# Smt. Mridula Singh v. L.D.A. Opp. Party

- **Citation:** (2024) 5 ILRA 2467
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2024-05-21
- **Case number:** Writ-C No. 1002479 of 2010
- **Bench:** Subhash Vidyarthi
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/smt-mridula-singh-v-l-d-a-opp-party-52068
- **Pages:** 22

## Headnote

D.K. Upadhyaya, Ajaay Kumar Singh, Dipesh
Shukla,
Mahendra
Pratap
Singh,
Naveen
Chandra Upadhyay, Rajesh Singh Chauhan

A. Transfer of Property Act, 1882 -
Sections 105 & 107 - Registration Act,
1908 - Sections 17(1)(d) & 49 - Effect of
Non-Registration of Lease Deed - A lease
deed dated 05.12.2000, executed in favor
of the petitioner for a period of 30 years,
with an annual rent reserved, required
mandatory registration under S. 17(1)(d)
of the Registration Act and S. 107 of the
Transfer of Property Act, 1882. The Court
held
that
in
the
absence
of
such
registration, the lease deed did not confer
any right, title, or interest in the property
upon the petitioner. Further, as per S. 49
of the Registration Act, the unregistered
lease deed is not admissible in evidence to
establish any right under the transaction
of the lease between the parties. (Para 42)

B. Transfer of Property Act, 1882 -
Sections 113 & 116 - Waiver of Notice to
Quit - Effect of Holding Over: Mere
acceptance of rent by the L.D.A. does not
constitute an act of intention to treat the
garden lease as subsisting, nor does it
create a tenancy by holding over. Despite
rent acceptance, the L.D.A. repeatedly
asked the petitioner to vacate the land and
initiated
eviction
proceedings.
After
issuing a notice to vacate, no further rent
was
accepted
by
the
L.D.A.
Held,
acceptance of rent cannot be construed as
a waiver of notice or an intention to
continue
the
lease.
The
petitioner's
2468 INDIAN LAW REPORTS ALLAHABAD SERIES
intention to use the land not for its original
gardening purpose but to retain it with her
residential plot renders Section 116
inapplicable. (Para 47, 50)

C. Constitution of India, Art. 12 - State -
Uttar
Pradesh
Urban
Planning
and
Development Act, 1973 - Section 4 -
Registration Act, 1908 - Section 90(1)(d) -
Exemption
of
Certain
Documents
Executed by or in Favor of Government:
Held:
The
Lucknow
Development
Authority (L.D.A.), though falling within
the definition of 'St.' under Article 12, is
not
"Government."
The
L.D.A.
is
a
statutory
body
corporate,
having
perpetual succession and a common seal,
and vested with the power to acquire,
hold, and dispose of property. A lease deed
executed by the L.D.A. is not a sanad,
inam, title deed, or any other document
evidencing a grant or assignment by the
Government of land or any interest therein
under S. 90(1)(d) of the Registration Act,
1908,
so
as
to
be
exempt
from
registration.
There
exists
a
clear
distinction
between
"St."
and
"Government" under law. (Para 56)

D. U.P. Urban Planning and Development
Act, 1973-Section 26-A(4)-Show Cause
Notice-Incorrect Mention of Statutory
Provision-Effect of: Issuance of a show
cause notice citing the incorrect statutory
provision
(Section
26(4)
instead
of
Section 26-A(4)) does not invalidate the
notice or the subsequent proceedings. It is
settled law that a wrong reference to a
provision of law does not invalidate an
order or notice, provided the authority ha

## Text

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5 All. Smt. Mridula Singh Vs. L.D.A.
2467
and without framing a distinctive issue in
this regard. The scope of scrutiny at the
stage of consideration of an application
under Order VII, Rule 11 of Civil
Procedure Code 1908 is confined only to
the averments made in the petition. Thus,
the question whether the Court has
territorial jurisdiction being mixed question
of law and fact cannot be decided by way
of an application under Order VII, Rule 11
of the Civil Procedure Code, 1908.

33. In view of the deliberations made
in preceeding paragraphs and also the
factual matrix of the case, this court is of
the considered opinion that the learned
Court below has rightly rejected the
application filed by the appellant-defendant
under Order VII Rule 11 of the Civil
Procedure Code, 1908. The present Appeal
does not call for any interference by this
Court. Accordingly, the same is dismissed,
being devoid of merits.

34. However, it is made clear that this
Court has not expressed any opinion on the
merits of the case and the observations in
the present judgment are only for the
purpose of deciding the present appeal and
will have no bearing on the adjudication of
the
case
and/or
any
other
related
proceedings. It is further provided that
while deciding the issue of its' territorial
jurisdiction, the learned Court below shall
not, in any manner, be influenced by the
finding recorded by it on the subject
regarding the place of residence in the
impugned order dated 18.03.2024 and shall
decide the same on merit, strictly in
accordance with law.
----------
(2024) 5 ILRA 2467
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 21.05.2024

BEFORE

THE HON'BLE SUBHASH VIDYARTHI, J.

