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TMI Blog1986 (3) TMI 326X X X X Extracts X X X X X X X X Extracts X X X X ..... ight of alienation and demand of exorbitant rate of ground rent and premium then the second and third phases namely, from 1965 to 1976 and 1976 to 1981 were marked with spurt of legislations and government orders directed towards urban socialisation with its resultant effect on narrowing down of terms and conditions for renewal. With swift shift in socio and economic set up of the society, specially after 1965, the government changed its policy and the concessions granted in 1960 and 1965 were not only withdrawn by superseding those orders but fresh conditions reducing area and enhancing rent and premium, were laid down. Even in those cases where lessees had complied with terms and conditions and order had been passed, leases were not renewed thus furnishing foundation for invoking doctrine of promissory estoppel, developed by English and American Courts as rule of equity, given new dimensions by our Supreme Court by extending it against government and Corporations not only as a weapon of defence but as cause of action as well. But the most pungent and venomous attack was on favour showered by government on few with power sack or money bag and renewal of their leases thus denying e ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... retary of State for India in Council. This must have caused flutter and number of eminent citizens of Allahabad, which had been once the nerve centre of freedom struggle, represented the hardship which was, likely to arise to them from such harsh step. According to supplementary counter-affidavit filed on behalf of State on 4th February, 1986 the Government in consequence of representation to the Chief Minister reconsidered the matter in March, 1958 and ordered that case for renewal of leases may be taken individually and possession may be taken only if lessee surrendered or the lease stood terminated in absence of any request from lessee for grant of fresh lease. Fresh representations were made resulting in what may be termed as beginning of first phase from 23rd April, 1959 when Secretary to the Government informed the District Magistrate, Allahabad that he was directed to say, 'that Government have carefully considered the question of renewal of leases of Nazul lands in Civil Lines, Allahabad which have either expired already but have not been renewed so far, or which are due to expire within the next 5 or 6 years. In consideration of the numerous representations which were ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... order on 7th July, 1960 as a special concession, by which it reduced the rate of premium on first three acres by ₹ 2,000/- in each slab. It also permitted payment in five instalments, and reduced the ground rent to ₹ 100/- per acre. Insistence on construction of Community latrines was given up till sewer line was laid. Lessees were granted three months time to get leases renewed. But instead of complying with it the lease-holders Association with fond of wresting something more made another representation in August, 1960. Nothing came out of it. In 1961 the Association sent another representation to the Chief Minister-highlighting its grievances against delay and claiming renewal of leases on terms and conditions indicated therein. With every representation the lease-holders association became more exacting in its demand. On 21st March, 1963 the government issued third Order declaring the rates of premium for commercial sites. On 3rd December, 1965 the government after considering representations made to government by the association issued a fresh order indicating the terms and conditions for renewal of leases for residential and commercial purposes, to avoid hardship ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uthority. And then in March, 1970 an Order was issued by the Government banning grant of renewal of leases all over the State, because the State Legislature was contemplating to bring out legislation on Urban Ceiling. This ban was lifted on 12th January, 1972 but leases hence forth were to be sanctioned by the State Government only. The Commissioner and Collector could make recommendations only. Its clause (i), however, provided that in all those cases where government had sanctioned grant of leases but it could not be executed or registered because of ban imposed in 1970 steps may be taken immediately for its execution. And clause (ii) of the order provided that all those cases in which Collector or Commissioner had approved renewal but it could not be executed because of 1970 order should be sent to government immediately for acceptance. On 9th May, 1972 Urban Building Ceiling Bill was introduced. On 11th July, 1972 Uttar Pradesh Ceiling of Property (Temporary Restriction on Transfer), Ordinance, 1972 (U.P. Ordinance No. XV of 1972) was promulgated in pursuance of Article 398 of the Constitution of India which continued to be extended from time to time till Urban Land Ceiling Act ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd 500 sq. metre open land or 1500 sq. metre whichever was more. Area of building for commercial purpose was fixed at 2000 sq. metres. Premium was fixed at 50 paisa per sq. metre. Category of petitioners : -- 4. With order dated April, 19, 1981 the third and last phase came to an end. The second phase namely, between 1966 to 1976 was marked with restrictions on renewal of leases. But from 1976 onwards