# The Allahabad Anglo Indian Association Branch Allahabad v. State of U.P. & Ors

- **Citation:** (2019) 4 ILRA 688
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2019-10-31
- **Bench:** Sudhir Agarwal, Virendra Kumar Srivastava
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/the-allahabad-anglo-indian-association-branch-allahabad-v-state-of-u-p-ors-45024
- **Pages:** 31

## 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 16 and 17)

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
4 All. The Allahabad Anglo Indian Association Brnach Allahabad Vs. State of U.P. & Ors. 689
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 19 and
22)

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 vacancia. 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 asset
owned by State in trust for the people in
general who are entitled for its use in the most
fair and beneficial manner for their benefit.
State cannot be allowed to distribute such
largesse by pick and choose or to some
selected groups etc.

C. Civil Law - Government Grant Act,
1895 - Preamble - Purpose - Doubts
have arisen to the extent and operation
of T.P. 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 39)

D. Civil Law - 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 stipulatio

## Text

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688 INDIAN LAW REPORTS ALLAHABAD SERIES
between the parties. If the matter is
governed by a contract, the writ petition
is not maintainable since it is a public law
remedy and is not available in private law
field, e.g., where the matter is governed
by a non-statutory contract."
(Emphasis added)

207. Following aforesaid decision in
Pimpri
Chinchwad
Municipal
Corporation
and
Ors.
vs.
Gayatri
Construction
Company
and
Anr.,
2008(8) SCC 172 Court has held that in the
matter of non-statutory contract, High Court
should not have entertained writ petition
under Article 226 of the Constitution.

208. No provision could be shown
by counsel for petitioners which requires
an opportunity of hearing to petitioners
before resumption of land. In any case, by
means of impugned notice, petitioners
have been given enough time to vacate
the land and thereafter only State shall
take steps for possession, if vacant
possession is not given by petitioners.

209. In the circumstances, question
(vii) is answered against petitioners.

210. In view of above discussion,
we do not find any merit in the petition. It
is accordingly dismissed.

211. However, considering the facts
and circumstances and also the fact that
petitioners already enjoyed interim order
passed by this Court and continued in
possession over land in dispute for last
almost more than a year, we direct
petitioners to vacate disputed land within
one month from the date of delivery of
judgment.

212. No costs.
----------
(2019)12 ILR A688

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: 33630 of 2018

The Allahabad Anglo Indian Association
Branch Allahabad ...Petitioner
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Sri Subedar Mishra

Counsel for the Respondents:
C.S.C., Sri Ajit Kumar Singh (Addl.
Advocate General), Sri Nimai Das &
Sudhanshu Srivastava (Addl. C.S.C.)

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 16 and 17)

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
4 All. The Allahabad Anglo Indian Association Brnach Allahabad Vs. State of U.P. & Ors. 689
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 19 and
22)

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 vacancia. 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 asset
owned by State in trust for the people in
general who are entitled for its use in the most
fair and beneficial manner for their benefit.
State cannot be allowed to distribute such
largesse by pick and choose or to some
selected groups etc.

C. Civil Law - Government Grant Act,
1895 - Preamble - Purpose - Doubts
have arisen to the extent and operation
of T.P. 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 39)

D. Civil Law - 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 68)

E. Civil Law - 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 72)

Held - Thus, for the purpose of resumption/
re-entry of land, State Government can follow
procedure prescribed in the terms of lease as
it is a special procedure for such purpose and
it is not necessary to look into any other
procedure prescribed in law.

F. Civil Law - Transfer of Property Act,
1882
-
Section
106
and
116
-
Application of benefit of Doctrine of
Holding over - Effect of repeal of GG Act,
1895 - Section 4 of Repeal Act, 2017
clearly protects effect or consequences
or anything already done or suffered,
which includes effect of expiry of lease
and obligation of Lessee to surrender
possession of leased land to State -
Repeal Act, 2017 does not have any
effect upon the relationship of petitioner
and respondents in respect of disputed
land and all rights, obligations etc. shall
continue to be governed under the said
lease-deed. (Para 82 and 83)
690 INDIAN LAW REPORTS ALLAHABAD SERIES
G. Lease - Principle of natural justice -
Application - Lease is a matter of
contract where principles of natural
justice are not applicable. (Para 84)
H. Civil Law - Transfer of property Act,
1882
-
Section
106
-
Tenant
at
sufferance - After expiry of lease, status
of
lessee,
who
has
continued
in
possession,
is
that
of
„Tenant
at
sufferance‟ - The tenant at sufferance is
one
who
wrongfully
continues
in
possession after extinction of a lawful
title - It does not create relationship of
landlord and tenant - Therefore, even a
quit notice is not necessary to be given
and Section 106 TP Act, 1882 is not at all
attracted. (Para 96 and 97)

