REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 2006 OF 2003
AZIM AHMAD KAZMI AND ORS. … APPELLANTS
VERSUS
STATE OF U.P. & ANR. … RESPONDENTS
WITH
CIVIL APPEAL NO. 2007 OF 2003
J U D G M E N T
SUDHANSU JYOTI MUKHOPADHAYA,J.
1. These appeals have been preferred against the judgment dated
7.12.2001 passed by the Division Bench of the High Court of Judicature at
Allahabad whereby the writ petition preferred by lessee – Azim Ahmad Kazmi
and Ors. (hereinafter referred to as “the appellants”) was dismissed with
certain observations.
2. A lease-deed of the demised premises was executed by the respondent-
State in favour of the appellants on 19th March, 1996 followed by a renewal
of lease dated 17th July, 1998. The State Government vide order dated 15th
December, 2000 cancelled the lease deed and proceeded to resume the demised
premises which was informed to the appellants by the District Magistrate,
Allahabad on 11th January, 2001. The objection preferred by the appellants
was rejected on 24th August, 2001. The appellants preferred a writ
petition against the order dated 15th December, 2000 passed by the State
Government, the notice dated 11th January, 2001 and the order dated 24th
August, 2001 passed by the District Magistrate, Allahabad which was
dismissed but with the observation that the State Government is not
entitled to take forcible possession though it may take possession of the
demised premises in accordance with the procedure established by law.
The appellants are aggrieved against the dismissal of the writ petition
whereby the order of cancellation of lease deed was affirmed, whereas the
State Government is aggrieved against the last portion of the order
whereunder it was mentioned that the State Government is not entitled to
take forcible possession though it may take possession in accordance with
the procedure established by law.
3. The dispute relates to Plot No. 59, Civil Station, Allahabad having
an area of 1 acre and 4272 sq. yards (9112 sq. yards or 7618 sq. meters).
Initially, a lease of aforesaid plot was granted in favour of one Thomas
Crowby for a period of 50 years on 11th January, 1868 by the then Secretary
of State for India in Council and it was signed by the Commissioner of
Allahabad Division. A fresh lease was executed in favour of his
successor for another period of 50 years on 12.4.1923 which was to operate
from 1.1.1918. With the permission of the Collector, Allahabad, the
successors of the lessee transferred their lease hold rights in favour of
one Purshottam Das in the year 1945. According to appellants on 31st
October, 1958, the legal representative of said Purshottam Das
transferred the lease-hold rights in favour of appellant no. 7-Smt.
Shakira Khatoon Kazmi, appellant no. 6- Smt. Sabira Khatoon Kazmi and
their mother-Smt. Maimoona Khatoon Kazmi. The appellant no. 1- Azim
Ahmad Kazmi, appellant no. 5- Omar Ahmad Kazmi, appellant no. 2- Shamim
Ahmad Kazmi, appellant no. 3- Alim Ahmad Kazmi and appellant no. 4- Maaz
Ahmad Kazmi are heirs of late Smt. Maimoona Khatoon Kazmi. The lease,
which had been granted on 12th April, 1923 expired on 31st December, 1967
but the same was not renewed for a long period. Subsequently, a fresh
lease deed was executed on behalf of Governor of Uttar Pradesh in favour of
some of the appellants and their ancestors on 19th March, 1996 for a period
of 30 years which was to operate with effect from 1.1.1996. This deed
contained a clause that the lease deed may be renewed for two successive
terms of 30 years each but the total period shall not exceed 90 years
including the original term. The period of this deed expired on 31st
December, 1997 and on 17th July, 1998 which was renewed for a further
period of 30 years w.e.f. 1st January, 1998. Subsequently the State
Government passed an order on 15th December, 2000 for cancelling the lease
deed and resuming the possession of the plot in question. The District
Magistrate, Allahabad, thereafter gave a notice dated 11th January, 2001 to
the appellants intimating them that the State Government had passed an
order dated 15th December, 2000 cancelling the lease and resuming
possession of the plot in question as the same was required for a pubic
purpose. The notice further mentioned that the appellants should remove
the structure standing on the plot failing which possession will be taken
in accordance with clause 3(c) of the lease deed. The appellants filed an
objection against the notice before the District Magistrate on 2.2.2001.
They further claimed to have sent an objection to the Chief Minister of
Uttar Pradesh on 31.1.2001 praying for revocation of the order of the State
Government dated 15.12.2000. The District Magistrate considered the
objection and rejected the same by an order dated 24.8.2001. A copy of the
aforesaid order along with cheques representing the compensation for the
building standing over the plot (cheques for total amount of Rs.10 lakhs)
were served upon the appellants. The respondent-State tried to dispossess
the lease on 1.9.2001 and their stand was that the possession of open land
was taken. It was at that stage when the writ petition was filed and a
stay order was passed by High Court on 2nd September, 2001 staying the
dispossession of the appellants. The writ petition was subsequently
dismissed on merit.
