# Smt. Ram Pyari Devi & Ors v. State of U.P. & Ors

- **Citation:** (2023) 6 ILRA 466
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2023-05-31
- **Case number:** Writ-C No. 32728 of 2000
- **Bench:** Salil Kumar Rai, Arun Kumar Singh Deshwal
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/smt-ram-pyari-devi-ors-v-state-of-u-p-ors-50310
- **Pages:** 11

## Headnote

C.S.C., Sri A.K. Singh, Sri G.K. Singh,
Harshita Raghuvanshi, Sri R.N. Singh, Sri
Sri Nath Dwivedi, Sri Ravi Kant (Sr.
Advocate),
Sri
Gajendra
Pratap
(Sr.
Advocate)

A. Civil Law - Nazul Land - Freehold
Right. St. Government issued Government
Order dated 1.12.1998. As per Para 10 of
6 All. Smt. Ram Pyari Devi & Ors. Vs. State of U.P. & Ors.
467
the Government Order dated 1.12.1998,
former leaseholders (पूर्व पट्टा धारक) were
given the right to apply for freehold within
three months from the date of receiving
the notice. In case they failed to freehold
the nazul plot, rent control tenants
residing in buildings on nazul land would
get the right to apply for freehold. Issue:
Whether the petitioners come within the
definition of पूर्व पट्टा धारक as mentioned in
Paragraph 10 of the Government Order
dated 1.12.1998, despite the fact that the
renewal application of the petitioners as
well as their ancestor was rejected. Held:
There is no distinction in the Government
Order dated 1.12.1998 between पूर्व पट्टा
धारक
whose renewal
application
was
rejected
and
those
whose
renewal
application
is
pending.
If
former
leaseholders are read as only those whose
renewal application is still pending and
has not been rejected, it would amount to
reading words into the enactment.
B. Civil Law - Freehold Rights - Freehold
rights under the policy of the Government
are granted only for plots that are on
lease
and
have
not
vested
in
the
Government. No freehold rights can be
granted by the Government for a plot that
absolutely vests in it, free from all
encumbrances. (Para 14)
C. Constitutional Law - Article 226 -
Maintainability - Sale deed executed by St.
authorities - Held: A sale deed executed
by St. authorities in favor of a private
respondent is subject to the same scrutiny
as any other act of the St. authorities.
Judicial review of St. action is permissible
even in contractual matters. Action of the
St. in executing the said sale deed is to be
judged on grounds of jurisdiction, nonarbitrariness, and non-discrimination. It is
settled law that the power of a High Court
under Article 226 of the Constitution of
India is plenary and is not fettered by
legal constraints. The power under Article
226 ensures that the law of the land is
implicitly obeyed and that various public
authorities and tribunals act within the
limits of their respective jurisdictions. The
remedy
provided
under
Article
226
addresses violations of rights of citizens
by the St. or statutory authority and is a
remedy in public law. (Para
D. Interpretation - Courts cannot add,
substitute, or reject any word in the
enactment/legislation. A construction of
an enactment that requires the addition or
substitution of words, or which results in
the rejection of words as meaningless, has
to be avoided. It is contrary to all rules of
construction to read words into an Act
unless absolutely necessary. It is a wellsettled principle in law that courts cannot
read anything into a statutory provision
that is plain and unambiguous. (Para 12)
E.
In
the
present
case,
petitioners
submitted application for freehold of the
nazul land. Despite this, no demand notice
was issued to them for executing the
freehold deed for the residential part of
Plot No. 103. Instead, respondent no. 4,
the rent control tenant, was given the first
right to execute the freehold deed for the
plot in dispute through the issuance of an
impugned demand notice. During the
pendency of the petition, an impugned
sale deed was executed in favor of
respondent
no.
4
by
the
District
Magistrate, Gorakhpur. Respondent no. 4
was
the
tenant
of
the
petitioners.
Therefore, possession of respondent no. 4
will be deemed constructive possession of
the petitioners or possession on behalf of
the petitioners. Respondent no. 4 cannot
claim better rights than the petitioners
regarding the freehold of the nazul plot.
The demand notice dated 24.7.2000 and
the sale deed dated 26.7.2000 executed
by the District Magistrate, Gorakhp

## Text

466 INDIAN LAW REPORTS ALLAHABAD SERIES
be said to suffer from any illegality or
infirmity.

There is one more aspect of the
matter. As is evident from the narration of
the facts above, the petitioner did not file
any affidavit of the co-owners of the land
mentioned in her application along with
her application. It is only after the result of
the selection was declared on 18th April,
2012 that the petitioner along with her
representation filed certain Affidavits.

As noted above, sub-clause (e) of
Clause 10 of the Brochure requires that the
Originals of the Affidavits should be
submitted along with the application. Subclause (h) of Clause 10 imposes clear
prohibition on acceptance or consideration
of any additional documents after the cutoff date of the application."

15. Judgement of Saurav Mittal vs
Indian Oil Corporation Ltd. (supra)
relied upon by the petitioner is not
applicable in the present case because
from the fact of the relied judgement, it is
clear that the land was purchased from
exclusive owner of the land, which he
himself demarcated and specified the
portion sold to the person concerned but
in the present case petitioner had
purchased 1/3rd share of Sidh Gopal who
was not owner of exclusive part in Plot
No.370/1 but he was co-sharer with other
two persons namely, Sri Jageshwar
Prasad and Sri Kesan Prasad.

