anr..
729
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 presents
shall be determined by re-entry for
forfeiture in which case the building,
erections
and
fixtures
shall
rest
absolutely in the said Secretary of State,
his Successors and Assigns as his own
property without any compensation or
payment in respect thereof.

PROVIDED FURTHER and it
is hereby agreed that the said lessee his
Executors, Administrators or Assigns
shall not assign or underlet or otherwise
part with the possession of the said
premises or any part thereof without the
permission of the said Secretary of State
his
Successors
or
Assigns
(which
permission may be signified by the said
Collector or by such other person as the
Government
of
the
North-Western
Provinces or the said Secretary of State
may appoint in that behalf) for that
express purpose had and obtained

PROVIDED ALWAYS that if the
said lessee his Executors, Administrators
or Assigns shall assign or transfer these
presents, or the lease or term hereby
granted or created, or the unexpired
portion of the said term, or shall underlet
the said premises or any part thereof with
such permission as aforesaid unto any
other person or persons of whom the said
Collector shall approve, and if such
person or persons shall engage and bind
themselves to observe all the conditions,
agreements and provisions of these
presents in respect of such portion of the
said term or of the said premises as shall
have been so assigned or underlet to him
as aforesaid and shall procure such
assignments or sublease to be registered
in such manner as shall be appointed by
the said Secretary of State for the purpose
of
registering
leases
and
other
instruments of or relating to lands situate
within the local limits of Allahabad (and
for the registry of which assignments or
subleases a fee of not more than Rs. 16
shall be paid by the person or persons
tendering such assignments or sublease
for registry) then and not otherwise the
liability of the said lessee his Heirs,
Executors and Administrators for the
purpose or subsequent observance and
performance of the covenants on the
lessee's part therein contained, so far as
relates to the portion of the said term or
of the said premises so assigned or
underlet as aforesaid, but not further or
otherwise, shall cease and determine, but
without prejudice however to the right of
action of the said Secretary of State his
Successors or Assigns in respect or on
account of any previous breach of any
covenant or covenants herein contained,