# Shiv Kumar Pandey v. State of U.P. & Ors

- **Citation:** (2020) 12 ILRA 439
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2020-09-09
- **Case number:** Writ - C No. 12338 of 2020
- **Bench:** Shashi Kant Gupta, Piyush Agrawal
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/shiv-kumar-pandey-v-state-of-u-p-ors-45610
- **Pages:** 7

## Headnote

(A) Civil law - U.P. Urban Planning &
Development Act, 1973 - Section 27 (1) -
Order of demolition of building - Section
43 - Services, of notices - mere possession
of a property for a long period will not
clothe the possessor with any legal right
that the possession is under a grant from
the State which is resumable - once
resumption of a Nazul property has been
made by the State, no person has any
right to occupy a Nazul property without
prior permission of the State. (Para -12,14)

A small piece of land occupied by petitioner
without any authority of law - lease made in
favour of the Company -expired number of
decades ago - never executed in favour of
petitioner or his grand father - land stood
resumed and the resumption of the said
property was held to be legal and valid on
26.11.2015 by the Apex Court. (Para -12)

HELD :- Petitioner does not have any right, title
or interest over the property in question.
Petitioner has failed to show his continuous
possession over the land in dispute. Demolition
of 2 tin-shed rooms illegally constructed by the
petitioner has been rightfully done after
following the due procedure provided under law.
(Para - 14)

Writ Petition dismissed. (E- 7)

List of Cases cited:-

## Text

12 All. Shiv Kumar Pandey Vs. State of U.P. & Ors.
439
by the petitioner cannot be granted at this
stage and the petitioner shall be at liberty of
appearing before the Court concerned and
raising all the objections before the Court
concerned. In case if any such objections
are taken by the petitioner, it is expected
that the opposite party no. 2 shall consider
and decide the matter expeditiously by
providing a complete opportunity of
hearing to the parties and decide it strictly
in accordance with law.

37. In light of the aforesaid, the Writ
Petition No. 22981 (MS) of 2019 stands
dismissed and the Writ Petition No. 7563
(MS) of 2020 is disposed of in terms of this
order.
----------
(2020)12ILR A439
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 09.09.2020

BEFORE

THE HON'BLE SHASHI KANT GUPTA, J.
THE HON'BLE PIYUSH AGRAWAL, J.

Writ - C No. 12338 of 2020

Shiv Kumar Pandey ...Petitioner
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Sri Sachin Mishra, Sri Ram Vishal Mishra

Counsel for the Respondents:
C.S.C., Sri Arun Kumar

(A) Civil law - U.P. Urban Planning &
Development Act, 1973 - Section 27 (1) -
Order of demolition of building - Section
43 - Services, of notices - mere possession
of a property for a long period will not
clothe the possessor with any legal right
that the possession is under a grant from
the State which is resumable - once
resumption of a Nazul property has been
made by the State, no person has any
right to occupy a Nazul property without
prior permission of the State. (Para -12,14)

A small piece of land occupied by petitioner
without any authority of law - lease made in
favour of the Company -expired number of
decades ago - never executed in favour of
petitioner or his grand father - land stood
resumed and the resumption of the said
property was held to be legal and valid on
26.11.2015 by the Apex Court. (Para -12)

HELD :- Petitioner does not have any right, title
or interest over the property in question.
Petitioner has failed to show his continuous
possession over the land in dispute. Demolition
of 2 tin-shed rooms illegally constructed by the
petitioner has been rightfully done after
following the due procedure provided under law.
(Para - 14)

Writ Petition dismissed. (E- 7)

List of Cases cited:-

1. Ravinder Kaur Grewal & ors. Vs Manjit Kaur &
ors. , Civil Appeal No. 7764 of 2014

2. Orissa Vs Ram Chandra Dev & an., AIR 1964 SC 685

3. State of Uttar Pradesh & ors. Vs United Bank
of India & ors., Civil Appeal No. 5254 of 2010

(Delivered by Hon'ble Shashi Kant Gupta,
J. & Hon'ble Piyush Agrawal, J.)

1. This writ petition has been, inter
alia, filed for the following relief:-

"i. Issue a suitable writ, order or
direction in the nature of mandamus
directing the respondents to restore the
construction of the house and pay
compensation,
which
was
illegally
demolished on 11.8.2020 at 4 p.m. by the
respondents in regard to the house of the
petitioner situated at 19 Clive Road Civil
Lines Prayagraj/Prayagraj."
440 INDIAN LAW REPORTS ALLAHABAD SERIES

2. Heard learned counsel for the
petitioner, Sri Arun Kumar, learned counsel
for the Prayagraj Development Authority,
learned Standing Counsel for the State and
perused the record.