4. Learned counsel appearing for the lessees submitted that the State
Government initially made a proposal for acquiring disputed plot for the
same purpose in accordance with the Provisions of Land Acquisition Act,
1894. The District Magistrate, Allahabad, wrote a letter to the State
Government on 29th October, 1998 that looking to the area of plot, the
estimated amount of compensation, including 30% solatium, 12% additional
amount and interest, etc. could come to rupees two crores and sixty two
lakhs. The said proposal was not accepted by the State Government and was
rejected by order dated 17th July, 2000. The State Government took
possession of few other Nazul Lands in Allahabad under the Land Acquisition
Act, 1894 wherein a good amount of compensation was paid to the lessees.
It was contended that if the State Government had taken a recourse of the
Provisions of the Land Acquisition Act, 1894 for acquiring the plot in
question, the lessees would have got sufficient compensation and not by
opting the said mode the lessees have been discriminated against and
consequently, the impugned order of the State Government dated 15th
December, 2000 is liable to be set aside. In the past, the State
Government had not taken any recourse to resume the land in the manner.
The State Government had taken over the possession of the land much prior
to the completion of period of lease. The order passed by the State
Government on 15th December, 2000 for cancellation of lease and a
resumption of possession is illegal and not in accordance with the
Government Grants Act, 1895.
5. It was next submitted that the public purpose, if any, existed prior
to 17th July, 1998 when the lease was renewed and by renewal of the lease
the State Government is stopped from pleading that there is a public
purpose. By renewal of lease, the lessee legitimately expected that they
will remain in occupation for 30 years from 1st January. 1998, the date
from which the lease was renewed.
6. Learned counsel appearing on behalf of the respondent-State submitted
that the existence of public purpose is not a new development. It was
submitted that by letter dated 29th August, 1998, the District Magistrate
informed the Special Secretary to the State Government, he had given the
estimate for acquiring the property under the Provisions of the Land
Acquisition Act, 1894. In the said letter, the reference of earlier
letters including letter dated 2nd December, 1997 has been referred. Those
letters shows that even before the renewal of the lease deed in favour of
the lessees, taking over the possession of property for extension of the
Allahabad High Court and office of the Advocate-General, U.P. was seriously
considered; it is wrong to suggest that the requirement of the land for
public purpose was not in existence when the lease was renewed.
7. It was contended on behalf of the respondent-State that the lease has
been cancelled and an order to resumption of possession has been passed as
the plot in question is required for extension of the Allahabad High Court
as also for extension of the office of Advocate General, U.P. The plot
is situated just in front of the gate of the High Court on the Kanpur Road
and, therefore, most suitable and ideal place for the aforesaid purpose.
Several courts-room and chambers for the judges have been constructed in
the past but there has been no addition of office space with the result
that there is hardly any place to keep the records. Even pending files are
being kept by having a make shift and temporary arrangement by enclosing
the verandas. Similarly, there is an acute shortage of space in the
office of Advocate-General. There is no place at all where the State
counsel may sit and do the drafting work or for keeping the files. The
grounds for passing of the order, namely, extension of the High Court and
extension of office of Advocate-General is undoubtedly a public purpose and
the same has rightly not been challenged by the learned counsel for the
lessees.
8. It was further contended that the State Government having conferred
power under Clause 3 (C) of the lease deed, as the plot in question was
required for public purpose, it was open to the State Government to take
possession of the land in question on expiry of the one month notice.
9. The questions which requires consideration are (i) whether the order
passed by the State Government on 15th December, 2000 for cancellation of
lease and resumption of possession is legally valid and (i) whether the
State Government can dispossess the lessee in accordance with the
Government Grants Act, 1895 without resorting to other procedure
established by any other law.
10. There is clear recital in the lease deed executed in favour of the
appellants by the Government of U.P. on 19th March, 1996 that the same is
being done under the Government Grants Act, 1895. Clause 3 (C) of the deed
reads as follows:
“3(C) That if the demised premises are at any time required by
the lessor for his or for any public purpose he shall have the
right to give one month’s clear notice in writing to the lessees
to remove any building standing at the time of the demised
premises and within two months of the receipt of the notice to
take possession thereof on the expiry of that period subject
however to the condition that if the lessor is willing to
purchase the building on the demised premises, the lessees
shall be paid for such building such amount as may be
determined by the Secretary to Government of U.P. in the Nagar
Awas Department.”
