# Smt. Prakati Rai & Ors v. State of U.P. & Ors

- **Citation:** (2019) 4 ILRA 266
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2019-02-18
- **Bench:** Sudhir Agarwal, Virendra Kumar Srivastava
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/smt-prakati-rai-ors-v-state-of-u-p-ors-44991
- **Pages:** 69

## Headnote

A. Civil Law - Transfer of Property Act,
1882- Section 116 - Effect of holding
over - Applicability of section 116.

Twin conditions to attract principle of holding
over under Section 116 of TP Act, 1882,
which need to be satisfied are:(i) After
determination
of
lease,
lessor
or
his
representative has accepted rent from lessee
or under lessee or assented to his continuing
in possession; and (ii) Lessee or under-lessee
has remained in possession .

Held: - Section 116 is not applicable - It is not
the case of any of the petitioners that after
expiry of lease in 1986, they have been
permitted to remain in possession of disputed
Nazul land and rent has been accepted by
respondents or they have paid rent. (Para 222
& 223)

B. Nazul - Nazul is land owned by
Government having vested by escheat,
bona vacantia or lapse.

The terms and conditions of 'Grant' a Nazul
would govern relation of lessor and lessee -
any other statute providing otherwise has no
application.- Grantee cannot transfer property,
which was transferred to it by way of 'Grant'
except the manner in which it is permitted by
such 'Grant' - Any transfer otherwise will be
illegal and would not confer any right upon
Transferree. (Para 95 & 96)

Writ petitions dismissed. (E-7)
List of cases cited: -

## Text

_Characters 0–39,903 of 226,435. This is a partial read: ask again with offset=39903 for what follows._

266 INDIAN LAW REPORTS ALLAHABAD SERIES
service.
Moreover,
the
provisions
contained under Section 14 have been
held to be applicable before the Courts
and not to proceedings before the
Tribunals.

35. Further, the EPF Act, 1952 being a
special statute and having prescribed a
certain period of limitation for filing a
particular application thereunder and also
having provided in clear terms that such
period on sufficient cause being shown, may
be extended, in the maximum, only upto a
specified time-limit, the Tribunal concerned
would have no jurisdiction to treat within
limitation, an application filed before it
beyond such maximum time-limit specified
in the statute, by excluding the time spent in
prosecuting in good faith and due diligence
any prior proceeding on the analogy of
Section 14(2) of the Act, 1963.

36. It may be noticed that in the
instant case against the order dated
28.12.2018 passed under Section 7-A of
the EPF Act, 1952 a writ petition, Writ-C
No.5308 of 2019, was filed and the same
was dismissed at the threshold vide order
dated 18.02.2019 with liberty to the
petitioners to avail the statutory remedy of
appeal under Section 7-I of the EPF Act,
1952. A copy of the aforesaid order which
has been filed as Annexure-9 to the writ
petition indicates that a certified copy of
the order dated 18.02.2019 was applied
for on 10.06.2016 and the same was
issued on 12.06.2019. It appears that only
thereafter the appeal bearing Appeal
A.T.A. No.06 of 2019 was filed which
came to rejected as time barred vide order
dated 15.07.2019 passed by the Appellate
Authority/Presiding
Officer,
Central
Government
Industrial
Tribunal-cumLabour Court, Kanpur. These facts also
go to show that the necessary requirement
under Section 14 that the prior proceeding
should have been prosecuted in good faith
and with due diligence also does not stand
fulfilled.

37. The time limit is prescribed by
the rule making authority for filing an
appeal and also the extended period
having been provided, and no further
extension thereof having been envisaged
or contemplated, the Appellate Authority
could not have granted any further
extension. In view of the aforesaid, the
order passed by the Appellate Authority
recording its conclusion that the appeal
was filed beyond the statutory period of
limitation, cannot be faulted with.

38. Counsel for the petitioners has
not been able to dispute the aforesaid
factual and legal position nor has been
able to point out any material error or
irregularity in the order dated 15.07.2019
so as to warrant interference in exercise of
the extraordinary powers under Article
226 of the Constitution of India.

39. The writ petition is accordingly
held to be devoid of merits and is
dismissed.
----------
(2019)12 ILR A266

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. 29495 of 2018 connected with Writ
C No. 29547 of 2018, 30884 of 2018, 40395 of
2018, 40399 of 2018, 40401 of 2018

Smt. Prakati Rai & Ors. ...Petitioners
4 All. Smt. Parkati Rani & Ors. Vs. State of U.P. & Ors.
267
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioners:
Sri Ravi Kant, Sri Kartikeya Saran, Sri
Anand Prakash Paul, Sri Brij Bhushan
Paul, Sri Pramod Kumar Srivastava, Sri
Tarun Agrawal

Counsel for the Respondents:
C.S.C., Sri Ajit Kumar Singh, Sri Nimai Das
& Sri Sudhanshu Srivastava, Sri Tarun
Agrawal, Sri M.D. Singh Shekhar, Sri Amit
Verma

A. Civil Law - Transfer of Property Act,
1882- Section 116 - Effect of holding
over - Applicability of section 116.

Twin conditions to attract principle of holding
over under Section 116 of TP Act, 1882,
which need to be satisfied are:(i) After
determination
of
lease,
lessor
or
his
representative has accepted rent from lessee
or under lessee or assented to his continuing
in possession; and (ii) Lessee or under-lessee
has remained in possession .

