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TMI Blog2012 (7) TMI 1134X X X X Extracts X X X X X X X X Extracts X X X X ..... anted relief to City Montessori School (Respondent No. 1 in Civil Appeal No. 10181 of 2011 and the Appellant in Civil Appeal No. 10180 of 2011) in substantially similar terms. An ancillary question which needs determination is whether the High Court had rightly quashed the action taken by LDA and Nazul Officer, Lucknow in compliance of order dated 4.5.2009 passed in Writ Petition No. 4085/2009. 2. For the sake of convenience, the parties shall hereinafter be referred to as the Appellants and Respondent No. 1. 3. Background facts and details of the cases filed by the parties 3.1. The Nazul Officer leased out plot No. 92A, Mahanagar, Faizabad Road, Lucknow to Shri Moni Mohan Banerjee (hereinafter described as 'Shri Banerjee') in 1958 for a period of 30 years with a right to seek two renewals of 30 years each. The terms of the lease were incorporated in the registered deed executed on 14.2.1959. 3.2. After about 3 years, the Nazul Officer granted lease of the adjoining plot bearing No. 92 A/C to Shri Banerjee for a period of 7 years commencing from 1.8.1961 for garden purposes. The registered lease deed dated 29.1.1964 executed between the Governor of Uttar Pra ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... bids of Respondent No. 1. The latter deposited 25% of the bid money, i.e., ₹ 7,40,700/- but did not pay the balance amount within the stipulated period despite notices dated 21.2.1995 and 8.3.1995 issued by LDA. Instead, Shri Jagdish Gandhi, Manager of Respondent No. 1 made representation for early delivery of possession of the plots and grant of permission to pay 3/4th of the price in six-monthly installments in accordance with G.O. dated 3.10.1994. LDA did not accept the request of Shri Jagdish Gandhi by observing that the facility of paying the price of plots in six-monthly installments is not available in the cases involving disposal of open Nazul land and garden leases. Shri Jagdish Gandhi then approached the Principal Secretary to the Governor and succeeded in persuading him to send letter dated 3.4.1995 to the State Government to instruct the officers of LDA to hand over possession of the plots and accept the balance amount in easy installments. The State Government forwarded that letter to LDA, which declined to accept the request made by Shri Jagdish Gandhi on the ground that the advertisement did not contain any such stipulation. Simultaneously, a decision was take ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . 10180 of 2011) are reproduced below: DEED of AGREEMENT This Deed of Agreement is executed between the Vice-Chairman, Lucknow Development Authority, on behalf of H.E. the Governor of the State of Uttar Pradesh, hereinafter referred to as the Vendor, meaning thereby its representatives, assigns and legal representatives (The First Party) AND City Montessori School, Station Road, Lucknow through its Manager, Shri Jagdish Gandhi, aged about 60 years son of late Sh. Phoolchand Agrawal resident of 12, Station Road, hereinafter referred to as the Purchaser, meaning thereby the Purchaser, its heirs, legal heirs and assigns (The Second Party). Whereas as per the directions contained in the Government Order No. 48/9-Aa-4-96-39N/91, dated 12.1.1996, issued with regard to management and disposal of Nazul land, a Nazul Land Khasra No. 92-A/C 754, area 7305 sq. ft. situated at Mahanagar Faizabad Road, Lucknow was disposed of for commercial purpose by way of free-hold tender/auction. In response to the above auction, by this office letter No. 71 N.S., dated 20.5.96 an amount of ₹ 22,21,300.00 was required to be deposited. You deposited ₹ 7,40,000.00 by bank drafts i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Sale Deed in respect of the Nazul Land will be executed on the stamp paper by paying required stamp fees. Stamp fee and other expenses will be borne by the Second Party; 4. Whereas the Second Party shall deposit the remaining aforementioned tender amount in 10 half yearly installments under relevant accounts titled 0075 legal general services-105 Sale of Land Property -03 lumpsum amount on converting Nazul land into freehold property by the prescribed date by treasury challan/ bank draft in main branch of the State Bank at Lucknow; 5. xxx 6. xxx 7. xxx Witness: 1. V K Gupta 2. Special Nazul Officer/Joint Secretary LDA, Lucknow (Underlining is ours) 3.11. Simultaneously, Certificate dated 12.1.1996 was issued by LDA showing delivery of possession of plot