# Smt. Usha Rani Gupta & Ors v. State of U.P. & Ors

- **Citation:** (2019) 4 ILRA 357
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2019-11-04
- **Case number:** Writ C. No. 38597 of 2018
- **Bench:** Sudhir Agarwal, Virendra Kumar Srivastava
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/smt-usha-rani-gupta-ors-v-state-of-u-p-ors-44996
- **Pages:** 50

## Headnote

A. Civil Law - Nazul property - Nature
and meaning - Nazul is an Arabic word.
It refers to a land annexed to Crown.
During
British
Regime,
immoveable
property
of
individuals,
Zamindars,
Nawabs and Rajas when confiscated for
one or the other reason, it was termed as
„Nazul
property‟
-
It
was
neither
acquired nor purchased after making
payment - In Legal Glossary 1992
meaning of the term „Nazul‟ has been
given as „Rajbhoomi‟ - It is only such
land which is owned and vested in the
State on account of its capacity of
Sovereign, and application of right of
bona vacantia. (Para 24, 25 and 26)

B. Constitution of India - Article 296 -
Principle of escheat/ bona vacantia/
Doctrine of lapse - Empowering the king
to take property - Recognized under
common
law
of
England
-
These
principle would have been applicable
prior to enforcement of Constitution of
India - Article 296 has retained power of
State to get ownership of such land, in
respect whereof principle of 'escheat',
'lapse' or 'bona vacantia' applied - This
power
continued
to
apply
after
enactment of Constitution with the only
modification that if such land is situate
within the territory of State Government,
it will vest in State and in other cases, it
will vest in Union of India. (Para 28 and
31)

Held - Thus the land in question which is
admittedly 'Nazul', belonged to the category as
discussed above i.e. it came to be vested and
owned by State in its capacity of Sovereign
and right of bona vacantia. When acquisition is
made under the provisions of a Statute,
purpose of acquisition is already known and
State pay its price but when land is owned by
State, which is Nazul, objective of use of such
land is not predetermined but it can be utilized
by State for larger public welfare and its
benefit, as necessitated from time to time. In
other words 'Nazul' land forms the assets
owned by State in trust for the people in
general who are entitled for its user in the
most fair and beneficial manner for their
benefit. State cannot be allowed to distribute
such largesse by pick and choose manner or to
some selected groups, or in a whimsical
manner etc.
358 INDIAN LAW REPORTS ALLAHABAD SERIES
C. Government Grant Act, 1895 - Preamble
- Purpose of enactment - Doubts have
arisen to the extent and operation of TP
Act, 1882 and to the power of Crown (later
substituted by word "Government") to
impose limitations and restrictions upon
grants and other transfers of land made by
it or under its authority, hence to remove
such doubts, GG Act, 1895 was enacted.
(Para 48)

D. Government Grant Act, 1895 - Section
2 and 3 - Transfer of Property Act, 1882
- Grant of Nazul - Governing factor -
Where „Nazul‟ land is let out to a person
by Government under agreement of
lease i.e. Grant, it is governed by GG Act,
1895 and rights of parties therefore

## Text

_Characters 0–39,886 of 163,438. This is a partial read: ask again with offset=39886 for what follows._

4 All. Smt. Usha Rani Gupta & Ors. Vs. State of U.P. & Ors.
357
petitioners are entitled for the benefit
under Section 3 and 4 of the Repeal Act.

29. For the reasons stated above, we
find that the ceiling proceedings stood
lapse and petitioners are entitled for the
land in question, which has been declared
surplus. The order impugned dated
05.05.2014 is hereby quashed and writ
petition stands allowed.

30. Petitioners may apply before the
authorities for expunging name of State
Government from the revenue records and
mutating their names.

----------
(2019)12 ILR A357

ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 04.11.2019

BEFORE
THE HON'BLE SUDHIR AGARWAL, J.
THE HON'BLE VIRENDRA KUMAR
SRIVASTAVA, J.

Writ C. No. 38597 of 2018

Smt. Usha Rani Gupta & Ors.
 ...Petitioners
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioners:
Sri Ashish Kumar Singh, Manu Srivastava

Counsel for the Respondents:
C.S.C., Sri Bhanu Deo Pandey, Sri Devi
Prasad Mishra, Sri Ajit Kumar Singh, Sri
Nimai Das, Sri Amit Verma, Sri Brijendra
Kumar, Sri B.D. Pandey

A. Civil Law - Nazul property - Nature
and meaning - Nazul is an Arabic word.
It refers to a land annexed to Crown.
During
British
Regime,
immoveable
property
of
individuals,
Zamindars,
Nawabs and Rajas when confiscated for
one or the other reason, it was termed as
„Nazul
property‟
-
It
was
neither
acquired nor purchased after making
payment - In Legal Glossary 1992
meaning of the term „Nazul‟ has been
given as „Rajbhoomi‟ - It is only such
land which is owned and vested in the
State on account of its capacity of
Sovereign, and application of right of
bona vacantia. (Para 24, 25 and 26)