16. In view of the above, it is clear
that the petitioner filed the consent
affidavits of co-sharers in plot no.370/1
after the submission of application form.
Therefore, the same were rightly not
considered. Therefore, not awarding marks
for potentiality of land (capacity to provide
infrastructure and facility) to petitioner
cannot be said to be erroneous.

17. So far as the issue regarding
domicile certificate of respondent no.5 is
concerned, by order dated 04.02.2011, the
same cannot also be faulted because the
same was passed on the basis of available
evidence before him regarding ordinary
residence of respondent no.5 at her parental
house in District-Chitrakoot.

18. In view of the above facts, there is
no illegality in the impugned orders dated
12.11.2010, 11.04.2011 and 04.02.2011,
therefore, the petition is dismissed.

19. No order as to costs.
----------
(2023) 6 ILRA 466
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 31.05.2023

BEFORE

THE HON'BLE SALIL KUMAR RAI, J.
THE HON'BLE ARUN KUMAR SINGH
DESHWAL, J.

Writ-C No. 32728 of 2000

Smt. Ram Pyari Devi & Ors. ...Petitioners
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioners:
Sri H.N. Singh, Sri B.N. Singh, Sri Shyamal
Narayan

Counsel for the Respondents:
C.S.C., Sri A.K. Singh, Sri G.K. Singh,
Harshita Raghuvanshi, Sri R.N. Singh, Sri
Sri Nath Dwivedi, Sri Ravi Kant (Sr.
Advocate),
Sri
Gajendra
Pratap
(Sr.
Advocate)

A. Civil Law - Nazul Land - Freehold
Right. St. Government issued Government
Order dated 1.12.1998. As per Para 10 of
6 All. Smt. Ram Pyari Devi & Ors. Vs. State of U.P. & Ors.
467
the Government Order dated 1.12.1998,
former leaseholders (पूर्व पट्टा धारक) were
given the right to apply for freehold within
three months from the date of receiving
the notice. In case they failed to freehold
the nazul plot, rent control tenants
residing in buildings on nazul land would
get the right to apply for freehold. Issue:
Whether the petitioners come within the
definition of पूर्व पट्टा धारक as mentioned in
Paragraph 10 of the Government Order
dated 1.12.1998, despite the fact that the
renewal application of the petitioners as
well as their ancestor was rejected. Held:
There is no distinction in the Government
Order dated 1.12.1998 between पूर्व पट्टा
धारक
whose renewal
application
was
rejected
and
those
whose
renewal
application
is
pending.
If
former
leaseholders are read as only those whose
renewal application is still pending and
has not been rejected, it would amount to
reading words into the enactment.
B. Civil Law - Freehold Rights - Freehold
rights under the policy of the Government
are granted only for plots that are on
lease
and
have
not
vested
in
the
Government. No freehold rights can be
granted by the Government for a plot that
absolutely vests in it, free from all
encumbrances. (Para 14)
C. Constitutional Law - Article 226 -
Maintainability - Sale deed executed by St.
authorities - Held: A sale deed executed
by St. authorities in favor of a private
respondent is subject to the same scrutiny
as any other act of the St. authorities.
Judicial review of St. action is permissible
even in contractual matters. Action of the
St. in executing the said sale deed is to be
judged on grounds of jurisdiction, nonarbitrariness, and non-discrimination. It is
settled law that the power of a High Court
under Article 226 of the Constitution of
India is plenary and is not fettered by
legal constraints. The power under Article
226 ensures that the law of the land is
implicitly obeyed and that various public
authorities and tribunals act within the
limits of their respective jurisdictions. The
remedy
provided
under
Article
226
addresses violations of rights of citizens
by the St. or statutory authority and is a
remedy in public law. (Para
D. Interpretation - Courts cannot add,
substitute, or reject any word in the
enactment/legislation. A construction of
an enactment that requires the addition or
substitution of words, or which results in
the rejection of words as meaningless, has
to be avoided. It is contrary to all rules of
construction to read words into an Act
unless absolutely necessary. It is a wellsettled principle in law that courts cannot
read anything into a statutory provision
that is plain and unambiguous. (Para 12)
E.
In
the
present
case,
petitioners
submitted application for freehold of the
nazul land. Despite this, no demand notice
was issued to them for executing the
freehold deed for the residential part of
Plot No. 103. Instead, respondent no. 4,
the rent control tenant, was given the first
right to execute the freehold deed for the
plot in dispute through the issuance of an
impugned demand notice. During the
pendency of the petition, an impugned
sale deed was executed in favor of
respondent
no.
4
by
the
District
Magistrate, Gorakhpur. Respondent no. 4
was
the
tenant
of
the
petitioners.
Therefore, possession of respondent no. 4
will be deemed constructive possession of
the petitioners or possession on behalf of
the petitioners. Respondent no. 4 cannot
claim better rights than the petitioners
regarding the freehold of the nazul plot.
The demand notice dated 24.7.2000 and
the sale deed dated 26.7.2000 executed
by the District Magistrate, Gorakhpur, in
favor of respondent no. 4 was quashed.
Respondent no. 2 was directed to consider
the
petitioners'
application
for
the
residential
portion
of
Plot
No.
103,
Bungalow No. 07, Gorakhpur, having an
area of 50,995 sq. ft., and issue a demand
notice to the petitioners to fulfill the
468 INDIAN LAW REPORTS ALLAHABAD SERIES
formalities to execute the sale deed for
the aforesaid nazul plot.
Allowed. (E-5)
List of Cases cited:
1. Maulavi Hussein Haji Abraham Umarji Vs St.
of Guj. & anr., 2004 (6) SCC 672
2. Union of India & anr. Vs Deoki Nandan
Aggarwal, 1992 Supp (1) SCC 32
3. Common Cause, A Registered Society Vs
U.O.I. & ors., 1999 (6) SCC 667
4. Mohammed Hanif Vs The St. of Assam, 1969
(2) SCC 782
(Delivered by Hon'ble Arun Kumar Singh
Deshwal, J.)

