# Smt. Anarkali & Ors v. State of U.P. & Ors

- **Citation:** (2020) 1 ILRA 1038
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2019-10-31
- **Case number:** Writ C No. 14201 of 2014
- **Bench:** Sudhir Agarwal, Virendra Kumar Srivastava
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/smt-anarkali-ors-v-state-of-u-p-ors-44982
- **Pages:** 32

## Headnote

1 All. Pal Singh & Ors. Vs. State of U.P. & Ors.
1039
C.S.C.,Sri Ajit Kumar Singh (Addl. A.G.),
Sri Sudhanshu Srivastava (Addl. C.S.C.),
Sri Nimai Dass, Sri Amit Verma

A. Nazul - defined - historic evolution -
Article 296 of the Indian Constitution -
power of State Government or Union of
India to get ownership of 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.

The '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. (Para 54)

B. Government Grants Act, 1985 - Section
2 and 3 - any grant or transfer of land or
of any interest, as the case may be,
excludes applicability of Transfer of
Property Act, 1882, for all purposes -
therefore, 'Grant' of a Nazul will be
governed
by
terms
and
conditions
contained in the instrument/deed of
Grant, wholly unaffected by any Statute
providing otherwise - Grant includes
'lease'.

After the U.P. Amendment Act, 1960, Section 2
and 3 got amalgamated in Section 2 of
Government Grants (U.P. Amendment) Act,

## Text

_Characters 0–39,613 of 104,407. This is a partial read: ask again with offset=39613 for what follows._

1038 INDIAN LAW REPORTS ALLAHABAD SERIES

33. Keeping in the mind the principle
laid down by the Supreme Court and this
Court, as indicated in the authorities
referred herein-before, we find that in the
counter affidavit the State has taken a very
general and vague stand about the
possession. In Paragraph-3 of the counter
affidavit of the State the only averment
made in this regard is that the notice under
Section 10(5) of the Act, 1976 was issued
on 27.01.1994. It is also averred therein
that "thereafter the State Government
obtained possession on the surplus vacant
land of 8246.00 square meters on
27.03.1998, the possession was obtained
in accordance with law". It is not
mentioned in the counter affidavit that the
petitioners
have
given
voluntary
possession after receiving the notice under
Section 10(5) of the Act, 1976. From the
original record it was evident that there
was no material to show that the
petitioners
have
given
voluntary
possession to the State authorities after
receiving the notice under Section 10(5). If
they
had
not
given
the
voluntary
possession then the only course open to
the authorities was to take forceful
possession under Section 10(6) of the Act,
1976. There is no material on the record or
averment made in the counter affidavit to
show that the forceful possession was
taken from the petitioners under Section
10(6) of the Act, 1976. In the counter
affidavit filed on behalf of the State, the
name of the officer, who has taken the
possession, is not disclosed.

34. In addition to above, as discussed
above, there is no material on the record to
demonstrate that actual possession was handed
over to the Saharanpur Development Authority
except a Dakhalnama wherein the land has
been shown to be agricultural land. But except
bald statement no other material is on the
record to show that any construction has been
made. In any view of the matter, if the
possession has not been taken in terms of
Sections 10(5) and 10(6) of the Act, 1976, the
petitioners are entitled for the benefit under
Sections 3 and 4 of the Repeal Act.

35. In view of the above, we find
that the physical possession of the land
in question was never taken from the
petitioners. They are still in physical
possession over the land in question. For
all the reasons stated above, we find that
the ceiling proceedings stood lapsed and
the petitioners are entitled for the land in
question
which
has
been
declared
surplus.

36. With the aforesaid observations
and directions, the writ petition is allowed.

37. No order as to costs.
----------
(2020)1ILR 1038

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. 14201 of 2014
Connected with Writ C Cases No. 34702 of 2018 &
37541 of 2018

Smt. Anarkali & Ors. ...Petitioners
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioners:
Sri Pramod Kumar Jain, Sri Arvind Kumar,
Sri Birendra Kumar, Sri Vijay Kumar

Counsel for the Respondents:
1 All. Pal Singh & Ors. Vs. State of U.P. & Ors.
1039
C.S.C.,Sri Ajit Kumar Singh (Addl. A.G.),
Sri Sudhanshu Srivastava (Addl. C.S.C.),
Sri Nimai Dass, Sri Amit Verma

A. Nazul - defined - historic evolution -
Article 296 of the Indian Constitution -
power of State Government or Union of
India to get ownership of 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.

The '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. (Para 54)

B. Government Grants Act, 1985 - Section
2 and 3 - any grant or transfer of land or
of any interest, as the case may be,
excludes applicability of Transfer of
Property Act, 1882, for all purposes -
therefore, 'Grant' of a Nazul will be
governed
by
terms
and
conditions
contained in the instrument/deed of
Grant, wholly unaffected by any Statute
providing otherwise - Grant includes
'lease'.