B. Constitution of India - Article 296 -
Principle of escheat/ bona vacantia/
Doctrine of lapse - Empowering the king
to take property - Recognized under
common
law
of
England
-
These
principle would have been applicable
prior to enforcement of Constitution of
India - Article 296 has retained power of
State to get ownership of such land, in
respect whereof principle of 'escheat',
'lapse' or 'bona vacantia' applied - This
power
continued
to
apply
after
enactment of Constitution with the only
modification that if such land is situate
within the territory of State Government,
it will vest in State and in other cases, it
will vest in Union of India. (Para 28 and
31)

Held - Thus the land in question which is
admittedly 'Nazul', belonged to the category as
discussed above i.e. it came to be vested and
owned by State in its capacity of Sovereign
and right of bona vacantia. When acquisition is
made under the provisions of a Statute,
purpose of acquisition is already known and
State pay its price but when land is owned by
State, which is Nazul, objective of use of such
land is not predetermined but it can be utilized
by State for larger public welfare and its
benefit, as necessitated from time to time. In
other words 'Nazul' land forms the assets
owned by State in trust for the people in
general who are entitled for its user in the
most fair and beneficial manner for their
benefit. State cannot be allowed to distribute
such largesse by pick and choose manner or to
some selected groups, or in a whimsical
manner etc.
358 INDIAN LAW REPORTS ALLAHABAD SERIES
C. Government Grant Act, 1895 - Preamble
- Purpose of enactment - Doubts have
arisen to the extent and operation of TP
Act, 1882 and to the power of Crown (later
substituted by word "Government") to
impose limitations and restrictions upon
grants and other transfers of land made by
it or under its authority, hence to remove
such doubts, GG Act, 1895 was enacted.
(Para 48)

D. Government Grant Act, 1895 - Section
2 and 3 - Transfer of Property Act, 1882
- Grant of Nazul - Governing factor -
Where „Nazul‟ land is let out to a person
by Government under agreement of
lease i.e. Grant, it is governed by GG Act,
1895 and rights of parties therefore have
to be seen in the light of stipulations
contained in the document of „Grant‟ -
„Grant‟ includes a property transferred
on lease though in some cases, „Grant‟
may result in wider interest i.e. transfer
of title etc. - Whatever may be nature of
document of transfer i.e. instrument of
„Grant‟, the fact remains that terms and
conditions of „Grant‟ shall be governed
by such document and it shall prevail
over any other law including TP Act 1882
- One cannot take resort to TP Act, 1882
to wriggle out of any condition or
limitation etc. imposed in terms of
document of „Grant‟. (Para 65)

E. Government Grant Act, 1895 - Section
3 - Nazul Land - Procedure to take
possession - Where a lease has been
granted under the terms of GG Act, 1895,
then what procedure has to be followed is
provided by Section 3 of GG Act, 1895
which
says
that
all
provisions,
restrictions, conditions and limitations
contained
in
any
such
creation,
conferment or Grant referred to in Section
2, shall be valid and take effect according
to their tenor - Any decree or direction of
a Court of Law or any rule of law, statute
or enactments of the Legislature, to the
contrary notwithstanding. (Para 70)

Held - Above discussion, therefore, leaves no
manner of doubt that Grant/Lease of Nazul
land
shall
be
exclusively
governed
by
stipulations/conditions/terms
contained
in
Grant/Indenture of Lease and no Statute can
be resorted to govern rights of parties over
Nazul land, which will be governed by
aforesaid Grant/Indenture of Lease.

F. Lease of Nazul land - Right of lessee
to transfer - Lessee has no right to
transfer leased Nazul Land without prior
permission. Meaning thereby, unless
conditions are satisfied, Lesses had no
right of transfer of interest at all.
Therefore,
any transfer
in
violation
thereof will not result in creating any
right or interest to the Transferee since
Transferor himself has nothing which he
can transfer at his own. (Para 78)

Held - If transfer is made without permission,
as required in lease-deed, such transfer would
be illegal, void and would not confer any right
or interest upon Transferee in respect of land
concerned. We, therefore, hold aforesaid
nomination creating any right in favour of
petitioner-1 patently illegal.

G. Repealing and Amending (Second)
Act, 2017 - Section 4 - Effect to the
lease of Nazul land - Right of lessor of
re-entry for public purpose - Overriding
effect of lease deed - Section 4 of Repeal
Act, 2017 is very clear and need not
much discussion for the reason that
lease deed has been executed between
the
parties
and
being
a
Grant,
admittedly,
it
was
governed
by
provisions of GG Act, 1895 - Lessor had
widest power to impose such conditions
in lease deed as it thinks fit and they
have to override any other Statute and
that is an act done when deed was
executed between the parties - All the
terms and conditions of lease deed
creating any obligation, right, duty,
liberty etc. of parties are such, which
have already been suffered or incurred.
(Para 103)

Held - Lessee has suffered a condition of lease
that Lessor shall have right of re-entry
whenever land is required for 'public purpose',
it can resume the land. This is a consequence,
which has already incurred due to execution of
4 All. Smt. Usha Rani Gupta & Ors. Vs. State of U.P. & Ors.
359
leasedeed. Right of re-entry whenever land is
required for 'public purpose' stand acquired by
Lessor when lease deed was executed and
those has been saved by Section 4 of Repeal
Act, 2017

