Khela Banerjee vs City Montessori School

Judicial Analysis Court Copy Headnote Facts Arguments Court observation

2012 Supreme(SC) 419

2012 (4) Supreme 467
SUPREME COURT OF INDIA
G.S. Singhvi and Sudhansu Jyoti Mukhopadhaya, JJ.
Smt. Khela Banerjee and another — Appellants
versus
City Montessori School and others — Respondents
Civil Appeal No.10181 of 2011
(arising out of SLP (C) No.13585 of 2011)
with
Civil Appeal No. 10180 of 2011
(arising out of SLP (C) No.22369 of 2011)
Decided on : 2-7-2012

Headnote:Right of Children to Free and Compulsory Education Act, 2009 -Whether, having rejected its prayer for issue of a mandamus to Lucknow Development Authority to accept total amount of sale consideration with regard to plot in question High Court could have relied upon provisions of Act, 2009 and granted relief to City Montessori School respondent No.1 in Civil Appeal No.10181 of 2011 and appellant in Civil Appeal No.10180 of 2011 in substantially similar terms-Held No dispute that term of garden lease had ended and same was not extended by competent authority- Hence, in view of the stipulations contained in lease deed, plot was to be handed to the Government- However, “B ”continued to unauthorisedly occupy said plot till its disposal by LDA in 1994 by inviting bids-Although, respondent 1 also failed to abide by the terms of agreement dated 12.1.1996, ‘B’ was not entitled to take benefit of order dated 17.2.1996 and seek conversion of leasehold rights into freehold because LDA had already accepted the bid given by respondent No.1 and delivered possession of the plot to ‘J’-The appellants who claim to be beneficiaries of Will executed by B could not claim a better right- Writ Petition filed by them was nothing but an abuse of the process of law-Unfortunately, High Court, which disposed of the writ petition did not even bother to call upon the respondents to admit or controvert the averments contained in the writ petition filed by the appellants and directed the Nazul Officer to decide their representation for grant of freehold rights in respect of plot No.92A/C.- The error committed by High Court in entertaining the writ petition of the appellants was compounded by the Nazul Officer who ordered conversion of leasehold rights into freehold rights in respect of 4433 sq. ft. and gave an opportunity to the appellants to grab a valuable piece of land by depositing a paltry amount of Rs. 1,95,939/- as against the market price of Rs.2 crores.- Direction given by High Court for handing over possession of plot No. 92 A/C to respondent No.1 on payment of the current market price set aside- However, decision of High Court to quash action taken by LDA and Nazul Officer in furtherance of order dated 4.5.2009 passed in Writ Petition No. 4085 of 2009 upheld- Civil Appeal No. 10180 of 2011 dismissed (Paras 8 to 13)
       Facts of the Case :
        The main question which arose for consideration in present appeals was whether, having rejected its prayer for issue of a mandamus to Lucknow Development Authority to accept the total amount of sale consideration with regard to plot in question High Court could have relied upon provisions of the Right of Children to Free and Compulsory Education Act, 2009 and granted relief to City Montessori School respondent No.1 in Civil Appeal No.10181 of 2011 and the appellant in Civil Appeal No.10180 of 2011 in substantially similar terms. An ancillary question which arose for consideration was whether the High Court had rightly quashed the action taken by LDA and Nazul Officer, Lucknow in compliance of order dated 4.5.2009 passed in Writ Petition No.4085/2009.
       Findings of the Court :
        The Court held that High Court, which disposed of the writ petition did not even bother to call upon the respondents to admit or controvert the averments contained in the writ petition filed by appellants and directed the Nazul Officer to decide their representation for grant of freehold rights in respect of plot No.92A/C. The error committed by High Court in entertaining the writ petition of the appellants was compounded by the Nazul Officer who ordered conversion of leasehold rights into freehold rights in respect of 4433 sq. ft. and gave an opportunity to the appellants to grab a valuable piece of land by depositing a paltry amount of Rs. 1,95,939/- as against the market price of Rs.2 crores. Direction given by High Court for handing over possession of plot No. 92 A/C to respondent No.1 on payment of the current market price was set aside. However, decision of High Court to quash action taken by LDA and Nazul Officer in furtherance of order dated 4.5.2009 passed in Writ Petition No. 4085 of 2009 was upheld.