the shift was different. Area of renewal was reduced from entire to square metre. Unit for premium and ground rent became square feet instead of acre. All heirs of lessees became one unit for renewal. Family was given entirely new meaning. Land covered by outhouses were to be excluded. Lessees could not even opt for it. Thus ended third phase. And lessees approached this Court. Aggrieved persons can be, conveniently, grouped in two broad categories, one to whom notices had been given by Collector and who had complied with terms and conditions as laid down in various orders issued from time to time prior to 1965 and the other to whom no notice was sent and till now have not taken any steps nor there is any order in their favour. Apart from these there are few who had purchased ev ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... State, always was and is agreeable to execute fresh leases. Even the learned Addl. Advocate General had to accept that government never adopted shut door policy so far grant of fresh lease was concerned. Apart from it the government by its own conduct stretching over long years has given rise to right in favour of the lessees to get a fresh lease from the State. Since leases were in respect of government land, they were undoubtedly governed by Government Grants Act and their nature could be determined by their tenor. Therefore, after expiry of time for which leases were granted they came to an end. And the government could refuse to grant fresh lease or take over the same. But as seen earlier it did not. Rather it decided to execute fresh leases in favour of every lessee on terms and conditions mentioned in government order. It was said so even in paragraph 3 of the supplementary affidavit filed on 4th February, 1986. In doing so or taking this decision the government was acting in accordance with rules as paragraph 50 of the Manual itself contemplates for renewal or grant of fresh lease after expiry of the lease without any option for renewal. In law where a person, having two alt ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... difference between right of re-entry due to forfeiture or by efflux of time. A lessor may after expiry of period for which lease is granted renew the same or resume that is re-enter. But if out of the two that is reentry or resumption the two divergent courses, he chooses to grant fresh lease or at least creates that impression by his conduct spread over long time it results in abandonment, which according to the Supreme Court in Sha Mulchand Co. v. Jawahar Mills, AIR 1953 SC 98 is an aggravated form of waiver, he cannot subsequently turn round and claim that he intended to re-enter. Even the terms of lease deed do not support the submission of learned Additional Advocate General. Apart from lease deed in Civil Misc. Writ No. 2293 of 1981 which was a lease for hotel and building the lease deed in Civil Misc. Writ No. 7226 of 1981 was produced. In material particulars there was no difference. The learned Additional Advocate General also stated that every lease deed even if it was not identical it was similar and terms and conditions of all the leases were almost the same. In these lease deeds there was no express or implied bar for execution of fresh lease. They further did not de ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he society. But asking the lessee to vacate land or remove Malwa for no rhyme or reason but because the State was the owner cannot be accepted to be in consonance with present day philosophy and thinking about role of State. Renewal on what terms 1965 or 1981 (i) general :-- 6. Lessees thus being entitled for renewal or grant of fresh leases the next and the most vital issue that calls for adjudication is whether on terms and conditions announed till 1965 or in 1981. Learned Additional Advocate General urged that it was unfair for lessees to claim that their leases should be renewed, for area mentioned in 1959 Order, on premium and rent of 1960 Order and within time extended by 1965 Order. According to him the State having marched ahead towards socialisation it was both unjust and illegal to claim renewal of leases on terms and conditions mentioned in those orders. Talking in terms of socialism, appeared more, as a fashionable expression than with any proportion of realism. Obligation of state to remove inequalities in distribution of wealth, an inherent philosophy of a Welfare State, is not only recognised in civilised society but is an essential attribute of democracy since ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 976. In Union of India v. Valluri Basaviah, AIR 1979 SC 1415, the effect of passing the Act was held by Hon'ble Court to be, that 'Parliament which has no power to legislate with respect to the matter which is the subject of the resolution, becomes entitled to legislation with respect to it. On the other hand the State Legislature ceases to have a power to make a law relating to that matter'. Therefore, the field of legislation in respect of 'vacant land in excess of ceiling limit to be held by a person in Urban agglomeration' became occupied. The State Legislature could not entrench upon it directly or indirectly. Even amendment to the Act could be made under Article 252(1) by Parliament only. Since the State Legislature could not legislate in respect of matters covered by the Act the State Government also could not issue any direction or Order or frame a rule which was in violation of provisions of the Act as executive