H. Constitution of India - Article 14 -
Application to contract entered privately
- No advertisement while letting the
Nazul
land,
in
question
and
no
opportunity to all intending parties -
Petitioners
entered
into
lease
with
private negotiation with Government
and hence Article 14 of Constitution, in
the case in hand, in our view, does not
come into picture - A contract entered
privately will remain a mere contract and
parties are governed by the agreed
stipulations.
Here
Article
14
of
Constitution is not attracted. (Para 107)

I. Doctrine of Election - Validity of the
some clause of agreement - An act is
subject to certain conditions as a whole,
and parties to the transaction once, have
accepted all the conditions together, then
subsequently, it is not open to retain
some and leave another. It cannot choose
some and leave other - This principle is
based on doctrine of election, which
postulates that no party can accept and
reject the same instrument - A person
cannot say at one time that a transaction
is
valid
and
thereby
obtain
some
advantage to which he could only be
entitled on the condition that it is valid in
entirety and then turn round and say that
it is void for the purpose of securing some
other advantage. (Para 108)

J. Indian Evidence Act, 1872 - Section
116 - Rule of estoppel - A tenant who
has been let into possession cannot deny
his landlord's title, however defective it
may be, so long as he has not openly
restored possession by surrender to his
landlord - Doctrine of election is based
on the rule of estoppel. The doctrine of
estoppel by election is one of the species
of
estoppel
in
pais
(or
equitable
estoppel) which is a rule in equity. By
that rule, a person may be precluded by
his action or conduct or silence when it is
his duty to speak, from asserting a right
which he otherwise would have had.
(Para 111 and 112)

Held - We, therefore, find nothing arbitrary or
illegal in resumption clause. State is the owner
of land. If for public purpose, it wants to take
back its land by way of resumption, there is
nothing per se arbitrary. Secondly, condition of
resumption is a part of contract between the
parties and having accepted the same and
contract having been carried out, and virtually
completed its term, in order to wriggle out the
rights, obligations and liabilities incurred and
acquired thereunder, one of the party cannot
contend that one of the conditions of such
agreement is bad.

K. Nazul land - Conferment of right to
freehold-Effect of pendency of application
-Merely by making an application for
grant of freehold right, applicant did not
acquire a vested right. (Para 156)

Held - The above discussion makes it clear
that Nazul Land, if required by State for public
purpose and it exercises right of reentry/
resumption, the same cannot be defeated by
any person on the ground that his individual
right must prevail over such public purpose.

Writ Petition dismissed (E-1)

Cases relied on :-

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,
204
360 INDIAN LAW REPORTS ALLAHABAD SERIES
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. Promod Chandra Deb vs. State of Orissa
AIR 1962 SC 1288

16. Biswambhar Singh vs. State of Orissa 1964
(1) SCJ 364

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

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

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

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

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

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

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

24. Delhi Development Authority Vs. Anant Raj
Agencies Pvt. Ltd. (2016) 11 SCC 406
25. Mohamadhusen Abdulrahim Kalota Shaikh
Vs. Union of India (2009) 2 SCC 1

26. Mt. Bilas Kunwar v. Desraj Ranjit Singh
and others, A.I.R. 1915 P.C. 96

27. Joint Action Committee of Air Line Pilots'
Association of India (ALPAI) and others v.
Director General of Civil Aviation and others,
(2001) 5 SCC 435

28. Cauvery Coffee Traders, Mangalore v.
Hornor Resources (International Company
Limited), (2011) 10 SCC 420

29. V. Chandrasekaran and another v. Administrative
Officer and others, (2012) 12 SCC 133

30. Rajasthan State Industrial Development
and Investment Corporation and another v.
Diamond & Gem Development Corporation
Limited and another (2013) 5 SCC 470

31. State of Punjab and others v. Dhanjit
Singh Sandhu (2014) 15 SCC 144

32. Bansraj Lalta Prasad Mishra v. Stanley
Parker Jones, (2006) 3 SCC 91

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

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

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

36. Judgment dated 02.04.2013 of Allahabad
High Court passed in Writ Petition No.62588 of
2010, M/s Madhu Colonizers Pvt. Ltd. vs. State
of U.P. & Ors.

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

1. Five petitioners, namely, Smt.
Usha Rani Gupta, wife of Sri R.P. Gupta,
resident of 21/19, Mayo Road, Allahabad;
Sri Mirza Amir Ullah Beg; Sri Mirza
Tariq Ullah Beg; Sri Mirza Rashid Ullah
4 All. Smt. Usha Rani Gupta & Ors. Vs. State of U.P. & Ors.
361
Beg, all sons of (Late) Mirza Hamid Ullah
Beg and Smt. Amina Razia Rafat Naz
Begum, daughter of (Late) Mirza Hamid
Ullah Beg, have filed this writ petition
under Article 226 of Constitution of India,
praying for issue of a writ of certiorari
quashing order dated 14.08.2018 issued
by
District
Magistrate,
Allahabad
informing
petitioners
that
State
Government has resumed land in question
and, therefore, petitioners should vacate
the same, failing which possession shall
be taken forcibly at the cost of petitioners.
A writ of mandamus has also been
prayed, directing District Magistrate,
Allahabad to consider and dispose of
application dated 29.01.1999, in respect
of conversion of lease into free-hold of
disputed
land,
in
accordance
with
Government Orders dated 14.03.2014 and
15.01.2015. By way of an amendment,
allowed vide order dated 30.05.2019, a
further prayer has been added for issue of
a
writ
of
mandamus,
commanding
respondent-State of U.P. to restore and
hand over physical possession of Nazul
Site No. GG-1, Civil Station, Allahabad
to petitioners.