After the U.P. Amendment Act, 1960, Section 2
and 3 got amalgamated in Section 2 of
Government Grants (U.P. Amendment) Act,
1960. The intent, effect and declaration by
legislature is almost pari materia with the only
addition that in State of U.P., U.P. Tenancy Act,
1939 and Agra Tenancy Act, 1926 are also
excluded in the same manner as was done in
respect of Transfer of Property Act, 1882. (Para 68)

Entire lease deed shows that if premises is
assigned, within one calendar month, a notice
was to be given to Collector giving details of
persons but in case of any non observance or
breach, it was lawful for Lessor to enter upon
demised premises. (Para 86)

That after 30th June, 1932 i.e. expiry of first
term of lease, there was no renewal of term of
lease at all. Therefore, rights of the petitioner
ceased after expiry of lease on 30.06.1932.
(Para 87)

In fact, the initial lease commenced on
01.07.1902, the period of 90 years lapsed on
30.6.1992. If renewal would have been
allowed, even then no lease to lessees could
have been granted for period subsequent to
30.6.1992 since maximum period of lease
including two renewals was 90 years. Thus,
petitioners had no legal right whatsoever over
property in dispute in any manner after
30.6.1932 and, in any case, after 30.6.1992.
(Para 89)

C. Transfer of Property Act, 1882 -
Section 106 - once the lease stood
determined
by
efflux
of
time(stand
expired), there is no necessity to issue
quit notice - status of lessee is that of
'tenant at sufferance' i.e., one who
wrongfully continues in possession after
extinction of lawful title - section 116 is
not applicable.

D.
Resumption
of
land
-
State
is
empowered to resume/re-enter Nazul
land at any time, more so for public
purpose.

Writ Petitions rejected. (E-10)

List of cases cited: -

1. Sangam Upniveshan Avas Evam Nirman
Sahkari Samiti Ltd. Vs. State of U.P. and ors
2018 (7) ADJ 617 (DB)
2. State of U.P. and ors Vs. United Bank of
India and ors 2016 (2) SCC 757

3. Smt. Shakira Khatoon Kazmi and Ors Vs.
State of U.P. and ors 2002(1) AWC 226

4. Azim Ahmad Kazmi and ors Vs. State of U.P.
and ors 2012 (7) SCC 278

5. Chintamani Ghosh and anr Vs. State of U.P.
and ors 2001 (2) UPLBEC 1003

6. M/s Madhu Colonizers Pvt. Ltd. Vs State of
U.P. and ors Writ Petition No. 62588 of 2010

7. Dyke Vs. Walford 5 Moore PC 434=496-13
557 (580)
1040 INDIAN LAW REPORTS ALLAHABAD SERIES

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

9. Collector of Masulipatam Vs. C. Vencata
Narainapah 8 MIA 500, 525

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

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

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

13. Raja Rajinder Chand Vs. Mst. Sukhi AIR
1957 Sc 286

14. Nayak Vajesingji Joravarsinghji Vs. Secretary of
State for Indian Council AIR 1924 PC 216

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

16. Promod Chandra Deb Vs. State of Orissa
AIR 1962 SC 1288

17. Amarsarjit Singh Vs. State of Punjab AIR
1962 SC 1305

18. Thakur Amar Singhji Vs. State of Rajasthan
AIR 1955 SC 504

19. State of Rajasthan Vs. Sajjanlal Panjawat
AIR 1975 SC 706
20.
Director
of
Endowments,
Govt.
of
Hyderabad Vs. Akram Ali AIR 1956 SC 60

21. Sarwarlal Vs. State of Hyderabad

22. Biswambhar Singh Vs. State of Orissa 1964
(1) SCJ 364

23. State of U.P. Vs. Zahoor Ahmad 1973 (2)
SCC 547 (followed)

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

25. Pradeep Oil Corporation Vs. Municipal
Corporation of Delhi and ors (2011) 5 Scc 270

26. Anand Kumar Sharma Vs. State of U.P. and
ors 2014 (2) ADJ 742 (FB)

27. Sevoke Properties Ltd. Vs. West Bengal
State Electricity Distribution Company Ltd. AIR
2019 SC 2664(followed)

28. R.V. Bhupal Prasad Vs. State of A.P. (1995)
5 SCC 698 (followed)

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

1. Writ Petition No. 14201 of 2014
(hereinafter referred to as "WP-1") has
been filed by eight petitioners i.e. Smt.
Anarkali wife of (late) Hari Shanker;
Brijesh Patel, Rajesh Patel and Akhilesh
Patel, all sons of (late) Hari Shanker; Smt.
Urmila Patel wife of (late) Shiv Shanker,
Himanshu Patel, Sudhanshu Patel and
Divyanshu Patel (minor) all sons of (late)
Shiv Shanker, with a prayer to issue a writ
of
certiorari
to
quash
order
dated
14.06.2012 (Annexure-14 to the writ
petition) whereby petitioners' application
for conversion of Nazul land in dispute
into freehold has been rejected by District
Magistrate, Allahabad. Petitioners have
also prayed for issue of a writ of
mandamus
commanding
District
Magistrate,
Allahabad
to
freehold
Bungalow No. 23/29 (New No. 85/29), RNaseebpur,
Bakhtiyara,
Clive
Road,
Allahabad (Area 5050 square meters).