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

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

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

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

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

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

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

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

28. State of Gujarat and Ors. vs. Meghji
Pethraj Shah Charitable Trust and Ors.,
1994(3) SCC 552
4 All. The Allahabad Anglo Indian Association Brnach Allahabad Vs. State of U.P. & Ors. 691
29. Pimpri Chinchwad Municipal Corporation
and Ors. vs. Gayatri Construction Company
and Anr., 2008(8) SCC 172

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. R.V. Bhupal Prasad vs. State of A.P. (1995)
5 SCC 698

33. Sevoke Properties Ltd. vs. West Bengal
State Electricity Distribution Company Ltd. AIR
2019 SC 2664

34. 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.

Allahabad
Anglo
Indian
Association through its Secretary Mr.
Larry Adrian Michael French has filed
this petition under Article 226 of
Constitution of India challenging order
dated 31.08.2018 passed by Collector,
Allahabad
(respondent
2)
informing
petitioner that State Government has
exercised right of resumption/re-entry
over disputed Nazul land, therefore, it
should be vacated by petitioner within
two months failing which possession shall
be taken forcibly at the cost of petitioner.

2. Dispute relates to Plot no.131,
Civil Station Allahabad, area 11 acres
1730 square yards, situate at 9th Thornhill
Road.

3. Secretary of State for India in
Council executed a lease deed dated
07.05.1921 in favour of Anglo Indian
Association granting lease of aforesaid
Nazul Plot No.131 for a period of 50
years commencing from 12.06.1917. It
was said in the lease deed that earlier
lease was executed on 12.06.1867 in
favour of one Robert Andrew Farhe for a
period of 50 years and after expiry of said
period a new lease was to be executed,
hence, said lease was executed. Several
bungalows were constructed over leased
land for residence of Anglo Indian
persons. Last extension of lease was vide
renewal
dated
07.03.1984
which
commenced from 1967 and expired in
1997. Petitioner then made an application
for renewal of lease but the same
remained pending and ultimately vide
order dated 12.03.2012 respondent-2
cancelled lease granted to petitioner and
matter was referred to State Government.
A meeting was held in the Office of
Secretary, Housing and Urban Planning
on 26.11.2015 in which Representatives
of
Petitioner-Association
as
also
Additional District Magistrate (Nazul)
Allahabad and Special Officer on Duty,
Allahabad
Development
Authority
(hereinafter referred to as "ADA")
participated. Following decision was
taken in the said meeting :

^^1⁄411⁄2 fn vky bf.M;k ,Xyks bf.M;u
,lksfl,'ku] 'kk[kk bykgkckn dk iV~Vk fujLr fd,
tkus ls lEcfU/kr ftykf/kdkjh] bykgkckn ds vkns'k
fnukad 12-03-2012] tks rduhdh n`f"V ls lgh ugha
ik;k x;k gS dks 'kklu ds vkns'k ds ek/;e ls
fujLr djus dh dk;Zokgh dh tk;A

1⁄421⁄2 fn vky bf.M;k ,Xyks bf.M;u
,lksfl,'ku] 'kk[kk bykgkckn 1⁄4iV~Vsnkj1⁄2 }kjk iV~Vs
ds uohudj.k gsrq ftykf/kdkjh] bykgkckn dks
fu;ekuqlkj vkosnu i= izLrqr djsaxsA

1⁄431⁄2 ftykf/kdkjh] bykgkckn bl izdj.k
dk ijh{k.k dj rF;kRed fjiksVZ viuh laLrqfr lfgr
jkT; ljdkj dks miyC/k djk;saxsA jkT; ljdkj
692 INDIAN LAW REPORTS ALLAHABAD SERIES
}kjk bl laca/k esa esfjV ds vk/kkj ij lqlaxr fu;eksa
ds vUrxZr l{ke Lrj ls fu.kZ; ysdj vfxze
dk;Zokgh dh tk;sxhA

"(1) Proceeding to be conducted
through order of the Government for
cancellation of order dated 12.03.2012 of
District Magistrate, Allahabad pertaining
to cancellation of lease granted to All
Indian Anglo Indian Association, Branch
Allahabad, which order has been found
not to be technically correct.