power of State is co-extensive, under Article 162 of the Constitution with Legislative power. If the power of the Legislature itself stood abrogated then the State Government was debarred from encroaching upon it. Learned Additional Advocate Gen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oper for sake of uniformity to have a Central enactment then it results in transfer of power by one Legislative body to other. Once exercised it is complete, and results in total deprivation of the State's power to legislate upon 'a law made by Parliament' pursuant to the power surrendered to it by the legislature of two or more States holds a very special position under the Constitution and must be held to prevail over any other State law (T. Rangayya v. State of Andhra Pradesh, AIR 1978 Andh Pra 106 (FB). (iii) Are Clauses of 1981 order repugnant to ceiling Act. 8. Jurisdiction or power of the Legislature and the executive being barred in respect of matters covered by Act XXXIII of 1976 it may be examined if 1981 Order is invalid because it attempts to encroach upon occupied field or assuming as argued by the learned Additional Advocate General even if the order was not void its various clauses being in direct clash with provisions of the entry (entire?) Act were repugnant. The objective of the Act is, 'preventing the concentration of Urban land in hands of a few persons and speculation and profiteering therein and with a view to bringing about an equitable ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of option in respect of out-house dwellers irrespective of Ceiling limit etc. is another attempt which is violative of Ceiling Act of 1976. Only other clause in 1981 G.O. is in respect of rate of premium. Charging more money is neither socialistic nor just and fair. Of course, it may adversely affect the economically weak. It was argued by the learned Additional Advocate General that renewal of lease could not be covered in entry 18 of List II. He urged that field occupied by Parliament is in respect of ceiling on vacant land and not renewal of leases of Nazul land. Learned counsel further urged that Explanation to Sub-section (11) of Section 4 of the Act left no room for doubt that provisions of the Act were not applicable to persons holding lease, 'the unexpired period of which was less than ten years at the commencement of the Act', And as term of leases had expired or even where it had not expired its unexpired period was not less than ten years in 1976 the provisions of the Act were inapplicable. The arguments do not appear to have any substance. Subsection (11) of Section 4 is in nature of exception to the clauses mentioned therein. The Explanation to it even if taken ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and conditions of lease-deeds did not contain any such restriction. It was vehemently argued by the learned Additional Advocate General that in view of rule 50 no fresh lease could be granted except with approval of State Government That probably was the reason for arguing that provisions in the Manual had the force of law. But the argument appears to be based on misapprehension as the rule applies in those limited cases where grant of lease involves concession in favour of lessees. What is meant by concession has been explained by providing that it should be by fixing the rent at a lower rate than the prevailing market rate. No such material has been brought on record. Even the counter and supplementary affidavits are silent. If it would have been so then government would not have issued G.O. dated 12th January, 1972 directing that all renewal or grant of fresh lease of Nazul land shall be done by State Government only. Therefore, provisions of various government orders being in conformity with the Nazul Manual have to be looked into to decide the right of parties as it now stands firmly established that in absence of any Statute or rule to the contrary executive or administrativ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mplated by Collector, Commissioner of State Government but that surely cannot be reason to disown what was stated on behalf of Mahapalika. Various departments of government and semi government institution are expected to work in unison. Denial or going back on what has been said by one is destructive of harmony and cohesiveness which should be hallmark of working in public departments. The Nagar Mahapalika and State Government in case of Nazul land cannot be treated as different from one another. Statement in the counteraffidavit, therefore, that it did not amount to admission by State Government has to be ignored. Even if the counter-affidavit filed in Civil Misc. Writ No. 2293 is not taken into account on this aspect the government itself admitted in paragraph 51 of the counter-affidavit filed in Civil Misc. Writ No. 7326 of 1981. 'The persons in whose favour the lease-deed had been executed had completed all the formalities for grant of fresh lease and that too before the embargo of 1970 came into force. 