# STATE OF U.P. & ORS v. MAHARAJA DHARMANDER PRASAD SINGH ETC

- **Citation:** [1989] 1 S.C.R. 176
- **Court:** Supreme Court of India
- **Decided:** 1989-01-17
- **Case number:** Civil Appeal Nos. 165166 of 1989
- **Bench:** Ranganath Misra, M.N. Venkatachaliah
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/state-of-u-p-ors-v-maharaja-dharmander-prasad-singh-etc-10214
- **Pages:** 28

## Headnote

c
Uttar Pradesh Urban Planning and Development Act, 1973: Ss
14, 15, 37 & 41: Lucknow Development Authority-Permission for
development of land by private party-Cancellation/revocation ofValidity of.
Constitution of India, Article 226: Forfeiture and cancellation of
/ease-Whether can be agitated in writ proceedings-Judicial reviewScope and nature of.
Transfer of Property Act, 1882: Ss. 108, 111 & I 14A-LesseeD Nature of possession after expiry/forfeiture of /ease-Forcible dispossession prohibited.
Section 3 of the Uttar Pradesh Urban Planning and Development
+
Act, 1973 provides for declaration of an area to he a 'development area'
J. •
by gazette notification. Section 14(1) of the Act interdicts development
E of land in such an area by any person or body unless permission has
been obtained from the Vice-Chairman of the Development Authority.
Section 15(1) requires every person or body desirous of obtaining
-
permission to make an appUcation in the manner prescribed. Section
15(3) empowers the Vice-Chairman, after making such an enquiry as he
considers necessary, either to grant the permission subject to such con-
--\__
F
ditions .as be may specify, or refuse the permission. Section 15(5) provides for an appeal to the Chairman against an order made by the
Vice-Chairman refusing permission. Section 37 inter alia makes an
order of the Vice-Chairman made under s. 15 linal. Section 41(1) makes
it incumbent on the Authority (the Chairman or the Vice-Chairman) to
carry out such directions as may he issued to it from time to time by the
G
State Government for the efficient administration of the Act. Section
41(3) confers revisional powers on the State Government.
The respondent-lessees applied to the appellant-Development
Authority under s. 15(1) of the Act for permission to put up a multistoreyed building on the demised plot. The Vice-Chairman of the
H Authority sanctioned the permission by his order dated January 31,
176
,.+ ..
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STATE OF U.P. v. D.P. SINGH
177
1985. However, on July 24, 1985 the State Government issued directions purporting to be under 8; 41(1) ofthe Act interdicting the progress
of construction on ground of violation of the conditio~ of the lease. The
High Court allowed the writ petition preferred by the respondents and
quashed the said directions.
Thereafter, on August 12, 1985 the State Government brought to
the notice of the Vice-Chairman serious illegalities in the building sanction and indicated that the same be reviewed and revoked, to which he
did not agree. Finally, by its communication dated October 15, 1985
addressed to the Chairman of the Authority the State Government
directed him to initiate immediate proceedings against the respondents
for making misrepresentations, fraudulent statements and concealing
material facts in obtaining building permission. To that letter was
annexed a notice for service on the lessees and the builder associated
with construction to show cause for cancellation of the lease and demolition of unauthorised construction. The respondents filed their objections against the proposed cancellation, but the Government by its
order dated November 19, 1985 found the explanation unacceptable
and proceeded to terminate the lease. This order was challenged by the
respondent-lessees in a writ petition before the High Court.
Subsequently, the Vice-Chairman of the Authority in a separate
action issued notice dated January 9, 1986 to the respondents to show
cause why the bnilding permission granted on January 31, 1985 should
not be cancelled. Respondents objected to the proposed action but the
Authority found the objections unacceptable and proceeded by its order
dated April 19, 1986 to cancel the permission. The two lessees challenged this cancellation in writ petitions before the High Court.
The High Court found that the proceedings initiated and the
action taken by the Government and the Vice-Chairman of the Authority in the matter, respectively, of forfeiture of the lease and the cancell

## Text

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A
STATE OF U.P. & ORS.
v.
MAHARAJA DHARMANDER PRASAD SINGH ETC.
JANUARY 17, 1989
B
[RANGANATH MISRA AND M.N. VENKATACHALIAH, JJ.]
c
Uttar Pradesh Urban Planning and Development Act, 1973: Ss
14, 15, 37 & 41: Lucknow Development Authority-Permission for
development of land by private party-Cancellation/revocation ofValidity of.
Constitution of India, Article 226: Forfeiture and cancellation of
/ease-Whether can be agitated in writ proceedings-Judicial reviewScope and nature of.
Transfer of Property Act, 1882: Ss. 108, 111 & I 14A-LesseeD Nature of possession after expiry/forfeiture of /ease-Forcible dispossession prohibited.
Section 3 of the Uttar Pradesh Urban Planning and Development
+
Act, 1973 provides for declaration of an area to he a 'development area'
J. •
by gazette notification. Section 14(1) of the Act interdicts development
E of land in such an area by any person or body unless permission has
been obtained from the Vice-Chairman of the Development Authority.