No. 92A/C to Shri Jagdish Gandhi. The same reads as under: Office of the Lucknow Development Authority (Nazul Department) Lucknow Possession Certificate Possession of Nazul land Khasra No. 92-A/C(754), area 7305 sq. ft., situated at Mahanagar, Faizabad Road, Lucknow is handed over to Sh. Jagdish Gandhi, Manager, City Montessori School, Lucknow today 12.1.1996. Boundary of the ab ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pose. The same was disposed of by the High Court vide order dated 30.8.2005 with an observation that if any action is taken by Respondent Nos. 3 and 4 in violation of the terms of lease then the writ Petitioner shall be free to approach an appropriate forum. 3.15. During the pendency of Writ Petition No. 446/1996, the State Government issued another order dated 17.2.1996 for conversion of Nazul land from leasehold to freehold and made the same applicable to the cases in which the lease had already expired but the lessee was continuing in possession. The primary object of this order was to legitimize the continued illegal occupation of land by the erstwhile lessees. 3.16. With a view to take advantage of the policy contained in order dated 17.2.1996, Shri Banerjee submitted application dated 23.3.1996 to the Vice-Chairman, LDA for conversion of plot No. A-92, Faizabad Road, Mahanagar into freehold. He submitted another application dated 29.3.1996 to the Special Nazul Officer, LDA with similar prayer by stating that the plot had been allotted to him for the purpose of gardening. Along with the first application, Shri Banerjee annexed photostat copy of lease deed dated 29.1.1964 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of appurtenant land bearing Plot No. 92 A/C measuring 6 Biswas 5 Biswansis 13 Kachwansis (7188 sq.ft.) situated at Mahanagar was granted in favour of Sri M.M. Banerji by the Nazul Officer, Lucknow for gardening purpose for a period of seven years. Learned Counsel for the Petitioners submits that Sri M.M. Banerji, predecessor in interest of the Petitioners in pursuance of the Government Order dated 17.02.1996 had applied for free hold rights of the property after depositing the requisite amount but till date no decision has been taken by the Nazul Officer, Lucknow with respect to the free hold rights to the Petitioner who are successors of late Sri M.M. Banerji, who was the original lease holder. In view of the aforesaid facts, we dispose of the writ petition with a direction to the opposite party No. 2 to take a final decision with respect to the free hold rights of Nazul Plot No. 92 A/C, situated at Mahanagar Lucknow within two months from the date a certified copy of this order is produced. 3.20. In compliance of the direction given by the High Court, the Nazul Officer passed order dated 3.8.2009 and converted 4433 sq. feet of land out of the total area of 7188 sq. feet ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f the consideration amount which had been demanded vide the letters dated 21.02.1995 and 08.03.1995. However, taking a considerate view, on a written request made by the Petitioner school, the payment schedule was rearranged vide the agreement dated 12.01.1996 but again no amount was deposited towards the payment of any of the installments. Thus, the Petitioner school was not ready and willing to perform its obligation under the agreement and in Law. 3.23. The Division Bench then adverted to the Appellants' plea that the direction in Writ Petition No. 4085 (M/B) /2009 cannot be nullified by entertaining a petition filed under Article 226 of the Constitution and held that they are not entitled to get the plot in dispute by paying the paltry amount of ₹ 1,95,939/-. This is evinced from the following extracts of the impugned order: Here, in the instant case, the garden lease in respect of the property in question was granted for a brief period of 7 years in favour of Shri Moni Mohan Banerjee, the predecessor in interest of private Respondent Nos. 4 and 5, which expired in 1968. As per the condition of garden lease agreement, the plot in question was to stand surrendere ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd 5 was passed in Writ Petition No. 4085 (MB) of 2009 vide the order dated 04.05.2009, which on reproduction reads as under: xxx It is a settled principle of law that if an authority is directed to consider the case, it should consider judiciously on merit and in accordance with law and not arbitrarily causing a huge loss to public exchequer under the umbrella of a Court's order directing to consider or take final decision on the case. Thus, the order of official Respondent Nos. 2 and 3, Lucknow Development Authority and Nazul Officer, as also the demand notice and subsequent proceedings regarding grant of freehold right in favour of private Respondent Nos. 4 and 5 deserve to be and is hereby quashed. 