(2) An application shall be
presented as per Rules to the District
Magistrate, Allahabad by All India Anglo
Indian Association, Allahabad Branch
(Lease Holder) for renewal of lease.

(3)
District
Magistrate,
Allahabad after examining this matter
shall make available the factual report
along with his recommendation to State
Government. Further action shall be
taken by State Government after ensuring
decision at the level of Competent
Authority, on merits under the relevant
Rules." (English translation by Court)

4. Thereafter respondent 2 has
passed order dated 31.08.2018 pointing
out that lease expired on 11.06.1997 and
now land in dispute is required for "public
purpose" in view of the fact that
Allahabad has been selected to be
developed as "Smart City" and disputed
land which has total area of 11 acres and
203 square yards i.e. 44683.69 square
meter is required for development of a
'Park', therefore, State Government has
resumed/re-entered upon the land in
dispute.
Aforesaid
order
has
been
challenged on the ground that large
number of families are residing in
disputed land and they cannot be evicted
in such arbitrary manner; Collector has
passed
order
without
giving
any
opportunity to show cause and in
violation of principles of natural justice;
petitioner has right of free hold in view of
policy of State Government which cannot
be defeated by exercising right of reentry/resumption and petitioner cannot be
evicted without following the procedure
prescribed in law.

5. Respondents 2 and 3 have filed
counter affidavit wherein it is admitted
that
Nazul
Plot-131
Civil
Station,
Allahbad was demised to PetitionerAssociation vide Indentures of lease dated
07.05.1921. The term of lease was lastly
renewed for the period upto 11.06.1997
vide lease deed dated 07.03.1984 which
commenced from 12.06.1967. Lease was
governed
by
the
provisions
of
Government
Grants
Act,
1895
(hereinafter referred to as "G. G. Act,
1895") and exercising its right as per
terms and condition of lease read with G.
G. Act, 1895, State Government has
resumed/re-entered
disputed
land
of
which lease has already expired. The right
of re-entry in the light of similar
circumstances, has been upheld by this
Court
in
Chintamani
Ghosh
and
another vs. State of U. P. and others,
2001 (2) UPLBEC 1003. Respondents
have also relied upon Hajee S.V.M.,
Mohd. Jamaludeen Bros and Co. vs.
Govt. of T. N., 1997 (3) SCC 456, State
of U. P. Vs. Zahoor Ahmad, (1973) 2
SCC 457, State of Andhra Pradesh vs.
Kaithala Abhishekam, AIR 1964 AP
450, Union of India and others vs.
Harish Chand Anand, AIR 1996 SC
203,
Express
Newspapers
Private
Limited vs. Union of India, 1986 (1)
SCC 133, Smt. Shakira Khatoon Kazmi
and others vs. State of U. P. and others,
202 (1) AWC 226, Azim Ahmad Kazmi
and others vs. State of U. P. and others,
4 All. The Allahabad Anglo Indian Association Brnach Allahabad Vs. State of U.P. & Ors. 693
2012 (7) SCC 278 and Anand Kumar
Sharam vs. State of U. P. and others,
2014 (2) ADJ 742.

6. Heard Sri Subedar Mishra, learned
counsel for petitioner and Sri Ajit Kumar
Singh, Additional Advocate General assisted
by Sri Nimai Das, Additional Chief Standing
Counsel and Sri Sudhanshu Srivastava,
Additional Chief Standing Counsel for State
Authorities.