Section 15(1) requires every person or body desirous of obtaining
-
permission to make an appUcation in the manner prescribed. Section
15(3) empowers the Vice-Chairman, after making such an enquiry as he
considers necessary, either to grant the permission subject to such con-
--\__
F
ditions .as be may specify, or refuse the permission. Section 15(5) provides for an appeal to the Chairman against an order made by the
Vice-Chairman refusing permission. Section 37 inter alia makes an
order of the Vice-Chairman made under s. 15 linal. Section 41(1) makes
it incumbent on the Authority (the Chairman or the Vice-Chairman) to
carry out such directions as may he issued to it from time to time by the
G
State Government for the efficient administration of the Act. Section
41(3) confers revisional powers on the State Government.
The respondent-lessees applied to the appellant-Development
Authority under s. 15(1) of the Act for permission to put up a multistoreyed building on the demised plot. The Vice-Chairman of the
H Authority sanctioned the permission by his order dated January 31,
176
,.+ ..
-
STATE OF U.P. v. D.P. SINGH
177
1985. However, on July 24, 1985 the State Government issued directions purporting to be under 8; 41(1) ofthe Act interdicting the progress
of construction on ground of violation of the conditio~ of the lease. The
High Court allowed the writ petition preferred by the respondents and
quashed the said directions.
Thereafter, on August 12, 1985 the State Government brought to
the notice of the Vice-Chairman serious illegalities in the building sanction and indicated that the same be reviewed and revoked, to which he
did not agree. Finally, by its communication dated October 15, 1985
addressed to the Chairman of the Authority the State Government
directed him to initiate immediate proceedings against the respondents
for making misrepresentations, fraudulent statements and concealing
material facts in obtaining building permission. To that letter was
annexed a notice for service on the lessees and the builder associated
with construction to show cause for cancellation of the lease and demolition of unauthorised construction. The respondents filed their objections against the proposed cancellation, but the Government by its
order dated November 19, 1985 found the explanation unacceptable
and proceeded to terminate the lease. This order was challenged by the
respondent-lessees in a writ petition before the High Court.
Subsequently, the Vice-Chairman of the Authority in a separate
action issued notice dated January 9, 1986 to the respondents to show
cause why the bnilding permission granted on January 31, 1985 should
not be cancelled. Respondents objected to the proposed action but the
Authority found the objections unacceptable and proceeded by its order
dated April 19, 1986 to cancel the permission. The two lessees challenged this cancellation in writ petitions before the High Court.
The High Court found that the proceedings initiated and the
action taken by the Government and the Vice-Chairman of the Authority in the matter, respectively, of forfeiture of the lease and the cancellation of the permission to build were both infirm in law and required to
be quashed. It took the view that a reasonable opportunity of being heard
had been denied to the lessee-respondents, ·and that the grounds for
forfeiture of the lease were irrelevant and illusory; that there was no
provision in the Development Act conferring powers on the ViceChairman to review the decision in the matter of sanctioning a plan to
build after the same was acted upon and constructions were being made
only in accordance with it; thats. 41(1) of the Act could authorise the
Vice-Chairman to review the earlier permission but that there being no
such directive from the Government the Vice-Chairm20 acting as a
A
B
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G
H
178
SUPREME COURT REPORTS
[1989] 1 S.C.R.
A
statutory authority had no power to revoke or cancel the permission
once granted, and that there was no casual connection between the
Government's directive dated October 15, 1985, which bad confined
itself to the cancellation of the lease, and the proceedings initiated by
the Vice-Chairman on January 9, 1986. It further found that as
personal hearing has not been given to the petitioners the order passed
B
by the Vice-Chairman violates the principles of natural justice and that
the grounds alleged were not sufficient to sustain the cancellation of the
permission.
c
In the appeals by special leave prefer.red by the State Government
in tile matter of forfeiture of lease, it was contended for the appellants
that the High Court fell into an error in allowing a matter, which should
properly have been the subject matter of a civil suit, to be agitated in
proceedings under Article 226 of the Constitution. The submission was
that the question whether there were breaches of covenants on the part
of the lessees involved the construction of the terms of the lease deed
which required evidence on the matter and such a dispute could not be
D
resolved on mere affidavits, and that the relationship between the
parties being one of lessor and lessee the dispute between them
pertained to a private law situation. It was also submitted that no
hearing could he contemplated in the context for forfeiture of a lease of
this nature. For the respondents it was contended that the State, even as
a lessor, could not act arbitrarily either in the ·grant or premature
E
termination of the leases of public property and disputes arising in such
context cannot always be reckoned as private law situations, and that at
all events, the threatened exercise of extra-judicial re-entry by the
State, being violative both of the limitations of the powers of the State as
lessor under the law of landlord and tenant and of its actions as State,
was a matter which required to be mandated against.