3. Learned counsel for the petitioner
has submitted that the petitioner had been
occupying 2 tin-shed rooms, part of the
Premises No. 19, Clive Road, Prayagraj,
since long. However, without giving any
opportunity of hearing or issuing any
notice,
the
said
structure
has
been
demolished by Prayagraj Development
Authority (in short 'PDA') illegally and
arbitrarily.

4. Per contra, Sri Arun Kumar,
learned counsel for the PDA while placing
the
original
records
pertaining
to
demolition proceedings of the disputed
structure has submitted that land in
question measuring about 100 square yards
was illegally occupied by the petitioner,
without any right, title or interest. The
petitioner has never paid rent/damages
whatsoever. It was further submitted that
the complaint was received by the PDA
with regard to the illegal construction
raised by the petitioner on 2.6.2020 on the
alleged land. Upon inquiry it was revealed
that illegal construction was raised over
100 square yard of land comprising two tinshed rooms by the petitioner and further
construction of walls was also being raised
by the petitioner surreptitiously. Notice was
issued under Section 27 (1) of the U.P.
Urban Planning & Development Act, 1973
(in
short
'Act,
1973).
When
the
Development Authority failed to serve the
notice upon the petitioner, the notice was
affixed in accordance with Section 43 of
the Act, 1973 on 4.6.2020 for showing
cause, but the petitioner failed to file any
reply to the said notice. Thereafter, again
the notices were issued on 15.6.2020 &
26.6.2020 but the petitioner failed to
respond. Ultimately, the demolition of
disputed structure was carried out in
accordance with law.

5. It was further submitted by the
learned counsel for PDA that earlier, a
lease deed with respect to Plot No. 19,
Clive Road was executed in favour of M/s
Amrit Bazar Patrika Pvt. Ltd. (in short "the
Company") by means of a registered deed
on 25.7.1949 by the State of Uttar Pradesh
for 50 years from the first day of
September 1937. United Bank of India (in
short "the Bank") had advanced credit
facilities to the Company and the Company
allegedly
mortgaged
the
immovable
property situated at 19 Clive Road,
Prayagraj, which was earlier leased out by
the State Government to it. Since the
Company failed to repay the loan, the
Bank, for recovery of its dues, filed a Suit
No. 510 of 1990 in the Civil Court in the
capacity of the mortgagee of the various
properties of the said Company including
the property situated at 19, Clive Road,
Prayagraj,
which
was
held
by
the
Company, allegedly, as lessee. The said
suit was decreed on 9.10.1991 in favour of
the Bank. It is notable that the paramount
title holder namely the State of Uttar
Pradesh, was not made a party to the suit.
Ultimately, the matter reached the Apex
Court in Civil Appeal No. 5254 of 2010
(State of Uttar Pradesh and others Vs.
United Bank of India and others) along
with other similar civil appeals arising out
of the common judgment and order passed
by the court below. The Apex Court
allowed the Civil Appeal No. 5254 of 2010
filed by the State of Uttar Pradesh and the
impugned judgment and order dated
3.11.2009 passed by the High Court was set
aside, inter alia, holding that mortgage
12 All. Shiv Kumar Pandey Vs. State of U.P. & Ors.
441
done by the lessee Company in favour of
the Bank is bad in law, and was in clear
violation of the terms of the lease deed i.e.
mortgage of the Nazul land without
previous sanction in writing of the State.

6. Mr. Arun Kumar, learned counsel
for the PDA, in support of his contention,
has referred to Paragraphs 38 and 45 of the
judgment and order passed in the aforesaid
Civil Appeal No. 5254 of 2010 by the Apex
Court with respect to premises No. 19,
Clive Road Room (disputed structure 2 tinshed rooms is a part of the said premises)
which was earlier allotted to the Company,
which are quoted hereinbelow:

Paragraph 38

"In the present case there was
nothing on the record to show that the
lessee i.e. (ABP) has obtained any written
sanction from the lessor i.e. Government
before mortgaging his leasehold interest
in the Nazul Land. Meaning thereby the
mortgage done by the lessee in favour of
the Bank itself is bad in law, which was
done in clear violation of the terms of the
lease deed i.e. mortgage of the Nazul land
without previous sanction in writing of the
State."

Paragraph 45

"45. After considering the entire
facts of the case and the submissions
made by learned counsel appearing for
the parties, we come to the following
conclusion:-

(i) Indisputably, the property in
question i.e. Premises No.19, Clive Road,
Prayagraj is a Nazul land governed by the
Government Grants Act, 1895 and Nazul
Rules.