'It amounts to saying something as was said in counter-affidavit filed in Civil Misc. Writ No. 2293. In paragraph 16 of supplementary affidavit filed on 4th February, 19 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Even assuming it to be so the renewal could be refused in exercise of discretion on reasonable and just ground. It could not be withheld. Delay in exericse of discretion with passage of time stands converted into duty the non-performance of which becomes enforceable in court of law. Power to do a thing or not to do it is conferred upon public authorities as it was on trust to be exercised validly and properly. It has to be in confine of reasonableness. The inaction of the authorities and delay for long years resulting in injury and causing prejudice to lessee went beyond the ambit of reasonableness. Powers of public authority in democracy governed by rule of law are different than those of private persons. A private person is capable of disposing his property as he likes. The powers are unlimited. But a public authority or a government of Welfare State is committed to act for general welfare and public good. Its ownership is not absolute as that of private person. It holds the property in trust for Welfare of the people who in a democracy are, ultimate sovereign. By nature of ownership, therefore, it has no unfettered or absolute power or discretion. Its actions are to be tested o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... who are meant to implement it. But it remained in cold storage. If specific government order was not sufficient to move the authorities then it was too much to expect that they would have acted promptly or even belatedly in pursuance of government order of March, 1972 resulting in grave injustice. Fairness in public dealings is core of our jurisprudence. It is a substantive principle the breach or violation of which furnishes cause of action to the aggrieved. Promissory Estoppel. 12. To relieve victim of arbitrary abuse of discretion and pin down public authorities to act with honesty and good faith the Courts have evolved doctrine of Promissory Estoppel In M. P. Sugar Mills v. State of U. P. AIR 1979 SC 621. Its horizon was broadened not only as a weapon of defence but as a cause of action enforceable in a Court of law. It was observed that it was an equitable principle evolved by the Courts for doing justice and there is no reason why it should be given only a limited application by way of defence'. The argument of learned Additional Advocate General that the High Trees case (London Property Trust Ltd. v. High Trees House Ltd. (1956) 1 All ER 256 or Hughes v. Metropoli ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ft lease by local authority, demand for premium, sending of plans or deposit of instalments were not sufficient for invoking Promissory Estoppel. He urged that the primary requirement of representation was missing. According to him circumstances which have been mentioned in various petitions could utmost be construed as intention or belief or understanding and not representation by the government so as to create a right in their favour. Reliance was placed on Halsbury Law of England Vol. XVI (Edition IV, 1069 and 1593). Reliance was also placed on Boddeley v. Inland Revenue Commissioner (1953) 2 All ER 233 and National West Minster Bank Ltd. v. Barclays Bank International Ltd. (1974) 3 All ER 834, He urged that English decisions which furnished foundation for doctrine of Promissory Estoppel have laid down that there should be fusion of equity with law. In other words, equity must not override law. And the Court should give effect to equity in such a manner that it did not run counter to law and if this principle was applied then it was obvious that while enforcing the rule of equity the Courts could not bye-pass the Nazul manual or government orders issued from time to time in this ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ment to Collector were later on made subject of press statement by the Collector. Action in pursuance of these orders followed by deposit of instalment, sanction of plan, sending of draft lease or order by Commissioner could not be construed as belief or faith. To argue that the order of 1959 did not amount to assurance or it could utmost bind the government for renewal but not entire area or an terms mentioned in the Order is ignoring facts. Even the argument of detriment was advanced on misapprehension. In M. P. Sugar Mills case (AIR 1979 SC 621) it was observed, 'that if no detriment was suffered but prejudice would be caused if promisor was permitted to back out then it was sufficient for invoking the equitable principle'. Could there be a better illustration of altering position to prejudice than cases like Misc. Writ Petition No. 6237 of 1982, where the lessees constructed house after depositing the lease money and getting the plans sanctioned. The opposite parties cannot be heard either in law or in equity asserting that the order of Commissioner was without jurisdiction or the term of leases having expired the lessee did not have any right to construct. Such inequit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e limit provided therein. But what it had to do with renewal or grant of fresh lease. Why was it necessary to supersede the government order. Grant of fresh lease could be subject to law. No one can claim nor it has been claimed that by renewal of leases the lessees shall not be subject to ceiling law. The government itself treated renewal or grant of fresh lease differently from alienation. It issued a government order in 1970 prohibiting any transfer and banning all renewal of leases. By order issued in 1973 alienation was permitted subject to permission by Collector. And as mentioned earlier renewals of Nazul leases were permitted from 1972 without any restriction on area. Therefore, despite Ceiling Act being in offing and draft model bill pending before Parliament having been circulated on 22nd March, 1972 to renew leases, it directed the District Magistrate and Commissioner to take immediate steps for renewal. That there was no intention or policy to curtail the area is further clear from the renewal of one lease in December, 1972, for more than one acre. The argument, therefore, that there was a change in policy has no legs to stand. As observed by Hon'ble Court in M. P. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . The petitioner had right to get the leases executed on terms and conditions mentioned in 1959 and 1960 Order. This was not rendered impossible or against public policy. Article 14 of Constitution of India. 15. Thus petitioners who had deposited at least one instalment prior to 1965 or in intimation by Collector had right to get fresh lease not only under government order and Nazul Manual but also because the government could not back out from the assurance extended by it. Apart from the equitable principle of estoppel the thrust of submissions have been that all those lessees who had complied with terms of government, Order and even those to whom no notice was given by Collector were entitled to be put at par with those whose leases had been renewed because, 'equals are entitled to equal things'. To appreciate this it is necessary to mention that those persons whose leases had been renewed were eminent and had acquired social status or political stature. For instance, late Dr. K. N. Katju, ex-Central Law Minister, Chief Minister and Governor, Sri S. K. Verma, ex-Chief Justice and Governor, late Sri B. L. Gupta, ex-Judge of this Court, Sri J. D. Shukla, I. C. S. reno ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in 1972 because 'he had applied for the grant of fresh lease or renewal of the lease on 10th May, 1958 before the issue of G. O. dated 23rd March, 1959. Action had been started in his case before the issue of G. O. although the premium was ultimately paid on 27th May, 1972, whereafter fresh lease was granted. His case was thus distinguishable with other cases'. It was further pointed out that 'negotiations were going on between State government and Sri S. K. Verma, about the purchase of his property at Ghazipur and for the adjustment of the premium from the sale proceeds of the said house. However, the deal could not be materialised. It was due to negotiations that the payment of lease money continued to be deferred'. To say the least there could have been no better lame excuse than what has been offered in this affidavit. Applying for grant of fresh lease before issue of G. O. dated 23-3-1959 could not create a different class for Sri Verma from others who had made similar applications either before 1959 or after 1959. 'Mini classifications based on micro-distinctions are false to our equalitarian faith and only substantial and straightforward classification p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... against arbitrariness. Equality was described as a 'dynamic concept which could not be 'cribbed, cabined, and confined , within the traditional and doctrinaire limits. The Hon'ble Court observed that' from a positivistic point of view equality is antithetic to arbitrariness. In fact equality and arbitrariness are sworn enemies. One belonged to the rule of law in a republic, while the other to the whim and caprice of an absolute Monarch'. It was further widened in Ramanna's case (AIR 1979 SC 1628) (supra), when the Hon'ble Court held,' that Article 14 strikes at arbitrariness because an action that is arbitrary must necessarily involve negation of equality'. Even the learned Additional Advocate General could not defend, what could not be defended. He, however, emphasised the word 'deny' in Article 14 which means refuse, reject, repudiate or decline and urged that to establish discrimination under Article 14 of the Constitution it was necessary for the petitioners to establish continuous denial According to him although petitioners might have been equally placed with those whose leases had been renewed but they were distanced in time. Lear ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... vernment to treat them in similar manner as they had treated others. The entire code of our jurisprudence is founded on honesty in approach and fairness in behaviour. A government of a Welfare State cannot and should not try to wriggle out of what has been done by it by adopting subterfuges. If the government was persuaded for some reasons extraneous or otherwise to enforce its orders in favour of some of them it cannot deny similar treatment to others similarly situated only because they did not have necessary resourcefulness to approach the government. Bu a case where discrimination had arisen due to governmental action it shall be deemed that those who have been denied the benefit were also entitled to same relief on assumption that they had approached the government and the government should have granted the same benefit as it granted to others. Decision in Chief Commr. v. Kitty Puri AIR 1973 Delhi 148, that favour shown by government to some similarly situated cannot furnish cause of action to others to approach the Court for similar treatment became doubtful in view of Sangara Singh v. State of Punjab AIR 1984 SC 1499, where the Hon'ble Court directed the petitioner to be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... se Was to be renewed, the premium which was required to be paid. By issuing notice to some and denying to others the Collector created two class of persons