F
In the appeals by special leave by the Development Authority in
the matter of cancellation of permission to build, it was contended for it
that the order dated April 19, 1986 itself disclosed the extent of
opportunities afforded to the lessees and there could, therefore, be
no question of failure of natural justice, that if permission had been
G
obtained by the lessees by misrepresentation or fraud or, if after obtain·
ing the permission there had been violation of the terms and conditions
of the grant, as in the instant case, the statutory authority granting the
permisi.ion has itself the inherent and incidental and supplemental
powers to revoke the permission, and that no express grant of power iD
this behalf was necessary. For the respondents it was contended that the
H
proceedings for cancellation of the permission having been initiated at
I
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.-J.
,
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STATE OF U.P. v. D.P. SINGH
179
the instance of and compelled by the directions issued by the GovernA
ment purporting to act under s. 41(1) of the Act there was a surrender
of statutory discretion on the part of the Vice-Chairman thereby vitiat-
( ing the decision; that the Vice-Chairman bad no authority in law to
cancel the permission, that the power to cancel or revoke a licence or
permission, even assuming that the statute enables such cancellation,
was clearly distinguishable from the power of refusal of an initial grant B
and that the exercise of power of cancellation which prejudicially affects
vested rights partakes predominantly of quasi-judicial complexion; and
that as there was denial of a reasonable opportunity of being beard the
order passed by the Vice-Chairman violates the principles of natural
justice.
Allowing appeals by the State,
c
HELD: 1. The question whether the purported forfeiture and
cancellation of the lease were valid or not should not have been
allowed by the High Court to be agitated under Article 226 of the
Constitution since it involved resolution of disputes on questions of D
fact as well. h 91 Cl
Express Newspapers v. Union of India, [1985) Suppl. 3 SCR 382,
referred to.
2. A lessor, with the best of title, has no right to resume possesE
sion extra-judicially by use offorce, from a lessee, even after the expiry
or earlier termination of the lease by forfeiture or otherwise. The use of
the expression 're-entry' in the .lease-deed does not authorise extrajudicial methods to resume possession. Under law the possession of a
lessee, even after the expiry or its earlier termination is judicial possession and forcible dispossession is prohibited. He cannot, therefore, be F
dispossessed otherwise than in due course of law. [191F-G I
lo the instant case, the fact that the lessor is the State does not
p_lace it in any higher or better position. On the contrary, it is under an
additional inhibition stemming from the requirement that all actions of
Government and governmental authorities should have a 'legal G
pedigree'. The State Government is, accordingly, prohibited from taking possession otherwise than in accordance with law: [ J 92C I
Bishandas v. State of Punjab, [1962) 2 SCR 69, referred to.
The question of the_ legality and validity of the purported cancellaH
180
SUPREME COURT REPORTS
[1989) 1 S.C.R.
A tion of the lease and the defence of the lessees is left open to be urged in
appropriate legal proceedings, whenever and wherever Government
proceeds to initiate action in accordance with law for resumption of
possession. [1920-E]
B
Partly allowing the appeals by the Development Authority,
HELD: 1.1 The Vice-Chairman, for purposes of s. 15(3) of the
Act is a distinct statutory authority with statutory powers of his own
distinct from Development Authority, which under s. 4(2) is a body
corporate having perpetual succession and common seal. I I 97C-D I
C
1.2 An order made by him under s. 15(3) of the Act granting
permission is not one of the orders revisable by Government under s.
41(3). Such an order, under the scheme of the Act, is not also appealable but assumes a finality contemplated by s. 37. I 197F -GI
1.3 The power of control of the State Government under s. 41(1)
D consistent with the scheme of the Act, cannot be construed as a source
of power to authorise any authority or functionary under the Act to do
or carry out something which that authority or functionary is not,
otherwise, competent to do or carrying under the Act. The section is not
a Super Henry VID clause for the supply or source of additional provisions and powers not already obtaining under the Act. [ 198A-B J
E
F
2.1 The view of the High Court that in the absence of a directive
or authorisation from the Government under s. 41(1), the ViceChalrman, acting as the statutory authority dispensing permissions for
development under the Act, cannot revoke or cancel a permission once
granted is clearly erroneous. I 198F I
2.2 The grant of permission is part of or incidental to the statutory power to regulate orderly development of the 'development area'
under the Act under regulatory laws. The power to regulate with the
obligations and functions that go with and are incidental to it, are not
spent or exhausted with the grant of permission. The power of regulaG lion which stretches beyond the mere grant of permission, takes within
its sweep the power, in appropriate cases, to revoke or cancel the
permission as incidental or supplemental to the power to grant.
Otherwise, the plenitude of the power to regulate would be whittled
down or even frustrated. [198F-H)
H
2.3 The power to grant, where the grant is itseH vitiated by fraud
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STATE OF U.P. v. D.P. SINGH
181
or misrepresentation on the part of the grantee at the time of obtaining
the grant, or where the grantee, after the grant violates the essential
terms and conditions subject to which grant is made, must therefore, be
held to include the power to revoke or cancel the permit, even in the
absence of any other express statutory provisions in that behalf. The
grounds must, of course, be such as would justify such drastic action.