(ii) The property was given on
lease by the State of U.P.to Mrs. Mortha
Anthony and second time the lease was
renewed in favour of Ms. Verna Anthony
and Ms. Leena Anthony for a further
period of 50 years which was valid up to
31.8.1987.

(iii) During the subsistence of
lease,
the
leasehold
interest
was
transferred in 1945 in favour of ABP Co.
and on the basis of the said transfer a
lease was executed in 1949 by the State of
U.P. in favour of ABP Co. for the
remaining period of lease which expired
in 1987.

(iv) As against the loan taken by
the Company from the Bank, a mortgage
was created in respect of the property by
the Company in favour of Bank. The lease
in respect of the leasehold interest in the
property admittedly expired in 1987.

(v) The mortgage so created by
the Company in favour of the Bank in
respect of Nazul land without the sanction
of the State of Uttar Pradesh in terms of
the lease, is ab initio void, hence no right
was created in favour of the Bank by
reason of the said mortgage.

(vi) Consequently, a mortgage
decree obtained by the Bank on the basis
of settlement, in absence of and behind
the back of the State of U.P. could not
have been enforced against the State. The
subsequent proceedings of transferring
the decree to the Debt Recovery Tribunal
and again passing an order for auction
sale of the property on the basis of
settlement is wholly illegal and without
jurisdiction.

(vii) The appellant Bank has no
right, title or interest in the property so as
to claim a right of conversion of the
property into a freehold property.

(viii)
The
impugned
notice
issued by the State of U.P. directing
resumption of the property is legal and
valid and cannot be quashed at the
instance of the Bank."
442 INDIAN LAW REPORTS ALLAHABAD SERIES

7. Learned counsel for the PDA while
referring to the above judgment has
contended that the Apex Court has very
categorically held that the notice issued by
the State of Uttar Pradesh directing
resumption of the property is legal and
valid and the property could not have been
mortgaged by the Company in favour of the
bank. The land in dispute over which the
alleged construction has been raised,
comprising of 100 square yards is a part
and parcel of the premises situated at 19
Clive Road, Prayagraj, which was earlier
leased out in favor of the Company and
was later on resumed by the State. It was
further submitted by the learned counsel for
the PDA that premises No. 19 Clive Road,
Prayagraj admeasuring 24280.34 square
meter of land, out of which the petitioner
was illegally occupying 100 square yards
of land by making illegal constructions
over it. Due to the illegal occupation of the
petitioner over the land in dispute, the
development of the entire land demised in
19 Clive Road, Prayagraj was stalled. It has
also been brought to our knowledge that the
said premises at 19 Clive Road has been
allotted to the Allahabad High Court for the
purpose of constructing the residential
houses of the High Court Judges.

8. Learned counsel for the petitioner
has raised the plea of adverse possession
and in support of his contention has placed
reliance upon the judgment and order dated
7.8.2019 passed by the Apex Court in Civil
Appeal No. 7764 of 2014 (Ravinder Kaur
Grewal and Ors. Vs. Manjit Kaur &
Ors.) and submitted that the petitioner has
acquired
title
by
virtue
of
adverse
possession.

9. We have carefully perused the
aforesaid judgment and we are sorry to say
that the judgment is not at all applicable to
the facts of the present case. The
observation made by the Apex Court is
with regard to the private property, and it
has been held that a person in possession
cannot be ousted by another person except
by due procedure of law and once the 12
year period of adverse possession is over,
even the owner's right to eject him is lost
and the possessory owner acquires right,
title and interest possessed by the outgoing
person/owner, as the case may be. In the
aforesaid judgment, in Paragraph 60, the
Apex Court has also held that law of
adverse possession as has developed vis-avis to property dedicated to public use,
courts have been loath to confer the right
by adverse possession. In such cases, on the
land reserved for public utility, it is
desirable that rights should not accrue. The
law of adverse possession may cause harsh
consequences. Hence, the Apex Court held
that it would be advisable that concerning
such properties dedicated to public cause, it
is made clear in the statute of limitation
that no rights can accrue by adverse
possession.