1. Heard Sri Shyamal Narayan, the
counsel for the petitioners, Sri Ravi Kant
Senior Advocate along with Sri Gajendra
Pratap, Senior Advocate assisted by Sri Sri
Nath Dwivedi, the counsel for respondent no.
4
and
Sri
Sudhanshu
Srivastava,
the
Additional Chief Standing Counsel for the
State-respondent.

2. By way of present writ petition, the
writ petitioners have challenged the demand
notice dated 24.7.2000 issued by the District
Magistrate, Gorakhpur to respondent no. 4 to
initiate the proceeding of freehold land of area
43,000 sq. ft. in Nazul Plot No. 103, Mohalla
Arazi
Chhawani
City
Gorakhpur.
Subsequently, during the pendency of present
writ petition, Prayer no. 1A was also added for
quashing the sale deed / freehold deed dated
26.7.2000 executed by the District Magistrate,
Gorakhpur in favour of respondent no. 4.

3. The factual matrix of the present
case is as follows : -

The ancestor of the petitioners -
late Madan Lal Tekariwal was granted
lease of Bungalow No. 07, Gorakhpur
(subsequently which was re-numbered as
Plot No. 103) which was having total area
66,795 sq. ft. by way of two lease deeds
dated
1.11.1954
and
another
dated
3.12.1954. As per the terms and conditions
of above lease deeds, lessee Sri Madan Lal
Tekariwal had to construct residential
building to let out the same to government
officers. The above lease deed was for a
period of 30 years which could be renewed
upto a maximum period of 90 days. It was
further mentioned in the terms and
conditions of lease that the lessee shall let
out the building exclusively for the
residence of gazetted officer on rent and it
shall not be occupied by him. After expiry
of period on 30.4.1975, the lessee - Madan
Lal Tekariwal also filed an application
dated
8.7.1975
before
the
District
Magistrate for renewal of his lease which
remained pending till his death. After the
death of lessee - Madan Lal Tekariwal, the
petitioners being his successors moved an
application dated 9.8.1977 for mutation of
their name as heirs of late Madan Lal
Tekariwal and also prayed that lease may
be renewed in their favour. The above
application
of
the
petitioners
was
forwarded by the District Magistrate to Incharge, Nazul Nagar Palika, Gorakhpur for
taking further action. The In-charge, Nazul
Nagar Palika, Gorakhpur by letter dated
25.10.1977
informed
the
District
Magistrate that the proceeding for revesting the land in question has been
pending against lessee - Madan Lal
Tekariwal, therefore, the names of the
petitioners cannot be mutated as the heirs
of Madan Lal Tekariwal and notice has
been issued to the petitioners for the same,
therefore, the question of renewal does not
arise. But subsequently, there is no order on
6 All. Smt. Ram Pyari Devi & Ors. Vs. State of U.P. & Ors.
469
record that any order was passed on the
application
dated
7.10.1977
of
the
petitioners by the District Magistrate. The
District Magistrate allotted the building
constructed over a part of the land in
dispute to respondent no. 4 on 27.7.1982
under Act No. 13 of 1972 with the
stipulation that respondent no. 4 will pay
the rent to lessee - Banwari Lal (petitioner
no. 2). It is relevant to mention here that at
the time of aforesaid allotment, the
respondent no. 4 was an M.L.A. Thereafter,
two renewal applications submitted by the
petitioners were rejected by orders dated
9.6.1985 and 7.7.1985 on the ground that
the petitioners had violated the terms and
conditions of lease by making construction
thereon without permission and it was
further directed by these two orders that the
petitioners should remove the illegal
constructions within a period of 30 days. In
case,
they
failed
to
remove
the
construction, then they will be evicted from
the land in dispute including the building
situated over it. Thereafter, in the year
1989,
proceedings
under
the
Public
Premises Act were also initiated against the
petitioners for their eviction from the land
in
dispute
which
remained
pending.
Thereafter, the State Government issued
Government Order dated 1.12.1998. As per
Para 10 of the Government Order dated
1.12.1998, former lease holders (पूवष पट्टा धारक)
were also given right to apply for freehold
within three months from the date of
receiving the notice, and in case, they failed
to freehold the nazul plot, then rent control
tenants residing in the building over nazul
land, would get the right to apply for
freehold.
In
pursuance
of
above
Government Order, the petitioners had
submitted
two
applications,
one
for
commercial portion of land having area
15,800 sq. ft. and another for residential
portion of land having area 50,995 sq. ft.
along with treasury challan of required
deposit. The State has executed freehold
sale deed dated 20.3.1999 in favour of
petitioners regarding commercial part of
Plot No. 103 having area 15,800 sq. ft. but
no action was taken on the application
dated 27.1.1999 of the petitioners for
freehold of the residential portion of Nazul
Plot No. 103. But the District Magistrate,
Gorakhpur had issued impugned notice /
letter dated 24.7.2000 to respondent no. 4
to deposit required amount for execution of
freehold deed in his favour regarding area
of 43,000 sq. ft. in Plot No. 103 which was
residential portion in the above land. This
demand notice was under challenge, in the
present writ petition but during the
pendency of present writ petition, sale deed
/ freehold deed dated 26.7.2000 was also
executed in favour of respondent no. 4 after
taking
required
deposit
from
him.
Therefore,
petitioners,
by
way
of
amendment, have also prayed for quashing
of sale deed / freehold deed dated
26.7.2000 regarding the land of 43,000 sq.
ft. in Plot No. 103.