This cancellation is a preventive step. There may, however, be cases of
the third kind where the grant may be voidable at the instance of the
Development Authority or otherwise entitling the Development Authority to initiate appropriate declaratory or other action to get rid of the
effect of the permission. [J99G-H; 200A-B]
2.4 It is erroneous to equate the powers under ss. 14 and JS of the
Act with judicial power which, in the absence of express provisions,
could not enable the review of a judicial order after its exercise on the
principle offunctus officio. [J98H; 199A]
A
B
c
Sardul Singh v. The District Food and Supplies C ontro//er,
Patiala and 0 rs., W.P. No. 126of1962 decided on December 19, 1962
D
•
referred to.
3. The power of revocation or cancellation of the permission is
akin to and partakes of a quasi-judicial complexion. In exercising the
power the authority must bring to bear an unbiased mind, consider
impartially the objections raised by the aggrieved party and decide the
matter consistent with the principles of natural justice. The authority
cannot permit its decision to be influenced by the direction of others as
this would amount to abdication and surrender of its discretion. It
· would then not be the authority's discretion that is exercised, but someE
one else's. If an authority bands over its discretion to another body it ·
acts ultra vires. Such an interference by a person or body extraneous to
F
the power would plainly be contrary to the nature of the power conferred upon the authority. [200B-D J
Judicial Review of Administrative Action by S.A. de Smith referred to.
G
j
In the instant case, however, there was no such surrender of
~
discretion by the Authority. The directive from the Government dated
August 12, 1985 bad spent itself out with the then the Vice-Chairman
declining to act in accordance with it. The directivo dated October 15,
1985 confined itself only to the cancellation of the lease and as incidental
thereto, required the stoppage of work pending decision whether the
H
lease should be cancelled or not. [201B-D]
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SUPREME COURT REPORTS
119891 1 S.C.R.
4.1 It not unoften happens that what appears to be a judicial
review for breach of natural justice is, in reality, a review for abuse of
discretion. 120 lH I
4.2 Judicial review under Article 226 cannot be converted into an
appeal. Judicial review is directed, not against the decision, but is confined to the examination of the decision-making process. 12028 I
4. 3 When the issue raised in judicial review is whether a decision
is ·vitiated by taking into account irrelevant, or neglecting to take into
account of relevant, factors or is so manifestly unreasonable that no
reasonable authority, entrusted with the power in question con!d
reasonably have made such a decision, the judicial review of the decision making process includes examination as a matter of law, of the
relevance of the factors. In the instant case, it is, however, not necessary to go into the marits and relevance of the grounds. [202F-H]
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Chief Constable of the North Wales Police v. Evans. [1982]
D
WLR 1155 referred to.
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5. There has been a denial of natural justice in the proceedings
culminating in the order of canceUation. The show cause notice itself is
an impalpable congeries of suspicions and fears, of relevant or irrelevant matter and has included some trivia. On a matter of such import-
~.
ance where the stakes are heavy for the lesS<Oi!s who claim to have made
large investments on the project and where a number of grounds
require the determination of factual matters of some complexity, the
statutory authority should, in the facts of the case, have afforded a
personal hearing to the lessees. Both the show cause notice dated
•
January 9, 1986 and the subsequent order dated April 19, 1986 cannot, Ji..
therefore, be sustained. 12038-D I
· ·
~.
It is left open to the statutory authority, should it consider it
necessary, to issue a fresh show cause notice setting out the precise
grounds, and afford a reasonable opportunity, including an opportunity of personal hearing and of adducing evidence wherever necessary to
G
th~ respondent-lessees. In view of this liberty, reserved to the authority,
the finding recorded by the High Court on the merits of the grounds is
II.
set aside. [203D-EI
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CIVIL APPELLATE JURISDICTION: Civil Appeal Nos. 165166 of 1989.
H
From the Judgment and Order dated 8.12.1986 of the Allahabad
'
STATE OF U.P. v. D.P. SINGH (VENKATACHALIAH, J.J
183
+· High Court in W.P. Nos. 6819of1985 and 367of1986.
AND
Civil Appeal Nos. 167 to 171of1989.
From the Judgment and Order dated 8.12.1986 of the Allahabad
.~ High Court in W.P. Nos. 3463, 367 of 1986, 5521, 5699 and 6819 of
1985.
A
B
Yogeshwar Prasad, D.D. Thakur, Soli J. Sorabjee and S.N.
""'L-<_ Kacker, Mrs. Shobha Dikshit, C.P. Lal, Umesh Chandra, Krishan
Chandra,. R.K. Mehta, R.C. Verma, Dr. Roxma Swamy, Dilip
Tandon, Harish N. Salve, Rajiv Shakdher for the appearing parties.
