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2012(1) JLJ 364
(SUPREME COURT)
Dalveer Bhandari and Dipak Misra, JJ.
Collector, District Gwalior v. Cine Exhibitors P.Ltd.
Civil Appeals No.281 and 282 of 2012 : against the judgment passed by a Division Bench of the High Court of M.P., Gwalior [Published in 2008(2) JLJ 172]; Decided on 11.1.2012.
(2) Revenue Book Circulars Part IV (M.P.) -- Cls.12, 13 and 14 -- lands belonging to State Government -- nazul land situated in Municipal Corporation, Municipal Towns and Notified Areas -- management of such land -- deals under the provisions of Part IV of Circular. [Para 18
(3) Nagar Tatha Gram Nivesh Adhiniyam, 1973 (M.P.) -- Ss.38 and 87 -- M.P. Town Improvement Trust Act, 1960 -- Ss.38, 52 and 71 -- M.P. Revenue Book Circulars Part IV -- Cls.12, 13 and 14 -- nazull and -- meant for Public Works Department -- not notified for transfer to Gwalior Development Authority -- land does not automatically get vested in any authority or trust -- GDA never became owner of land or had authority to deal with the land -- lease of such land granted by GDA to run cinema hall -- due to certain dispute licence of cinema surrendered and same cancelled by Collector -- lease terminated by GDA and directed for handing over possession -- grant of lease is fundamentally ultra vires -- no right accrued to lessee -- lessee can take recourse to arbitration clause against GDA.
Learned senior counsel has placed reliance on the said provisions solely for the purpose that the right created in favour of the GDA remained unaffected and, in fact, was protected under the 1973 Act.
Held : There is no cavil over the said proposition of law. But, a pregnant one, the crux of the matter is whether the land that was recorded as nazul and meant for the Public Works Department got transferred to the GDA so that its right got concretized.
The lands belonging to the State Government are dealt with in the Revenue Book Circular and nazul lands are specifically adverted to in Part IV of the said Circular. It deals with management and disposal of nazul lands within the limits of Municipal Corporation, municipal towns and notified areas.
The schematic concept read with the language employed in the 1960 Act and the 1973 Act would clearly reveal that nazul land, unless notified, does not automatically get vested in any authority or trust.
Unless affirmative steps are taken by the State Government by issuing a notification changing the character of the land and transferring it in favour of any authority, corporation or municipality, it maintains its own character, i.e., nazul land. In the case at hand, the land is recorded as nazul land for the Public Works Department. Nothing has been brought on record that it had ever been notified for transfer in favour of the GDA.Thus analysed, the GDA never became the owner of the land or had the authority to deal with the land and, therefore, it could not have put the land to auction for any purpose whatsoever. Ergo, the first respondent cannot assert any right or advance any claim to remain in possession and run the cinema hall and that too after cancellation of the licence, solely on the basis of a lease granted by its lessor, a statutory authority, who had no right on the land for the simon pure reason that the ownership still remained with the State Government. When no right lies with the GDA in respect of the land in view of the conditions precedent as stipulated in the Revenue Book Circular not having been satisfied and the nature of the land has remained in a sustained state, no legal sanctity can be attached to the lease executed by it in favour of the Ist respondent. The grant is fundamentally ultra vires.
The GDA could not have granted the lease of the property belonging to the State Government as it was nazul land meant for the Public Works Department. The collective interest in the property could not have been jeopardised by usurpation of power/authority by the GDA. Such assumption of power by the GDA makes the whole action sans substratum and thereby a nullity. Needless to say, any grant has to have legal sanctity and legitimacy.
[Para 22
The State Government and its functionaries are at liberty to proceed against the first respondent for its eviction. It is open to the first respondent to take recourse to the arbitration clause against the GDA.
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Misra, J. -- 1. Special leave granted in both the peitions.
2. In these two appeals, the defensibility and legal pregnability of the judgment and order dated 28th March, 2010 passed by the Division Bench of High Court of Judicature of Madhya Pradesh, Jabalpur, Bench at Gwalior in Writ Appeal No.234 of 2007 and the order dated 22nd September, 2010 in R.P. No.83 of 2010 whereby the Division Bench has dislodged the order passed by the learned Single Judge in Writ Petition No.1718 of 2002 wherein the writ Court had declined to interfere with the order dated 9.8.2002 passed by the Chief Executive Officer, Gwalior Development Authority (for short “the GDA”), who, by the said order, had terminated the lease of the first respondent herein and directed it to surrender the possession of the property within seven days, failing which appropriate action to be taken against it in accordance with law, is called in question.
3. The succinct expose of facts are that the GDA issued an advertisement for allotment of plot No.1 admeasuring 40160 sq.ft. situated in the locality known as Mayur Market for the purpose of construction of a cinema house and in the public auction, the respondent-company, the first respondent herein, became the highest bidder and accordingly, a lease agreement was executed on 27.5.1978 between the GDA and the respondent-company. The said lease agreement was for a period of thirty years with the stipulation of a right of renewal subject to certain conditions. It was asserted in the writ petition that after execution of the lease deed, the respondent-company constructed a cinema hall and commenced the business. As certain disputes arose between the directors of the company, it was eventually resolved that the licence for running the cinema should be surrendered and in consonance with the resolution, a letter was issued to the Collector concerned, who cancelled the licence for running the cinema hall. After closure of the cinema hall, the GDA, by communication dated 2.8.2002, terminated the lease and directed for handing over possession of the land in question.
4. It was contended before the learned Single Judge that the notice for cancellation of lease was not served on it and the allegations that there had been violation of the terms and conditions of the agreement were absolutely unsustainable and, therefore, the eventual act of termination was sensitively susceptible. It was also urged that as permission was granted for raising permanent construction, the lease had the character of a permanent lease and could not have been terminated by the GDA. The GDA combated the aforesaid stand put forth by the respondent-company and countered the same by contending, inter alia, that there had been violation of the terms and conditions of the agreement, that the stance of putting the lease on the pedestal of a permanent lease was sans substance, that the plea that the notice for cancellation of lease was not served was contrary to the documents brought on record, that reminders were served on the respondent-company, that the lease was granted for a specific purpose and when the said purpose had totally melted into extinction, it was within the legal province of the GDA to cancel the lease and take appropriate steps for eviction.
5. The learned Single Judge took note of the proponents canvassed by the learned counsel for the parties and posed the question whether the GDA had the right to terminate the lease of the petitioner and, thereafter, scanning the terms and conditions of the lease deed, expressed the view that as there has been cancellation of the licence of the cinema hall, the order of termination of the lease was valid and the petitioner would have an opportunity of hearing before steps are taken for its dispossession. Being of this view, he dismissed the writ petition. Be it noted, a contention was raised before the learned Single Judge that the land in question is owned by the State but the same was granted on lease by
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