Writ-C No. 1002479 of 2010

Smt. Mridula Singh ...Petitioner
Versus
L.D.A. ...Opp. Party

Counsel for the Petitioner:
Sudeep Seth, Brijesh Kumar Singh

Counsel for the Opp. Parties:
D.K. Upadhyaya, Ajaay Kumar Singh, Dipesh
Shukla,
Mahendra
Pratap
Singh,
Naveen
Chandra Upadhyay, Rajesh Singh Chauhan

A. Transfer of Property Act, 1882 -
Sections 105 & 107 - Registration Act,
1908 - Sections 17(1)(d) & 49 - Effect of
Non-Registration of Lease Deed - A lease
deed dated 05.12.2000, executed in favor
of the petitioner for a period of 30 years,
with an annual rent reserved, required
mandatory registration under S. 17(1)(d)
of the Registration Act and S. 107 of the
Transfer of Property Act, 1882. The Court
held
that
in
the
absence
of
such
registration, the lease deed did not confer
any right, title, or interest in the property
upon the petitioner. Further, as per S. 49
of the Registration Act, the unregistered
lease deed is not admissible in evidence to
establish any right under the transaction
of the lease between the parties. (Para 42)

B. Transfer of Property Act, 1882 -
Sections 113 & 116 - Waiver of Notice to
Quit - Effect of Holding Over: Mere
acceptance of rent by the L.D.A. does not
constitute an act of intention to treat the
garden lease as subsisting, nor does it
create a tenancy by holding over. Despite
rent acceptance, the L.D.A. repeatedly
asked the petitioner to vacate the land and
initiated
eviction
proceedings.
After
issuing a notice to vacate, no further rent
was
accepted
by
the
L.D.A.
Held,
acceptance of rent cannot be construed as
a waiver of notice or an intention to
continue
the
lease.
The
petitioner's
2468 INDIAN LAW REPORTS ALLAHABAD SERIES
intention to use the land not for its original
gardening purpose but to retain it with her
residential plot renders Section 116
inapplicable. (Para 47, 50)

C. Constitution of India, Art. 12 - State -
Uttar
Pradesh
Urban
Planning
and
Development Act, 1973 - Section 4 -
Registration Act, 1908 - Section 90(1)(d) -
Exemption
of
Certain
Documents
Executed by or in Favor of Government:
Held:
The
Lucknow
Development
Authority (L.D.A.), though falling within
the definition of 'St.' under Article 12, is
not
"Government."
The
L.D.A.
is
a
statutory
body
corporate,
having
perpetual succession and a common seal,
and vested with the power to acquire,
hold, and dispose of property. A lease deed
executed by the L.D.A. is not a sanad,
inam, title deed, or any other document
evidencing a grant or assignment by the
Government of land or any interest therein
under S. 90(1)(d) of the Registration Act,
1908,
so
as
to
be
exempt
from
registration.
There
exists
a
clear
distinction
between
"St."
and
"Government" under law. (Para 56)

D. U.P. Urban Planning and Development
Act, 1973-Section 26-A(4)-Show Cause
Notice-Incorrect Mention of Statutory
Provision-Effect of: Issuance of a show
cause notice citing the incorrect statutory
provision
(Section
26(4)
instead
of
Section 26-A(4)) does not invalidate the
notice or the subsequent proceedings. It is
settled law that a wrong reference to a
provision of law does not invalidate an
order or notice, provided the authority has
the power to issue it under another
relevant provision of the statute. Mere
mention of a non-existent provision does
not affect the legality of the proceedings
initiated
by
the
notice
when
the
competent
authority
acts
within
its
powers. An order made under an incorrect
provision remains valid if it can be traced
back to a valid provision under which the
order could have been legitimately made.
Petitioner submitted reply to the notice,
and the impugned order was passed after
considering his reply. The Court upheld
the proceedings initiated under the 1973
Act despite the incorrect mention of the
wrong provision, as the L.D.A. adhered to
due process as per Section 26-A(4) and
afforded the petitioner a fair hearing.
(Paras 69, 71)

E. Constitution of India, Article 226Judicial Review-Motive of Authority: The
court has no jurisdiction to examine the
motive that induced the authority to
exercise its powers. (Para 72, 73)

F. Evidence Act - Estoppel - No Estoppel
Against Statutory Provisions: The Court
reaffirmed that there can be no estoppel
against the provisions of a statute. The
petitioner argued that since the L.D.A.
executed the lease deed and accepted
lease rent from the petitioner, it was
estopped from challenging the validity of
the lease deed. The Court rejected this
submission,
and
held
that
statutory
mandates
cannot
be
overridden
by
conduct or acceptance of payments. (Para
43, 44)

G. Post-Hearing Submission of Additional
Written
Arguments
-
Practice
Disapproved: After the conclusion of oral
submissions, the matter was posted for
delivery
of
judgment/order
on
21.05.2024. However, on 17.05.2024, the
petitioner submitted written arguments
introducing several new submissions that
were not argued during the hearing. A
copy of the written arguments was not
served upon the other side. The Court
disapproved the conduct of introducing
new arguments after the hearing had
concluded and without the knowledge of
the opposite side. Nevertheless, in the
interest of justice, the Court proceeded to
consider the new submissions made
through the written arguments while
adjudicating the matter.