Held: - Section 116 is not applicable - It is not
the case of any of the petitioners that after
expiry of lease in 1986, they have been
permitted to remain in possession of disputed
Nazul land and rent has been accepted by
respondents or they have paid rent. (Para 222
& 223)

B. Nazul - Nazul is land owned by
Government having vested by escheat,
bona vacantia or lapse.

The terms and conditions of 'Grant' a Nazul
would govern relation of lessor and lessee -
any other statute providing otherwise has no
application.- Grantee cannot transfer property,
which was transferred to it by way of 'Grant'
except the manner in which it is permitted by
such 'Grant' - Any transfer otherwise will be
illegal and would not confer any right upon
Transferree. (Para 95 & 96)

Writ petitions dismissed. (E-7)
List of cases cited: -

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

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

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

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

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

6.Superintendent and, Legal Remembrancer v.
Corporation of Calcutta (1967) 2 SCR 170.

7.Cook v. Sprigg (1899) AC 572

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

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

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

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

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

13.Thakur Amar Singhji v. State of Rajasthan
AIR 1955 SC 504

14.State of Rajasthan vs. Sajjanlal Panjawat
AIR 1975 SC 706

15.Director
of
Endowments,
Govt.
of
Hyderabad vs. Akram Ali, AIR 1956 SC 60,

16.Sarwarlal vs. State of Hyderabad, AIR 1960 SC 862.

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

18.Biswambhar Singh vs. State of Orissa 1964
(1) SCJ 364.
268 INDIAN LAW REPORTS ALLAHABAD SERIES
19.State of U.P. vs. Zahoor Ahmad, 1973(2) SCC 547

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

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

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

23.Mohsin Ali vs. State of M.P. AIR 1975 SC 1518

24.Pradeep
Oil
Corporation
vs.
Municipal
Corporation of Delhi and others (2011) 5 SCC 270

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

26.Writ Petition No. 44517 of 1998, Sayed Shah
Khursheed Ahmad Kashmi vs. State of U.P.

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

28.The State of U.P. vs. Zahoor Ahmad and
Another, 1973(2) SCC 547

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

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

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

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

33.Ashoka Marketing Ltd. And another vs.
Punjab National Bank and others, (1990) 4
SCC 406

34.Sarup Singh Gupta vs. S. Jagdish Singh and
others (2006) 4 SCC 205

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

36.Writ Petition No.62588 of 2010, M/s Madhu
Colonizers Pvt. Ltd. vs. State of U.P. & Ors.,
37.Bishan Das and others Vs. State of Punjab
and others AIR 1961 SC 1570,

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

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

40. Lallu Yeshwant Singh (dead) by his legal
representative vs. Rao Jagdish Singh and
others, AIR 1968 SC 620

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

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

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

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

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

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

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

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

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

50.Lallu Yeshwant Singh (dead) by his legal
representative vs. Rao Jagdish Singh and
others, AIR 1968 SC 620

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

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

53.Lala Kishun Chand vs. Sheo Dutta, AIR
1958 All. 879
54.Bhawanji Lakhanishi vs. Himatlal Jamnadas
AIR 1972 SC 819
4 All. Smt. Parkati Rani & Ors. Vs. State of U.P. & Ors.
269
55.Gordhan vs. Ali Bux AIR 1981 Raj 206
56.Ratan Lal vs. Farshi Bibi (1907) ILR 34 Cal
396;

57.Madras
High
in
Govindaswami
vs.
Ramaswami (1916) 30 Mad LJ 492;

58.Patna High Court in Christian vs. Hari
Prasad AIR 1955 Pat 158

59.Pritilata Devi vs. Banke Bihari Lal AIR 1962
Pat 446

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

1. All these writ petitions relate to
Nazul
Plot
No.
21/17,
Chikatpur,
Nasibpur Bakhtiyari, Allahabad, area
11906 square meter, and, therefore they
are being decided by this common
judgment.
However,
for
better
understanding, it would be appropriate to
refer brief facts stated by petitioners in
different writ petitions, separately.

Writ Petition No. 29495 of 2018

2. Writ Petition No. 29495 of 2018
(hereinafter referred to as "WP-1") has
been filed by seven petitioners, namely,
Smt. Prakati Rai, Smt. Sangita Shukla,
Smt. Vandana Rai, Smt. Rachna Rai, Km.
Shakti Saran Singh, Km. Samapika Saran
Singh and Km. Shivangi Saran Singh,
daughters of late Sureshwari Saran Singh,
praying for issue of a writ of certiorari
quashing notice/ order dated 14.08.2018
(Annexure-13 to writ petition) passed by
District Magistrate, Allahabad and also
State
Government's
order
dated
19.06.2018, published in official gazette
dated 09.08.2018. Petitioners have also
sought a writ of mandamus commanding
respondent-authorities to consider petitioners'
application dated 30.01.1999 for grant of
freehold rights over property in dispute in
accordance with law and to restrain
Respondents-1, 2 and 3 from evicting
petitioners from property in dispute.