4. The petitioners have contended that
the Government Order dated 1.12.1998
clearly conferred right upon the lease
holder whose lease expired to apply and get
the freehold deed executed in their favour
within three months from the date of
receiving the demand notice and his tenant
(respondent no. 4) will get right only after
the petitioners failed to get the freehold
deed executed in their favour but the
impugned demand notice was illegally
issued to respondent no. 4 who was a tenant
of the petitioners and thereafter impugned
sale deed was also executed in his favour. It
is also submitted by the petitioners that the
right of the respondent no. 4 comes after
the petitioners, not in preference to
petitioners.
As
respondent
no.
4
is
470 INDIAN LAW REPORTS ALLAHABAD SERIES
admittedly the tenant in the building
constructed
by
the
ancestor
of
the
petitioners and he had been paying rent to
them, therefore, impugned demand notice
as well as impugned sale deed / freehold
deed executed in favour of respondent no. 4
are absolutely illegal. The counsel for the
petitioners further relied upon query no. 11
and its answer of Government Order dated
1.12.1998 which specifically provides that
if there is rent control tenant in the building
over the nazul land then former patta holder
is entitled to get the freehold deed executed
in his favour within 90 days and, in case, he
fails only then tenant will get right to get
freehold deed executed in his favour. It is
further submitted by the counsel for the
petitioners that impugned demand notice as
well as impugned sale deed / freehold deed
was executed in favour of respondent no. 4
for
extraneous
consideration
because
respondent no. 4 was a Cabinet Minister at
that time and was himself part of the Nazul
Committee which framed the nazul policy
in the year 1998. In support of his
contention, the counsel for the petitioners
also placed before the Court a copy of
resolution
dated
16.10.1998
of
subcommittee of the Council of Minister
which framed nazul policy in which the
respondent no. 4 being Cabinet Minister
was also shown as a Member. The counsel
for the petitioners also produced before the
Court, copy of freehold application dated
30.1.1999 of the respondent no. 4. This
application was submitted by respondent
no. 4 in the capacity of rent control tenant
and not in any independent capacity.

5. Per contra, the counsel for
respondent no. 4 submitted that lease of the
petitioner expired on 30.4.1975 and their
renewal application was also rejected in the
year 1985 and this rejection order was not
challenged by the petitioners, therefore,
became final and land absolutely vested in
the State. Therefore, the petitioners have no
right to get sale deed / freehold deed of the
land in dispute executed in their favour
because he cannot be considered as पूवष पट्टा
धारकas
per
Government
Order
dated
1.12.1998. The counsel for respondent no.
4 further submitted that petitioners are
unauthorized occupant as per Section 2(g)
of U.P. Public Premises Act because their
renewal application was already rejected,
therefore, being unauthorized occupant, no
right can be conferred upon them to get the
freehold deed executed in their favour
regarding the nazul land in dispute. It was
also
submitted
by
the
counsel
for
respondent no. 4 that notice was issued to
the petitioners as well as their ancestor for
making illegal construction in the land in
dispute, therefore, being violator of terms
and conditions of lease, equity does not lie
in their favour. After expiry of period of
lease, State has rejected the renewal
application of the petitioners, therefore,
entire rights have remitted back to the State
and being owner of nazul land, State
Government rightly executed freehold deed
in favour of respondent no. 4.

6. The learned Standing Counsel
contended that the petitioners while filing
the present petition, they had concealed the
material fact regarding the rejection of their
renewal application for the land in dispute.
It was also submitted that the opportunity
as required in query no. 11 of the
Government Order dated 1.12.1998 was
given to petitioners in 1976 by giving them
notice for eviction from nazul plot for
making construction in violation of terms
and conditions of lease. Therefore, fresh
notice as per Government Order dated
1.12.1998 is not required. It was also
submitted by the Standing Counsel that the
notices dated 9.6.1985 and 7.7.1985 were
6 All. Smt. Ram Pyari Devi & Ors. Vs. State of U.P. & Ors.
471
also given to petitioners for rejecting their
renewal application for the lease of nazul
land and also for their eviction but
petitioners had failed to comply the same,
therefore, the petitioners are unauthorized
occupant. It is also submitted by the
Standing Counsel that sale deed cannot be
cancelled in writ jurisdiction and the
remedy
lies
before
the
civil
court,
therefore, on this ground itself, the writ
petition deserves to be dismissed. It was
further submitted by the Standing Counsel
that the petitioners are neither in de jure
nor de facto possession over the land in
dispute and after rejection of the renewal
application, land absolutely vested in the
State and notice of the same was also given
by the State to petitioners in the year 1985
and after the notice dated 19.6.1985, de
jure possession was taken by the State,
therefore, petitioners cannot be treated in
possession. Hence, in view of query no. 11
of Government Order dated 1.12.1998,
petitioners are not entitled to get the
freehold deed executed because they were
not in possession and respondent no. 4,
being the statutory tenant, has right to get
the freehold deed executed in his favour.
Therefore, impugned demand notice as
well as sale deed in favour of respondent
no. 4 are absolutely correct and justified.