H. U.P. Urban Planning and Development
Act, 1973 - Government Order dated
05.03.1996-Allotment of Additional Land
- Petitioner's Plot No. 3/84 measures 300
square meters. She was granted a garden
lease for Plot No. 3/85, measuring 352
5 All. Smt. Mridula Singh Vs. L.D.A.
2469
square meters. The petitioner challenged
the legality of the order directing her to
vacate land granted on a garden lease and
prayed that the L.D.A. be directed to allot
the land under the garden lease for
residential purposes. Held: The land
bearing Plot No. 3/85, which is larger than
Plot No. 3/84 allotted to the petitioner,
cannot be treated as additional land. It is
a separate residential plot, larger than the
one allotted to the petitioner. Petitioner
subsequent lease deed was not registered
and conferred no enforceable rights to the
petitioner to retain possession of the land.
Mere existence of two graves on the land
of the L.D.A. does not create any legal bar
against the land being sold by the L.D.A.
as
residential
property.
The
order
directing her to vacate, issued after
providing an opportunity to respond and
considering her explanation, cannot be
held to be invalid, even if it is alleged to
have been passed with some ulterior
motives (Para 75)

Dismissed. (E-5)

List of Cases cited:

1. St. of M.P. Vs Bhailal Bhai, 1964 SCC OnLine
SC 10

2. Kale & ors. Vs Deputy Director Of
Consolidation ors.: (1976) 3 SCC 119

3. Sarup Singh Gupta Vs S. Jagdish Singh:
(2006) 4 SCC 205,

4. Satrudhan Sahani Vs St. of Bihar, 1990 SCC
OnLine Pat 281,

5. Kallingal Moosa Kutti Vs Secretary of St. for
India in Council, 1919 SCC OnLine Mad 299,

6. Daso Kewat Vs St. of Bihar, 1995 SCC OnLine
Pat 314,

7. R.S. Grewal Vs Chander Parkash Soni, (2019)
6 SCC 216,

8. St. of W.B. Vs Vishnunarayan & Associates (P)
Ltd., (2002) 4 SCC 134,

9. Dr. Virendra Kumar Dixit Vs St. of U.P., 2014
SCC OnLine All 16476

10. Food Corpn. of India Vs V.K. Traders: (2020)
4 SCC 60

11. Sevoke Properties Ltd. Vs W.B. St. Electricity
Distribution Co. Ltd.: (2020) 11 SCC 782

12. Yogendra Kumar Vs St. of U.P.: 2012 SCC
OnLine All 410

13. The Field Council of Norwegian Evangelical
Mission & ors. Vs. St. of U.P. & ors. 2018 (9) ADJ
649

14. Corpn. of the City of Bangalore Vs Kesoram
Industries & Cotton Mills Ltd., 1989 Supp (2)
SCC 753

(Delivered by Hon'ble Subhash Vidyarthi, J.)

1. Heard Sri B.K. Singh Advocate, the
learned counsel for the petitioner, Sri
Mahendra Pratap Singh Advocate, the
learned State Counsel, and perused the
record.

2. By means of the Writ Petition
filed
under
Article
226
of
the
Constitution of India, the petitioner has
prayed for quashing of an order dated
13.04.2010 passed by the Prescribed
Authority/Joint
Secretary,
Lucknow
Development
Authority
(L.D.A),
whereby
the
petitioner
has
been
directed to remove her possession over
plot number 3/85, Vishwas Khand,
Gomti Nagar, Lucknow, failing which
the
L.D.A
will
remove
the
encroachment made by the petitioner on
the aforesaid plot. The petitioner has
also prayed for issuance of a Writ of
Mandamus, commanding the opposite
parties not to interfere in possession of
the petitioner in respect of Plot No.
3/85, Vishwas Khand, Gomti Nagar,
Lucknow.
2470 INDIAN LAW REPORTS ALLAHABAD SERIES
Order
on
Amendment
Application

3. On 08.08.2023, the petitioner
has filed an application for amendment of
the Writ Petition seeking to add a prayer for
issuance of a Writ in the nature of
Mandamus, commanding the L.D.A to allot
an additional land area of 180 square meters
to the petitioner in pursuance of a
Government Order dated 05.03.1996 read
with
a
Government
Order
dated
20.04.1998.
An
application
dated
22.03.2023 submitted by the petitioner, to
the Vice Chairman L.D.A has been annexed
with the affidavit in support of the
amendment application, wherein she stated
that
the
Government
Order
dated
05.03.1996 provides that if standard plots
could not be carved out, the allottee of
adjacent land will be given the land. She
stated that all the plots situated in the row,
where the petitioner's house is situated,
measure 300 Square meters, whereas the
land in question (Plot No. 3/85) measures
less than 300 Square meters and it is merely
180 Square meters additional land.