3. A lease in respect of Nazul land,
Bungalow No. 17, Thornhill Road, area 2
acres and 4561 sq. yards was executed by
Governor of United Provinces in favour
of Rai Bahadur Bindeshwari Saran Singh
on
22.04.1890
with
effect
from
01.10.1886, for a period of 50 years, on
monthly rent of Rs. 90/-. A renewal Lease
Instrument was executed for a further
period of 50 years commencing from
01.10.1936 in favour of Sureshwari Saran
Singh,
Jagdambika
Saran
Singh,
Brijeshwari
Saran
Singh
and
Badreshawari Saran Singh on the same
terms as stated in original lease deed
dated 22.04.1890. Sri Bindeshwari Saran
Singh died in 1942. After his death,
property in dispute devolved upon his
four sons namely, Maheshwari Saran
Singh,
Jagdishwari
Saran
Singh,
Bisheshwari Saran Singh and Jagdambika
Saran Singh and each got 1/4 share.
Maheshwari
Saran
Singh
died
on
15.2.1960 and his son Sureshwari Saran
Singh died on 28.05.1979. His wife Smt.
Smriti Saran Singh moved an application
on 06.02.1995 for mutation of her name
in place of late Sureshwari Saran Singh in
respect of plot in dispute alongwith her
daughters, i.e., petitioners. Reminders
were given on 01.05.1995, 05.07.1995,
06.07.1995,
14.07.1995,
03.08.1995,
19.04.1996
and
09.06.1998.
District
Magistrate, Allahabad made an inquiry
and found family tree of Sri Bindeshwari
Saran Singh as under:

Siddh Narain Singh Bindeshwari Sharan
Singh (Died on 27.10.42)
 Maheshwari Saran Singh Bhuvneshwari
Saran Singh Bishweshari Saran Singh
270 INDIAN LAW REPORTS ALLAHABAD SERIES
Jagdishwari Saran Singh Jagdambika
Saran Singh

(Died on 15.02.60) (Died in 1929) (Died
on 18.11.43) (Died on 01.03.44) (Died on
03.10.84)

(Wife Smt. Ratenshwari ) (Wife Smt.
Rukmani) (Wife Smt. Lalita Kunwari)
(Wife Smt. Annapurna) (Wife Smt.
Maheshwari)
(Issueless) (Issueless)
__________________________________
____
Sureshwari Saran Singh | | |

(died
on 28.05.79) Shanker Prasad
Prakash Narain Chandrashekhar

(Wife
Smt.
Smriti
Saran
Singh)
_________________

| |

Brijeshwari
Saran
Singh
Badreswari
Saran Singh

(Wife Smt. Pushpa Devi) (Died on
14.09.07)

(Daughter Sandya Singh) (P in WP-4)
(Wife Kumud Singh) (P in WP-3)

|
Akash
Saran
Singh
alias
Lov
Mandeshwari Saran Singh (P in WP-2)

Mandleshwari Saran Singh Sarveshwari
Saran Singh Bireshwari Saran Singh
Amreshwari Saran Singh
(P in WP 5 & 6)

Smt. Prakrati Rai Smt. Sangita Shukla
Smt. Vandana Rai Smt. Rachna Rai Km
Shakti Km. Samapika Km Shivangi
(Wife Shivji Rai) (Wife Akhilesh Shukla)
(Wife Shashi Rai) (Wife Alok Rai) Saran
Singh Saran Singh Saran Singh

P in WP-1 P in WP-1 P in WP-1 P in WP1 P in WP-1 P in WP-1 P in WP-1

4. Collector passed an order dated
21.01.1999 directing to delete names of
Smt. Annapurna Devi, Sri Jagdishwari
Saran Singh, Sri Jagdambika Saran Singh
and Sri Sureshwari Saran Singh and enter
names of Smt. Smriti Saran Singh wife of
late Sureshwari Saran Singh and her
daughters, namely, Smt. Prakati Rai, Smt.
Sangita Shukla, Smt. Vandana Rai, Smt.
Rachana Rai, Km. Shakti Saran Singh,
Km.
Samapika
Saran
Singh,
Km.
Shivangi
Saran
Singh;
and,
Smt.
Maheshwari Devi wife of late Jagdambika
Saran Singh and Shanker Prasad, Prakash
Narain and Chandra Shekhar, all sons of
late Jagdambika Saran Singh.