7. Before proceeding to discuss rival
issues raised in the matter, we find it
appropriate to reproduce some relevant
stipulations from last lease deed dated
07.3.1984, copy whereof has been filed as
Annexure 5 to the writ petition, which
read as under :

^^1- og mDr vof/k esa ,rn~}kjk fu.khZr
okf"kZd fdjk;s dk Åij fu;r fnuksa ij ,oa jhfr ls
Hkqxrku djsxkA

2- og ,sls izR;sd izdkj dh njksa] djks]
ifjO;;ksa vkSj fu/kkZfjr fd;s tkus okys Hkou ij
vFkok mlds Lokeh ;k fdjk;snkj ij] bl le;
vFkok blds i'pkr~] fdlh le; vo/kkfjr] Hkkfjr
vFkok vkjksfir fd;s tk;A

3- og mDr Hkw[k.M dk Hkw foHkktu
vFkok LFkkukarj.k ugha djsxk rFkk mDr Hkw[k.M rFkk
ml ij fufeZr Hkouksa dk iz;ksx ,sXyks bfUM;u
,slksfl;s'ku] bykgkckn }kjk dsoy nkrO; dk;Z ds
fy, fd;k tk;sxkA

4- mDr Hkw[k.M ij vofLFkr Hkouksa rFkk
ckg~; Hkouksa ds ckg~; mf){ksi ;k js[kk&fp= ds
fdlh Hkkx esa fdlh Hkh le; mDr ftyk/kh'k @
uxj egkikfydk dh fyf[kr vuqefr ds fcuk mlds
ewy js[kk&fp= rFkk mf){ksi ls fHkUu dksbZ ifjorZu
vFkok ifjo/kZu u fd;k tk;sxk vkSj u mldh bl
izdkj dh vuqefr fcuk fdlh vU; Hkou dk gh mDr
Hkw[k.M ij fuekZ.k fd;k tk;sxkA

+---------------

7- og iV~Vknkrk dh iwoZ fyf[kr
Lohd`fr izkIr fd;s fcuk mDr Hkw&x`gkfn dks dHkh Hkh
u rks Lo;a fdlh izdkj dk okf.kT; O;kikj djsxk u
fdlh nwljs dks djus nsxk vkSj u mldks nkrO;
dk;Z ds vfrfjDr fdlh vU; iz;kstu ds fy, dk;Z
esa yk;sxkA

----------

9- bl foys[k dh vof/k lekIr gksus ij
vFkok mlds igys gh lekIr dj fn;s tkus ij og
mDr Hkw[k.M rFkk ml ij fufeZr Hkouksa rFkk okg~;
Hkouksa dk vf/kiR; iV~Vknkrk dks fcYdqy vPNh
voLFkk esa nsxkA

fdUrq lnk izfrcU/k ;g gS fd ;g
foys[k bl Li"V 'krZ ij fu"ikfnr fd;k tkrk gS
fd vxj vkSj tc dHkh mi;qZDr fdjks; ;k yxku
vFkok mlds fdlh Hkkx dk fuf'pr frfFk ds i'pkr
,d ekg rd Hkqxrku u gksxk] pkgs og fof/kr% ekaxk
x;k gks ;k u ekaxk x;k gks] vFkok ;fn ml iV~Vs esa
of.kZr leuqcU/kksa esa ls fdlh ,d dks vFkok vf/kd
dks iV~Vsnkj Hkax djsxk vFkok mudk ikyu u djsxk
rc vkSj ,slh fdlh Hkh n'kk esa iV~Vknkrk Hkys gh
mlus iqu% izos'k djus ds fdlh okn gsrq ;k vf/kdkj
dks NksM+ fn;k tks] mDr Hkw&x`gkfn esa iqu% izos'k dj
ldrk gS vkSj iV~Vsnkj rFkk mlds leLr v/;kfl;ksa
dks ogkWa ls fudky ldrk gS vkSj og gLrkUrj.k
fcYdqy fujLr gks tk;sxk rFkk mDr Hkw[k.M ij
fufeZr Hkou dks gVkus vFkok mlds laca/k esa izfrdj
ikus ds iV~Vsnkj ds leLr vf/kdkj vig`r gks
tk;saxsA

;g Hkh izfrcU/k gS fd blesa Åij tks
dqN vafdr gS mlds vfrfjDr iV~Vknkrk dks ;g
vf/kdkj gksxk fd og bl foys[k ds v/khu ns;
leLr /kujkf'k dks lfpo vkokl ,oa uxj fodkl
foHkkx] m0iz0 ds izek.k i= ij tks vfUre fu'pk;d
rFkk iV~Vsnkj ij ck/;dkjh gksxk] ekyxqtkjh dh
cdk;k ds :i esa olwy dj ysaA