4. A copy of a Government Order
dated 05.03.1996 has been annexed with
the affidavit filed in support of the
amendment application and it provides that
as far as possible, in case the additional land
can be used as a new plot, it should be
allotted as a new plot. Where it is not
possible to create a new plot as per the
layout plan, the land should be offered to
the allottees of both the adjacent plots or to
allottee of one adjacent plot, whichever is
practical.

5. The petitioner has also annexed
a copy of a Government Order dated
20.04.1998, which inter alia provides that
in case any allottee wants to purchase an
additional land, he will be charged price at
the current rate, but where the development
authority itself offers additional land to the
transferee, price thereof shall be taken at the
rate prevalent at the time of original
allotment along with simple interest.

6. In the written arguments filed
after closure of the submissions, the learned
Counsel for the petitioner has relied upon a
judgment of the Hon'ble Supreme Court in
the case of State of M.P. versus Bhailal
Bhai, 1964 SCC OnLine SC 10, in which it
has been held that: -

"14...The jurisdiction conferred by
Article 226 is in very wide terms. This
article empowers the High Court to give
relief by way of enforcement of fundamental
rights
and other
rights
by
issuing
directions, orders or writs, including writs
in the nature of habeas corpus, mandamus,
prohibition, quo warranto and certiorari.
According to the petitioners a writ in the
nature of mandamus can be appropriately
used where money has been paid to the
Government by mistake to give relief by
commanding repayment of the same. That
in a number of cases the High Courts have
used the writ of mandamus to enforce such
repayment is not disputed. ...
15. We see no reason to think that
the High Courts have not got this power. If
a right has been infringed - whether a
fundamental right or a statutory right -
and the aggrieved party comes to the court
for enforcement of the right it will not be
giving complete relief if the court merely
declares the existence of such right or the
fact that that existing right has been
infringed. Where there has been only a
threat to infringe the right, an order
commanding the Government or other
statutory authority not to take the action
contemplated would be sufficient. It has
5 All. Smt. Mridula Singh Vs. L.D.A.
2471
been held by this Court that where there has
been a threat only and the right has not
been actually infringed an application
under Article 226 would lie and the courts
would give necessary relief by making an
order in the nature of injunction. It will
hardly be reasonable to say that while the
court will grant relief by such command in
the nature of an order, of injunction where
the invasion of a right has been merely
threatened the court must still refuse, where
the right has been actually invaded, to give
the consequential relief and content itself
with merely a declaration that the right
exists and has been invaded or with merely
quashing the illegal order made. ]
16. For the reasons given above,
we are clearly of opinion that the High
Courts have power for the purpose of
enforcement of fundamental rights and
statutory rights to give consequential relief
by ordering repayment of money realised by
the Government without the authority of
law."

7. In Bhailal Bhai the petitioner
was claiming a consequential relief of
refund of money paid to the Government by
mistake, which is not the case here. The
principle laid down in Bhailal Bhai would
apply if the petitioner establishes existence
of a fundamental right or a statutory right
and infringement thereof and by way of
amendment he seeks to add a relief of that
wrong being undone consequent to a
declaration that his right was infringed. In
such circumstances, the courts will give
necessary consequential relief. Where the
petitioner cannot establish the existence of
a Fundamental or a Statutory right and the
infringement or violation thereof, there
would be no occasion to claim any new
relief by way of amendment of the Writ
Petition claiming the same to be a
consequential relief.
8. The Writ Petition was filed in
the year 2010 challenging cancellation of
garden lease and by way of amendment
application filed in the year 2023, the
petitioner is seeking to add a new prayer for
allotment of Plot No. 3/85 to the petitioner
for residential purpose claiming the same to
be additional land appurtenant to her Plot
No. 3/84. The amendment will change the
nature of the Writ Petition, which was filed
challenging cancellation of the garden
lease. The prayer sought to be amended is
not for a consequential relief and the
petitioner does not have a Fundamental or
Statutory right of the prayer sought to be
incorporated by way of amendment.
Therefore, the application for amendment
of the Writ Petition is rejected.

Order on the Writ Petition

9. Briefly stated, the facts pleaded
in the Writ Petition are that the petitioner is
the owner of plot number 3/84 Vishwas
Khand, Gomti Nagar, Lucknow, on which
she has constructed a house. Plot No. 3/85
measuring 352 Square meters with two
graves existing thereon, is adjacent to the
petitioner's Plot No. 3/84.

10. Vide order dated 16.10.1986,
the L.D.A had allotted Plot No. 3/85 to the
petitioner for a garden lease. The allotment
letter states that on the request made by the
petitioner, 352 Square meters land available
near Plot No. 3/84, was being allotted to her
on garden lease. The rate of rent and other
conditions of lease will be communicated
to the petitioner separately.