5. Petitioners also alleged to have
applied for renewal of lease in 1985 but
nothing was done by respondents. It is
also said that there was a family
settlement in 1942 between heirs of
Bindeshwari Saran Singh which was
reduced in writing as a family settlement
deed dated 01.08.2015 dividing disputed
land amongst the parties as per said
settlement.

6. State Government came out with
a policy to convert Nazul land into
freehold and issued various Government
Orders dated 23.05.1992, 02.12.1992,
03.10.1994,
17.02.1996,
29.03.1996,
02.4.1996,
29.8.1996,
25.10.1996,
28.02.1997 and 26.09.1997. All these
Government Orders were reviewed and
thereafter modifications and amendments
were
made
in
earlier
policy
vide
4 All. Smt. Parkati Rani & Ors. Vs. State of U.P. & Ors.
271
Government Orders dated 01.12.1998,
10.12.2002,
31.12.2002,
04.08.2006,
21.10.2008,
26.05.2009,
29.01.2010,
17.02.2011, 01.08.2011 and 28.09.2011.
Comprehensive amendments again were
made vide Government Order (hereinafter
referred to as "G.O.") dated 04.03.2014
and 15.01.2015. Petitioners have placed
on record
G.Os. dated 01.12.1998,
04.03.2014 and 15.01.2015 as Annexures5, 6 and 7 to WP-1. Petitioners applied for
conversion of their leasehold right into
freehold
vide
application
dated
30.01.1999 before District Magistrate,
Allahabad which was in accordance with
G.O.
dated
01.12.1998.
A
similar
application is said to have been submitted
by Smt. Kumud Singh wife of Sri
Badreshwari Saran Singh on 16.09.1999.
In para 19 of writ petition, the said
applicant is referred as respondent 3rd set
but we find that in the array of parties
there are no respondent(s) 3rd set.

7. One more application is said to
have been filed by Sri Brijeshwari Saran
Singh but no date or other details are
given in para 20 of writ petition.

8. Petitioners, after waiting for some
time, i.e., about 16 years, regarding
disposal
of
their
application
for
conversion of lease right into freehold,
came to this Court in Writ Petition No.
18068 of 2015 which was disposed of
vide judgment dated 02.04.2015, directing
District Magistrate, Allahabad to take a
decision within six months. The order
reads as under:

"The petitioners claim to have
filed an application on 30 January 1999
for grant of freehold rights in respect of
a land admeasuring 3968.97 sq. mts. on
a portion of Nazul Plot No.21/17, Nasib
Pur Bakhtiyari, Allahabad. The grievance
of the petitioners is that till date the
District Magistrate, Allahabad has not
taken
any
decision
on
the
said
application.

Learned
Standing
Counsel
appearing for the respondents states that
the District Magistrate, Allahabad shall
take
a
decision
expeditiously
after
hearing the parties.

This
writ
petition
is,
accordingly, disposed of with a direction
to the District Magistrate, Allahabad to
take a decision on the application filed
by the petitioners after hearing the
parties concerned expeditiously and
preferably within a period of six months
from the date a certified copy of this order
is filed by the petitioners.

It is made clear that the Court
has not adjudicated on the merits of the
case which shall be examined by the
District Magistrate in accordance with
law." (Emphasis added)

9. The application was rejected by
District Magistrate, Allahabad vide order
dated 23.05.2015. It is said that a recall
application was filed by petitioners on
15.07.2015 which is pending.

10. Another writ petition was filed
by co-sharers, i.e., Writ Petition No.
64059 of 2014 seeking direction to
District
Magistrate,
Allahabad
to
implement orders and instructions issued
by Government for conversion of lease
rights into freehold on Nazul land. The
said petition is pending.

11. Suddenly District Magistrate,
Allahabad has served upon petitioners
notice dated 14.08.2018 informing that
State Government has exercised right of
resumption/ re-entry over land in dispute
and petitioners should handover the same
272 INDIAN LAW REPORTS ALLAHABAD SERIES
within 15 days whereafter possession
shall be taken forcibly. It has been stated
in the order dated 14.08.2018 that land in
dispute is required for public purpose for
erection of buildings for Group Housing
by Allahabad Development Authority
(hereinafter referred to as "A.D.A.").

12. This notice dated 14.08.2018 has
been challenged on the ground that
Government
Grants
Act,
1895
(hereinafter referred to as "GG Act,
1895") has been repealed by Government
of
India
vide
notification
dated
05.01.2018 and thereafter rights of
petitioners, who are in possession of
property in dispute, would be governed by
provisions available in common law and
no forcible possession can be taken;
Government
cannot
evict
petitioners
without following procedure laid down in
Transfer
of
Property
Act,
1882
(hereinafter referred to as "TP Act,
1882"); Government already took a
decision for grant of freehold rights over
Nazul
land
and
applications
were
submitted by petitioners in 1999 but no
decision was taken, matter was kept
pending for almost one and half decade
and now abruptly, by impugned notice,
without deciding petitioners' right of
freehold, Government cannot exercise
power of resumption/ re-entry; lease
expired in 1986 and Government treated
petitioners continuously as "lessees" over
land in dispute; in similar circumstances
State Government has granted freehold
rights to some others, namely, Sri
Subhash and Sri Vikas Chandra on
03.05.2018 but petitioners have been
discriminated;
exercise
of
right
to
resumption/ re-entry is nothing but a
colourable exercise on the part of State
and is wholly arbitrary; and lastly, after
repeal of GG Act, 1895, unfettered right
of Government for resumption/ re-entry is
now
under
check
and
eviction
is
permissible only in accordance with law
and State Government and its authorities
cannot forcibly evict petitioners.