2. Land in question, in the present
writ petition, is a Nazul land bearing No.
GG/1, Civil Station, Allahabad, area
7929.8 square metre, (hereinafter referred
to as "disputed Nazul land").

 3. Facts in brief, giving rise to
present writ petition, are as under.

4. Lease of disputed Nazul land was
executed on 12.12.1912 with effect from
01.01.1909 by Secretary of State for India
in Council for a period of 50 years. Lease
expired on 31.12.1958. It also appears
that in the meantime, land was divided
and numbered as GG-1 and GG-2.
Lessees applied for renewal. In the light
of relevant Government orders and
Supreme Court's judgement in State of
U.P. and Others Vs. Purshottam Das
Tandon and Others (1989) SUPP 2
SCC 412, lease was renewed and a deed
was executed on 26.09.1991/28.01.1992
between Governor of Uttar Pradesh
through Collector, Allahabad and Smt.
Kaniz Fatima Beg wife of (Late) Mirza
Hamid Ullah Beg; Mirza Amir Ullah Beg;
Mirza Tariq Ullah Beg and Mirza Rashid
Ullah Beg, all sons of (Late) Mirza Hamid
Ullah Beg, and Smt. Amina Razia Rafat
Naz Begum daughter of (Late) Mirza
Hamid Ullah Beg, all are residents of 24,
New Barry Road, Lucknow, for a period
of 30 years with effect from 01.01.1959,
for which lease rent was paid. Clause-4 of
lease deed provided that after expiry of
term of 30 years, at the request of lessee,
lessor may renew lease for another 30
years but maximum period of renewal
shall be 90 years, including initial period
of
lease.
Lease
term
expired
on
31.12.1988.
Some
of
the
relevant
conditions of lease deed are reproduced as
under:-

"The lessees hereby covenant
with the lessor as follows:

(4) That they shall not at any
time without the written consent of such
Collector, Allahabad alter or vary any
part of the external elevation or plan of
such dwelling house and out buildings
from the original elevation or plan
thereof.

(5) That, they shall not at any
time without the written consent of such
Collector, Allahabad erect any building
or out buildings on the demised premises.

(7) That, they will not at any
time carry on or permit to be carried on
upon the said premises any trade or
362 INDIAN LAW REPORTS ALLAHABAD SERIES
business whatsoever or use the same for
any other purpose than as a private
dwelling without the consent in writing
of such Collector first had and obtained."
 (Emphasis added)

5. Further conditions, agreed by
parties, stated in para-3 of lease deed,
relevant for our purpose are:-

"(a) That, if the said rent or any
part thereof shall be in arrear and unpaid
for the space of one calendar month
whether the same shall have been
lawfully demanded or not if there shall
be a breach or non-observance of any of
the covenants by the Lessees herein
contained then and in any such case the
Lessor, may, notwithstanding the waiver
of any cause or right of re-entry, re-enter
upon the said premises and expel the
Lessees and all occupiers of the same
therefrom
and
this
demise
shall
absolutely determine and the Lessees
shall forfeit all rights to remove or
recover any compensation for any
buildings erected by them on the said
premises AND ALSO the installments of
the said premium already paid shall
become forfeited to the LESSOR.

(b)
That,
notwithstanding
anything contained in this deed, the
Lessor shall be entitled to recover the
arrears of rent reserved by this deed in
the manner provided in the Land Revenue
Act (U.P. Act III of 1901) for realising
arrears of revenue.

(c)
That,
if
the
demised
premises are at any time required by the
lessor for his or for any public purpose
he shall have the right to give one
month's clear notice in writing to the
lessees to remove any buildings standing
at the time on the demised premises and
within two months of the receipt of the
notice to take possession thereof on the
expiry of that period subject however to the
condition that if the Lessor is willing to
purchase the buildings on the demised
premises, the Lessees shall be paid for such
buildings such amount as may be determined
by the Secretary to Government, U.P. in
Nagar Awas Department.

(e) That, the Lessees will not in
any way sub-divide or transfer the
demised land or buildings thereon
(tenancy of buildings excluded) without
the previous sanction in writing of the
U.P.
Government
who
may
while
according such sanction laid down and
impose such further conditions as he may
deem fit. Any transfer or alienation made
in contravention of the conditions
contained in this clause shall be void.

(h) That, on each transfer by
succession, sale assignment or other wise,
the Lessees and the person to whom the
lease rights are to be transferred shall
within two months of the same, deliver a
notice in this behalf to the Collector
setting forth the names and other
particulars of the persons from whom and
to whom the transfer takes place and the
nature and description of the transfer."

 (Emphasis added)

6. Renewed lease deed was executed
again on 25.03.1996 for a period of 30
years with effect from 01.01.1990 for
Nazul Plot No. GG/1, Civil Station,
Allahabad (Area 1 acre and 4613 square
yard) (residential). This document on
behalf of lessees was signed by Dinesh
Kumar, Power of Attorney Holder, on the
same terms and conditions, (except
change in lease rent) contained in earlier
registered lease deed.