11. On 02.09.1989, the L.D.A.
executed a garden lease in favour of the
petitioner in respect of Plot No. 3/85. The
lease deed dated 02.09.1989 states that the
allotted land was being transferred to the
2472 INDIAN LAW REPORTS ALLAHABAD SERIES
petitioner on a temporary garden lease at
the rate of Rs.415/- per year. The land will
be used for the purpose of gardening only
and no construction of any kind will be
raised thereon. The period of garden lease
was 10 years. The petitioner would not have
the right to sublet the land. It was a
condition of the lease that the petitioner will
not raise any permanent construction on the
land and she could merely erect a fence of
barbed wires and in case the L.D.A. needed
the land, the allotment of the land could be
cancelled at any time. The description of
allotted land mentioned in the lease deed is
Plot No. 3/85, Vishwas Khand, Gomti
Nagar, Lucknow measuring 352.80 Square
meters.

12. A copy of the layout plan has
also been annexed with the Writ Petition,
which shows the land of garden leases
bearing Plot No. 3/85 Vishwas Khand,
Gomti Nagar, having an area of 352.80
square meters.

13. The petitioner has pleaded in
the Writ Petition that she had constructed a
boundary wall surrounding Plot No. 3/85
and the garden lease was renewed on
15.12.2000 for a further period of 20 years.
A copy of the lease deed dated 15.12.2000
has been annexed as Annexure No. 4 to the
Writ Petition, which mentions that the land
was being transferred on garden lease for a
period of 30 years, as against a period of 20
years pleaded in para 6 of the petition. This
lease deed dated 15.12.2000 was not
registered.

14. On 28.07.2005, L.D.A issued a
notice to the petitioner stating that she had
constructed a boundary wall in violation of
the conditions of garden lease and that she
had deposited lease rent for one year only.
Therefore, the Vice Chairman L.D.A had
cancelled the allotment of land made in
favour of the petitioner.

15. On 04.04.2009, the Joint
Secretary, L.D.A issued a letter to the
petitioner stating that she had been granted
garden lease of Plot No. 3/85 as at that time,
the number of plots available was in excess
of the demand of the plots. Subsequently
the demand of plots had increased. It was
one of the conditions of the lease agreement
that in case of need of land, the L.D.A could
cancel the allotment of the land. The
cancellation of allotment had already been
communicated to the petitioner by means of
the earlier letter dated on 28.07.2005. The
letter dated 04.04.2009 sent by the Joint
Secretary of L.D.A directed the petitioner
to handover possession of the land to
L.D.A., failing which L.D.A. will recover
possession of the land.

16. The petitioner filed Writ
Petition No. 4147 (M/B) of 2009, in which
an interim order was passed on 29.07.2009
directing the parties to maintain status quo
regarding Plot No. 3/85. The aforesaid
petition was disposed off finally by means
of an order dated 06.08.2009, directing the
opposite parties not to dispossess the
petitioner without following the due
process of law.

17. Thereafter, the Prescribed
Authority/Joint Secretary of L.D.A issued a
notice
dated
03.02.2010
giving
the
petitioner an opportunity to submit her
explanation as to why L.D.A. should not
take possession of the land under Section
26(4) of Uttar Pradesh Urban Planning and
Development
Act,
1973
(hereinafter
referred as "the Act of 1973").

18. The petitioner submitted a
detailed reply to the aforesaid show cause
5 All. Smt. Mridula Singh Vs. L.D.A.
2473
notice stating that she had not raised any
permanent construction such as any room
on Plot No. 3/85 and she had raised a low
boundary wall surrounding the Plot, which
cannot
be
treated
as
a
permanent
construction. She further stated that she had
deposited lease rent of the land and the
lease had been renewed for a further period
of 20 years upto the year 2020 through an
agreement dated 15.10.2000. Thereafter the
petitioner has deposited rent for a period of
10 years from 2001 to 2010. The petitioner
alleged that the reason for cancellation of
the lease was that L.D.A. wanted to transfer
the land in favour of a Cabinet Minister of
the State Government. She further stated
that the reason mentioned in the letter dated
04.04.2009 was different from the reason
mentioned in the earlier letter dated
28.07.2005. The petitioner also stated that
the notice had been issued under Section
26(4) of the Act of 1973, whereas Section
26 of the Act of 1973 contains only 3 subsections and there was no sub-section (4) in
Section 26.

19. On 13.04.2010, the Prescribed
Authority passed the impugned order
wherein it is recorded that the learned
counsel for the petitioner had contended
that Section 26 of Act of 1973 does not
apply to any private land and it relates to
public lands only whereas the leased
property is not a public property and that
even if it is assumed that the lease has been
cancelled, status of the petitioner would be
of tenant as sufferance and not of an
encroacher. It was further contended on
behalf of the petitioner that two graves
existed on the land in question and,
therefore, the land could not used for
residential purpose. On the other hand, the
learned counsel for L.D.A. had submitted
that the land was not recorded in the
revenue records as Kabristan.
20. The Prescribed Authority
recorded that Plot Nos. 3/84 and 3/85,
Vishwas Khand, Gomti Nagar were carved
out from land forming a part of Khasra Nos.
1210 P, 1229 P, 1230 P and 1267 P. The
lands bearing Khasra Nos. 1210 and 1267
were lands of Sullage Farm, which had
been transferred by Nagar Nigam to L.D.A
in the year 1982. Land bearing Khasra No.
1229 and 1230 had been acquired in the
year 1983 for Ujariyaon Residential
Scheme, Part 1. No graveyard is recorded
in any of the Khasra numbers in the revenue
record. The Prescribed Authority concluded
that the aforesaid facts established that the
land bearing No. 3/85 is not a graveyard
and it is a residential land.