;g Hkh izfrcU/k gS fd ;fn gLrkUrfjr
Hkw[k.M dh iV~Vknkrk dks fdlh Hkh le; vius ;k
fdlh lkoZtfud dk;Z ds fy, vko';drk gksxh rks
mldks ;g vf/kdkj gks x;k fd iV~Vsnkj dks
gLrkUrfjr Hkw[k.M ij ml le; cus fdlh Hkou dks
gVkus dh ,d ekl dh fyf[kr uksfVl ns vkSj ;g
Hkh mDr uksfVl ds iV~Vsnkj }kjk izkIr gksus ds
fnukad ds i'pkr mDr vof/k ds lekfIr gksus ij nks
ekl ds Hkhrj ml Hkw[k.M ij viuk vf/kiR; izkIr
dj ys] fdUrq 'krZ ;g gS fd ;fn iV~Vsnkrk
gLrkUrfjr Hkw[k.M ij [kM+s Hkouksa dk dz; djuk
pkgs rks iV~Vsnkj dks mu Hkouksa ds cnys esa ,slh
/kujkf'k dk Hkqxrku dj fn;k tk;sxk tks jkT;
ljdkj ds vkokl ,oa uxj fodkl ds lfpo }kjk
vo/kkfjr dh tk;sA -----
694 INDIAN LAW REPORTS ALLAHABAD SERIES

vkSj bl foys[k ds nksuksa i{k ;g vuqcU/k
djrs gSa fd%&

1⁄4d1⁄2 bl foys[k ds fu"iknu ,oa iath;u
ds lEcU/k esa tks dqN Hkh O;; gksxk og iV~Vsnkj
lgu djsxkA

1⁄4[k1⁄2 iV~Vsnkj gLrkUrfjr Hkw[k.M vFkok
ml ij fufeZr Hkou dks iV~Vknkrk dh iwoZ vuqefr
izkIr fd;s fcuk fdlh Hkh izdkj u rks gLrkUrfjr
djsxk vkSj u f'kdeh iV~Vs ;k fdjk;s ij mBk;sxkA*

"1. He shall, in the said period,
pay annual rent hereby determined, on
the days and in the manner as above.

2. He shall pay all rates, taxes,
expenditures that may be determined,
charged or levied on building or its owner
or its tenants, at present or hereafter or at
any time.

3. He shall not go for partition
or transfer of the land; and the aforesaid
plot or the buildings constructed thereon,
shall be used only by Anglo Indian
Association, Allahabad only for the
charitable purposes.

4. There shall be no change or
alteration in the layout plan or site map of
the buildings and appended constructions
situated on the said plot of land at any
time without written approval of the
aforesaid
District
Magistrate/City
Municipality (Nagar Mahapalika); nor
shall any construction be made on the
aforesaid plot shall be undertaken without
such approval.

....

7.
Without
obtaining
the
approval of lessor, he himself shall never
trade on the land and buildings etc.; nor
shall he allow others to do the same; and
nor shall he allow the land to be used for
any purpose other than charitable one.

....

9. On the expiration of the
period mentioned in the deed or
termination thereof even prior thereto,
he shall hand over the possession of the
said plot and other buildings and
appended buildings constructed thereon
to the lessor.

But it is a standing condition that
this deed is being executed on this clear
terms that if and whenever the aforesaid
rent or revenue or any part thereof is not
paid in a month after the fixed date, whether
demanded legally or otherwise, or if the
lease holder violates any or more terms or
does not comply therewith, then in such a
condition, the lessor, even if he has given
up the right of re-entry for any purpose,
can re-enter the aforesaid land and
buildings etc. and may expel the lease
holder or its all occupants there-from and
then the transfer shall be terminated
completely, and all rights of the lease
holder to remove the buildings constructed
on the aforesaid plot or to receive the
compensation in relation to it shall be
forfeited.

It is also stipulated that in
addition to the facts mentioned above, the
lessor shall have a right to realize as
revenue dues all the amount payable
under this deed upon a certificate of the
Secretary, Housing and Urban Planning
Department, U.P. that shall be final,
conclusive and binding on lease-holder.

