The Allahabad High Court while disposing the petition said that freehold rights, under the policy of the Government are granted only on plots which are on lease and which have not vested in the Government. No freehold rights can be granted by the Government in a plot which absolutely vests in it free from all encumbrances.
The Division Bench of Justice Salil Kumar Rai and Justice Arun Kumar Singh Deshwal passed this order while hearing a petition filed by Smt Ram Pyari Devi and Others.
By way of the petition, the writ petitioners have challenged the demand notice dated 24.7.2000 issued by the District Magistrate, Gorakhpur to respondent no 4 to initiate the proceeding of freehold land of area 43,000 sq ft, Mohalla Arazi Chhawani City Gorakhpur.
Subsequently, during the pendency of the petition, Prayer no 1 was also added for quashing the sale deed / freehold deed dated 26.7.2000 executed by the District Magistrate, Gorakhpur in favour of respondent no 4.
The factual matrix of the case is as follows: –
The ancestor of the petitioners – late Madan Lal Tekariwal was granted lease of Bungalow No 07, Gorakhpur which was having total area 66,795 sq ft by way of two lease deeds dated 1.11.1954 and another dated 3.12.1954.
As per the terms and conditions of above lease deeds, lessee Madan Lal Tekariwal had to construct residential buildings to let out the same to government officers. The above lease deed was for a period of 30 years which could be renewed upto a maximum period of 90 days.
It was further mentioned in the terms and conditions of lease that the lessee shall let out the building exclusively for the residence of gazetted officers on rent and it shall not be occupied by him.
After expiry of period on 30.4.1975, the lessee – Madan Lal Tekariwal also filed an application dated 8.7.1975 before the District Magistrate for renewal of his lease which remained pending till his death. After the death of lessee – Madan Lal Tekariwal, the petitioners being his successors moved an application dated 9.8.1977 for mutation of their name as heirs of late Madan Lal Tekariwal and also prayed that lease may be renewed in their favour.
The above application of the petitioners was forwarded by the District Magistrate to In-charge, Nazul Nagar Palika, Gorakhpur for taking further action. The In-charge, Nazul Nagar Palika, Gorakhpur by letter dated 25.10.1977 informed the District Magistrate that the proceeding for re-vesting the land in question has been pending against lessee – Madan Lal Tekariwal, therefore, the names of the petitioners cannot be mutated as the heirs of Madan Lal Tekariwal and notice has been issued to the petitioners for the same, therefore, the question of renewal does not arise.
But subsequently, there is no order on record that any order was passed on the application dated 7.10.1977 of the petitioners by the District Magistrate. The District Magistrate allotted the building constructed over a part of the land in dispute to respondent no 4 on 27.7.1982 under Act No 13 of 1972 with the stipulation that respondent no 4 will pay the rent to lessee – Banwari Lal (petitioner no 2). It is relevant to mention here that at the time of aforesaid allotment, the respondent no 4 was an MLA.
Thereafter, two renewal applications submitted by the petitioners were rejected by orders dated 9.6.1985 and 7.7.1985 on the ground that the petitioners had violated the terms and conditions of lease by making construction thereon without permission and it was further directed by these two orders that the petitioners should remove the illegal constructions within a period of 30 days. In case, they failed to remove the construction, then they will be evicted from the land in dispute including the building situated over it.
Thereafter, in the year 1989, proceedings under the Public Premises Act were also initiated against the petitioners for their eviction from the land in dispute which remained pending. Thereafter, the State Government issued a Government Order dated 1.12.1998.
As per Para 10 of the Government Order dated 1.12.1998, former lease holders were also given right to apply for freehold within three months from the date of receiving the notice, and in case, they failed to freehold the nazul plot, then rent control tenants residing in the building over nazul land, would get the right to apply for freehold.
In pursuance of above Government Order, the petitioners had submitted two applications, one for commercial portion of land having area 15,800 sq ft and another for residential portion of land having area 50,995 sq ft along with treasury challan of required deposit. The State has executed freehold sale deed dated 20.3.1999 in favour of petitioners regarding commercial part of Plot having area 15,800 sq ft but no action was taken on the application dated 27.1.1999 of the petitioners for freehold of the residential portion of Nazul Plot.
But the District Magistrate, Gorakhpur had issued impugned notice / letter dated 24.7.2000 to respondent no 4 to deposit required amount for execution of freehold deed in his favour regarding area of 43,000 sq ft in Plot which was residential portion in the above land.
This demand notice was under challenge in the petition but during the pendency of the petition, sale deed / freehold deed dated 26.7.2000 was also executed in favour of respondent no 4 after taking required deposit from him.
Therefore, petitioners, by way of amendment, have also prayed for quashing of sale deed / freehold deed dated 26.7.2000 regarding the land of 43,000 sq ft.