21. The Prescribed Authority
further held that the original file of L.D.A
regarding the plot in question had gone
missing. Even if the garden lease had been
renewed, the officer who had signed the
renewal deed as the transferor, has signed it
on 12.01.2001, whereas the first line of the
renewal
deed
mentioned
the
date
15.12.2000, which contradiction makes the
lease deed suspicious, more so in absence
of the original file. The officer who had
signed the renewal deed dated 15.12.2000,
had himself issued the letter dated
28.07.2005 cancelling the allotment of Plot
No. 3/85 in favour of the petitioner, which
establishes that the lease stands cancelled.

22. It is also recorded in the
impugned order dated 15.04.2010 that the
petitioner
has
given
a
letter
dated
15.12.2008 requesting that Plot No.3/85,
which is adjacent to her Plot No. 3/84, be
allotted to her for residential purpose and be
transferred to her on freehold basis. She had
given a reminder letter dated 12.10.2009
also to the Vice-Chairman L.D.A. The
Vice-Chairman had made a noting on the
2474 INDIAN LAW REPORTS ALLAHABAD SERIES
file on 19.06.2009 stating that as the
agreement executed in the year 2000 had
not been registered, no effective lease
existed in favour of the petitioner. As the
petitioner violated the condition of lease
deed and raised a boundary wall and did not
handover possession of the land to L.D.A.
even after giving notice, the Vice-Chairman
passed an order dated 19.06.2009 for taking
possession of the land.

23. The Prescribed Authority held
that no lease in favour of the petitioner is in
existence and, therefore, the land has
reverted to the L.D.A and it falls in the
category of public property. Regarding the
contention of the petitioner that she has
already deposited the lease rent, the
Prescribed Authority
stated
that
the
petitioner had deposited lease rent for a
period of one year only in the year 1989.
Thereafter,
she
deposited
Rs.3,320/-
towards lease rent for 8 years on
08.02.2008. She did not deposit any other
amount from 1989 to 2008 and thereafter
she deposited Rs.830/- towards lease rent
for a period of 2 years, on 13.02.2009. The
amount was deposited by the petitioner
towards arrears of lease rent and the
contention of the petitioner's learned
counsel had become a tenant at sufferance,
was rejected.

24. The Prescribed Authority
directed the petitioner to remove her
possession from Plot No. 3/85, Vishwas
Khand, Gomti Nagar, Lucknow, otherwise
L.D.A will take possession of the land.

25. The L.D.A has filed a counter
affidavit stating that the garden lease
granted to the petitioner had been cancelled
by means of an order dated 15.04.1989 but
the order dated 15.04.1989 was recalled by
means of an order dated 06.05.1989 in
furtherance of a representation submitted
by the petitioner. Thereafter the garden
lease was cancelled by means of an order
dated 28.07.2005 on the ground that the
petitioner had erected a boundary wall and
she had deposited lease rent for a period of
one year only. The notice dated 03.02.2010
had wrongly made a mention of Section
26(4) of Act of 1973 but the petitioner had
submitted a reply to the notice and the
Prescribed Authority has passed the order
dated 13.04.2010 after considering the
petitioner's reply.

26. The petitioner has stated in the
rejoinder affidavit that Fateh Bahadur
Singh had moved an application dated
26.02.2004 for registration in L.D.A for
allotment of Plot No. 3/85, Vishwas Khand,
Gomti Nagar, Lucknow, which was even
before cancellation of the petitioner's lease.
As per the procedure laid down by the
L.D.A
for
registration/
allotment
of
residential plots/houses, an advertisement
for registration of any scheme for
residential plots/houses shall be published
in at least two newspapers of State/National
level. Any person who or any member of
whose family has a plot/house in any
colony developed by L.D.A., Uttar Pradesh
Avas Vikas Parishad, the Improvement
Trust or any local body or cooperative
society, shall not be eligible for allotment of
any plot/house. Clause 30.1 of the
procedure for registration/allotment of
plot/house provides that the allottee will
have to take possession of the plot as per
actual measurement. In case the area or
dimensions are different, the allottee will
have to make payment as per the modified
situation.

27. Submissions of the learned
Counsel were heard on 16.05.2024, during
which the learned counsel for the petitioner
5 All. Smt. Mridula Singh Vs. L.D.A.
2475
submitted that the notice dated 03.02.2010
was issued under Section 26(4) of the Act
of 1973, whereas there is no such
provisions in the aforesaid Act and no
proceedings could be initiated and no
orders could be passed in furtherance of the
notice
issued
under
a
non-existent
provision. He has submitted that the
petitioner's lease deed was cancelled
arbitrarily as the authorities wanted to
transfer the land to a Cabinet Minister, who
already holds 4 - 5 plots of land of L.D.A.
and who is not entitled to be transferred any
other plot from L.D.A. as no persons is
entitled to get more than one plot of L.D.A.