JUDGMENT

G. S. Singhvi, J.

1. The main question which arises for consideration in these appeals is whether, having rejected its prayer for issue of a mandamus to Lucknow Development Authority (LDA) to accept the total amount of sale consideration with regard to plot No.92A/C (Khasra No. 754), Mahanagar, Lucknow, the High Court could have relied upon the provisions of the Right of Children to Free and Compulsory Education Act, 2009 (for short, ‘the 2009 Act’) and granted relief to City Montessori School (respondent No.1 in Civil Appeal No.10181 of 2011 and the appellant in Civil Appeal No.10180 of 2011) in substantially similar terms. An ancillary question which needs determination is whether the High Court had rightly quashed the action taken by LDA and Nazul Officer, Lucknow in compliance of order dated 4.5.2009 passed in Writ Petition No.4085/2009.

2. For the sake of convenience, the parties shall hereinafter be referred to as the appellants and respondent No.1.

Background facts and details of the cases filed by the parties

3.1. The Nazul Officer leased out plot No.92A, Mahanagar, Faizabad Road, Lucknow to Shri Moni Mohan Banerjee (hereinafter described as ‘Shri Banerjee’) in 1958 for a period of 30 years with a right to seek two renewals of 30 years each. The terms of the lease were incorporated in the registered deed executed on 14.2.1959.

3.2. After about 3 years, the Nazul Officer granted lease of the adjoining plot bearing No. 92 A/C to Shri Banerjee for a period of 7 years commencing from 1.8.1961 for garden purposes. The registered lease deed dated 29.1.1964 executed between the Governor of Uttar Pradesh through the Nazul Officer and Shri Banerjee contained a stipulation that at the end of 7 years period, the lessee shall hand over possession of the plot to the Government. However, Shri Banerjee did not surrender the plot on or after 31.7.1968 and continued to occupy the same till January, 1996.

3.3. In 1992, the Government of Uttar Pradesh took a policy decision for conversion of leasehold Nazul lands into freehold and disposal thereof. This policy was circulated vide G.O. dated 23.5.1992 and was subsequently modified vide G.O. dated 2.12.1992 and G.O. dated 3.10.1994, paragraph 4 whereof postulated conversion of open Nazul land declared surplus under the Ceiling Act and horticulture/agriculture lease land into freehold and disposal thereof by auction or by inviting tenders.

3.4. In furtherance of the policy contained in G.O. dated 3.10.1994, LDA issued tender notice dated 24.11.1994 and invited bids for disposal of plots (open Nazul land which had been converted into freehold). However, before the bids received pursuant to notice dated 24.11.1994 could be accepted, the State Government changed the nature of some of the plots from residential to commercial. Therefore, LDA cancelled tender notice dated 24.11.1994 and invited fresh bids for eight plots including plot No.92A/C.

3.5. Shri Banerjee, who was illegally occupying plot No.92-A/C filed Suit No.285 of 1994 in the Court of Civil Judge, Lucknow with the prayer that G.Os. dated 2.12.1992 and 3.10.1994 may be quashed and LDA be restrained from dispossessing him pursuant to tender notice dated 24.11.1994.

3.6. Respondent No.1 filed Writ Petition No.11 of 1995 for quashing tender notice dated 20.12.1994 on the ground that the same was contrary to the Zonal Development Plan prepared under the U.P. Urban Planning and Development Act, 1973 and prayed that a mandamus be issued to the official respondents to accept the tenders submitted pursuant to notice dated 24.11.1994 and complete the formalities for the execution of the sale deed. Respondent No.1 also applied for stay but could not convince the High Court to entertain its prayer.

3.7. Faced with the possibility of losing an opportunity to get the plots in respect of which tenders were invited vide notice dated 20.12.1994, respondent No.1 submitted bids for four plots including plot No.92 A/C. The competent authority

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