The Court noted that,
The petitioners have contended that the Government Order dated 1.12.1998 clearly conferred right upon the lease holder whose lease expired to apply and get the freehold deed executed in their favour within three months from the date of receiving the demand notice and his tenant (respondent no 4) will get right only after the petitioners failed to get the freehold deed executed in their favour but the impugned demand notice was illegally issued to respondent no 4 who was a tenant of the petitioners and thereafter impugned sale deed was also executed in his favour.
It is also submitted by the petitioners that the right of the respondent no 4 comes after the petitioners, not in preference to petitioners.
As respondent no 4 is admittedly the tenant in the building constructed by the ancestor of the petitioners and he had been paying rent to them, therefore, impugned demand notice as well as impugned sale deed / freehold deed executed in favour of respondent no 4 are absolutely illegal.
It is further submitted by the counsel for the petitioners that impugned demand notice as well as impugned sale deed / freehold deed was executed in favour of respondent no 4 for extraneous consideration because respondent no 4 was a Cabinet Minister at that time and was himself part of the Nazul Committee which framed the nazul policy in the year 1998.
The Court does not find anything in the Government Order dated 1.12.1998 which could persuade us to add such words in the enactment. There is no ambiguity or vagueness in Clause 10 of the Government Order dated 1.12.1998. Therefore, while interpreting Government Order dated 1.12.1998, distinction cannot be drawn by the Court between Former Lease Holder whose renewal application has been rejected and whose application for renewal is pending in absence of any such distinction in Government Order dated 1.12.1998. This is also clear from the above quoted provision of Government Order dated 1.12.1998 that Former Lease Holder will have first right to freehold, therefore, he is entitled to get three months’ notice from the District Magistrate and if he fails to complete the formality of freehold, then his rent control tenant will be entitled to get the freehold deed executed in his favour.
In the case, despite application of the petitioners for freehold of the nazul land in dispute, demand notice for the residential part of Plot, was not issued to him to get the freehold deed executed.
The Court said that,
On the other hand, the respondent no 4 who was the rent control tenant was given first right to get the freehold deed executed regarding the plot in dispute by issuing him impugned demand notice and thereafter during the pendency of the petition, impugned sale deed was executed in his favour by the District Magistrate, Gorakhpur. The contention of the counsel for respondent no 4 is that on expiry of lease of plot in dispute, the same vested in the State absolutely.
Therefore, the State Government was well within its power to execute the freehold deed in favour of respondent no 4 ignoring Government Order dated 1.12.1998, cannot be accepted because action of the State Government should be as per the Government Policy regarding nazul plot, i.e, Government Order dated 1.12.1998. This fact is undisputed that respondent no 4 was the tenant of petitioners, therefore, possession of respondent no 4 will be deemed to be constructive possession of petitioners or possession on behalf of petitioners. The respondent no 4 cannot get better rights than the petitioners regarding freehold of nazul plot.
Normally, a writ court does not exercise its prerogative jurisdiction under Article 226, in cases, where the validity of sale deeds executed by private parties are concerned in as much as adjudging the validity of the said sale deed would require oral and documentary evidence and assessment of evidence for which writ proceedings may not be the appropriate remedy.
The issue regarding the validity of the sale deed, in the present case, does not raise any question of private law but raises questions of public law. No disputed questions of fact are involved and no evidence regarding execution of the sale deed is required in the case to adjudicate the validity of the said sale deed. The validity of sale deed is dependent on the validity of the demand notice issued in favour of respondent no 4 and on the decision of the Court regarding the freehold rights of the petitioners in the land which right is claimed against the State.
The Court further said that it is settled law that the power of a High Court under Article 226 of the Constitution of India are plenary powers and are not fatal by any legal constraints. The power under Article 226 is to ensure that the law of the land is implicitly obeyed and that various public authorities and tribunals are kept within the limits of their respective jurisdiction. The remedy provided under Article 226 is a remedy against the violation of the rights of a citizen by the State or statutory authority and it is a remedy in public law.
“In view of the above, demand notice dated 24.7.2000 executed by the District Magistrate, Gorakhpur as well as sale deed dated 26.7.2000 executed by the District Magistrate, Gorakhpur in favour of respondent no 4 are, hereby, quashed and respondent no 2 is directed to consider the application of the petitioners for residential portion of Plot No 103 Bungalow No 07, Gorakhpur having area of 50,995 sq ft and issue demand notice to the petitioners to fulfill the formalities to execute the sale deed for the aforesaid nazul plot and thereafter on completion of formalities of aforesaid demand notice, sale deed of the aforesaid nazul plot be executed in favour of petitioners”, the Court ordered.