7. Smt. Kaniz Fatima Beg died and
petitioners- 2 to 5 became lessees of
4 All. Smt. Usha Rani Gupta & Ors. Vs. State of U.P. & Ors.
363
aforesaid
land.
They
executed
a
nomination letter dated 18.01.1999 in
favour of petitioner-1, Smt. Usha Rani
Gupta giving consent and nominating her
assigning right to get Nazul land GG/1,
Civil Station, Allahabad, Area 1 acre and
4613 square yard i.e. 7584.26 square
metre, freehold. Petitioner-1 moved an
application
dated
29.01.1999
for
conversion of aforesaid land into freehold,
in accordance with Government Order
dated 01.12.1998. The said application
was not decided for almost 20 years
though Additional District Magistrate
(Nazul), Allahabad granted approval to
said
conversion.
Lease
granted
to
petitioners-2 to 5 was governed by
Government
Grants
Act,
1895
(hereinafter referred to as "GG Act,
1895"). Exercising right of re-entry under
Clause-3 (c) of lease deed, District
Magistrate issued letter dated 14.08.2018
for re-entry/resumption of land by State.
It is stated in the aforesaid order that
proposal for resumption of land was sent
to
State
Government
vide
District
Magistrate,
Allahabad's
letter
dated
19.06.2018 and approval has been granted
by Principal Secretary, Housing and
Urban Planning Development vide letter
dated 09.08.2018.

8.

Resumption
notice
dated
14.08.2018 has been challenged on the
ground that GG Act, 1895 has already
been
repealed
by
Repealing
and
Amending (Second) Act, 2017 (Act No. 4
of 2018) (hereinafter referred to as
"Repeal Act, 2017"); resumption has been
made by State of U.P and not by District
Magistrate, Allahabad; Clause-3(c) of
lease deed is violative of Article 14 of
Constitution, inasmuch as, lease rights of
petitioners could not have been acquired
or
resumed
without
payment
of
compensation
at
market
value;
respondents have adopted pick and
choose policy for resumption; alleged
requirement is artificial and not genuine
and there is no public purpose involved in
resumption.

9. Subsequently, by way of an
amendment, para-88A has been added
stating that actual physical possession of
disputed Nazul land has been taken by
respondents
on
20.11.2018
from
occupants i.e. Women's Polytechnic,
behind back, and without knowledge of
petitioners. Consequently a prayer for
restoration of possession has also been
added by way of amendment in writ
petition. On behalf of petitioners, reliance
has placed on State of Maharashtra Vs.
Vithalrao Ganpatrao Warhade 1998 (8)
SCC 284; Binani Properties Private
Ltd. Vs. M. Gulamali Abdul Hossain
and Co. and Others AIR 1967 Cal 390;
The State of U.P. Vs. Zahoor Ahmad
and Another 1973 (2) SCC 547; Central
Inland Water Transport Corporation
Limited and Another Vs. Brojo Nath
Ganguly and Another 1986 (3) SCC
156; Hindustan Times and Others Vs.
State of U.P and another 2003 (1) SCC
591; Delhi Development Authority Vs.
Durga Chand Kaushish 1973 (2) SCC
825; K.T. Plantation Private Limited
and Another Vs. State of Karnataka
2011 (9) SCC 1; Tukaram Kana Joshi
and Others vs. Maharashtra Industrial
Development Corporation and Others
2013 (1) SCC 353, Raja Rajinder
Chand Vs. Mst. Sukhi AIR (1957) SC
286; Smt. Bina Das Gupta and Others
Vs. Sachindra Mohan Das Gupta and
Others AIR (1968) SC 39; Mohan
Agarwal Vs. Union of India AIR 1979
ALL 170 (FB); Women Education
Trust and Another Vs. State of
364 INDIAN LAW REPORTS ALLAHABAD SERIES
Haryana and Others 2013 (8) SCC 99
and Uddar Gagan Properties Ltd. Vs.
Sant Singh and Others 2016 (11) SCC
378.

