AZIM AHMAD KAZMI Vs STATE OF U.P.
Bench: G.S. SINGHVI,SUDHANSU JYOTI MUKHOPADHAYA
Case number: C.A. No.-002006-002006 / 2003
Diary number: 10326 / 2002
Advocates: Vs
ANIL KUMAR JHA
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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 leasedeed of the demised premises was
executed by the respondentState in favour of the
appellants on 19th March, 1996 followed by a renewal
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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
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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 leasehold rights in favour of appellant no. 7
Smt. Shakira Khatoon Kazmi, appellant no. 6 Smt.
Sabira Khatoon Kazmi and their motherSmt. Maimoona
Khatoon Kazmi. The appellant no. 1 Azim Ahmad
Kazmi, appellant no. 5 Omar Ahmad Kazmi,
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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
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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
respondentState 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
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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
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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
respondentState submitted that the existence of
public purpose is not a new development. It was
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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
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ideal place for the aforesaid purpose. Several
courtsroom 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 AdvocateGeneral. 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.
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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.”
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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.
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(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
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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 reentry 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 reentry
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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 reenter 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 reentry 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
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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
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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
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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
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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,
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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
respondentState 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
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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
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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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