2. Writ Petition No. 34702 of 2018
(hereinafter referred to as "WP-2") has
been filed by a Housing Society namely,
"Ravi Sahkari Avas Samiti Limited"
through
its
Secretary,
Ravi
Kumar
(hereinafter
referred
to
as
"R.S.A.Society"), praying for issue of a
writ of certiorari to quash notice/order
dated 06.09.2018 (Annexure-1 to the WP2) allotting land in dispute i.e. Nazul Land
R-Naseebpur, Bakhtiyara, Bungalow No.
1 All. Smt. Anarkali & Ors. Vs. State of U.P. & Ors.
1041
23, Clive Road and Bungalow No. 19
Muir Road, Allahabad, Area 4 acres, 3
roods,
21
poles
to
"Allahabad
Development
Authority"
(hereinafter
referred to as "ADA") for construction of
affordable houses for weaker section under
"Pradhan Mantri Avas Yojana (Urban)".

3. Writ Petition No.37541 of 2018
(hereinafter referred to as "WP-3") has
been filed by petitioners of WP-1 except
Rajesh Patel, who has died in the
meanwhile
and
therefore,
has
been
substituted and replaced by his wife Smt.
Suman Patel and minor son Master Aditya.
Therefore, in all, there are nine petitioners
namely Smt. Anarkali wife of (late) Hari
Shanker; Brijesh Patel and Akhilesh Patel,
both sons of (late) Hari Shanker; Smt.
Suman Patel wife of (late) Rajesh Patel;
Master Aditya (minor) through his mother
Suman Patel as natural guardian; Smt.
Urmila Patel wife of (late) Shiv Shanker,
Himanshu Patel, Sudhanshu Patel and
Divyanshu Patel all sons of (late) Shiv
Shanker. They have prayed for issue of a
writ of certiorari to quash order dated
06.09.2018 in respect of Nazul Plot No.R
Naseebpur Bakhtiyara, Bungalow No.23
and
Bungalow
No.19,
Muir
Road,
Allahabad, area 4 acres, 3 roods, 21 poles,
which has also been challenged by
R.S.A.Society in WP-2. Therefore, order
challenged in WP-2 and WP-3 is the same.
Petitioners in WP-3 have further sought a
writ of mandamus restraining respondents
2 to 4 from evicting petitioners from
property
situate
at
R-Naseebpur
Bakhtiyara,
Bungalow
No.23
and
Bungalow No.19, Muir Road, Allahabad.
Petitioners of WP-2 claimed their interest
in half of the aforesaid disputed property
though claim of petitioner in WP-2 has
been disputed by petitioners of WP-3 on
the ground that petitioners in WP-2 have
no right over property in dispute at all.

4. Since all these writ petitions relate
to same Nazul plot/land, we have heard all
these matters together and are deciding the
same by this common judgement. Before
dealing with the issues raised by learned
counsel for parties, it would be appropriate
to refer relevant facts of these three writ
petitions separately.

Writ Petition No. 14201 of 2014
(WP-1)

5. Dispute relates to Bungalow No.
21, Clive Road, Allahabad (renumbered by
Nagar Nigam, Allahabad as 23, Clive
Road and later on as 29, Clive Road).

6. Secretary of State for India in
Council through Collector, Allahabad
executed a lease deed registered on
06.11.1902 in favour of Sri Sahai son of
Sri Sheo Din (Kurmi), resident of village
Rajapur, Allahabad in respect of Nazul
Plot, measuring 4 acres 3 rods 21 poles,
situate at Naseebpur Bakhtiyara alias
Chikatpur, Allahabad for a period of 30
years, commencing from 01.07.1902, on
an yearly rent of Rs. 146 and 8 annas.
Lease was renewable for two terms of 30
years each, and total term not to exceed 90
years. A partition suit was filed by one
Prithvi Pal son of Mahavir being Suit No.
81 of 1974 in the Court of Civil Judge,
Allahabad impleading Asharfi Lal son of
Mewa Lal; Mrs. Shanti Devi daughter of
Mewa Lal; Mrs. Ganeshia wife of Mewa
Lal; Moti Lal son of Mewa Lal and Raja
Ram son of Pitamber Lal as defendants-1
to 5 claiming that he has four and half
annas share out of six annas i.e. 3/4 share
of property in dispute i.e. Bungalow No.
23A (new number 29, Clive Road,
1042 INDIAN LAW REPORTS ALLAHABAD SERIES
Allahabad) and the said property be
partitioned and separate possession be
given to plaintiff. Suit stood decreed in
terms of a compromise entered between
the
parties,
vide
judgment
dated
04.04.1977 and decree dated 31.08.1977.
As a result of compromise decree, name of
predecessors in interest, Mewa Lal and
Raja Ram was recorded in respect of
Bungalow No. 23A/29A, Clive Road,
Allahabad (new number 85A/25A-1, Clive
Road) and petitioners have no concern
with the same. Petitioners' name was
recorded in respect of Bungalow No.
23/29, Clive Road, Allahabad (new
number 85/29, Clive Road, Allahabad). It
is also said that earlier, sons and grandsons of Sri Sahai went in a litigation, a
partition suit being Suit No. 51 of 1916 in
the Court of Sub-Judge, Allahabad. In the
aforesaid suit, Smt. Pargasi widow of
Mahavir was also impleaded as defendant3. Petitioners claimed their succession
from Pargasi, widow of Mahavir, who was
allotted Bungalow No. 4, Beli Road,
Allahabad in her share. After death of Sri
Sahai (Kurmi), name of Smt. Pargasi was
recorded as legal heir and after her death,
Prithvi Pal Patel was declared as legal heir.
Petitioners' submitted an application dated
24.04.2000 for freehold of Bungalow No.
85/29 Clive Road, Allahabad, area 5050
square meter in the light of Government
Order (hereinafter referred to as 'G.O.')
dated 01.12.1998. It was stated that lease
had expired on 30.06.1992 whereafter
application for renewal of lease was given
but the same has not been disposed of.