10. Respondent-4 has filed a counter
affidavit stating that Nazul Plot No. GG/1,
Civil Station, Allahabad was demised for
a period of 30 years with effect from
01.01.1959 by an indenture of lease dated
26.09.1991 for an area measuring 1 acre
and 4613 square yards (7929.8 square
metre). The lease was executed on
26.09.1991
by
District
Magistrate,
Allahabad on behalf of Governor of Uttar
Pradesh in favour of Smt. Kaniz Fatima
Beg, Sri Amir Ullah Beg, Sri Mirza Tariq
Ullah Beg and Sri Mirza Rashid Ullah
Beg. It was for a period of 30 years
commencing
from
01.01.1959
but
renewable twice, each time for 30 years,
but not exceeding 90 years and total
period include initial period. After expiry
of first 30 years, it was renewed on
25.03.1996. Lease was a 'Grant' under GG
Act, 1895. In terms of Clause-3(c) of
lease
deed
dated
26.09.1991
read
25.3.1996,
State
Government
has
exercised right of re-entry since land is
required for Planned Development of
Allahabad City which has been declared
"Smart City" and disputed Nazul land has
to be developed as 'Parking Place, Multi
Purpose Open Space, Night Market and
Amphitheater'. Further, disputed Nazul
land was not in possession of petitioners
or lessees or alleged nominee. It was
occupied by Institute of Engineering and
Rural Technology (IERT) as tenants and a
Women's Polytechnic was being run on
the said land. From the occupants,
possession
of
land
was
taken
on
20.11.2018 i.e. after expiry of notice
period. Repeal of GG Act, 1895 by
Repeal Act, 2017 has not affected rights
and obligations of parties under lease deed
in view of Saving provision contained in
Section 4 of Repeal Act, 2017. On behalf of
respondent-4, reliance is placed on The
State of Andhra Pradesh vs. Gathala
Abhishekam and Ors, AIR 1964 AP 450;
Union of India and Others Vs. Harish
Chand Anand, AIR 1996 SC 203; Anand
Kumar Sharma Vs. State of U.P. and
Others 2014 (2) ADJ 742(FB); Smt.
Shakira Khatoon Kazmi and Others Vs.
State of U.P. and Others 2002 (1) AWC
226 and Azim Ahmad Kazmi and Others
Vs. State of U.P. and Others 2012 (7)
SCC 278.

11. A supplementary affidavit has
been filed by petitioners. It is stated that
Rules for disposal of land in New Civil
Station, Allahabad were notified by the
then
Officiating
Commissioner,
Allahabad namely, Sri C.B. Thornhill
vide notification dated 05.05.1858. Copy
of the same has been filed as Annexure-1
to supplementary affidavit. Subsequently,
Rules were framed by Municipality of
Allahabad for the purpose of Act VL,
1868 published in Government Gazette of
North Western Provinces, Allahabad,
dated 21.12.1870, called Municipal ByeLaws, General Department Notification
dated 13.12.1870. Aforesaid Municipal
Bye-Laws were revised vide Notification
dated
19.12.1877,
published
in
Government Gazette, North Western
Provinces and Oudh, Allahabad dated
22.12.1877 wherein it was mentioned that
Municipal Committee is authorized to
dispose of land, property of Government,
in New Civil Station for building sites.
Boundary of New Civil Station was given
in para-I as under:-

"On
the
West,
the
new
Cantonment; on the North, Muir Road
4 All. Smt. Usha Rani Gupta & Ors. Vs. State of U.P. & Ors.
365
and Mayo Road; on the South, South
road; and on the East, City Road and
Phaphamau Road."

12. Para-II mentioned that aforesaid
Bye-Laws shall not apply to land already
reserved or to be hereinafter reserved by
Government within the limits of Station.
Petitioner
has
also
given
two
Standardized Proforma of lease of 'Nazul'
for building purpose contained in Nazul
Manual published by Government Order
dated
27.11.1940
and
amended
by
Government Order dated 25.06.1952. The
land use of Nazul site GG/1, Civil Station,
Allahabad has been marked as "MultiLevel Parking" in Zonal Plan of Zone B4, applicable with effect from 18.03.2011
in the Master Plan, 2021 of Allahabad
under the land use category of "Traffic
and Transportation". It is suggested that
land being sought to be resumed for the
purposes which is other than that provided
in Master Plan, will result in change of
use which is not legally permissible.
Earlier lease deed, in respect of disputed
Nazul land, was executed on 21.12.1912
by Secretary of State for India in Council
in favour of Ram Charan Das. Area of
land mentioned in the said lease deed was
2 Acres and 4723 Sq. Yards and purpose
of 'Grant' was building a 'dwelling house'.
Tenure of lease was 50 years. Period of
lease commenced
with
effect from
01.01.1909. The stipulation giving right
of 're-entry', contained in aforesaid lease
deed, read as under:-

"Provided always and it is
hereby declared and agreed that no
compensation
or
payment
shall
be
claimable by the said Lessees, their
Executors, Administrators or Assigns for
any buildings, erections, or fixtures
erected, affixed, or placed by him, them or
any of them in or upon the said premises
or any part thereof, in case these presents
shall be determined by re-entry for
forfeiture in which case the buildings,
erections
and
fixtures
shall
rest
absolutely in the said Secretary of State,
his Successors and Assigns as his own
property without any compensation or
payment in respect thereof provided
further and it is hereby agreed that the
said
Lessees,
their
Executors,
Administrators and Assigns, shall not
assign or underlet or otherwise part with
the possession of the said premises or
any part thereof without the permission
of the said Secretary of State, his
Successors or Assigns (which permission
may be signified by the said Collector or
by such other person as the Government
of the North Western Provinces or the
said Secretary of State may appoint in
that behalf) for that express purpose had
and obtained." (Emphasis added)

13. Since in the supplementary
affidavit only some documents have been
filed, therefore, respondents have not
chosen to reply the same.

14. Sri Ashish Kumar Singh, learned
counsel for petitioners has filed written
submission and pressed the same in
support of writ petition. Firstly, it is said
that right of resumption under lease deed
read with GG Act, 1895 ceased to be
available to respondents after repeal of
GG Act, 1895 by Repeal Act, 2017.
Advancing submissions on the effect of
repeal, it is said :-

A. The Effect of Repeal of GG
Act, 1895 by Repeal Act, 2017 w.e.f.
05.01.2018 is to deliberate ALL rights,
title, interests, etc. created in exercise of
powers under GG Act, 1895, except those
366 INDIAN LAW REPORTS ALLAHABAD SERIES
expressly saved by Section 4 of Repeal
Act, 2017.