It is also stipulated that if the
lessor is in need of the transferred plot
for personal or public use, he shall be
entitled to give a written notice for
demolishing within a month any such
building constructed at the time and for
taking possession of the said plot within
two months from the expiry of the
aforesaid period after the date of receipt
of the said notice; subject to the condition
that if the lessor wants to purchase the
constructions made on the transferred
plot, the lease-holder shall be paid such
an amount that is determined by the
Secretary,
Housing
and
Urban
Development of the state government.
4 All. The Allahabad Anglo Indian Association Brnach Allahabad Vs. State of U.P. & Ors. 695

...

Both the parties to this deed
enter into an agreement:

a) That the lessee shall bear all
the expenses related to the execution and
registration of this deed.

b) That the lessee shall, without
prior permission of the lessor, neither
transfer in any way the transferred plot
or the building constructed thereon nor
subject the same to sub-lease or rent."

 (Emphasis added)

 (English Translation by Court)

8. The terms and conditions thus
clearly show that whenever land in
dispute is required by Lessor for 'public
purpose', it can require Lessee to remove
constructions existing on disputed land by
giving a month's notice and after expiry of
one month, can take possession of
disputed land within two months. If
Lessor intends to purchase constructions
existing on disputed land, it shall make
payment of such amount, as determined
by
Secretary
of
U.P.
Government,
Department of Housing and Urban
Development.

9. It is in terms of aforesaid
stipulation of lease-deed that notice in
question
has
been
given
for
resumption/re-entry over land in dispute.

10. Counsel for petitioner has
challenged impugned notice broadly on
the ground that :

i. Issue of renewal of lease was
already in progress and a meeting in this
regard
had
already
been
held
on
26.11.2015 wherein it was decided that
petitioner shall submit application for
renewal of lease in accordance with
relevant provisions and thereafter District
Magistrate shall examine the matter and
submit report but without proceeding in
the light of aforesaid decision, in an
arbitrary and abrupt manner, impugned
order has been passed.

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. In any case, if petitioner's
continuation in 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.

iv.
Right
of
resumption
exercised by respondents under leasedeed, 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 has
already expired in 1997.

v. 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.
696 INDIAN LAW REPORTS ALLAHABAD SERIES

11. 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 further elaborate while
discussing issues raised in these writ
petitions.

12. From rival submissions, issues
which, in our view, require to be
adjudicated in these writ petitions are :

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

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

v. 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 granted 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"?

13. 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.

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

15. Every land owned by State
Government is not termed as 'Nazul' and
therefore it has become necessary to
understand,
what
is
'Nazul'.
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. Property may also
be acquired and owned by State by way of
acquisition under the Statute relating to
acquisition of land or by purchase through
negotiation or gift by an individual or in
similar other manners. All such land,
which is owned and vested in State
Government results in making the State,
owner of such land, but in legal parlance,
the term "Nazul" is not applicable to all
such land.

16. 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,
which is covered by the term 'Nazul', as
the term is known for the last more than
one and half century. In Legal Glossary
1992, fifth edition, published by Legal
Department of Government of India, at
page 589, meaning of the term 'Nazul' has
been
given
as
'Rajbhoomi,
i.e.,
Government land'.

17. 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'. The reason being that neither it
was acquired nor purchased after making
payment. In the old record, when such
4 All. The Allahabad Anglo Indian Association Brnach Allahabad Vs. State of U.P. & Ors. 697
land was referred in Urdu, this kind of
land was shown as 'Jaidad Munzabta'.

18. For dealing with such property,
under the authority of Lt. Governor of
North Western Provinces, two orders
were issued in October, 1846 and
October, 1848. Therein, after the words
"Nazul property", its english meaning was
given as 'Escheats to the Government'.
Sadar Board of Revenue on May 20, 1845
issued a circular order in reference to
"Nazul land" and in para 2 thereof it
mentioned, "The Government is the
proprietor of those land and no valid title
to them can be derived but from the
Government". Nazul land was also termed
as "Confiscated Estate". Under Circular
dated
July
13,
1859,
issued
by
Government of North Western Provinces,
every Commissioner was obliged to keep
a final confiscation statement of each
District and lay it before Government for
orders.