7. One Smt. Suraj Kali filed Writ
Petition No. 31358 of 2009 for a direction
to decide representation dated 29.05.2009.
Writ petition was subsequently dismissed
as not pressed on 16.06.2009. Petitioners
then filed Writ Petition No. 21011 of 2012
seeking a direction to District Magistrate,
Allahabad to decide freehold application
dated 24.04.2000. This writ petition was
disposed of on 01.05.2012 giving direction
to District Magistrate to take a decision on
petitioner's
aforesaid
application.
Ultimately, vide order dated 14.06.2012
(Annexure-14 to the writ petition), District
Magistrate
rejected
application
dated
24.04.2000
and
representation
dated
08.05.2012. Petitioners then filed recall
application dated 09.07.2012 seeking
recall of exparte order dated 14.06.2012
but nothing has been done thereon, hence,
W.P.-1
has
been
filed
challenging
aforesaid order dated 14.06.2012.

8. Impugned order has been
challenged on the ground that it is exparte
order; no opportunity was given to
petitioners; G.Os. with regard to freehold
were not followed; in the Master Plan,
land use was shown as 'Commercial' and
to treat disputed land as 'Residential' is
erroneous and decision of Collector is
arbitrary, shows non application of mind
and unfair. Reliance has been placed on a
Division Bench decision of this Court in
Sangam
Upniveshan
Avas
Evam
Nirman Sahkari Samiti Ltd. vs. State of
U.P. and Others 2018 (7) ADJ 617 (DB).

9. A counter affidavit has been filed
by respondents sworn by Sri Rajesh
Kumar Rai, Additional District Magistrate
(Nazul), Allahabad. It is said that Plot No.
R-Naseebpur, Bakhtiyara, Allahabad, area
4 acres 3 roods 2 poles (i.e. 19731.96
square metre) is a 'Nazul land'. Lease deed
was executed on 11.10.1902 in favour of
Sri Sahai (kurmi) sons of Sheo Din for a
period of 30 years, with effect from
01.07.1902. The initial period of lease was
subject to renewal twice of 30 years each
and a total period, not more than 90 years.
Initial
tenure
of
lease
expired
on
1 All. Smt. Anarkali & Ors. Vs. State of U.P. & Ors.
1043
30.06.1932. Thus, taking maximum period
of lease it would have expired on
30.06.1992. In Nazul Register, names of
Mewa Lal, Raja Ram, grand-sons of Sri
Sahai (Kurmi) and sons of Pitamber as
well as Smt. Pargasi, daughter-in-law of
Pitamber, Jokhu another son of original
lessee, i.e., Sri Sahai (Kurmi) and
Baijnath, grandson of Sri Sahai (Kurmi)
and son of Jokhu were recorded. Later on,
half portion of disputed land was shown in
the name of U.P. Agricultural Credit Bank
(hereinafter referred to as "U.P.A.C.
Bank"). The family tree of Sri Sahai
Kurmi is as under:

 Sahai (Kurmi)
 (died in 1915)
 /
 Samera (Wife)
 ___________/_______________
 / /
 Pitamber Jokhu
 / /
 ___/_______________ Baijnath
 / / /
Mahabir Rajaram Mewalal
 / Ganeshia (wife)
Smt. Pargasi (Wife) /
 /
___/___________________________
Prithvi Pal Patel / / /
/
 / Asharfilal Shanti Moti Lal
Raja Ram
 __/__________________
 / /
Hari Shanker Patel Shiv Shanker Patel