7. In reply to the contention of
respondent no. 4, the counsel for petitioners
submitted that respondent no. 4 himself
was co-author of the policy including right
of tenant or unauthorized occupants,
therefore, impugned orders are nothing but
colourable exercise just to grant undue
benefit to respondent no. 4 in the garb of
Government Order dated 1.12.1998 by
misinterpreting the same. It was also
submitted that respondent no. 4, who got
the right as tenant from petitioners, cannot
be conferred right to get the sale deed
executed depriving the petitioners, who are
admittedly his landlord. This fact cannot be
disputed that the entire lease rent for the
entire land of Plot No. 103 was deposited
by the petitioners till the date of filing
application for freehold as per Government
Order dated 1.12.1998. But the State
Government executed the freehold deed in
favour of petitioners only for commercial
part of Plot No. 103 and freehold deed of
remaining residential part of Plot No. 103
was arbitrary and illegally executed in
favour of respondent no. 4 and noting
which was the basis of issuing the
impugned demand notice in favour of
respondent no. 4 itself shows that freehold
deed regarding residential part of Plot No.
103 was executed in favour of respondent
no. 4 only on the ground that tenant of the
petitioners, i.e., respondent no. 4 cannot be
evicted because there is a stay order in his
favour in the rent control proceeding. It
was also submitted by the counsel for
petitioners
that
notice
given
to
the
petitioners in the year 1985 cannot be
referable to Para 10 of Government Order
dated 1.12.1998. Even otherwise, despite
the above notice, commercial part of the
land of Plot No. 103 was already freehold
in favour of the petitioners. It was lastly
submitted in his reply by the counsel for
petitioners that Government Order dated
1.12.1998 did not make any distinction
between former lease holder (पूवष पट्टा धारक)
whose renewal application is pending and
whose
renewal
application
has
been
rejected.

8. After considering the submission of
counsel for the parties as well as on perusal
of records, sole question arises for
determination is whether the petitioners
come within the definition of पूवष पट्टा धारक as
mentioned in Paragraph 10 of Government
Order dated 1.12.1998 despite the fact that
472 INDIAN LAW REPORTS ALLAHABAD SERIES
renewal application of the petitioners as
well as their ancestor Madan Lal Tekariwal
was rejected. For determination of this
question, Paragraph 10 of the Government
Order dated 1.12.1998 is being quoted as
below : -

"10. िट्टागत नजूल भूपम िर पस्थत भवन के रेन्ट कन्रोल
के पकराएदारों के िक्ष में नजूल भूपम फ्री होल्ड पकए जाने हेतु पनम्नानुसार
व्यवस्था की गई हैः-

यपद िट्टे की अवपि समाप्त हो गई हो अथवा पकसी
उल्लघंन के कारर् राज्य सरकार को उि भूपम िर िुनः प्रवेश का अपिकार
प्राप्त हो गया है तो फ्री होल्ड के पलए िूवस िट्टािारकों को अपनवायस रूि से
फ्री होल्ड कराने हेतु 3 माह की समय सीमा पनिासररत करते हुए समयबद्ध
नोपटस पदया जाएगा (उसके द्वारा आवेदन पकए जाने के समय जो भी
सपकसल रेट लागू होगा, उसी के आिार िर फ्री होल्ड मूल्य आंकपलत होगा।
उदाहरर्ाथस यपद इस शासनादेश से 2 माह के भीतर आवेदन करता है तो
30.11.91 के सपकसल रेट लागू होगें)। यपद वह उि पनिासररत अवपि में
फ्री होल्ड नहीं कराता है तो िट्टा पवखंपडत करने की कायसवाही पनयमानुसार
िूर्स कर रेन्ट कन्रोल के पकरायेदार के िक्ष में फ्री होल्ड की कायसवाही की
जायेगी और वह पकरायेदार सम्बपन्ित भवन का पडप्रीपसएटेड मूल्य
भूस्वामी/िट्टेदार को उिलब्ि करायेगा। पकरायेदार के िक्ष में अद्यतन सपकसल
रेट िर फ्री होल्ड की कायसवाही की जायेगी जहााँ एक ही िट्टागत भूखण्ड िर
एक से अपिक रेण्ट कन्रोल एक्ट के अन्तगसत आवंटी अध्यापसत है वहााँ
उन सभी आवंपटयों के द्वारा पदये जा रहे पकराये के अनुिात में उन सभी की
िरस्िर सहमपत से सम्बपन्ित भूखण्ड के उनके बीच पवभाजन सम्बन्िी
शिथ ित्र प्राप्त कर ही फ्री होल्ड की कायसवाही की जायेगी।