10. For ready reference, Paragraph 60
of the judgment and order dated 7.8.2019
passed in Civil Appeal No. 7764 of 2014
(Ravinder Kaur Grewal & Ors. Vs.
Manjit Kaur & Ors.) by the Apex Court is
quoted hereinbelow:-

"60. When we consider the law
of adverse possession as has developed
vis-a-vis to property dedicated to public
use, courts have been loath to confer the
right by adverse possession. There are
instances when such such properties are
encroached upon and then a plea of
adverse possesion is raised. In such cases
on the land reserved for public utility, it is
desirable that rights should not accrue.
The law of adverse possession may cause
12 All. Shiv Kumar Pandey Vs. State of U.P. & Ors.
443
harsh consequences, hence, we are
constrained to observe that it would be
advisable that concerning such properties
dedicated to public cause, it is made clear
in the statute of limitation that no rights
can accrue by adverse possession."

11. In support of his contention, Sri
Arun Kumar, learned counsel for the PDA
has further referred to the Paragraph 12 of
the judgment passed by the Apex Court in
the case of State of Orissa Vs. Ram
Chandra Dev and another, AIR 1964 SC
685, which is quoted hereinbelow:-

12. Mr. Tatachari, however, has
contended that the right on which the
petitions of the respondents are founded is
a right flowing from the respondents
continuous possession of the properties
for many years, and he argues that if such
a right is proved, the High Court would be
justified in issuing a writ protecting that
right. This argument is clearly fallacious.
Mere possession of the property for
however long a period it may be, will not
clothe the possessor with any legal right if
it is shown that the possession is under a
grant from the State which is resumable.
Such long possession may give him a legal
right to protect his possession against
third parties, but as between the State and
the grantee, possession of the grantee
under a resumable grant cannot be said to
confer any right on the grantee which
would
justify
a
claim
for
a
writ
underArticle 226where the grant has been
resumed. In dealing with this argument,
we have assumed without deciding that
though a suit under Section 9 of the
Specific relief Act would have been
incompetent against the appellant, a
similar relief can be claimed by the
respondents against the appellant under
Article 226. Even on that assumption, no
right can be claimed by the respondents
merely on the ground of their possession,
unless their right to remain in possession
is established against the appellant, and
this can be done if the grant is held to be
not resumable.

12. A perusal of the aforesaid
judgment clearly indicates that the Apex
Court has very categorically held that mere
possession of a property for a long period
will not clothe the possessor with any legal
right that the possession is under a grant
from the State which is resumable. In the
present case, the situation of the petitioner
is even worse. Firstly, lease was never
executed in favour of petitioner or his
grand father. Lease was executed in favour
of the Company, wherein a small piece of
land was occupied by him without any
authority of law. It may be again reiterated
that the lease whatsoever made in favour of
the Company had expired number of
decades ago and the land stood resumed
and the resumption of the said property was
held to be legal and valid on 26.11.2015 by
the Apex Court in Civil Appeal No. 5254
of 2010 (State of Uttar Pradesh and
others Vs. United Bank of India and
others).

13. The area of the land in question
over which the illegal construction has
been raised by the petitioner is a very small
fraction of the total land leased out earlier
to the Company. Petitioner claims himself
to be merely the grand son of an employee
of
Amrit
Bazar
Patrika
Company.
According to him, since his grand father
was an employee of the Company, was
permitted to occupy certain portion (about
100 square yard) of the land for residential
purpose by the lessee Company. Thus, first
of all, the Company had no legal right to
part away with certain portion of the land
444 INDIAN LAW REPORTS ALLAHABAD SERIES
in favour of the third party, as it was in
clear violation of the terms of the lease
deed. Secondly, the property in question
has already been resumed by the State
Government and the said resumption has
been held legal and valid by the Apex
Court. Thirdly, petitioner cannot take the
plea of adverse possession against a
property of the State and moreso, no
continuous possession over the property in
dispute has been established by the
petitioner.

14. Further contention of the learned
counsel for the petitioner is that the grand
father of the petitioner was an employee in
the Company at Prayagraj and he was
allotted vacant land measuring about 100
square yard in the year 1955-56 by the
alleged Company. After the death of his
father, he was occupying the house in
question but the petitioner failed to show
any document as to how he is having his
legal right over the land in dispute. Apart
from it, the petitioner failed to show any
document to the effect that even a single
penny was ever paid to any authority
concerned. In fact the petitioner should be
made liable to pay damages for illegally
occupying the land in dispute and creating
obstacle in the development activity.
Admittedly, the land in question is a Nazul
land and the Apex Court has already held
that the mortgage done by the lessee Amrit
Bazar Patrika in favour of the Bank itself is
bad in law, which was done in clear
violation of the terms of the lease deed i.e.
mortgage of the Nazul land without
previous sanction in writing of the State.
The Apex Court has very categorically held
that impugned notice issued by the State of
U.P. directing resumption of the land in
dispute on 9.5.2005 is legal and valid and
cannot be quashed at the instance of the
Bank, as such, once resumption of a Nazul
property has been made by the State, no
person has any right to occupy a Nazul
property without prior permission of the
State. Petitioner does not have any right,
title or interest over the property in
question. Petitioner has failed to show his
continuous possession over the land in
dispute. Perusal of the original record
placed before us clearly reveals that the
demolition of 2 tin-shed rooms illegally
constructed by the petitioner has been
rightfully done after following the due
procedure provided under law. A perusal of
the record further reveals that opportunity
was given to the petitioner to show cause
but he failed to avail the opportunity and
therefore the Development Authority had
no other option but to demolish the
disputed structure. Moreso, the petitioner
has not come with clean hands, and no
relief can be granted to him under Article
226 of the Constitution of India. Any
indulgence would result in perpetuating
illegality.