10. As per record Sri Baijnath,
grand-son of Sri Sahai (Kurmi) created
mortgage over disputed Nazul land, which
came into his share, in favour of U.P.A.C.
Bank. He failed to pay loan whereupon
recovery suit was filed by U.P.A.C.Bank
and in execution sale, U.P.A.C.Bank itself
purchased that part of disputed Nazul land
on 04.09.1943. Possession was delivered
to U.P.A.C.Bank on 04.05.1946. This is
evident
from
the
judgment
dated
05.10.1961 of this Court passed in Second
Appeal
No.
2189
of
1951,
U.P.
Agricultural Credit Bank Limited versus
Baij Nath and 2 Others. After expiry of
first term of lease in 1932, no application
for renewal of lease was given by anyone.
The partition suits, referred to in writ
petition,
are
not
concerned
with
respondents since State of U.P. and its
authorities were not party, either in Suit
No. 51 of 1916 or 81 of 1974. Moreover,
parties to the suit did not own land. The
only right, at the best they could have, was
lease right, which also expired on
30.6.1932. Hence, there could not have
been any division or partition of ownership
of land in dispute. Petitioner and other
heirs of original lessee committed breach
of conditions of lease, inasmuch as, they
raised construction of non-residential
buildings on disputed land, hence, an order
was passed by Collector, Allahabad on
24.09.1992 (Annexure CA-3) directing
Mukhya
Nagar
Adhikari,
Nagar
Mahapalika, Allahabad to enter the name
of State Government in 'Nazul Register'
and take appropriate action for possession
of
entire
land
from
unauthorized
occupants. Order dated 24.09.1992 was
challenged by Smt. Ram Dulari wife of
Prithvi Pal in Writ Petition No. 36227 of
1992 seeking following reliefs:-

"i. issue a writ order or direction
in the nature of certiorari quashing the
impugned notice dated 18.2.1992 as issued
by the respondent no. 2 (Annexure-4), the
impugned order passed by the respondent
no. 2 dated 24.9.1992 (Annexure-6) the
news item as published in Nav Bharat
Times dated 2.10.1992 (Annexure-7) and
the entire proceedings consequent upon
the notice dated 18.2.1992 (Annexure-4)
in respect to the property situated over
Plot No. 'R' of village Naseebpur,
Bakthiara
Pargana
Chail,
District
Allahabad, known as 19 Muir Road 23
1044 INDIAN LAW REPORTS ALLAHABAD SERIES
Clive Road, now numbers 277/87 Muir
Road, 85/29 Clive Road.

ii. issue a writ order or direction
in the nature of mandamus directing the
respondent
no.
2
to
consider
the
petitioners application for renewal of
lease dated 17.9.1990 (Annexure-2) in
accordance with law.

iii. issue any other alternative
and suitable writ order or direction as this
Hon'ble Court may deem fit and proper in
the circumstances of the case.

iv. award costs of the petitioner
throughout to the petitioners."

11. Writ Petition was ultimately
dismissed as not pressed, vide Court's
order dated 22.11.1999. In the aforesaid
writ petition, wife, sons and daughters of
Prithvi Pal were petitioners and besides
State
of
U.P.,
District
Magistrate,
Allahabad and Others, Asharfi Lal and
Moti Lal, sons of Mewa Lal, and Raja
Ram son of Pitamber were impleaded as
respondents. As a result of dismissal of
writ petition, order dated 24.09.1992
attained finality in respect of those
petitioners and in respect of others also
since they did not challenge the said order.

12. Later on, Smt. Suraj Kali
claiming herself to be legal heir of Sri
Sahai (kurmi), filed Writ Petition No.
31358 of 2009 seeking a direction for
deciding her claim for freehold rights of
land in dispute and therein present
petitioners were impleaded as respondents5 to 9. Suraj Kali pleaded that they
(respondents 5-9) were not entitled to have
any right over disputed plot. Aforesaid
writ petition was also dismissed as not
pressed.

13. Collector thereafter examined
claim of petitioners for freehold and
passed a detailed order holding that they
were not entitled for freehold, in the facts
stated above. Opposing the writ petition, it
is said in the counter affidavit that
petitioners are not entitled for grant of
freehold for following reasons:-

"(a) the concerned lease deed
dated
11.10.1902 has
already
been
rescinded/ cancelled by the order dated
24.09.1992, and the name of the State of
Uttar Pradesh has been re-entered, and
thus, the petitioners could/cannot be
treated to have entered into the shoes of
the aforementioned "Sri Sahai Kurmi"
(original
lessee)
in
any
manner
whatsoever qua the disputed plot.

Without
prejudice
to
the
aforesaid, even otherwise,

(b) the petitioners could/ cannot
be treated to be the exclusive owners of the
said specific portion of the disputed-plot
for which, the application was submitted
by the petitioners for the grant of free-hold
rights.

As
stated
hereinbefore,
no
reliance could/ can be placed upon the
partition
decree
passed
in
the
aforementioned Suit No. 81 of 1974 on
account
of
the
reasons
mentioned
hereinbefore, and thus, without prejudice,
if there has been any right upon the
disputed-plot of t he heirs of the said "Sri
Sahai Kurmi" then the same has been
equally of all the surviving heirs of the
said "Sri Sahai Kurmi" since all of them, if
entered, then jointly, entered into the shoes
of the said "Sri Sahai Kurmi", and thus,
the petitioners should have submitted that
consent of all the remaining surviving
heirs of "Sri Sahai Kurmi" for the purpose
of grant of free-hold rights in favour of the
petitioners upon the particular/ specific
1 All. Smt. Anarkali & Ors. Vs. State of U.P. & Ors.
1045
portion of the disputed plot for which the
concerned application for the grant of free
hold rights upon the disputed plot was
filed by the petitioners;