13. A counter affidavit has been
filed on behalf of Respondents-2 and 3,
collectively, which has been sworn by Sri
Gore Lal Shukla, Additional District
Magistrate (Nazul), Allahabad. It is stated
therein that Nazul Plot No. 21 (Bungalow
No. 17), Thornhill Road, situated in
Mauja Nasirpur Bakhtiyari, Paragana
Chail, Allahabad was initially demised by
an Indenture of lease, dated 22.04.1890
(with
effect
from
01.10.1886);
subsequently renewing the lease, a fresh
lease was executed for a period of 50
years on 01.10.1936; lease was governed
by provisions of GG Act, 1895 hence
provisions of TP Act, 1882 were /are not
applicable to such leases in view of
Sections 2 and 3 of GG Act, 1895, as
amended by U.P. Act 13 of 1960; the
renewed lease deed gives an option to
Government to take over land, buildings,
erections etc. upon expiration of period of
lease; there was a clause for re-entry and
forfeiture and it was also provided that no
compensation
or
payment
shall
be
claimable
by
lessee,
his
executors,
administrators or assigns etc; it is true that
in terms of Repealing and Amending
(Second) Act, 2017 (hereinafter referred
to as "Repeal Act, 2017), GG Act, 1895,
has been repealed but Section 4 has
provided
for
savings
of
rights,
consequences etc. under the instruments
governed by Act, 1895 and they are not
affected; in view thereof, right of
resumption/
re-entry
vested
in
Government by virtue of earlier lease
deed read with GG Act, 1895 remained
unaffected and can be exercised despite
4 All. Smt. Parkati Rani & Ors. Vs. State of U.P. & Ors.
273
repeal of GG Act, 1895 due to saving
clause contained in Section 4 of Repeal
Act, 2017; lease in the case in hand
expired on 30.09.1986 and petitioners and
occupants on the land in dispute thereafter
have no authority to continue possession
over property in dispute; for public
purpose of planned development, land in
dispute is needed by A.D.A.; proposal
was submitted to State Government on
19.06.2018 and approved by Government
on 09.08.2018 and accordingly notice for
resumption/ re-entry was issued by
District Magistrate on 14.08.2018; a
supplementary notice was also issued on
24.08.2018 giving reference of different
clauses of lease deed dated 01.10.1936
which provide forfeiture in terms whereof
Government can resume land in dispute
and no compensation would be payable to
lessee, his executors, administrators or
assigns etc.; repeal of GG Act, 1895 does
not affect right of resumption/ re-entry of
Government, as the consequences has to
be considered in the light of Section 6 of
General Clauses Act, 1897 (hereinafter
referred to as "GC Act, 1897") read with
Section 4 of Repeal Act, 2017; the portion
of Nazul land of disputed property over
which petitioners are claiming possession,
in fact, is lying vacant and petitioners are
not residing thereat; mere filing of
application for freehold did not confer any
vested right upon petitioners; in any case,
application for freehold was already
rejected vide order dated 23.05.2015 and
the same has attained finality as having
not been challenged in the present writ
petition or before any other forum; order/
notice dated 14.08.2018 for resumption/
re-entry over land in dispute is perfectly
valid and in accordance with law;
resumption of a particular land is based
on utility and requirement of State and
different land cannot be equated in order
to make allegations of arbitrariness and
discrimination, inasmuch as, different
land have different utility and cannot be
treated to be similarly placed for all
purposes including need of development
for particular purposes.

Writ Petition No. 29547 of 2018

14. Writ Petition No. 29547 of 2018
(hereinafter referred to as "WP-2") has
been filed by sole petitioner, Lov
Mandeshwari Saran Singh son of late
Badreshwari Saran Singh. Family tree of
Sri Badreshwari Saran Singh has already
been given while narrating facts relating
to WP-1. This petitioner has relied on the
family arrangement for division
of
property in dispute among the heirs of
family tree of late Bindeshwari Saran
Singh. This petitioner has also challenged
notice dated 14.08.2018 issued by District
Magistrate, Allahabad exercising right of
resumption/ re-entry over land in dispute
but here some more facts with regard to
inter se dispute of family members have
been stated and we find it necessary to
mention the same in brief.