19. Right of King to take property
by 'escheat' or as 'bona vacantia' was
recognized by common law of England.
Escheat of property was Lord's right of reentry on real property held by a tenant,
dying intestate, without lawful heirs. It
was an incident of Feudal Tenure and
based on the want of a tenant to perform
Feudal services. On the tenant dying
intestate without leaving any lawful heir,
his estate came to an end and Lord, by his
own right and not by way of succession or
inheritance from the tenant, re-entered
real property as owner. In most cases,
land escheated to Crown as the 'Lord
Paramount',
in
view
of
gradual
elimination of Intermediate or Mesne
lords since 1290 AD. Crown takes as
'bona vacantia' goods in which no one else
can claim property. In Dyke v. Walford 5
Moore PC 434= 496-13 ER 557 (580) it
was said 'it is the right of the Crown to
bona vacantia to property which has no
other owner'. Right of the Crown to take
as "bona vacantia" extends to personal
property of every kind. The escheat of
real property of an intestate dying without
heirs was abolished in 1925 and Crown
thereafter could not take such property as
bona
vacantia.
The
principle
of
acquisition of property by escheat, i.e.,
right of Government to take on property
by 'escheat' or 'bona vacantia' for want of
a rightful owner was enforced in Indian
territory during the period of East India
Company by virtue of Statute 16 and 17
Victoria, C. 95, section 27.

20. We may recollect, having gone
through history, that prior to 1857, several
Estates were taken over by British
Company i.e. East India Company by way
of annexation. Doctrine of lapse applied
in Jhansi was another kind of above
mentioned two principles.

21. The above provisions had
continued by virtue of section 54 of
Government of India Act, 1858, section
20(3)(iii) of Government of India Act,
1915 and section 174 of Government of
India Act, 1935. After enactment of
Constitution of independent India, Article
296 now continue above provision and
says:

'Subject as hereinafter provided,
any property in the territory of India
which, if this Constitution had not come
into operation, would have accrued to
His Majesty or, as the case may be, to the
Ruler of an Indian State by escheat or
lapse, or as bona vacantia for want of a
rightful owner, shall if it is property
situate in a State, vest in such State, and
698 INDIAN LAW REPORTS ALLAHABAD SERIES
shall, in any other case, vest in the
Union.' (Emphasis added)

22. Article 296, therefore, has
retained power of State to get ownership
of such land, in respect whereof principle
of 'escheat', 'lapse' or 'bona vacantia'
would have been applicable prior to
enforcement of Constitution of India. The
above 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. Vesting of
land and giving ownership to State
Government or Union of India under
Article 296 is clearly in respect of a land,
which will come to it by way of 'escheat',
'lapse' or 'bona vacantia' and not by way
of acquisition of land under some Statute
or purchase etc.

23. In Pierce Leslie and Co. Ltd. Vs.
Miss Violet Ouchterlony Wapsnare, AIR
1969 SC 843, Court has considered above
principles in the context of 'Sovereign India'
as
stands
under
Constitution
after
independence, and, has observed :

"....in
this
country
the
Government
takes
by
escheat
immoveable as well as moveable property
for want of an heir or successor. In this
country escheat is not based on artificial
rules of common law and is not an
incident of feudal tenure. It is an incident
of sovereignty and rests on the principle
of ultimate ownership by the State of all
property
within
its
jurisdiction".
(Emphasis added)

24. Court also placed reliance on
Collector of Masulipatam v. C. Vencata
Narainapah 8 MIA 500, 525; Ranee
Sonet
Kowar
v.
Mirza
Himmut
Bahadoor (2) LR 3 IA 92, 101, Bombay
Dyeing and Manufacturing Co. Ltd. v.
State of Bombay [1958] SCR 1122,
1146,
Superintendent
and,
Legal
Remembrancer
v.
Corporation
of
Calcutta [1967] 2 SCR 170, 204.

25. Judicial Committee in Cook v.
Sprigg (1899) AC 572 while discussing,
'what is an act of State', observed :

"The taking possession by Her
Majesty, whether by cession or by any
other means by which sovereignty can be
acquired, was an act of State."
(Emphasis added)

26. This decision has been followed
in Raja Rajinder Chand v. Mst. Sukhi,
AIR 1957 SC 286.

27.