28. The Court put a query to the
learned counsel for the petitioner as to
whether the lease deed dated 15.12.2000
executed in favour of the petitioner had
been registered, to which he replied that the
L.D.A. having executed the lease dated
15.12.2000 and having accepted rent under
this deed, is estopped from challenging its
validity.

29.
 After
hearing
of
oral
submissions, the matter was posted for
21.05.2024 for delivery of judgment/order.
On 17.05.2024, the learned counsel for the
petitioner
supplied
written
arguments
containing several new submissions which
had not been advanced during hearing of the
case. The written arguments filed do not
contain any acknowledgment of its receipt by
the learned Counsel for the respondents. This
conduct of adding new arguments after close
of the hearing of the case behind the back of
the other side cannot be appreciated by the
Court. Yet, in the interest of justice, the Court
proceeds to examine the submissions made
through written arguments.

30. It has been submitted in the
written arguments that although Section 17
of the Registration Act, 1908 bars the
admissibility of an unregistered lease deed
executed for a period of more than one year,
it is not open the for the L.D.A to deny the
relationship of the lesser and lessee as it has
never denied the due execution of the lease
deed and it has accepted the lease rent from
time to time. ]

31. The learned counsel for the
petitioner next submitted that a conjoint
reading of Section 105 to107 of the
Transfer of Property Act, 1882, clarifies
that a lease can be created simply where the
lesser grants a right and interest to a lessee
to enjoy an immovable property for a
consideration and puts a lessee into
possession of the land while accepting
periodic consideration. He has submitted
that the present case fulfills all the
requirements of Section 105 to 107 even in
absence of registration of the lease deed.

32. Section 107 of the Transfer of
Property Act provides that, "a lease of
immovable property from year to year, or
for any term exceeding one year, or
reserving a yearly rent, can be made only
by a registered instrument." Therefore,
there is no room to doubt that the L.D.A
could not have granted any leasehold rights
to the petitioner without execution of a
registered lease deed as per the provisions
contained in Section 107 of the Transfer of
Property Act, 1908.

33. Section 17 (1)(d) of the
Registration Act, 1908, provides that
"leases of immovable property from year to
year, or for any term exceeding one year, or
reserving a yearly rent, are required to be
registered compulsorily."

34. Section 49 of the Registration
Act, 1908 provides as follows: -
2476 INDIAN LAW REPORTS ALLAHABAD SERIES
"49. Effect of non-registration of
documents required to be registered.-No
document required by Section 17 or by any
provision of the Transfer of Property Act,
1882 (4 of 1882), to be registered shall-
(a) affect any immovable property
comprised therein, or
(b) confer any power to adopt, or
(c) be received as evidence of any
transaction affecting such property or
conferring such power,
unless it has been registered:
Provided that an unregistered
document affecting immovable property
and required by this Act or the Transfer of
Property Act, 1882 (4 of 1882), to be
registered may be received as evidence of a
contract in a suit for specific performance
under CHAPTER II of the Specific Relief
Act, 1877 (1 of 1877), or as evidence of any
collateral transaction not required to be
effected by registered instrument."

35. The learned counsel for the
petitioner has referred to the decision of the
Hon'ble Supreme Court in the case of Kale
& Others versus Deputy Director Of
Consolidation Ors: (1976) 3 SCC 119,
Sarup Singh Gupta versus S. Jagdish
Singh: (2006) 4 SCC 205, Satrudhan
Sahani versus State of Bihar, 1990 SCC
OnLine Pat 281, Kallingal Moosa Kutti
versus Secretary of State for India in
Council, 1919 SCC OnLine Mad 299,
Daso Kewat versus State of Bihar, 1995
SCC OnLine Pat 314, R.S. Grewal versus
Chander Parkash Soni, (2019) 6 SCC
216, State of W.B. versus Vishnunarayan
& Associates (P) Ltd., (2002) 4 SCC 134,
Dr. Virendra Kumar Dixit versus State of
U.P., 2014 SCC OnLine All 16476,

36. The question involved in Kale
(Supra) was if any title was conveyed to the
appellant under a family arrangement,
whether the said conveyance can only be by
a registered instrument under the provisions
of the Registration Act and the Transfer of
Property Act. Before proceeding to decide
the question, the Hon'ble Supreme Court
discussed in general the effect and value of
family arrangements entered into between
the parties with a view to resolving disputes
once for all, in the following words: -