Without
prejudice
to
the
aforesaid, even otherwise,

(c)
the
unauthorized
constructions without the permission of the
Answering-Respondent No. 2 that too for
the commercial purposes, have been
raised upon the disputed-plot, and thus,
the petitioners have violated the terms of
the said lease-deed and as per the report
of the Nagar Nigam, Allahabad, the "land
use" of the disputed-plot in the MasterPlan during the relevant period was
residential and the said violation could
not be treated to have been waived by the
State Government, particularly at the time
of the submissions of the application by
the petitioners for the grant of free-hold
rights upon the disputed plot;
Without prejudice to the aforesaid, even
otherwise,

(d) in view of the averments
made in the said Writ Petition No. 31358
of 2009, it is evident that all the surviving
heirs of the said "Sri Sahai Kurmi" have
not come/ reached upon an amicable
settlement with regard to the grant of freehold rights upon the disputed plot, and
thus, the petitioners are not entitled for the
free hold rights upon the disputed plot in
this view of the matter."

14. A rejoinder affidavit has been
filed
stating
that
on
17.09.1990,
application for renewal of lease was
submitted. Alleging that lease was not got
renewed; unauthorized construction has
been made and possession has been given
to unauthorized persons, a show-cause
notice was given by District Magistrate,
Allahabad to petitioners and other legal
heirs of original lessee on 18.02.1992.
Petitioners submitted reply on 02.03.1992.
In the meantime, in respect of Bungalow
No.
19,
Muir
Road,
Allahabad,
R.S.A.Society claiming its own right over
disputed Nazul land, filed Writ Petition
No. 26876 of 1993 wherein this Court
made an observation that matter may be
examined by competent authority and
subject to such observation, writ petition
was dismissed. The order passed by this
Court on 05.02.2009 reads as under:-

"Having heard Sri Rahul Sripat
learned counsel for the petitioner at some
length and after going through the record
we find that lease deed was executed in
the year 1902 for 30 years in favour of
original lessee, who transferred the same
in favour of the company namely U.P.
Agriculture Credit Bank Limited. The
company did not get lease renewed after
30 years and continued in possession. The
company went in liquidation proceeding
and the property in dispute so leased to
the original lessee and sold to the
company
was
sold
in
liquidation
proceeding. Since the lease was not
renewed in favour of the company,
therefore, right of the purchaser from the
company i.e. right of the vendor and the
right of the petitioner vendee was subject
to renewal of the lease. Therefore no writ
of mandamus can be issued for renewal
of the lease after such a long gap. In our
opinion the initial order of Collector,
Allahabad was by way of mistake which
was corrected by him by withdrawing the
said order. Thus the position emerges
that the terms of the lease has already
expired and the petitioner has no right to
claim writ of mandamus from this Court.
However, it is open to the petitioner to
approach the State Government for grant
of fresh lease under the Government Grant
Act.
1046 INDIAN LAW REPORTS ALLAHABAD SERIES

Considering the entire facts of
the case and taking into account the fact
that the petitioner has paid consideration
for purchasing the land from the company
in liquidation proceeding and in the
liquidation proceeding the Government
did not raise any objection that it cannot
be sold in liquidation proceeding as lease
was not renewed in favour of the company.
Therefore
the
State
Government
is
otherwise stopped from taking such an
objection as the doctrine of estoppel will
directly come in the way.

In view of the above discussion
the matter is relegated to the State
government to pass a fresh order on
merits after scrutinizing and examining
the rival claims of the parties and
material available on record. It may also
consider the claim of Smt. Ram Dulari
and others, who have filed impleadment
application in the writ petition.

For the aforesaid reasons this
writ petition is dismissed."

(Emphasis added)

15. In the meantime, it appears that a
complaint was made by one Brijesh Patel
and
others
to
State
Government
whereupon
State
Government
sought
comments
from
District
Magistrate,
Allahabad who sent its report vide letter
dated 26.11.2012. It was mentioned
therein that Bungalow No. 19, Muir Road,
Allahabad/ 21 Clive Road, Allahabad was
never given in possession to Umeshwar
Nath son of Harihar Nath as no such
document was available on record. With
regard to litigation between U.P.A.C.
Bank and Jokhulal, it is said that
petitioners were neither party in Suit No.
913 of 1946 nor in Civil Appeal No. 97 of
1950 nor in Second Appeal No. 2189 of
1991. It is also said that matter is pending
for consideration before State Government
pursuant to an order passed by this Court
in Writ Petition No. 26876 of 1993. (We
have already observed that this writ
petition was dismissed on 05.02.2009).
Predecessor in interest of petitioners
constructed Bungalow over land of 21,
Clive Road, R-Naseebpur, Bakhtiyara. The
order cancelling lease deed was challenged
by petitioners in Writ Petition No. 36227
of 1992 wherein an interim order was
passed and matter is pending before State
Government and petitioners were not
entitled for freehold of land in dispute in
the light of G.O. dated 28.01.2011 and
G.O. dated 04.03.2014 is not applicable to
petitioners.