without any basis. Since the performance of the order was dependent on notice to be issued by Collector, the action of the Collector in omitting to issue notice to some was obviously discriminatory. As entire movement of grant of fresh lease was dependent on notice which cannot be construed in any other manner except that it was mandatory then non-issuance of it resulted in breach and no shelter could be sought by the opposite parties that petitioner should have approached by themselves. It was for this reason that Supreme Court in Hindu Mall's case (AIR 1981 SC 1636) (supra) held that discrimination perpetuated even by oversight was vicious. From government orders issued from 1959 to 1965 it is clear that the decision of the government to renew grant of fresh leases for entire area was clear and unequivocal. Negotiations between the government and the lease holders association was only in respect of premium and rent. Even various clauses of 1965 order do not show that negotiations were at an end. In Hughes v. Metropolitan R ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... longed to Sir Shah Mohd. Sulaiman, an ex-Chief Justice of this Court. Some of his heirs, on partition of the country migrated to Pakistan. Consequently they became evacuee under clause (d) of Section 1 of Administration of Evacuee Property Act and their right and interest become 'evacuee property within meaning of Clause (f) read with Clause (j) of Section 1. And the property vested in the Custodian In 1954 Lady Fatima, wife of the Chief Justice claiming to be co-sharer but not being an evacuee appears to have filed a 'claim' within meaning of clause (b) of Evacuee Interest Separation Act, 1951 which was decided by competent Officer in Cases Nos. 397 and 411 of 1954 and share of the lady was separated from 'composite property' defined in clause (d) of Section 2 of Separation Act. On separation the evacuee interest vested in the Custodian. On 17th September, 1956, entire property was sold by competent officer under power conferred upon him upon Section 10 of Evacuee Interest (Separation) Act, 1951 in favour of late Tika Ram Gulati, father of petitioner, who had migrated from Pakistan to Allahabad in 1947 after partition. Sale certificate under rule 11E was issued ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sured him that necessary action would be taken soon. In counter-affidavit these factual averments are not disputed. It is stated that after expiry of the lease on 28th Sept. 1964 notice was issued to the ex-lessee on 3rd February, 1965 to surrender the land or to apply for fresh lease. 20. Issue of notice in 1964 to ex-lessees because their name was recorded in records when property had been sold by competent officer in 1956 and permission had been granted by opposite parties for transfer of share of M. L. Suri, co-purchaser with late Tika Ram Gulati, to petitioner do not reflect well on working in the office of opposite parties. It was as bad as giving no notice. And then what about petitioners letter sent in 1965 and then recommendation of Nagar Mahapalika, etc., in his favour. No attempt was made to rectify the error. The pttitioner, therefore, is entitled to be treated similarly as other. Since petitioner was prevented from complying with orders because of failure of opposite parties to give him notice, therefore, it could not result in forfeiture of his lease rights nor could the opposite parties exercise option of re-entry. 21. Necessity of examining this petition, sepa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nsel urged that under the Settlement of Evacuee Property Act, 1951 read with the Displaced Persons (Compensation and Rehabilitation) Act, 1954 three interests were created, one of the evacuee, the other of the government and the third of those who had gone to Pakistan. These three interests could be adjusted by separating interest of evacuee with those who had stayed in the country. Learned counsel submitted that if this be correct then in the house in dispute there was the interest of heirs of Sir Sulaiman, who had gone to Pakistan his widow who had stayed in this country and the government. Learned counsel urged that it was a composite property within the meaning of Section 2(c) and (d) of the Act and The Displaced Persons (Compensation and Rehabilitation) Act, 1954 and since Section 3 had overriding effect on all inconsistent law including law relating to Evacuee Property it was the provision of Displaced Persons Act which was to prevail. Learned counsel urged that it was not disputed nor it could be disputed that custodian must have informed the competent Officer and he must have proceeded to sell the property in accordance with law. According to him factually the competent Off ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... could be acquired by Central Government u/s 12 of Displaced Persons Act, 1954. It is in a latter class, that is acquisition only that provisions of 1954 Act apply. Suggestion that since sale certificate was granted by competent Officer who is referable to Section 16(2)(b) of D. P. C. R. Act, 1954, therefore, it should be assumed that property formed part of compensation pool cannot be accepted. Nor any assistance can be derived only because sale certificate was not issued in Form No. XXIII meant for lease hold rights. 