इस सम्बन्ि में मुझे यह भी कहने का पनदेश हुआ है पक
उिरोि संशोिन एवं िररविसन को तात्कापलक प्रभाव से लागू करते हुए
कायसवाही की जाय तथा नीपत का पवस्तृत प्रचार एवं प्रसार पकया जाये
पजससे इसमें पनपहत प्रापविान सम्बपन्ित िक्ष भली-भांपत समझकर इसका
लाभ उठा सकें।

फ्री होल्ड की समस्त कायसवाही मा० उच्च न्यायालय में दायर
ररट यापचका संख्याः32605/91 सत्य नारायर् किूर बनाम राज्य सरकार
आपद में िाररत पनर्सय पदनांक 15.10.97 के पवरूद्ध उ०प्र० सरकार द्वारा मा०
उच्चतम न्यायालय में दायर पवशेर् अनुज्ञा यापचका संख्याः1557-59/98 में
िाररत होने वाले अपन्तम पनर्सय के अिीन होगी।

ये आदेश पवत्त पवभाग के अशासकीय संख्याः ई-62286/दस-98 पदनांक 28.11.98 में प्राप्त उनकी सहमपत से जारी
पकये जा रहे है।

भवदीय,

अतुल कुमार गुप्ता

सपचव"

9. For determination of above
mentioned question, Query No. 11 and
answer thereto in Government Order dated
1.12.1998 is also required to be considered
and same is also quoted as below : -

"11. पजज्ञासाः मेरे िास िट्टा था िरन्तु िट्टावपि समाप्त
होने के बाद अब मेरा कब्जा नहीं रहा, पकसी अन्य का कब्जा है। क्या मै
फ्रीहोल्ड करा सकता ह ाँ?

समािानः जी नहीं। िट्टावपि समाप्त होने िर फ्रीहोल्ड की
सुपविा तभी प्राप्त होगी जब आिका कब्जा भी हो। िरन्तु यपद भूपम िर बने
भवन में रेण्ट कण्रोल का पकरायेदार है तो आि 90 पदन में फ्रीहोल्ड करा
लें अन्यथा यह अवसर पकरायेदार को पमल जायेगा।"

10. From the perusal of relevant part
of Government Order dated 1.12.1998
which are quoted as above, it is clear that
there is no distinction in Government Order
dated 1.12.1998 between पूवष पट्टा धारक whose
renewal application was rejected and whose
renewal application is pending. In various
judgments, the Hon'ble Supreme Court has
observed that the Courts cannot add or
substitute or reject any word in the
enactment
/
legislation.
In
Maulavi
Hussein Haji Abraham Umarji vs. State of
Gujarat & Anr. 2004 (6) SCC 672, the
Supreme Court observed that a construction
of an enactment which requires for its
support, addition or substitution of words
or which results in rejection of words as
meaningless has to be avoided. It was
observed that it was well settled principle
in law that court cannot read anything into
a statutory provision which is plain and
unambiguous. The observations of the
Supreme Court in Paragraphs 16 and 17 of
the aforesaid judgment are reproduced
below : -

"16. It is well settled principle in
law that the Court cannot read anything
into a statutory provision which is plain
and unambiguous. A statute is an edict of
the Legislature. The language employed in
a statute is the determinative factor of
legislative intent.
6 All. Smt. Ram Pyari Devi & Ors. Vs. State of U.P. & Ors.
473

17. Words and phrases are
symbols that stimulate mental references to
referents. The object of interpreting a
statute is to ascertain the intention of the
Legislature enacting it. (See Institute of
Chartered Accountants of India v. Price
Waterhouse).
The
intention
of
the
legislature is primarily to be gathered from
the language used, which means that
attention should be paid to what has been
said as also to what has not been said. As a
consequence,
a
construction
which
requires for its support, addition or
substitution of words or which results in
rejection of words as meaningless has to
be avoided. As observed in Crawford v.
Spooner, courts cannot aid the legislatures'
defective phrasing of an Act, we cannot add
or mend, and by construction make up
deficiencies which are left there. (See State
of Gujarat v. Dilipbhai, Nathjibhai Patel).
It is contrary to all rules of construction to
read words into an Act unless it is
absolutely necessary to do so. (See Stock v.
Frank Jones (Tiptan) Ltd. Rules of
interpretation do not permit courts to do
so, unless the provision as it stands is
meaningless or of doubtful meaning.
Courts are not entitled to read words into
an Act of Parliament unless clear reason
for it is to be found within the four
corners of the Act itself. (Per Lord
Loreburn L.C. in Vickers Sons and Maxim
Ltd. v. Evans quoted in Jumma Masjid v.
Kodimaniandra Deviah)."

(emphasis added)

11. Previously also, the Supreme
Court in Union of India & Anr. vs. Deoki
Nandan Aggarwal 1992 Supp (1) 323 has
observed as follows : -