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The Judgment of the Court was delivered by
VENKATACHALIAH, J. Special Leave Petitions (Civil) 4761
and 4762 of 1985 are by the State of Uttar Pradesh and its officers and
D
SLJ?s 13298 and 11498 of 1987 by the Lucknow Development Authority, {LO A for short) a statutory body constituted under Sec. 4( 1) of the
Uttar Pradesh Urban Planning & Development Act, 1973 (Act for
short) and its Authorities. Seeking special leave to appeal from the
X common judgment dated 8.12.1986 of the High Court of Judicature,
Allahabad, in Writ Petition Nos. 6819 of 1985 and 367 of 1986 which
E
were heard and decided along with three other writ-petitions i.e. WP
5521 & 5699 of 1985 and 3463 of 1986.
Special leave petitions 11515 of 1987 and SLP 11499 of 1987 are
,.J by the LDA and its Authorities directed against the said common
~!~judgment dated 8.12.1986 in so far as it pertains respectively to W.P.
F
5699 of 1985 and 5521 of 1985: Special leave petition 11220 of 1987 is
by the LDA and its Authorities seeking leave to appeal from the Order
in W .P. 3463 of 1986.
2. The Writ-petitions before the High Court were preferred by
the Respondent Lessees Sri D.P. Singh and his mother Smt. Raj G
Lakshmi Devi, the heirs of Maharaja Pateshwari Prasad Singh in
respect of Nazool land in Plot No. 10, Ashok Marg, Hasratganj, Lucknow, under deed dated 7.10.1961 commencing from 15.11.1961 and
stated to expire on 31.3.1991. The proceedings arose out of two matters. The first pertained to the legality of the Notice dated 19.11.1985
issued by the State Qovernment in cancelling the lease. The cancellaH
184
SUPREME COURT REPORTS
[1989] 1 S.C.R.
tion was challenged in two writ-petitions filed separately by Sri D.P. -+
A Singh and Smt. Raj Lakshmi Devi in W.P. 6819 of 1985 and WP 367 of
1986 respectively. The High Court by its common order dated
8.12.1986 allowing the said two writ-petitions quashed the said cancellation. In SLPs 4761 and 4762 of 1987 and in SLPs 13298 and 11498 of
1987 the Lucknow Development Authority have assailed this part of
B the common order.
The second area of the controversy arises out of the order dated
19.4.1986 of the Vice-Chairman, Lucknow Development Authority,
(LDA for short) cancelling the earlier order dated 31.1.1985 granting
permission under Sec. 15 of the Act in favour of the Respondent
Le:;sees to develop the lease-hold property by errecting thereon a
C multi-storeyed building called "Balarampur Towers" comprising of
flats etc. This cancellation was challenged by the two Lessees in the
joint writ-petition No 3463 of 1986. The High Court allowed this WritPetition also and has quashed the impugned order dated 19.4.1986 by
which the permission to build earlier granted was sought to be
D revoked. In SLP 11220 of 1987 the LDA seeks leave to appeal against
this part of the order.
WPs 5699 of 1985 and 5521 of 1985 from which the LDA has
preferred SLP 11515 of 1987 and SLP 11499 of 1987 respectively do not
relate to or bear upon the substantial points of controversy between 'A
E the parties. They relate to certain incidental matters. Accordingly
SLPs 11515 of 1987 and SLP 11499 of 1987 would be governed by the
order made in the main SLPs.
3. Special leave is granted in all the petitions. We have heard Sri
D.D. Thakur. learned Senior Counsel for the LDA and its authorities;-~
F Sri Yogeshwar Prasad, learned senior counsel for the State of Uttar
~~
Pradesh and its officers and Sri Soli J. Sorabjee for the respondentLessees.
The subject matter of the lease is stated to be an extent of about
9885 Sq. Metres of Nazool land, which was comprised in the lease in
G favour of a certain Mr. Edwards, granted in the year 1901 for a period
of 30 'years in the first-instance, with provision for renewal for two
more terms of 30 years each. On 6.11.1936, there was the first renewal
for 30 years effective from 1.4.1931 in favour of a certain Sri Syed Ali
Zahir, a transferee from Mr. Ed\\ards. Sri Syed Ali Zaheer assigned
his interest under the lease in favour of Maharaja Pateshwari Prasad
H Sing-,h of Balrampur. On 7.10.1961, there was a second renewal in
\·
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STATE OF U.P. v. D.P. SINGH [VENKATACHALIAH, J.]
185
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favour of the present respondents, as the heirs of the said Maharaja Sri
A
Pateshwari Prasad Singh.