B. The Government Grants
(U.P. Amendment) Act, 1960 (amending
Sections 2 and 3 of GG Act, 1895)
immediately after promulgation of Repeal
Act,
2017,
render
GG
Act,
1895
ineffective and infructuous.

C. Through execution of Lease
Deed in respect of Nazul Site No. GG/1,
Civil Station, Allahabad, Rights(s) were
Created and came into existence in favour
of Lessees. At the same time, pre-existing
right(s)
possessed/reserved
by
Lessor/State of U.P. were acknowledged.

D. The pre-existing contingent
right of State of U.P./Lessor to resume
land was acknowledged in Clause 3(c) of
Lease Deed.

E. The date of land being
"Required by Lessor" as envisaged in
Clause 3(c) of the Lease Deed, is the date
of
order
of
State
of
U.P./Lessor
stipulating need of the land in question as
necessary to be provided for State
Government, itself, or for public purpose
and directing District Magistrate to
resume land in question.

F. Right of Resumption in
accordance with Clause 3(c) of Lease
Deed was not 'Anything Already Done'
saved by Section 4 of Repeal Act, 2017.

G. The Right of Resumption in
accordance with Clause 3(c) of Lease
Deed was Neither a Right 'Already
Accrued' nor a Right 'Already Acquired'
in favour of State of U.P. which was
saved by Section 4 of Repeal Act, 2017.

H. Right of Resumption in
accordance with Clause 3 (c) of the Lease
Deed does not stand saved by other
proviso(s) of Section 4 of Repeal Act,
2017 and as such, Right of Resumption
cannot be enforced by State of U.P. after
repeal of GG Act, 1895 w.e.f. 05.1.2018.

I. The remaining rights and
liabilities of Lessor and/ or Lessee,
besides rights and liabilities already
accrued or acquired or incurred in favour
of Lessor/Lessees, prior to repeal of GG
Act, 1895 w.e.f. 5.1.2018, shall be
governed under common law including
Transfer
of
Property
Act,
1882
(hereinafter referred to as "TP Act,
1882").

15. Secondly, it is submitted that
Clause-3(c) of lease deed is ultra vires of
Constitution and cannot be enforced even
if it is saved by Act, 2017 and on this
aspect submissions are:-

A. Lease of Nazul Site No.
GG/1, Civil Station, Allahabad was/ is
given by the State of U.P. in favour of the
Lessees for "Valuable Consideration".

B. The Clause 3(c) of lease deed
is ultra-vires to Article 14 of Constitution
of India.

C. The Clause 3(c) of the lease
deed is ultra-vires to Article 300-A of
Constitution of India.

D. The Clause 3(c) of lease deed
may
be
struck
down
as
being
unconstitutional and ultra-vires to Articles
14
and
300-A,
without
effecting
remaining lease deed.

16. Thirdly, it is submitted by Sri
A.K.Singh, Advocate, that resumption
notice issued by District Magistrate is
defective, illegal, void and without
jurisdiction. On this aspect, Sri Singh
submitted:-

A. The alleged Public Purpose
stated in the Resumption Notice dated
14.8.2018 is illegal, made up and not
genuine. In fact has been concocted by
concerned officials of State Government.
4 All. Smt. Usha Rani Gupta & Ors. Vs. State of U.P. & Ors.
367

B. The concerned officials of
State of U.P. have applied a pick-andchoose policy and decided to resume land
in question in an arbitrary and malafide
manner.

C. The Resumption Notice
dated
14.8.2018
issued
by
District
Magistrate, Allahabad is even otherwise
defective, illegal, void and without
jurisdiction.

17. On the contrary, learned counsel
appearing for respondents submitted that
rights and obligations of Lessees vis a vis
disputed Nazul Land are governed by
terms and conditions contained in lease
deed; it specifically contains a condition
conferring right upon Lessor to re-enter
land at any point of time whenever it is
required for 'public purpose' and Lessee is
under an obligation to vacate the land on
such
exercise
of right of re-entry
exercised by Lessor; terms and conditions
of lease deed shall prevail over any other
statute and Repeal Act, 2017 does not
affect aforesaid right of re-entry acquired
by Lessor in terms of lease deed; and, it is
not a contingent right, as contended by
petitioners. He also submitted that terms
and conditions of lease are strictly
governed by lease-deed and it is not open
to Lessee, having entered into agreement
accepting all the terms and conditions,
subsequently to choose some conditions
and challenge other conditions. He further
submitted that right exercised by Lessor
in case in hand is strictly in accordance
with conditions of lease and similar
exercise of power has already been
affirmed by this Court as well as Supreme
Court in Azim Ahmad Kazmi and
Others Vs. State of U.P. and Others
(supra). He lastly contended that purpose
for which lease has been acquired i.e.
Parking place, Multi Purpose Open Space,
Night Market and Amphitheater, is a
'public purpose' since land in question is
situted in midst of Civil Lines area of
Allahabad City where there is a huge
problem of parking place. Therefore,
Lessor has found it necessary to re-enter
land exercising its right, which it had
acquired in terms of lease-deed which was
accepted and agreed by Lessees, who
have enjoyed lease in terms of lease-deed
for sufficiently long period.