15. Total area of plot in dispute is
14241 sq. yards i.e., 11906.90 sq. meters.
The erstwhile lessee Bindeshwari Saran
Singh constructed two bungalows over
disputed land, one is numbered as 17
Thornhill Road and another as 11A
Sarojini Naidu Marg, Allahabad. After
death of Sri Bindeshwari Saran Singh on
27.10.1942, his property and other rights
were succeeded by his four sons,
Maheshwari Saran Singh, Jagdishwari
Saran Singh, Bisheshwari Saran Singh
and Jagdambika Saran Singh. In 1948 all
four sons separated through a family
arrangement, executed between them.
Jagdambika Saran Singh, father
of
274 INDIAN LAW REPORTS ALLAHABAD SERIES
Respondents-11, 12 and 13, i.e., Sri
Shanker Kumar Singh, Sri Prakash
Chandra Sharma and Sri Ashutosh Sinha
got exclusive possession over part of
Nazul land occupied by Bungalow No.
11, Queens Road, Allahabad and land
appurtenant thereto in terms of family
arrangement. In order to satisfy decretal
amount
Jagdambika
Saran
Singh
transferred his entire share in Bungalow
No. 11A, Queens Road, Allahabad and
land appurtenant thereto, to Smt. Lalita
Devi, grandmother of petitioner through a
registered sale deed dated 20.12.1950.
Consequently, name of Smt. Lalita Devi
was mutated in Revenue record with
regard to Bungalow No. 11A, Queens
Road, Allahabad. One Rameshwar Prasad
Agrawal filed Original Suit No. 74 of
1949 against Jagdambika Saran Singh for
recovery of money which was decreed on
07.11.1950 for Rs. 7579/-. An Execution
Case No. 43 of 1953 was filed by
Rameshwar Prasad Agrawal wherein
Execution Court on 22.10.1953 passed
order under Order 21 Rule 54(2) C.P.C.
for attachment of property in dispute. In
1959, property in dispute and Bungalow
No. 11A, Queens Road, Allahabad was
auctioned and purchased by Munni Lal
Bhargava,
predecessor
of
proforma
respondents-6 and 7, namely, Master Dev
Raj
Bhargava
and
Master
Aditya
Bhargava. Similarly, Bungalow No. 17
Thornhill Road, Allahabad was purchased
by Sri Niwas Agrawal, father of proforma
respondents-8 to 10, namely, Indresh
Kumar Agrawal, Dinesh Agrawal and
Naresh Agrawal. The above sale and
purchase through auction was a sham
transaction being result of a fraud played
upon Court. Auction purchasers never got
possession over property in dispute.
Jagdambika Saran Singh had only 1/4
share in total Nazul plot measuring
11906.90 sq. meter, therefore, his share
comes to 2976 sq. meter. Share of
Jagdambika Saran Singh stood transferred
to Smt. Lalita Devi, as already said,
through
registered
sale
deed
dated
20.12.1950.
The
auction
purchaser
claimed to have purchased 1/4 share of
Sri Jagdambika Saran Singh. Further,
Smt. Annapurna Devi, one of the cosharer died in 1990 and her share upto
2976 sq. meter in Nazul plot devolved
upon remaining heirs, as a result whereof
992 sq. meter stood devolved upon legal
heirs of Jagdambika Saran Singh, who
had already died in 1986. Co-sharers,
other than legal heirs of late Jagdambika
Saran Singh, applied for freehold rights,
of land coming to their share, but legal
heirs of Jagdambika Saran Singh neither
deposited any money nor applied for
freehold and they have permanently
settled in Gaya (State of Bihar). One of
the
auction
purchaser,
Munni
Lal
Bhargava filed a partition suit in 1973
which was contested by Smt. Lalita Devi.
The said suit was dismissed in default on
09.08.2010. Proforma respondents-8, 9
and 10, i.e., Indresh Kumar Agrawal,
Dinesh Agrawal and Naresh Agrawal, all,
sons of late Shriniwas Agrawal also filed
suit for partition being Original Suit No.
100 of 1973 in the Court of Civil Judge,
Allahabad in respect of Bungalow No. 17
Thornhill Road, without disclosing the
fact that said bungalow is standing on
Nazul land and title is vested in
Government. Partition suit was decreed.
Preliminary
decree
was
passed
on
18.07.1984 and final decree in 2002.
Proforma
respondents-8,
9
and
10
thereafter raised a boundary wall which
has
been
demolished
by
District
Magistrate,
Allahabad,
treating
said
respondents
as
Trespassers.
State
Government has also taken necessary
4 All. Smt. Parkati Rani & Ors. Vs. State of U.P. & Ors.
275
steps and filed application under Order 9
Rule 13 C.P.C. in the Court of Civil Judge
(Senior Division), Allahabad, for recall of
ex parte decree in Original Suit No. 100
of 1973 and said application is pending.
Smt. Lalita Devi, who purchased share of
late
Jagdambika
Saran
Singh,
has
bequeathed her share in favour of Smt.
Kumud Singh, mother of petitioner
through 'Will' dated 28.07.1994. Smt.
Lalita Devi died on 30.09.1997. Father
and mother of petitioner applied for
freehold by depositing 25% money in
terms of G.O. dated 01.12.1998. No
demand notice has been issued to
petitioner. On a representation made by
petitioner's father, State Government sent
a letter dated 08.11.1995 directing District
Magistrate, Allahabad to take appropriate
steps on the application of petitioner's
father and reminders were also given by
letters dated 16.02.1996, 16.10.2001 and
17.01.2005.
Petitioner's
father,
late
Badreshwari
Saran
Singh
died
on
14.09.2007
and
thereafter
petitioner
submitted
representation
dated
29.08.2011 for conversion of lease rights
into
freehold.
Bungalow
No.
11A,
Sarojini Naidu Marg, Allahabad, built
upon Nazul plot No. 21/17, Thornhill
Road,
Allahabad
is
in
exclusive
possession
of
petitioner.
Auction
purchasers, Indresh Kumar Agrawal and
Munni Lal Bhargava filed Writ Petitions
No. 66803 of 2006 and 14267 of 2007
seeking direction to District Magistrate to
recognize their rights. Aforesaid writ
petitions were disposed vide order dated
20.08.2010 directing competent authority
to pass appropriate order, whereupon
Additional District Magistrate (Nazul),
Allahabad
has
passed
order
on
25.08.2011. Petitioner also filed Writ
Petition No. 64059 of 2014 seeking
direction to Collector to give effect to
policy of Government of conversion of
lease right into freehold wherein counter
was invited and the writ petition is
pending. Relief prayed in Writ Petition
No. 64059 of 2014 reads as under:

"i. issue a writ, order in the
nature
of
mandamus
directing
the
respondent Nos 2 and 3 to implement the
order and instructions of the respondent
no. 1 (Annexure No. 6 and 7 to the writ
petition) and convert the share of the
petitioner in the Nazul Plot No. 21/17,
Naseebpur Bakityari, Allahabad into
freehold in view of the petitioner
application No. 2882 pending before
them.

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

iii. issue award cost of the
petition to the petitioner."

(Emphasis added)

16. District Magistrate vide letter
dated 06.01.2018 made a recommendation
to Government proposing resumption/ reentry on Nazul land in dispute. Same has
been accepted by State Government
whereafter
impugned
notice
dated
14.08.2018 has been issued by District
Magistrate, Allahabad. It appears that a
supplementary notice has also been
served by District Magistrate, Allahabad
upon petitioner on 24.08.2018 and placing
the same on record, a supplementary
affidavit has been filed by petitioner.

17. Rest of the pleadings are similar
to
WP-1,
hence
we
are
avoiding
repetition.

Writ Petition No. 30884 of 2018
276 INDIAN LAW REPORTS ALLAHABAD SERIES

18. Writ Petition No. 30884 of 2018
(hereinafter referred to as "WP-3") has been
filed by Smt. Kumud Singh, wife of late
Badreshwari Saran Singh and the facts stated in
writ petition are similar as stated in WP-1 and
WP-2, therefore, the same are not being
repeated. However, some additional facts stated
in the writ petition may be stated hereat. As
already said, auction purchasers filed Writ
Petitions No. 14267 of 2007 and 6680 of 2006
which were disposed of on 20.08.2010,
pursuant
whereto,
Additional
District
Magistrate (Nazul), Allahabad passed order on
25.08.2011. The same was challenged by
petitioner-Smt. Kumud Singh in Writ Petition
No. 56367 of 2011 and it is pending. Further, in
order to consider demand of various authorities
of land for development, District Magistrate,
Allahabad constituted a committee vide order
dated 30.12.2017 constituting:

1. Vice Chairman, Allahabad
Development Authority, Allahabad.

2. Nagar Ayukt, Nagar Nigam,
Allahabad.

3. Additional District Magistrate
(Nazul), Allahabad

4. City Magistrate, Allahabad

5. Sri Sat Shukla, Officer on
Special Duty, A.D.A., Allahabad

19. The aforesaid Committee was
required to examine Nazul land available
in Allahabad City, its suitability and
applicability in the light of demand made
by various Government Departments and
Institutions for resumption. In respect of
land in dispute, Committee submitted its
recommendation
vide
letter
dated
06.01.2018 and the same was forwarded
by
Collector,
Allahabad
to
State
Government for resumption vide letter
dated 06.01.2018. Writ Petition No.
40395 of 2018

20. Writ Petition No. 40395 of 2018
(hereinafter referred to as "WP-4") has
been filed by Smt. Sandhya Singh,
daughter of (late) Brijeshwari Saran Singh
challenging
order/
notice
dated
14.08.2018/ 24.08.2018 issued by District
Magistrate, Allahabad.

21. Facts stated in this writ petition
are common to the facts stated in WPs-1
and 2, therefore, we are not repeating the
same. It is said that application for
freehold was filed by petitioner's father in
1994 and a similar application for
freehold was submitted by petitioner
alongwith others on 05.11.2011. It is also
stated in paras 70 and 71 that an order has
been passed on 09.08.2018 rejecting the
application but copy of order has not been
made available to petitioner.