"14. We are at a loss to
understand the reasoning of the learned
Judges in reading down the provisions in
paragraph 2 in force prior to November 1,
1986 as "more than five years" and as
"more than four years" in the same
paragraph for the period subsequent to
November 1, 1986. It is not the duty of the
court either to enlarge the scope of the
legislation
or
the
intention
of
the
legislature when the language of the
provision is plain and unambiguous. The
court cannot rewrite, recast or reframe the
legislation for the very good reason that it
has no power to legislate. The power to
legislate has not been conferred on the
courts. The court cannot add words to a
statute or read words into it which are not
there. Assuming there is a defect or an
omission in the words used by the
legislature the court could not go to its aid
to correct or make up the deficiency.
Courts shall decide what the law is and not
what it should be. The court of course
adopts a construction which will carry out
the obvious intention of the legislature but
could not legislate itself. But to invoke
judicial activism to set at naught legislative
judgment is subversive of the constitutional
harmony
and
comity
of
instrumentalities.Vide
P.K.
Unni
v.
Nirmala
Industries,
Mangilal
v.
Suganchand Rathi, Sri Ram Ram Narain
Medhi v. State of Bombay, Hira Devi (Smt)
v. District Board, Shahjahanpur, Nalinkhya
Bysack v. Shyam Sunder Haldar, Gujarat
Steel Tubes Ltd. v. Gujarat Steel Tubes
Mazdoor Sabha, G. Narayanaswami v. G.
Pannerselvam, N.S. Vardachari v. G.
Vasantha Pai, Union of India v. Sankal
Chand Himatlal Sheth and CST v. Auriaya
Chamber
of
Commerce,
Allahabad.
Modifying and altering the scheme and
applying it to others who are not otherwise
entitled to under the scheme, will not also
come under the principle of affirmative
action adopted by courts some times in
order to avoid discrimination. If we may
474 INDIAN LAW REPORTS ALLAHABAD SERIES
say so, what the High Court has done in
this case is a clear and naked usurpation of
legislative power."

(emphasis added)

12. Accepting the interpretation of
Clause 10 of the Government Order dated
1.12.1998 as pleaded by the respondents
would amount to reading words in the
enactment, i.e., former lease holders would
be read as former lease holders whose
renewal application is still pending and has
not been rejected. We do not find anything
in the Government Order dated 1.12.1998
which could persuade us to add such words
in the enactment. There is no ambiguity or
vagueness in Clause 10 of the Government
Order dated 1.12.1998. Therefore, while
interpreting
Government
Order
dated
1.12.1998, distinction cannot be drawn by
this Court between पूवष पट्टा धारक whose
renewal application has been rejected and
whose application for renewal is pending in
absence
of
any
such
distinction
in
Government Order dated 1.12.1998. This is
also clear from the above quoted provision
of Government Order dated 1.12.1998 that
पूवष पट्टा धारक (Former Lease Holder) will have
first right to freehold, therefore, he is
entitled to get three months' notice from
the District Magistrate and if he fails to
complete the formality of freehold, then his
rent control tenant will be entitled to get the
freehold deed executed in his favour. In the
present case, despite application of the
petitioners for freehold of the nazul land in
dispute, demand notice for the residential
part of Plot No. 103, was not issued to him
to get the freehold deed executed. On the
other hand, the respondent no. 4 who was
the rent control tenant was given first right
to get the freehold deed executed regarding
the plot in dispute by issuing him impugned
demand notice and thereafter during the
pendency of present petition, impugned
sale deed was executed in his favour by the
District Magistrate, Gorakhpur.

13. The contention of the counsel for
respondent no. 4 is that on expiry of lease
of plot in dispute, the same vested in the
State absolutely. Therefore, the State
Government was well within its power to
execute the freehold deed in favour of
respondent no. 4 ignoring Government
Order dated 1.12.1998, cannot be accepted
because action of the State Government
should be as per the Government Policy
regarding nazul plot, i.e., Government
Order dated 1.12.1998. This fact is
undisputed that respondent no. 4 was the
tenant of petitioners, therefore, possession
of respondent no. 4 will be deemed to be
constructive possession of petitioners or
possession on behalf of petitioners. The
respondent no. 4 cannot get better right
than the petitioners regarding freehold of
nazul plot. On the one hand, the State
Government itself executed freehold deed /
sale deed of part of the land in Plot No. 103
and denied the same regarding other part by
issuing demand notice to rent control tenant
contrary to Government Order dated
1.12.1998 and thereafter executed sale deed
dated 26.7.2000 for remaining part of Plot
No. 103 which is in dispute. This fact also
shows arbitrariness on the part of the State
Government.

14. The argument of the counsel for
respondent no. 4 also suffers from a fallacy
and is self-defeating. Freehold rights, under
the policy of the Government are granted
only on plots which are on lease and which
have not vested in the Government. No
freehold rights can be granted by the
Government in a plot which absolutely
vests in it free from all encumbrances.
Thus, even if the argument of respondent
no. 4 is accepted, the freehold deed
6 All. Smt. Ram Pyari Devi & Ors. Vs. State of U.P. & Ors.
475
executed in his favour is illegal and
contrary to law.