3.24 Notwithstanding its finding that a mandamus cannot be issued for enforcing agreement dated 12.1.1996, the High Court virtually allowed the writ petition of Respondent No. 1 by relying upon the 2009 Act and directed the official Respondents to hand over possession of the plot No. 92 A/C to the said Respondent and execute the sale deed on payment of market price at the current rate. The reasons recorded by the High Court for granting relief to Respondent No. 1 are as ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ept the balance price in ten six-monthly installments with interest as also the agreement executed between the State Government and Respondent No. 1 were nullity and the mere fact that Respondent No. 1 had paid 25% of the bid amount could not be made basis for indirect revival of the agreement after a gap of almost 15 years. Another argument of the Learned Counsel is that the writ petition filed by Respondent No. 1 was highly belated and the High Court committed serious error by entertaining the same. 5. Shri Shanti Bhushan, learned senior Counsel appearing for Respondent No. 1 argued that agreement dated 12.1.1996 was binding on the parties and the High Court committed serious error by declining to issue a mandamus for its enforcement only on the ground that Respondent No. 1 had not paid the balance price. Learned senior Counsel relied upon Rules 50, 50A and 51 of the Nazul Manual and the provisions of the 2009 Act and argued that having accepted the bid of Respondent No. 1, LDA and its functionaries could not refuse to act in accordance with the agreement. Learned senior Counsel submitted that the installments of price could not be paid by Respondent No. 1 because despite repe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion of agreement dated 12.1.1996 did not create an enforceable right in favour of Respondent No. 1 and the High Court rightly declined to issue a mandamus to LDA to accept the offer made on its behalf for payment of the balance price. 8. It is significant to note that agreement dated 12.1.1996 contained an unequivocal stipulation that if Respondent No. 1 fails to pay the installments of balance price within the prescribed time limit then the agreement would become void and LDA will be free to sell the plot to any other person. Admittedly, Respondent No. 1 did not pay the installments of balance price. Therefore, the agreement stood automatically terminated and LDA became entitled to dispose of the plot by adopting an appropriate mechanism consistent with the doctrine of equality enshrined in Article 14 of the Constitution. It is rather intriguing as to why the functionaries of LDA remained silent for more than 13 years and did not repossess the plot in question. This was perhaps due to the pressure brought by the Manager of Respondent No. 1 from different quarters, administrative as well as political. 9. The next question which requires consideration is whether the High Cour ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d lays down that such lease shall be for a short period not exceeding seven years and shall be subject to the conditions enumerated in that rule. Rule 51 deals with grant of lease or sale of nazul land at concessional rates for charitable purposes like, hospitals, educational institutions and orphanages. It further lays down that the concession shall not exceed half the annual rental in the case of lease or half of the total market value in the case of sale. Two provisos to this rule specify the limits of concession. Rule 52 contains a non-obstante clause and empowers the State Government to sanction a lease or sale of nazul land for the particular purpose and at the particular rate keeping in view the special circumstances of the case. These rules do not, in any manner, support the cause of Respondent No. 1 because it failed to pay the price of land in terms of the bid given pursuant to tender notice dated 20.12.1994 or even in terms of agreement dated 12.1.1996 and tried to concoct evidence to show that LDA was the defaulter. 11. The issue which remains to be considered is whether the Appellants are entitled to plot No. 92 A/C and the High Court committed an error by quashing ..... X X X X Extracts X X X X X X X X Extracts X X X X
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