4. On 11.8.1981, Respondent-lessees, in collaboration with M/s
Ambar Builders (P) Limited applied to the LDA under Sec. 15(1) of
the Act for permission to put up a multi-storeyed building on the
.)
demised property. The permission was refused on the ground, inter B
alia, that the proposed construction would bring about a change in the
user permitted under the lease. The lessees preferred an appeal before
~
the Appellate Authority who dismissed their appeal. The RevisionPetition filed by the lessees before the Government under Sec. 41(1) of
the Act was partly allowed and the Government by its order dated
15.10.1984, remitted the matter to the appropriate authority under the c
,
Act for a fresh consideration. On 31.3.1984, during the pendency of
·tthe revision-petition respondents submitted a modified plan, styling
the construction as consisting of "residential-flats". After remand, the
Nazool Officer is said to have given his "No objection Certificate"
dated 2.12.1984 for the grant of permission. The power of attorney
holder of respondents, a certain Sri Pawan Kumar Aggarwal, filed an
D
affidavit dated 28.12.1984 before the appropriate authority of the
LDA in regard to their being no impediment under Urban Ceiling
x
Laws and the manner in which the Lessees propose to comply with
any order that may eventually be made in that behalf. Finally on
23 .1.1985, the Vice-Chairman of LD A sanctioned the permission. This
was forμially communicated to the Respondents on 31.1.1985. The
E
lessees were required to, and did, deposit Rs. 53,440 with the LDA
;
towards what was called 'Malba' charges. This marked one stage of the
proceedings.
·t
5. The next stage of the matter opened on 24.7.1985 with the
--. issue of directions from Government purporting to be under sec. 41(1)
F
of the Act interdicting the progress of the construction as, in the view
of the Government, the lessees had violated the conditions of the
lease; that the matter would require further examination and that any
further construction in the meanwhile would create avoidable hardship
to themselves. In W.P. 3732 of 1985 Respondent-Lessees challenged
this direction of the Government before the High Court, which G
+
allowed the petition and quashed those directions.
Thereafter, on 12.8.1985, the Government brought to the notice
of the then Vice-Chairman of the LDA what, according to Government, were serious illegalities in the sanction of the permission dated
31.1.1985 and indicated to the Vice-Chairman that sanction earlier H
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186
SUPREME COURT REPORTS
[1989] 1 S.C.R.
granted on 31. 1. 1985 be reviewed and r,evoked. The Vice-Chairman,
however, did not appear to share the view of Government either as to
the existence of any legal infirmities in the grant of permission or as to
the availability and the justifiability of review of the permission
suggested by Government. The disinclination of the Vice-Chairman in
this behalf was communicated to the Government by letter dated
12. 9 .1985. This marked yet another stage of the proceedings.
6. The State Government, apparently, was in no mood to relent.
-+
By communication No. 5062-37-37-3-1985 dated 15.10.1985 Shri .
_
Kamal Pandey, the then Secretary to Government of Uttar Pradesh, ~
wrote to the Chairman, LOA recapitulating therein the previous proceedings in the matter of grant of permission for the "BalrampurTowers" on the lease-land and enumerating what, according to Gov-
\. _
ernment, were serious infirmities in, and illegalities resulting from, the --'r
permission and as to how the construction violated the terms and
conditions of the lease and directed the Chairman, LOA, to initiate
immediate proceedings as directed in the said communication. To that
letter was annexed, a show-cause notice which the Chairman was
asked to serve on the Lessees and the Builders associated with the
construction. It is necessary to excerpt some portion of that
communication.
"It has come to the notice of the Govt. that in obtaining the
E
said permission the following illegalities, irregularities,
material misrepresentation, fraudulent statements, concealments of material facts etc. "!'_pear to have been committed."
Referring to the various alleged illegalities, and breaches of-t.
F ·covenants and of violations of law which, according to Government,
vitiated the grant of permission to build and also render the lease liable
to forfeiture. The communication proceeded to direct the Chai1man.
G
H
"Therefore, the Governor is pleased to direct you to
serve the enclosed show cause notice in the Maharani, Sri
Singh and Builders and obtain their explanation within
three days of the service of the noticf" give them an -f
opportunity of hearing on the fourth day and submit your
comments on the explanation along with your recommendations in the light of the above mentioned circumstances
along with your report fixing the responsibility on the ViceChairm.an of the Lucknow Development Authority and
, ·t
.
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STATE OF U.P. v. D.P. SINGH [VENKATAcHALIAH, J.[
187
Officers/Officials of the Nazul and building section latest
by 28th October, 1985."
A
The relevant portions of the show cause notice annexed to the
said letter and intended to be, and was later, served on the r%-
ponden~~-Lessees said:
.
"Therefore, in compliance with the instructions of the
Govt. Maharani Raj Laxmi Kumari Devi Sahiba and Sri
Singh and M/s Ambar Builders (P) Ltd. are hereby given
the show cause notice and an opportunity of hearing and
they are required to explain within three days of the receipt
B
of this notice as to why the Nazul lease granted in their C
favour be not cancelled and the unauthorised construction
be not demolished for breach of the lease conditions and
violation of the provisions of Urban Land and Ceiling Act
and for making fraudulent statement and misrepresenta·
tion in respect of the land use in Lucknow Master Plan and
on account of continuing constructions on the basis of D
fraudulently obtained building permission."
"If the desired explanation is not received within
three days of the service of this notice by the undersigned,
it will be presumed that they have nothing to say in their
defence and thereafter action for cancellation of nazul
E
lease and building permit and the removal of the unauthorised constructions will be taken along with their prosecution for fraudulent statement and misrepresentation as
contained in the affidavit."