11. Sections 2 and 3 of the Government Grants Act, 1895, have been
amended by U.P. Act 13 of 1960 with a retrospective effect and the
substituted Sections reads as follows:
“2. (1) Transfer of Property Act, 1882, not to apply to
Government Grants. – Nothing contained in the Transfer of
Property Act, 1882, shall apply or be deemed ever to have
applied to any grant or other transfer of land or of any
interest therein, heretofore made or thereafter to be made, by
or on behalf of the Government to or in favour of any person
whomsoever; and every such grant and transfer shall be construed
and take effect as if the said Act had not been passed.
(2) U.P. Tenancy Act, 1939 and Agra Tenancy Act, 1926 not to
affect certain leases made by or on behalf of the Government. -
Nothing contained in the U.P. Tenancy Act, 1939, or the Agra
Tenancy Act, 1926, shall affect or be deemed to have ever
affected any rights, created, conferred or granted, whether
before or after the date of the passing of the Government Grants
(U.P. Amendment), Act, 1960, by leases of land by, or on behalf
of, the Government in favour of any person, and every such
creation, conferment or; grant shall be construed and take
effect, notwithstanding anything to the contrary contained in
the U.P. Tenancy Act, 1939 or the Agra Tenancy Act, 1926.
(3) Certain leases made by or on behalf of the Government to
take effect according to their tenor. - All provisions,
restrictions, conditions and limitations contained in any such
creation, conferment or grant referred to in Section 2, shall be
valid and take effect according to their tenor; any decree or
direction of a Court of law or any rule of law, statute or
enactments of the Legislature, to the contrary notwithstanding:
Provided that nothing in this Section shall prevent, or be
deemed ever to have prevented the effect of any enactment
relating to the acquisition of property, land reforms or the
imposition of ceiling on agricultural lands.”
12. This Court in the case of The State of U.P. vs. Zahoor Ahmad and
Another, reported in AIR 1973 SC 2520 held as follows:-
“ Section 3 of the Government Grants Act declares the
unfettered discretion of the Government to impose such
conditions and limitations as it thinks fit, no matter what the
general law of the land be. The meaning of Section 2 and 3 of
the Government Grants Act is that the scope of that Act is not
limited to affecting the provisions of the Transfer of Property
Act only. The Government has unfettered discretion to impose
any conditions, limitations, or restrictions in its grants, and
the right, privileges and obligations of the grantee would be
regulated according to the terms of the grant, notwithstanding
any provisions of any statutory or common law.”
13. Clause 3(C) of the lease deed clearly confers power upon the lessor,
State of U.P. that if the plot in question is required by the State
Government for its own purpose or for any public purpose, it shall have the
right to give one month’s notice in writing to the lessees to remove any
building standing on the plot and to take possession thereof on the expiry
of the two months’ from the date of service of notice. There is a further
condition in the clause that if the lessor is willing to purchase the
building standing on the plot, the lessee shall be paid such amount as may
be determined by the Secretary to Government of U.P. in the Nagar Awas
Department.
14. The deed of renewal executed at 17th July, 1998 is a very short one
and recites that the renewal is being done on the same terms and conditions
including the clause for re-entry as is continued in the original lease
deed dated 19th March, 1996 and the terms and conditions of the aforesaid
deed would be binding upon the parties. The clause of re-entry was not
introduced for the first time in the deed executed in 1996 but also
contained as one of the clause in lease deed dated 12th April, 1923
wherein it was stipulated that if the Government shall at any time require
to re-enter on the demised plot it can do so, on paying the cost of the
building that may be on the site and that the lessee shall have no further
claim of any sort against the Government. In fact, in the deed executed
on 19th March, 1996, the right of re-entry has been fettered by the
condition “required by the lessor for his or for any public purpose”. As
the State Government is resuming the leased property for his or for any
public purpose, which under the terms of the grant it has absolute power to
do, the order passed by it on 15th December, 2000 is perfectly valid and
does not suffer from any illegality.
15. The Division Bench noticed the fact that in paragraph 7 of the
Supplementary counter affidavit filed in reply to the amendment
application, it is averred that the properties, reference of which has
been made in para 23 of the writ petition were in fact acquired at the
instance of the Allahabad Development Authority for building of
residential and commercial complex and for development of the area and the
proceeding for acquisition had commenced on the basis of the proposals
received from Allahabad Development Authority. In para 8 of the
Supplementary counter affidavit, it is averred that when Nazul plot No. 13,
Civil Station, Allahabad, which is situated in Civil Lines Area, was
resumed by the State Government for the purpose of construction of a bus
station, the same was done in exercise of power vested with it in a
similar clause of the lease deed and no proceedings under the Land
Acquisition Act had been initiated. The resumption by the State
Government in the said case was challenged before the Division Bench of
the Allahabad High Court which was dismissed on 16th December, 1999 and
the Special Leave Petition No. 4329 of 2000 preferred against the judgment
of the High Court was summarily dismissed by this Court on 7th September,
2001. Therefore, the contention of the lessee that it was for the first
time in their case that a lease had been cancelled and the plot has been
resumed by the State Government under the terms of the deed is, therefore,
not correct and a similar course of action has been taken in the past
also. Therefore, the violation of Article 14 cannot be alleged in the
present case.