15. The contention of the learned
counsel for the petitioner that interim
orders have been passed by this High Court
in
various
matters,
restraining
the
authorities concerned from demolishing
any property during Covid-19 pandemic is
misconceived and has no force as the order
of this Court was only with respect to those
matters where orders were already passed
by the Court staying the demolition and
such orders were expiring due to pandemic.
Here, in the present case, no such stay
order was ever passed by any Court.
Petitioner has failed to place any such
interim order on record.

16. In view of the above, the writ
petition is devoid of merit and is hereby
dismissed.
----------
12 All. C/M Subhash Chandra Bose Smarak Vidyalaya Isipur, Pratapgarh & Anr. Vs. State of U.P. & Ors. 445
(2020)12ILR A445
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 25.11.2020

BEFORE

THE HON'BLE YASHWANT VARMA, J.

Writ - C No. 12711 of 2020

C/M Subhash Chandra Bose Smarak Vidyalaya
Isipur, Pratapgarh & Anr. ...Petitioner
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Sri Arpan Srivastava, Sri H.N. Singh

Counsel for the Respondents:
C.S.C., Sri Gulab Anand, Sri Rahul Mishra

(A) Civil Law - Societies Registration Act, 1860
- Sections 4, 4A and 4B - role and the
jurisdiction assigned to the Assistant Registrar
- Assistant Registrar is not envisaged to act as
a mere rubber stamp liable to accept and
register all or any returns that may be
presented before him - Section 25 - Prescribed
Authority for adjudication - Mere suspicion or
scepticism cannot be recognised in law as
sufficient parameters to uphold allegations of
fraud. (Para - 6,10)

The Assistant Registrar Firms, Societies and
Chits accepts the objections taken by the
private respondents denying and refuting their
alleged resignations and the consequential
changes in the list which came to be registered
- private respondents approached the second
respondent - allegation - proceedings of the
Society were forged and a fabrication of the
records - their signatures on the resignation
letters
and
the
affidavits
submitted
in
connection therewith were forgeries and that
they had never tendered their resignations as
alleged. (Para -2,3)

Held: - The doubt or uncertainty which the
Assistant
Registrar
harboured
cannot
be
countenanced in law to warrant an "inherent
power" of recall or review being exercised quite
apart from being clearly insufficient to sustain
an allegation of fraud and fabrication. The
Assistant Registrar is directed to refer the issue
of the alleged resignation of the private
respondents for the consideration of the
Prescribed Authority in accordance with the
provisions made in Section 25 of the 1860 Act.
(Para - 11,13)

Writ Petition allowed . (E-7)

(Delivered by Hon'ble Yashwant Varma, J.)

1. Heard Sri H.N. Singh learned
Senior Counsel for the petitioner and Sri
Rahul Mishra for the contesting private
respondents.

2. The petitioners impugn the order
dated 17 March 2020 passed by the
Assistant Registrar Firms, Societies and
Chits, the second respondent herein. In
terms of the aforesaid order the second
respondent has recalled his order of 3 July
2018 registering the list of office bearers of
the Society for the year 2018-19. The order
essentially accepts the objections taken by
the private
respondents denying and
refuting their alleged resignations and the
consequential changes in the list which
came to be registered.

3. The private respondents who were
office bearers are stated to have submitted
their resignations which came to be
accepted by the Society and an amended
list
of
office
bearers
consequently
submitted and registered on 3 July 2018.
The
private
respondents
thereafter
approached the second respondent alleging
that the proceedings of the Society stated to
have been held on 7 November 2017 and
10 April 2018 were forged and a
fabrication of the records. It was alleged
that their signatures on the resignation