8. The respondents filed their objections and representations F
against the proposed cancellation. But Government, by its order No.
5496/37-3/85 dated 19.11.1985, found the explanation unacceptable to
it and proceeded to terminate the lease. The operative part of the
"notice" terminating the lease reads:
"Now therefore on account of the aforesaid breach of G
the lease conditions the Governor of U.P. does hereby
terminate the lease. You are required to hand over possession of the land and building standing thereon to Collector,
Lucknow, within 30 days of the receipt of this notice
otherwise action for eviction will be taken against you at
your cost."
H
188
SUPREME COURT REPORTS
[1989] 1 S.C.R.
A
This order was, as stated earlier, challenged by the respondent-
.-+·
lessees in WP No. 3463 of 1986 before the High Court.
9. So far as the permission for development of the property
earlier granted on 31.1.1985 was concerned, separate action was taken
by the Vice-Chairman of the LDA who issued the notice dated
B
9 .1.1986 to the respondents requiring them to show-cause why the
permission should not be cancelled. Respondents objected to the
proposed action; but the Vice Chairman found the objections unacceptable and proceeded, by his order No. 363NC/RB0/86 dated
19.4.1986, to cancel the permission.
c
D
The operative portion of the said order dated 19 .4.1986 reads:
"From the above it is clear that the.above irregulari-
--'fties, material mis-representation and fradulent statements
have been made along with the building map-plan and
other documents submitted by Sri D.P. Singh and he has
deliberately concealed material facts and mislead the
Authority. Therefore, the permission dated 31.1.1985
granted to him is being cancelled."
The two Lessees challenged this cancellation before the High
;A
Court in two separate writ petitions filed by each of them in WP 6819
E of 1985 and WP 367 of 1986 respectively.
10. The High Court was persuaded to the view that the proceedings initiated and the action taken by the Government and the
Vice-Chairman of the LDA in the matter, respectively, of forfeiture of
the lease and the cancellation of the permission to build were both t
F infirm in law and required to be quashed. Accordingly, writ petitions
6819 of 1985 and WP 367 of 1986 were allowed and the order dated
19 .11.1985 of the Government purporting to cancel the lease was
quashed.
Likewise, WP 3463 of 1986 filed jointly by the Lessees was
G allowed and the show cause notice dated 9 .1.1986 as well as the order
dated 19.4.1986 of the Vice-Chairman cancelling the permission were
-+
quashed.
11. We may first take up the appeals of the State Government
and of the LDA assailing the order of the High Court quashing the
H Cl!Jlcellation of the lease. Sri Yogeshwar Prasad for the appellants
-
+-
STATE OF U.P. v. D.P. SINGH IVENKATACHALIAH, J.]
189
submitted that the High Court fell into an error in allowing a matter, A
which should properly have been the subject-matter of a civil-suit, to
be agitated in proceedings under Article 226 of the Constitution.
Learned counsel submitted that the relationship between the parties
was one of the Lessor and Lessee; the dispute between them pertained
to the question whether there were breaches and non-performance of
the covenants and conditions of the lease justifying the forfeiture of B
the lease, and that these matters, pertained to a private law situation
and were not appropriately matters for enforcement of public law
remedies. Learned Counsel further submitted that the question
whether there were breaches of covenants on the part of the lessee
involved the construction of the terms of the lease-deed and required
evidence on the matter. Disputes of this nature, learned counsel submitted, could not be resolved on mere affidavits. Thirdly, Sri YogeshC
war Prasad submitted that on the merits of the contentions, the High
Court should have noticed that even on the facts admitted, there were
clear violations of the covenants and conditions of the lease. Learned
counsel also submitted that the view of the High Court that a reasonable opportunity of being heard had been denied to the respondents D
was erroneous and that, at all events, no hearing could be contemplated in the context for forfeiture of a lease of this nature.
Sri Sorabjee for the respondents contended that the State,. even
as a lessor, could not act arbitrarily either in the grant or premature
termination of the leases of public property and disputes arising in
E
such contexts cannot always be reckoned as private law situations and
that, at all events, the threatened exercise of extra-judicial re-entry by
the State, being violative both of the limitations of the powers of the
State as lessor under the law of landlord and tenant and of its actions
as State, is a matter which requires to be mandated against.
F
12. The show-cause notice preceding the cancellation of the
lease and the decision dated 19.11.1985 to cancel the lease, refer to
and rely upon 10 grounds .. Grounds 1 to 7 pertain to what the Government consider to be violations and breaches of the terms and conditions of the lease. They pertain to an alleged change of user, to subletting and sub-division of the leasehold property. The grounds also G
refer to the alleged non disclosure of the terms and conditions of the
Memorandum dated 7. 7 .1984 between the Lessees on the one hand
and Messrs Amar Builders Private Limited on the other. The grounds
for forfeiture also refer to the likelihood of fraud being practised on
the prospective purchasers of the flats as to the nature and extent of
the lessees' subsisting interest under the lease and the limitations
H
thereon.