15. The argument of the counsel for
the respondents that the petition under
Article 226 of the Constitution of India is
not maintainable as it involves adjudication
of the validity of the sale deed dated
26.7.2000 and this Court under Article 226
of the Constitution of India cannot quash a
sale deed is also not acceptable. The sale
deed has been executed by the State
authorities in favour of respondent no. 4
and is subject to the same scrutiny as any
other act of the State authorities would be.
Judicial
review
of
state
action
is
permissible even in contractual matters.
Normally, a writ court does not exercise its
prerogative jurisdiction under Article 226,
in cases, where the validity of sale deeds
executed by private parties are concerned
in as much as adjudging the validity of the
said sale deed would require oral and
documentary evidence and assessment of
evidence for which writ proceedings may
not be the appropriate remedy. But in the
present case, the sale deed, as noted earlier,
has been executed by the State and the
action of the State in executing the said sale
deed is to be judged on grounds of
jurisdiction and the principle of nonarbitrariness and non-discrimination. The
issue regarding the validity of the sale
deed, in the present case, does not raise any
question of private law but raises questions
of public law. No disputed questions of fact
are involved and no evidence regarding
execution of the sale deed is required in the
case to adjudicate the validity of the said
sale deed. The validity of sale deed is
dependent on the validity of the demand
notice issued in favour of respondent no. 4
and on the decision of this Court regarding
the freehold rights of the petitioners in the
land which right is claimed against the
State. It is settled law that the power of a
High Court under Article 226 of the
Constitution of India are plenary powers
and are not fatal by any legal constrains.
(Reference may be made to Common
Cause, A Registered Society vs. Union of
India & Ors. 1999 (6) SCC 667). The
power under Article 226 is to ensure that
the law of the land is implicitly obeyed and
that various public authorities and tribunals
are kept within the limits of their respective
jurisdiction. The remedy provided under
Article 226 is a remedy against the
violation of the rights of a citizen by the
State or statutory authority and it is a
remedy in public law. (Reference may be
made to Mohammed Hanif vs. The State
of Assam 1969 (2) SCC 782). In the
present
case,
the
petitioners
have
approached the court for enforcement of
their rights against the State and raise
issues relating to the powers and jurisdiction
of the State authorities. In view of the aforesaid,
the petition is maintainable and the argument of
the counsel for the petitioners on that ground
also stands rejected. In view of the above,
demand notice dated 24.7.2000 executed by the
District Magistrate, Gorakhpur as well as sale
deed dated 26.7.2000 executed by the District
Magistrate, Gorakhpur in favour of respondent
no. 4 are, hereby, quashed and respondent no. 2
is directed to consider the application of the
petitioners for residential portion of Plot No.
103 Bungalow No. 07, Gorakhpur having area
of 50,995 sq. ft. and issue demand notice to the
petitioners to fulfill the formalities to execute
the sale deed for the aforesaid nazul plot and
thereafter on completion of formalities of
aforesaid demand notice, sale deed of the
aforesaid nazul plot be executed in favour of
petitioners.

16. With the aforesaid directions, the
writ petition is disposed of.
----------
476 INDIAN LAW REPORTS ALLAHABAD SERIES
(2023) 6 ILRA 476
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 09.05.2023

BEFORE

THE HON'BLE SURYA PRAKASH
KESARWANI, J.
THE HON'BLE ANISH KUMAR GUPTA, J.

Writ-C No. 36038 of 2022

Rajendra Bihari Lal ...Petitioner
Versus
Union of India & Ors. ...Respondents

Counsel for the Petitioner:
Sri Anuj Srivastava, Sri Amit Negi, Sri Gopal
Swaroop Chaturvedi (Sr. Advocate)

Counsel for the Respondents:
A.S.G.I., Sri Gopal Verma

Civil Law - Passport Act, 1967 - Section 6 -
Refusal of passports - Criminal case
pending As per the legislative mandate of
Clauses (e), (f), and (g) of sub-Section (2)
of Section 6 of the Passport Act, 1967, the
passport authority shall refuse to issue a
passport
or
travelling
document
for
visiting any foreign country on the ground
mentioned in Clauses (a) to (i). Opening
words of sub-Section (2) of Section 6 are
that "subject to the other provisions of
this Act." therefore, the passport or
travelling document may be issued by the
passport authority if an applicant obtains
permission from the concerned court
where the criminal case is pending, in
terms of Notification No. GSR 570(E).-I,
dated
25.08.1993,
issued
by
the
Government. It is mandatory for an
applicant to obtain permission from the
court where the applicant is facing trial.
(Para 11)
Dismissed. (E-5)
List of Cases cited:
1. Vangala Kasturi Rangacharyulu Vs Central
Bureau of Investigation, Criminal Appeal No(s).
1342 of 2017, dated 27.09.2021
2. Abbas Hatimbhai Kagalwala Vs The State of
Mah. & anr.., Writ Petition No. 384 of 2019,
dated 23.08.2022
(Delivered by Hon'ble Surya Prakash
Kesarwani, J.
&
Hon'ble Anish Kumar Gupta, J.)

1.
Heard
Shri
Gopal
Swaroop
Chaturvedi,
learned
Senior
Advocate
assisted by Shri Amit Negi, learned counsel
for the petitioner and Sri S.P. Singh,
learned Additional Solicitor General of
India assisted by Sri Gopal Verma, learned
counsel for the respondent.

2. Briefly stated facts of the present
case are that the petitioner has filed an
application for renewal of his passport.
Since no order was passed on his renewal
application, therefore, the petitioner filed a
Writ - C No. - 22637 of 2020 (Rajendra
Bihari Lal Vs. Union Of India and another)
which was disposed of by order dated
16.12.2020
directing
the
concerned
Passport Authority to pass an order or in
the event, order has already been passed
then same be communicated. Thereafter,
the respondent no.2 passed the impugned
orders dated 06.06.2022 and 29.06.2022.
By the impugned order dated 29.06.2022,
the respondent no.2 has declined to issue
passport to the petitioner on the ground of
adverse police report based on several
criminal
cases registered against the
petitioner but granted liberty to submit "no
objection" of the concerned court to issue
passport.

3. It has also been admitted before us
by learned counsel for the petitioner that