18. We have heard Sri Ashish
Kumar
Singh,
learned
counsel
for
petitioners; Sri Ajit Kumar Singh, learned
Additional Advocate General assisted by
Sri Nimai Das, learned Additional Chief
Standing Counsel for State of U.P. and its
authorities; Sri Amit Verma and Sri
Brijendra
Kumar,
Advocates
for
Prayagraj Development Authority; and Sri
B.D.Pandey, Advocate, for respondent
no.7.

19.

Before
entering
upon
adjudication of rival submissions and
issues raised by parties, we find it
appropriate to place certain dates and
events in a chronological manner, which
are admitted to parties and evident from
record:
Sl.N
o.
Date
Events
1
12.12.1912/ 21.12.1912 With
effect
from
01.01.1909 a lease deed
was
executed
by
Secretary of State for
India
in
Council
in
favour of Ram Charan
Das
for
Nazul
Plot
No.GG/1, Civil Station,
Allahabad area 2 Acres
and 4723 Sq. Yards
(14,403 Sq.Yards).
2.
----------
Period of lease was 50
years.
3.
----------
GG-2.
368 INDIAN LAW REPORTS ALLAHABAD SERIES
4.
31.12.1958
Lease expired.
5.
26.09.1991
Lease
deed
was
executed
with
effect
from 01.01.1959 for a
period of 30 years by
Governor
through
Collector, Allahabad in
favour of Smt. Kaneez
Fatima Beg, Mirza Amir
Ullah Beg, Mirza Tariq
Ullah
Beg,
Mirza
Rashid Ullah Beg, Smt.
Amina Razia Rafat Naz
Begum, all resident on
23, New Benry Road,
Lucknow, in respect of
Nazul Plot No.GG/1,
Civil Station, Allahabad
area
1
Acre
4613
Sq.Yards.
(9453
Sq.Yards).

6.
31.12.1988
Above lease expired. In
effect lease deed dated
26.09.1991
was
executed in respect of
period
of
30
years
commencing
from
01.01.1959 and ended
on
31.12.1988.
This
period
had
already
expired
on the
date
when the lease deed was
executed.
7.
25.03.1996
Renewed lease deed was
executed for a period of
30 years in respect of
Nazul Land GG/1 Civil
Station, Allahabad area
1 Acre 4613 Sq.Yard
(Residential)
(9553
Sq.Yards) with effect
from 01.01.1990.
8.
.............
This deed was signed on
behalf of Lessees by one
Dinesh Kumar, holder
of Power of Attorney of
earlier Lessees.
9.
18.01.1999
Lessees
issued
nomination
letter
in
favour of Smt. Usha
Rani Gupta (petitioner1) wife of R.P.Gupta,
Partner Jagdish Housing
Company, which says
that Nominee may get
lease land, freehold, in
its
own
name
and
Lessees
have
no
objection therein.
10.
29.01.1999
Petitioner-1
submitted
application to Collector
for freehold of land in
dispute.
11.
14.08.2018
Impugned order of reentry/resumption.

20. In the light of rival submissions,
issues, which in our view required
adjudication in this petition, are:

(i) What is Nazul ?

(ii) Whether lease of Nazul
Land is governed by provisions of GG
Act, 1895 or TP Act, 1882 or any other
Statute and what is inter-relationship
thereof?

(iii)
Whether
Lessee
can
transfer Nazul land itself to anyone or
transfer, if any, made will result only
transfer of lease rights or land itself; and,
if transfer is not made in accordance with
conditions of Indenture of Lease/Grant,
what will be its effect and whether it will
confer any valid right or interest on Nazul
land, subjected to transfer, upon such
Transferree?

(iv) Whether Repeal Act, 2017,
whereby GG Act, 1895 has been repealed,
has the effect of denying Lessor's right of
re-entry provided in para 3(c) of lease
deed?

(v) Whether Clause 3(c) is
arbitrary, unreasonable and violative of
Article 14 of Constitution?

(vi) Whether after repeal of GG
Act, 1895 by Repeal Act, 2017, status of
petitioners would be governed by TP Act,
1882?

(vii) Whether petitioner-1 on the
basis of nomination by petitioners 2 to 5
is entitled for freehold of land in dispute
and whether such right will override
4 All. Smt. Usha Rani Gupta & Ors. Vs. State of U.P. & Ors.
369
Lessor's i.e. State Government's right of
resumption?

(viii) Whether resumption of
land
in
dispute
is
arbitrary
and
discriminatory on the ground that in many
other cases, respondents have allowed
conversion of lease rights into freehold
but petitioners have been discriminated?

(ix) Whether resumption/ reentry in question is valid and genuine?

(x) Whether re-entry over land
in question will require compliance of
procedure prescribed in U.P. Public
Premises
(Eviction
of
Unauthorised
Occupants)
Act,
1972
(hereinafter
referred to as "U.P. Act, 1972")

21. Questions (i) and (ii), in our
view, can be taken together.

22.