Writ Petition No. 34702 of 2018
(WP-2)

16. The case set up by petitioner is
that it is a Housing Society registered by
U.P. Avas Evam Vikas Parishad under
U.P. Cooperative Societies Act, 1965
(hereinafter referred to as "Act, 1965")
vide Registration Certificate issued by
Deputy
Housing
Commissioner/SubRegistrar,
U.P.
Avas
Evam
Vikas
Parishad, Lucknow on 11.02.1982 and has
been renewed from time to time. Property
in dispute was leased out to Sri Sahai son
of Sri Sheo Din in 1902, for a period of 90
years, initially for 30 years and renewable
for two terms of 30 years each. Partition
suit between two sons of Sahai i.e.
Pitamber and Jokhu resulted in property in
dispute going to share of Jokhu. He got
loan from U.P.A.C. Bank creating an
equitable mortgage of Bungalow No. 19,
Muir Road, Allahabad. Jokhu committed
default in payment of dues. U.P.A.C. Bank
filed Original Suit No. 173 of 1940 under
Order XXXIV CPC for sale of Bungalow.
Suit
was
decreed
in
favour
of
1 All. Smt. Anarkali & Ors. Vs. State of U.P. & Ors.
1047
U.P.A.C.Bank
vide
decree
dated
01.05.1946
and
pursuant
thereto,
Bungalow was auctioned which was
purchased by U.P.A.C.Bank itself and
possession was taken by Bank on
01.05.1946. In the meantime, Baij Nath
son of Jokhu filed suit for setting aside
decree on the ground that mortgage was
without legal necessity. Suit was dismissed
whereagainst appeal was also dismissed by
this Court. Thereafter, sale was confirmed
and sale certificate dated 09.04.1946 was
issued giving possession of Bungalow on
04.05.1946 to auction purchaser. Bank
filed another Suit No. 913 of 1946 for
recovery of certain dues from Baij Nath,
which was decreed but Bank lost in Civil
Appeal No. 97 of 1950 and then matter
came to this Court in Second Appeal No.
2189 of 1951. This Court allowed appeal
vide judgement dated 05.10.1961 and a
decree of Rs. 3,100/- was passed with six
per cent future interest against Baij Nath
and Others. Name of U.P.A.C.Bank was
entered in Nazul Register on half of the
disputed Nazul land. The total area was
23600 square yards out of which 11800
square yards at Bungalow No. 19, Muir
Road, Allahabad and remaining 11800
square yards at Bungalow No. 23, Clive
Road,
Allahabad.
U.P.A.C.Bank
underwent
liquidation
proceedings
whereupon one Sridhar, Advocate was
appointed as Liquidator vide Court's order
dated 11.09.1958. U.P.A.C.Bank had two
Directors namely, Harihar Nath and his
wife Malti Devi who resolved in the
meeting that assets of U.P.A.C.Bank may
be disposed of by transferring Bungalow
No. 19, Muir Road, Allahabad to Sri
Umeshwar Nath son of Harihar Nath.
Information of said transfer was given to
official Liquidator. U.P.A.C.Bank was
ultimately
dissolved
on
23.05.1960.
Umeshwar Nath son of Harihar Nath
executed sale-deed of disputed property i.e.
Bungalow No. 19, Muir Road, Allahabad on
06.02.1989 in favour of petitioner and
intimation was also given to Collector,
Allahabad vide letter dated 07.04.1989.
Lease deed of 1902 was an intimated lease.
Additional District Magistrate, Allahabad
approved renewal of lease in favour of
petitioner and communicated to Mukhya
Nagar
Adhikari,
Nagar
Mahapalika,
Allahabad vide letter dated 24.07.1993
directing it to prepare requisite document for
registration of lease deed. A similar direction
was also given vide letter dated 31.07.1993.
Vide letter dated 04.08.1993, In-charge
Adhikari (Nazul) required petitioner to
deposit lease rent. Since lease deed was not
executed, petitioner approached this Court in
Writ Petition No. 26876 of 1993. Thereafter,
respondent-2 withdrew earlier order vide
order dated 09.09.1993. The order dated
09.09.1993 was also challenged in above
writ petition by way of amendment. Subject
to certain observations, the writ petition was
ultimately dismissed vide judgement dated
05.02.2009. Though in writ petition, para34, petitioner has said that writ petition was
disposed of but in fact it was dismissed.

17. Petitioner also filed a review
application which was disposed of vide order
dated 30.03.2009 and order reads as under:-

"This is an application for
review/recall of the order dated 5th
February, 2009.

Having heard learned counsel
for the petitioners as well as learned
counsel for the respondents, we are of the
opinion that the order does not require
any review, except slight modification to
the extent that the State Government shall
not be influenced by any observation or
any fact record in the order.
1048 INDIAN LAW REPORTS ALLAHABAD SERIES

In this view of the matter, the
review/
recall
application
is
finally
disposed of."

18.

Petitioner
then
made
a
representation to State Government vide
letter dated 19.05.2009 whereafter vide
letter dated 15.07.2016, respondent-1
relegated the matter to respondent-2
observing that on the subject in question it
is
respondent-2
who
is
competent
authority to pass order. Thereafter, District
Magistrate,
Allahabad
has
passed
impugned
order
which
has
been
challenged on the ground that it is in
violation of terms of lease deed, arbitrary,
malicious, discriminatory and on various
other grounds which we will discuss later
on.