23. Nor there appears any merit in the submission that there was a merger of lessor's and lessee's interest, either because of Administration Evacuee Property Act or under Section 111(d) of Transfer of Property Act. Even assuming that Transfer of Property Act applied Section 111(d) could operate only if lessor and lessee's interest vested in the same person. But the property admittedly belong to State Government whereas the evacuee interest which included lessee's interest vested in the Central Government. Division of property into property of Dominion and State is recognised by Article 294 of the Constitution of India. Under Government of India Ac ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o others fresh lease shall be executed in his favour but no premium shall be charged for first 25 years. Civil Misc. Writ No. 9573 of 1981 : Unfair Stand of Opposite Parties. 24. Evacuee interests in Site No. 30, Civil Lines, Allahabad were sold to Lala Karoli Mal on 6th July, 1959 who sold it to petitioners on 6th March, 1962 after obtaining permission from Collector, Allahabad on 13th February, 1962. Although all this was admitted in counter-affidavit but in supplementary affidavit filed on 4th February, 1986 a legal issue has been raised that since purchase was made after expiry of lease it could not create any interest in favour of petitioner. Needless to emphasis that such unfair stand does not behove the government. Granting of permission by Collector was not only giving up right of re-entry but recognition of subsisting interest of lessee. Civil Misc. Writ No. 11349 of 1981 : 25. It is claimed that since Mrs. J. D. Patel and Mrs. F. Chinnimi became Pakistani nationals no subsisting right was left in petitioner. Premises No. 24 Canninghton Road, belonged to one Sri C. D. Mostishan. He died leaving a Will dated llth March, 1922 in favour of Mrs. B. B. Mistry, hi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pel- Civil Misc. Writ No. 8171 of 1981 : Illustration of Article 14 : 28. Lease of site C of 30, Elgin Road, expired on 13th March, 1961. Notice dated 26th December, 1961 by Collector to petitioner either to surrender or apply for fresh lease. Co-lessees applied on 29th January, 1962. On 19th June, 1962 Collector sent pro forma to deposit a sum of ₹ 23,325-63 p. and ₹ 294.88 p ground rent and on 19th October, 1962 permitted petitioner to deposit in five instalments. First instalment deposited on 17th November, 1963 and last on 8th February, 1966. Copies of site plan duly signed by co-lessee returned or; 10th March, 1966 and D. D. letter by Superintendent, Nazul properties intimating that Commissioner had sanctioned fresh lease. On 26th January, Nagar Mahapalika took possession of 77 sq. yards for widening road. Consequently refunded ₹ 190/-. Despite letter in 1973 and notice in 1977 to State Government no lease granted when fresh lease was executed in favour of Sri S. K. Verma, while he was acting Governor, in respect of site situated within ten yards distance of site 'C'. Both petitioner and Sri Verma have been judges of this Court. Houses of bot ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as done in State of U.P. v. Raja Ram Jaiswal, AIR 1985 SC 1108. 32. Relief of Mandamus is granted where no other remedy is available, the order of Mandamus is an order of a most extensive nature It was introduced, to prevent disorder from a failure of justice Abuse of discretion is abominable to our system of law. One of the pnmary purposes of Courts entrusted with responsibility of enforcing Constitution is to control and remedy the injustice arising out of intentional act or accidental omission resulting at times in depressing deficiency and frustrating government policy the success or failure of which largely depends on honesty and sincerity of its officials. The Courts by controlling or remedying abuse of discretion do not assume power for themselves but effect salutary restraint to promote cause of justice and maintain rule of law Even in England theory of prerogative power has been exploded and laws arms to reach into its sphere has been accepted. Lord Dublin in Chandler v. D.P.P. (1964) AC 763. Lord Denning in Laker Airways Ltd. v Department of Trade (1977) QB 643. To argue therefore, that this Court even if it finds injustice arising due to illegal exercise of power o om ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ould justifiably be a matter of deliberation. Time taken in negotiations or deliberation cannot be considered as delay resulting in laches so as to disentitle the petitioners from seeking the relief of mandamus. Lessees cannot be put to disadvantage when the government kept the doors open for negotiation. 33. Legal issues having been resolved, rote of Courts defined how should the conflicting interest be reconciled due to confusing dichotomy between State endeavour to protect livelihood, a right recognised in Olga Tellis v. Bombay Municipal Corporation, AIR 1986 SC 180 of numerous out-houses dwellers some coming down from the days of 'gora sahib' and exploited for generations and lessees for whom even late Prime Minister Jawahar Lal Nehru wrote a letter to local Self-Government Minister. Although paragraph 12 of 1981 Order prohibiting lessees from exercising option in respect of such tenements has been held to be invalid. Yet the effect this clause must have had on such dwellers cannot be undermined or ignored. A Welfare State is not only an ideal or a vision but a conviction and necessity. It is the rational basis of a modern State. Its policy implications flow from bro ..... X X X X Extracts X X X X X X X X Extracts X X X X
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