In
Nayak
Vajesingji
Joravarsingji v. Secretary of State for
India in Council AIR 1924 PC 216,
Lord Dunedin said :

"When a territory is acquired by a
sovereign State for the first time, that is an
act of State. It matters not how the
acquisition has been brought about. It may
be by conquest, it may be by cession
following on treaty, it may be by occupation
of territory hitherto unoccupied by a
recognised ruler. In all cases the result is
the same. Any inhabitant of the territory can
make good in the municipal courts
established by the new sovereign only such
rights as that sovereign has, through his
officers, recognised. Such rights as he had
under the rule of predecessors avail him
nothing."

28. In Dalmia Dadri Cement Co.
Ltd. v. CIT [1958] 34 ITR 514 (SC) :
4 All. The Allahabad Anglo Indian Association Brnach Allahabad Vs. State of U.P. & Ors. 699
AIR 1958 SC 816, Court said (page 523
of 34 ITR) :

"The expression 'act of State'
is, it is scarcely necessary to say, not
limited to hostile action between rulers
resulting in the occupation of territories.
It includes all acquisitions of territory by
a sovereign State for the first time,
whether it be by conquest or cession."
(Emphasis added)

29. In Promod Chandra Deb v.
State of Orissa AIR 1962 SC 1288,
Court said, 'Act of State' is the taking over
of sovereign powers by a State in respect
of territory which was not till then a part
of its territory, either by conquest, treaty
or cession, or otherwise.

30. To the same effect was the view
taken by a Constitution Bench in
Amarsarjit Singh v. State of Punjab
AIR 1962 SC 1305, where in para 12,
Court said:

"It is settled law that conquest is
not the only mode by which one State can
acquire sovereignty over the territories
belonging to another State, and that the
same result can be achieved in any other
mode which has the effect of establishing
its sovereignty."

31. In Thakur Amar Singhji v.
State of Rajasthan AIR 1955 SC 504, in
para 40, Court said :

"The status of a person must be
either that of a sovereign or a subject.
There is no tedium quid. The law does not
recognise an intermediate status of a
person being partly a sovereign and
partly a subject and when once it is
admitted that the Bhomicharas had
acknowledged the sovereignty of Jodhpur
their status can only be that of a subject.
A subject might occupy an exalted
position and enjoy special privileges, but
he is none the less a subject..."
 (Emphasis added)

32. In State of Rajasthan vs.
Sajjanlal Panjawat AIR 1975 SC 706 it
was held that Rulers of the erstwhile
Indian States exercised sovereign powers,
legislative, executive and judicial. Their
firmans were laws which could not have
been challenged prior to Constitution.
Court relied on earlier decisions in
Director of Endowments, Govt. of
Hyderabad vs. Akram Ali, AIR 1956
SC 60, and Sarwarlal vs. State of
Hyderabad, AIR 1960 SC 862.

33. In Promod Chandra Deb vs.
State of Orissa AIR 1962 SC 1288 "act
of the State" was explained in the
following words :

'an "act of State" may be the
taking over of sovereign powers either by
conquest or by treaty or by cession or
otherwise. It may have happened on a
particular date by a public declaration or
proclamation, or it may have been the
result of a historical process spread over
many years, and sovereign powers
including the right to legislate in that
territory and to administer it may be
acquired without the territory itself
merging in the new State.'

34. This decision has been followed
later in Biswambhar Singh vs. State of
Orissa 1964 (1) SCJ 364, wherein Court
said:

16. Thus, a territory acquired
by a sovereign State is an Act of State
but the land comprising territory does
700 INDIAN LAW REPORTS ALLAHABAD SERIES
not become the land owned by State. The
land owned by State may come to it in
various
ways,
like
confiscation,
purchase, escheat or bona vacantia, gift,
etc. In such a case the ownership vests in
State, like any other individual and State
is free to deal with the same in a manner
like any other owner may do so.

17. Thus 'Nazul' is a land
vested in State for any reason whatsoever
that is cession or escheat or bona
vacantia, for want of rightful owner or
for any other reasons and once land
belong to State, it will be difficult to
assume that State would acquire its own
land. It is per se impermissible to acquire
such land by forcible acquisition under
Act, 1894, since there is no question of
any transfer of ownership from one
person to another but here State already
own it, hence there is no question of any
acquisition.
 (Emphasis added)

35. Thus the land in question which
is admittedly 'Nazul', belonged to the
category as discussed above i.e.