19. Respondents- 2 to 5 have filed a
counter affidavit wherein execution of
lease deed with effect from 01.07.1902 in
favour of Sri Sahai son of Sheo Din in
respect of disputed Nazul land is not
disputed. It is said that lease came to an
end on 30.06.1932. There was no attempt
made by lessee to get it renewed. In terms
of lease deed, lessee and his Executors,
Administrators or Assignees liable to hand
over land to State and now, in public
interest, land in dispute is required by
State for constructing residences for
weaker sections under "Pradhan Mantri
Avas Yojana" which is to be developed by
ADA. Mortgage of land by Jokhu, over
which he himself had no title and its
further transfer without consent of owner
is void ab initio and would not confer any
right upon such transferee. Reliance is
placed on State of U.P. and Others Vs.
United Bank of India and Others 2016
(2) SCC 757. Petitioner had no right over
property in dispute as petitioner is not a
lessee, and all subsequent transactions
from the stage of mortgage by Jokhu are
wholly unauthorized, illegal and nullity.
Reliance is placed on 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.

20. A rejoinder affidavit has been
filed in which reliance has been placed on
Repealing and Amending (Second) Act,
2017 (hereinafter referred to as "Repeal
Act, 2017") repealing Government Grants
Act, 1895 (hereinafter referred to as "GG
Act, 1895") to counter the defence taken
by respondents on the basis of terms of
lease read with GG Act, 1895.

Writ Petition No. 37541 of 2018
(WP-3)

21. The facts in brief in WP-3 are
that in 1902, lease of Bungalow No.21,
Clive Road, Clive Road, R. Naseebpur
Bakhtiyara (Nazul Land) was executed in
favour of Sri Sahai son of Shiv Din
(Kurmi) by Secretary of State for India in
Council. Area of land was 4 acres 3 roods
21 poles. Initially, lease was granted for 30
years subject to renewal of 30 years each
and maximum 90 years. Sri Sahai (Kurmi)
died in 1915 leaving behind his widow
Smt. Sumera and two sons namely
Pitamber and Jokhu. Partition suit filed by
Pitamber i.e. Suit No.51 of 1916 was
decreed allotting a share of 5 anna 4 pai to
Sumera and same share was allotted to
Pitamber and Jokhu. Jokhu had only one
son Baijnath. Baijnath, after the death of
Jokhu, executed sale deed transferring his
share to Smt. Pargasi wife of Mahavir
Prasad
(Kurmi).
She
constructed
Bungalow no.19, Muir Road, Allahabad
on the land purchased by her. Pitamber
1 All. Smt. Anarkali & Ors. Vs. State of U.P. & Ors.
1049
had three sons namely Mahavir, Rajaram
and Mewalal. On 06.01.1930, Mewalal
and Rajaram transferred their share in
favour of Subratan, resident of Shahganj,
Allahabad, who further transferred his said
share to Pargasi and Prithvipal vide
registered sale deed dated 20.09.1938.

22. On the basis of information
received under Right to Information Act,
2005 (hereinafter referred to as "Act,
2005") from the office of Land Record,
petitioners found that Smt. Sumera widow
of Sri Sahai (Kurmi) executed a Will on
14.02.1924 and transferred her entire share
in favour of her grandson Prithvipal son of
Mahavir in respect of Bungalow No.21,
Clive Road, R Naseebpur Bakhtiyara and
Bungalow No.06, Vake Nepiar Line,
Muskat Road, New Cantt., Allahabad.
Baijnath, in the year 1938, took loan from
U.P.A.C. Bank by mortgaging disputed
property though he had no right over it
having transferred the same in favour of
Pargasi in 1932. Moreover, for transfer of
said land, prior permission of Collector
was mandatory.

23. Baijnath committed default in
payment of his loan amount, which
resulted in recovery suit by U.P.A.C. Bank
and the same was ultimately finalized upto
this Court in Second Appeal No.2189 of
1951 but therein petitioners or Pargasi or
Prithvipal were not party. Defendantrespondents in aforesaid appeal were Baij
Nath son of Jokhu Lal, Smt. Minda widow
of Jokhu Lal and Smt. Sursati widow of
Jagmal. U.P.A.C. Bank itself went into
liquidation and one Umeshwar Nath son of
Harihar Nath claiming to be Director of
U.P.A.C. Bank treated property in dispute
as his own property though it was never
owned by him. R.S.A. Society, petitioner
in WP-2 claims its ownership on the basis
of sale deed dated 11.03.1989 executed by
Umeshwar Nath though Umeshwar Nath
had neither any right over property in
dispute nor could have transferred any
interest or right over the same to
R.S.A.Society.

24. R.S.A. Society, on the basis of
sale deed dated 11.03.1989 got lease
renewed in its favour in 1993 but when
petitioners of WP-3 objected, the said
order
was
recalled
by
Collector,
Allahabad. This recall order of Collector
was challenged by R.S.A. Society in Writ
Petition No.26876 of 1993. The writ
petition was dismissed vide judgment
dated 05.02.2009 with observation that
State Government shall look into the
matter and pass fresh order. The judgment
dated 05.02.2009 passed by this Court
dismissing Writ Petition No.26876 of
1993 reads as under :