"9.
Before
dealing
with
the
respective contentions put forward by the
parties, we would like to discuss in general
the effect and value of family arrangements
entered into between the parties with a view
to resolving disputes once for all. By virtue
of a family settlement or arrangement
members of a family descending from a
common ancestor or a near relation seek to
sink their differences and disputes, settle
and resolve their conflicting claims or
disputed titles once for all in order to buy
peace of mind and bring about complete
harmony and goodwill in the family. The
family arrangements are governed by a
special equity peculiar to themselves and
would be enforced if honestly made. In this
connection, Kerr in his valuable treatise
Kerr on Fraud at p. 364 makes the
following pertinent observations regarding
the nature of the family arrangement which
may be extracted thus:
"The principles which apply to the
case of ordinary compromise between
strangers do not equally apply to the case
of compromises in the nature of family
arrangements. Family arrangements are
governed by a special equity peculiar to
themselves, and will be enforced if honestly
made, although they have not been meant
as a compromise, but have proceeded from
an error of all parties, originating in
mistake or ignorance of fact as to what their
rights actually are, or of the points on
which their rights actually depend."
5 All. Smt. Mridula Singh Vs. L.D.A.
2477
The object of the arrangement is to
protect
the
family
from
long-drawn
litigation or perpetual strifes which mar the
unity and solidarity of the family and create
hatred and bad blood between the various
members of the family. Today when we are
striving to build up an egalitarian society
and
are
trying
for
a
complete
reconstruction
of
the
society,
to
maintain .and uphold the unity and
homogeneity of the family which ultimately
results in the unification of the society and,
therefore, of the entire country, is the prime
need of the hour. A family arrangement by
which the property is equitably divided
between the various contenders so as to
achieve an equal distribution of wealth
instead of concentrating the same in the
hands of a few is undoubtedly a milestone
in the administration of social justice. That
is why the term "family" has to be
understood in a wider sense so as to include
within its fold not only close relations or
legal heirs but even those persons who may
have some sort of antecedent title, a
semblance of a claim or even if they have a
spes successionis so that future disputes are
sealed for ever and the family instead of
fighting claims inter se and wasting time,
money and energy on such fruitless or futile
litigation is able to devote its attention to
more constructive work in the larger
interest of the country. The courts have,
therefore, leaned in favour of upholding a
family arrangement instead of disturbing
the same on technical or trivial grounds.
Where the courts find that the family
arrangement suffers from a legal lacuna or
a formal defect the rule of estoppel is
pressed into service and is applied to shut
out plea of the person who being a party to
family arrangement seeks to unsettle a
settled dispute and claims to revoke the
family arrangement under which he has
himself enjoyed some material benefits. The
law in England on this point is almost the
same. In Halsbury's Laws of England, Vol.
17, Third Edition, at pp. 215-216, the
following apt observations regarding the
essentials of the family settlement and the
principles governing the existence of the
same are made:
"A family arrangement is an
agreement between members of the same
family, intended to be generally and
reasonably for the benefit of the family
either by compromising doubtful or
disputed rights or by preserving the family
property or the peace and security of the
family by avoiding litigation or by saving
its honour.
The agreement may be implied
from a long course of dealing, but it is more
usual to embody or to effectuate the
agreement in a deed to which the term
"family arrangement" is applied. Family
arrangements are governed by principles
which are not applicable to dealings
between strangers. The court, when
deciding the rights of parties under family
arrangements or claims to upset such
arrangements, considers what in the
broadest view of the matter is most for the
interest of families, and has regard to
considerations which, in dealing with
transactions between persons not members
of the same family, would not be taken into
account. Matters which would be fatal to
the validity of similar transactions between
strangers are not objections to the binding
effect of family arrangements."

37. The Hon'ble Supreme Court
held in light of the facts of Kale (Supra)
that: -

"the family settlement arrived at by
the parties was oral, and the petition filed
by them on August 7, 1956 before the
Assistant Commissioner, was merely an
2478 INDIAN LAW REPORTS ALLAHABAD SERIES
information of an already completed oral
transaction. In other words, the petition
was only an intimation to the Revenue
Court or authority that the matters in
dispute between the parties had been
settled amicably between the members of
the family, and no longer required
determination and that the mutation be
effected in accordance with that antecedent
family settlement. Since the petition did not
itself create or declare any rights in
immovable property of the value of Rs 100
or upwards, it was not hit by Section 17
(1)(b) of the Registration Act, and, as such,
was not compulsorily registrable."

38. The Hon'ble Supreme Court
has specifically held in Kale (Supra) that
Family arrangements are governed by
principles which are not applicable to
dealings between strangers, and further,
that as the document in question did not
itself create or declare any rights in
immovable property of the value of Rs 100
or upwards, it was not hit by Section 17
(1)(b) of the Registration Act, it was not
compulsorily registrable. Therefore, the
decision in the aforesaid case is not at all
relevant for decision of the instant Writ
Petition which asserts the existence of lease
hold rights on the basis of an unregistered
lease deed executed by L.D.A. in favour of
the petitioner for a period of 30 years.

39. Per Contra, the learned
Counsel for the respondents has relied upon
the decisions in the cases of Food Corpn.
of India versus V.K. Traders: (2020) 4
SCC 60 and Sevoke Properties Ltd.
versus
W.B.
State
Electricity
Distribution Co. Ltd.: (2020) 11 SCC 782.

40. In Food Corpn. of India versus
V.K.