16. The first question is thereby answered in negative, against the
appellants and in favour of the respondents.
17. For taking possession, the State Government is required to follow the
law, if any, prescribed. In the absence of any specific law, the
State Government may take possession by filing a suit. Under the
Provisions of the Land Acquisition Act, 1894, if the State Government
decides to acquire the property in accordance with the provisions of
the said Act, no separate proceedings have to be taken for getting
possession of the land. It may even invoke the urgency provisions
contained in Section 17 of the said Act and the Collector may take
possession of the land immediately after the publication of the notice
under Section 9. In such a case, the person in possession of the
land acquired would be dispossessed forthwith. However, if the
Government proceeds under the terms of the Government Grants Act, 1895
then what procedure is to be followed. Section 3 of Government
Grants Act, 1895, stipulates that the lease made by or on behalf of
the Government to take effect according to their tenor – All
provisions, restrictions, conditions and limitations contained in any
such creation, conferment or grant referred to any Section 2, shall be
valid and take effect according to their tenor; any decree or
direction of a Court of Law or any rule of law, statute or enactments
of the Legislature, to the contrary.
18. In the case of The State of U.P. vs. Zahoor Ahmad and Another(supra),
this Court held that the Section 3 of the Act declares the unfettered
discretion of the Government to impose such conditions and limitation as
it thinks fit, no matter what the general law of land be. From Clause
3(C) of the deed, it is clear that the State of U.P. while granting lease
made it clear that if the demised premises are at any time required by the
lessor for his or for any public purpose, he shall have the right to give
one month’s clear notice to the lessee to remove any building standing at
the time of the demised property and within two months’ of the receipt of
the notice to take possession thereof on the expiry of that period subject
to the condition that the lessor is willing to purchase the property on the
demised premises, the lessee shall be paid for such amount as may be
determined by the Secretary to the Government of U.P. in the Nagar Awas
Department.
19. In the case in hand, the District Magistrate , Allahabad High Court
issued a notice on 11th January, 2001 to the appellants intimating that
the State Government had passed order on 15th December, 2000 cancelling
lease deed and resuming possession of the disputed property as the same was
required for public purpose. The appellants sent an application but
instead of filing objections before the State Government represented before
the Chief Minister of U.P. on 31st January, 2001 praying for revocation of
order dated 15th December, 2000. Objection was filed before the District
Magistrate, Allahabad who after consideration of the objection rejected the
same by order dated 24th August, 2001 enclosing therein a cheque for rupees
ten lakhs towards compensation for the building standing over the plot.
The appellants refused to accept the cheques. The respondents thereafter
dispossessed the appellants from the part of the land on 1st September,
2001.
20. Under Clause 3(C) of the lease deed, the respondent-State was
permitted resumption of the land which required for its own use or for
public purpose and after giving one month’s clear notice in writing is
entitled to remove any building standing at the time on the demised
premises and within two months of the receipt of the notice to take
possession thereof subject to the condition that if the lessor is willing
to purchase the building of the demised premises required to pay the
lessee the amount for such building as may be determined by the Secretary
to Government of U.P. in the Awas Department. In the case in hand such
procedure was followed. Therefore, we are of the view that there is no
other procedure or law required to be followed, as a special procedure for
resumption of land has been laid down under the lease deed. As a special
procedure for resumption of land is prescribed under the lease deed, the
High Court was not correct in holding that the State Government cannot
dispossess the appellants but can take possession according to the
procedure adopted by any other law. The finding of the High Court to such
extent is set aside but the rest portion of the judgment affirming the
order of the State Government dated 15th December, 2000, the notice dated
11th January, 2001 and an order passed by the District Magistrate dated
24th August, 2001 is upheld. The appeal preferred by appellants Azim
Ahmad Kazmi & Ors. is dismissed and the appeal preferred by the State of
U.P. and Anr. stands disposed of with aforesaid observations. The
interim order of stay is vacated. The State Government is allowed to take
possession of the demised premises for extension of High Court building
etc., as decided. However, the appellants are given three months time to
hand over the possession of the land and building to the State and, if so
necessary, the State Government will issue a fresh cheque for rupees ten
lakhs in favour of the appellants, if earlier cheque has expired and not
encashed. If the appellants fail to handover the possession of demised
premises or create any third party interest in such case the State
Government and the District Magistrate, Allahabad in particular will take
forcible possession of the demised premises.
……………………………………………….J.
( G.S. SINGHVI )
……………………………………………….J.
( SUDHANSU JYOTI MUKHOPADHAYA)
NEW DELHI,
JULY 16, 2012.
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