190
SUPREME COURT REPORTS
[1989] 1 S.C.R.
A
We do not propose to go into the merits of these grounds and
their sufficiency in law to support the purported forfeiture as, in our
view, this exercise, having regard to the disputed questions of fact that
are required to be gone into in that behalf, are extraneous to proceedings under Article 226 of the Constitution.
El
c
D
13. In regard to the merits of the grounds for forfeiture of the
lease, the High Court after an elaborate discussion of the relevance
and tenability of each of the grounds, the learned judge held:
"From the comments made by me on the above nine
gronnds it would be seen that some of the grounds are
irrelevant or illusory or based on irrelevant material or on
·non-existent facts and some require serious consideration
which has not been given. It has also been seen that while
under the lease-deed the right of re-entry could be exercised only for a breach of the term of the lease in presenti,
the lease has been cancelled for a breach in future. In this
view of the matter the impugned order of the State Government cannot be sustained."
Shri Yogeshwar Prasad says that this exercise ..:as extraneous to
a proceeding under Article 226 as the question whether the construction with 39 flats would be one unit or multiplicity of units; whether if
E third party rights were created by the transfer, or use, of the flat, that
would amount to sub-letting or assignment; or would, in any other
way, violate the terms and conditions of the lease and the like, would
not be matters that admit of being satisfactorily resolved on mere
affidavits. Learned counsel submitted that even according to the
learned judges there were serious questions to be examined.
F
14. On a consideration of the matter, we think, in the facts and
circumstances of this case, the High Court should have abstained from
ihe examination of the legality or correctness of the purported cancellation of the lease which involved resolution of disputes on questions of
fact as well. In Express News Papers v. Union of India, [1985] Supp. 3
G SCR 382 Venkataramiah, J. in a somewhat analogous situation
observed:
"The rest of the questions relate truly to the civil rights
of the parties flowing from the lease deed. Those questions
cannot be effectively disposed of in this petition under Article
32 of the Constitution. The questions arising out of the lease,
such as, whether there has been breach of the convenants
~
'
c
~
J.-
I
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STATE OF U.P. v. D.P. SINGH [VENKATACHALIAH, J.]
191
under the lease, whether the lease can be forfeited, whether
A
relief against forfeiture can be granted etc. are foreign to the
scope of Article 32 of the Constitution. They cannot be decided just on affidavits. These are matters which should be tried
in a regular civil proceeding. One should remember that the
prope_rty belongs to the Union of India and the rights in it
cannot be bartered away in accordance with the sweet will of B
an Officer or a Minister or a Lt. Governor but they should be
_dealt with in accordance with law. At the same time a person
who has acquired rights in such property cannot also be deprived of them except in accordance with law. The stakes in this
case are very high for both the parties and neither of them can
take law into his own hands."
Accordingly, we hold that the question whether the purported
forfeiture and cancellation of the lease were valid or not should not
have been allowed to be agitated in proceedings under Article 226.
c
15. Sri Sorabjee submitted that great hardship and injustice D
would be occasioned to the respondents if the State Government, on
the self-assumed and self-assessed validity of its own action of cancellation of the lease, attempts at and succeeds in, a resumption of pos-
-~
session extra-judicially by physical force. Sri Sorabjee referred to the
notice dated 19.11.1985 in which the Government, according to Sri
Sorabjee, had left no-one in doubt as to its intentions of resorting to an
E
extra-judicial resumption of possession. Sri Sorabjee referred to paras
,.
3. 10 and 4 of the order dated 19 .11.1985.
I
.__j
-~·
A lessor, with the best of title, has no right to resume possession
extra-judicially by use of force, from a lessee, even after the expiry or
earlier termination of the lease by forfeiture or otherwise. Tue use of
the expression 're-entry' in the lease-deed does not. authorise extraF
judicial methods to resume possession. Under law, the possession of a
lessee, even after the expiry or its earlier termination is juridical possession and forcible dispossession is prohibited; a lessee carmot be
dispossessed otherwise than in due course of law. In the present case,
the fact that the lessor is the State does not place it in any higher or
better position. On the contrary, it is under an additional inhibition
G
stemming from the requirement that all actions of Government and
Governmental authorities should have a 'legal pedigree'. In Bishandas
v. State of Punjab, [1962] 2 SCR 69this Court said:
"We must, therefore, repel the argument based on
the contention that the petitioners were trespassers and
H
192
A
B
SUPREME COURT REPORTS
[1989) 1 S.C.R.
could be removed by an executive order. The argument is
not only specious but highly dangerous by reason of its
implications and impact on law and order."
"Before we part with this case, we feel it our duty to
say that the executive action taken in this case by the State
and its officers is destructive of the basic principle of the
rule oflaw."
Therefore, there is no question in the present case of the
Government thinking of appropriating to itself an extra-judicial right
of re-entry.