Writ Petitions No. 40399 of
2018 & 40401 of 2018

22. Writ Petitions No. 40399 of 2018 and
40401 of 2018 (hereinafter referred to as "WP5" and "WP-6" respectively) have been filed by
Sarvesh Singh son of (late) Brijeshwari Saran
Singh and Mandaleshwari Saran Singh. Here
also, facts are same as stated in WPs- 1 to 4,
therefore are not being repeated.

23. On behalf of Respondents-2 and
3 counter affidavits have been filed in
WPs-2 to 6 also with pleadings similar as
stated in counter affidavit filed by Staterespondents in WP-1, therefore, we are
not repeating the same.

24. In WP-1 Sri Ravi Kant, learned
Senior Advocate assisted by Sri Tarun
Agarwal,
Advocate
has
advanced
his
submission on behalf of petitioners while Sri
Ajit Kumar Singh, Additional Advocate
General assisted by Sri Nimai Das and Sri
4 All. Smt. Parkati Rani & Ors. Vs. State of U.P. & Ors.
277
Sudhanshu Srivastava, learned Additional
Chief Standing Counsels for State of U.P. and
its authorities and Sri M.D. Singh Shekhar,
learned Senior Advocate assisted by Sri Amit
Verma, Advocate, for Prayagraj Development
Authority have advanced their submissions.

25. In WPs-2 to 6, Sri Harihar
Prasad Srivastava, Advocate has put in
appearance on behalf of petitioners and
adopted arguments advanced by Sri Ravi
Kant, learned Senior Advocate appearing
for petitioners in WP-1. Counsel for
respondents are same as in WP-1 and
their arguments are also common.

26. Sri Ravi Kant, learned Senior
Advocate, who has led arguments in all
these cases (since in other writ petitions
counsel for petitioners have adopted
argument of Sri Ravi Kant), contended:

i. Lease deed which was going to
expire in 1986 sought to be renewed by
petitioners by submitting application in
1985 but no order was passed therein and
unless an order is passed on petitioners'
application for renewal of lease, petitioners'
rights could not have been affected
otherwise that too, by exercising right of
resumption after more than 30 years.

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

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

iv. In any case, if petitioners
continued possession after expiry of lease
in 1986 was unauthorized in view of
provisions
of
Uttar
Pradesh
Public
Premises
(Eviction
of
Unauthorised
Occupants)
Act,
1972
(hereinafter
referred
to
as
"U.P.
Act,
1972"),
petitioners cannot be evicted or ejected
from disputed land without following
procedure prescribed in the said Act.

v. Right of resumption exercised
by respondents under lease-deed, which
has expired long back is illegal since in
2018
no
deed
was
operating
and
resumption by State vide impugned order
cannot be read in continuation with lease
deed which had already expired in 1986.

vi.
State
Government
has
granted approval for resumption of land in
dispute on proposal made by Collector
without
giving
any
opportunity
to
petitioners, therefore, impugned order
including approval order granted by State
Government is in violation of principles
of natural justice.

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

28. From rival submissions, issues
which, in our view, required to be
adjudicated in these writ petitions are :
278 INDIAN LAW REPORTS ALLAHABAD SERIES

i. What is "Nazul"?

ii.
What
is/are
Statute(s)
governing Crown (late, "Government")
Grant
of
land
owned
by
Crown
(Government) i.e. Nazul? Its status and
effect.

iii.
Whether
lease
right
governed by instruments of lease read
with GG Act, 1895 is transferrable and if
so, whether it is subject to any condition
and any transfer made not consistent with
such conditions, whether would be valid
and confer an actionable right upon
Transferree?

iv. What is the status of a
person, in possession of Nazul land, after
expiry of period of lease, or of a person
who is transferred land by Lessee?

v. Whether right of resumption
exercised by State is in accordance with
law?

vi. Whether petitioners can be
evicted by State Government by giving a
notice and following the condition and
procedure prescribed in the lease deed or
State should follow procedure laid down
under U.P. Act, 1972?

vii. Whether impugned notice
and
order
of
approval
of
State
Government for resumption/re-entry over
land in dispute is invalid on account of
lack of opportunity to petitioners. In other
words, whether principles of natural
justice
are
applicable
when
State
Government chose to exercise right of
resumption/re-entry in respect of land
owned by it?

29. We have framed above questions
in the light of the fact that it is admitted
by all the parties that land in dispute is
'Nazul' and owned by State Government.

30. Questions (i) and (ii), in our
view, can be taken together hence we
proceed to discuss both these questions (i)
and (ii) together.

31. Every land owned by State
Government is not termed as 'Nazul' and
therefore it has become necessary to
understand, what is 'Nazul', and in this
context we have framed question (i).

32. State Government may own land
by having acquired and vested in various
ways, which includes vesting of land in
the capacity of a sovereign body and
having right of bona vacantia.