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IN THE HIGH COURT OF ALLAHABAD
MUNISHWAR NATH BHANDARI, VIKAS KUNVAR SRIVASTAV, JJ.
Kamla Nehru Educational Society Thru Secy. Shri Sunil Dev & Ors. - Petitioner
Versus
State of U.P. Thru Secretary Housing & Urban Planning & Ors. - Respondent
Misc. Bench No. 13415, 31854 of 2019
Decided On : 07-07-2020
Allahabad High Court Rules, 1952 – Chapter VII Rule 1(2) – Constitution of India, 1950 – Articles 162, 300A – Andhra Pradesh Registration Rules – Rule 26(k)(i) – Specific Relief Act – Section 31 – Registration Act – Section 69 – Nazul Manual – Rules 5, 14, 19 – U.P. Revenue Code of 2006 – Government Grants Act, 1895 – Section 2 – Land in Dispute – Execution of Deed – By way of this writ petition, a challenge has been made to the order passed by the opposite party no.2 to cancel the order by which land in dispute was declared freehold – It is with a direction for refund of the amount to the petitioner, as was paid at time of execution of the deed – Held, Court do not find it appropriate either to cause interference in direction to remove encroachment or for allotment of land to petitioners – Nazul Manual does not promote allotment of Nazool land to encroachers – Circulars issued by government are in ignorance of provisions of Nazul Manual – They cannot be applied de-hors Nazul manual – It is more so when petitioners, who themselves have urged for strict compliance of the provisions of Nazul Manual while contesting writ petition of Society – Encroachment of government or Nazul Land takes place either in connivance of Government officials or their negligence otherwise there was no reason for petitioners to occupy land without applying means, provided under law – Court do not find any reason to direct respondents to allot land to encroachers or to restrain them to remove encroachment rather Standing Counsel has emphasized immediate eviction of trespassers to make land free from encroachment – Petition Dismissed (Paras 13, 14, 16, 17)
Facts of The case:
By the order a decision was taken for lease of Nazul land in dispute to the petitioner society. The District Collector passed an order on 6.10.1976 for grant of lease for period of 30 years on an annual rent of Rs.1,135/-. It was as per the direction of the Governor of the State of U.P. under Rule 51 of the Nazul Manual. The order dated 6.10.1976 was passed in pursuance to the letter dated 7.7.1976 for grant of lease to the petitioner society. The name of the petitioner society was thereafter entered in the Nazul Register and Khatauni fasli 1389 – District Collector, Raebareli sent a letter dated 4.4.193 to the Government to find out whether lease deed has been examined to undertake further process of its execution. The lease deed was however not executed despite the aforesaid. A letter was also sent by the Union Minister to the State Government for execution of lease deed as the petitioner society intend to open a Girl's college.
Findings of the court:
Court do not find it appropriate either to cause interference in direction to remove encroachment or for allotment of land to petitioners – Nazul Manual does not promote allotment of Nazool land to encroachers – Circulars issued by government are in ignorance of provisions of Nazul Manual – They cannot be applied de-hors Nazul manual – It is more so when petitioners, who themselves have urged for strict compliance of the provisions of Nazul Manual while contesting writ petition of Society – Encroachment of government or Nazul Land takes place either in connivance of Government officials or their negligence otherwise there was no reason for petitioners to occupy land without applying means, provided under law – Court do not find any reason to direct respondents to allot land to encroachers or to restrain them to remove encroachment rather Standing Counsel has emphasized immediate eviction of trespassers to make land free from encroachment.
Result: Petition Dismissed
JUDGMENT :
VIKAS KUNVAR SRIVASTAV, J.
1. By way of this writ petition, a challenge has been made to the order dated 23.3.2019 passed by the opposite party no.2 to cancel the order dated 9.2.2002 by which land in dispute was declared freehold. It is with a direction for refund of the amount to the petitioner, as was paid at time of execution of the deed.
The case has long chequered history thus need to be given in serratum for clarity.
2. By the order dated 11.3.1974, a decision was taken for lease of Nazul land in dispute to the petitioner society. The District Collector passed an order on 6.10.1976 for grant of lease for period of 30 years on an annual rent of Rs.1,135/-. It was as per the direction of the Governor of the State of U.P. under Rule 51 of the Nazul Manual. The order dated 6.10.1976 was passed in pursuance to the letter dated 7.7.1976 for grant of lease to the petitioner society. The name of the petitioner society was thereafter entered in the Nazul Register and Khatauni fasli 1389.
3. The District Collector, Raebareli sent a letter dated 4.4.193 to the Government to find out whether lease deed has been examined to undertake further process of its execution. The lease deed was however not executed despite the aforesaid. A letter was also sent by the Union Minister to the State Government for execution of lease deed as the petitioner society intend to open a Girl's college in Raebareli.
4. The State Government issued various general orders from time to time for conversion of Nazul land to freehold and accordingly the petitioner society made an application on 06.02.2001 to declare land in dispute to be freehold. The application aforesaid was supported with an amount equivalent to 25% to the value of the land in dispute. The letter aforesaid was processed by the State Government with an order on 9.2.2002 to declare land in dispute to free hold. The petitioner society accordingly paid the amount of consideration, as was directed. It was with deposit of arrear of lease rent. A total sum of Rs.30,33,600/-, apart from entire amount of lease rent, as demanded, was deposited. A deed for transfer of land was then executed on 6.3.2003. The deed was registered as per the provisions of the Registration Act, 1908.
5. A litigation by way of Writ Petition No.7464 (M/B) of 2006 was initiated by one Suresh Kumar Maurya and others with the prayer to quash the registered deed dated 6.3.2003 alleged to have obtained by fraud. The said writ petition was dismissed by the order dated 8.4.2016 on the ground of laches but with the observation that in case of fresh cause of action, the order aforesaid would not be an impediment to persue it.
6. A writ petition was preferred even by one Mani Bhadra Singh bearing Writ Petition No.11634 (M/B) of 2016. It was decided by this court vide its judgment dated 25.8.2017 after detailed discussions of facts. A direction was given to respondent no.3 therein to take a final decision in the matter within three months from the date of production of the copy of the order. The prayer in the said writ petition was also to cancel the registered deed dated 6.3.2003. The impugned order was then passed by the respondents and is being challenged by the petitioner.
7. The writ petition has been contested by the learned Standing Counsel appearing for State Government. The arguments were advanced even by the intervenor while pressing their own writ petition alongwith with the contest of present one. The allegation of forgery on the part of the petitioner and all officials have been made though it has been refuted by the Standing Counsel.
ARGUMENTS ON BEHALF OF THE PETITIONER
8. Learned counsel for the petitioner submits that the impugned order has been passed by the District Magistrate, Raebareli in a mechanical manner. The observations made by this Court in the case of Mani Bhadra Singh (supra) was taken to be final contrary to the direction therein. In view of the above, the impugned order has been passed with pre conceived
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