Page 1

                                 NON REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO.10181 OF 2011 (arising out of  SLP (C) No.13585 of 2011)

Smt. Khela Banerjee and another                                  … Appellants

versus

City Montessori School and others   … Respondents

with

CIVIL APPEAL NO. 10180 OF 2011 (arising out of  SLP (C) No.22369 of 2011)

J U D G M E N T

G. S. Singhvi, J.

1. The  main  question  which  arises  for  consideration  in  these  appeals  is  

whether,  having  rejected  its  prayer  for  issue  of  a  mandamus  to  Lucknow  

Development Authority (LDA) to accept the total amount of sale consideration  

with regard to plot No.92A/C (Khasra No. 754), Mahanagar, Lucknow, the  

High Court could have relied upon the provisions of the Right of Children to

Page 2

Free and Compulsory  Education Act,  2009 (for  short,  ‘the 2009 Act’)  and  

granted 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.   

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 Pradesh through the Nazul Officer and  

Shri Banerjee contained a stipulation that at the end of 7 years period, the lessee  

2

Page 3

shall  hand  over  possession  of  the  plot  to  the  Government.   However,  Shri  

Banerjee did not surrender the plot on or after 31.7.1968 and continued to occupy  

the same till January, 1996.

3.3.   In  1992,  the  Government  of  Uttar  Pradesh  took  a  policy  decision  for  

conversion of  leasehold  Nazul  lands  into freehold  and disposal  thereof.   This  

policy was circulated vide G.O. dated 23.5.1992 and was subsequently modified  

vide  G.O.  dated  2.12.1992  and  G.O.  dated  3.10.1994,   paragraph  4  whereof  

postulated conversion of open Nazul land declared surplus under the Ceiling Act  

and  horticulture/agriculture  lease  land  into  freehold  and  disposal  thereof  by  

auction or by inviting tenders.

3.4.  In furtherance of the policy contained in G.O. dated 3.10.1994, LDA issued  

tender notice dated 24.11.1994 and invited bids for disposal of plots (open Nazul  

land which had been converted into freehold).  However, before the bids received  

pursuant  to  notice  dated 24.11.1994 could be accepted,  the State  Government  

changed  the  nature  of  some  of  the  plots  from  residential  to  commercial.  

Therefore, LDA cancelled tender notice dated 24.11.1994 and invited fresh bids  

for eight plots including plot No.92A/C.   

3.5.   Shri  Banerjee,  who  was  illegally  occupying  plot  No.92-A/C  filed  Suit  

No.285 of 1994 in the Court of Civil Judge, Lucknow with the prayer that G.Os.  

dated  2.12.1992 and 3.10.1994 may be  quashed  and LDA be restrained from  

dispossessing him pursuant to tender notice dated 24.11.1994.

3

Page 4

3.6.   Respondent  No.1 filed Writ  Petition No.11 of  1995 for  quashing tender  

notice dated 20.12.1994 on the ground that the same was contrary to the Zonal  

Development  Plan  prepared under  the  U.P.  Urban Planning and Development  

Act, 1973 and prayed that a mandamus be issued to the official respondents to  

accept the tenders submitted pursuant to notice dated 24.11.1994 and complete  

the formalities for the execution of the sale deed.  Respondent No.1 also applied  

for stay but could not convince the High Court to entertain its prayer.   

3.7.  Faced with the possibility of losing an opportunity to get the plots in respect  

of  which  tenders  were  invited  vide  notice  dated  20.12.1994,  respondent  No.1  

submitted bids for four plots including plot No.92 A/C.  The competent authority  

accepted the bids of respondent No.1. The latter deposited 25% of the bid money,  

i.e., Rs.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  

4

Page 5

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 taken to cancel the bids and this was conveyed to respondent No.1  

vide letter dated 14.6.1995.  

3.8.   Respondent  No.1  did  not  challenge  cancellation  of  the  bids  because  its  

Manager was sure that he will be able to pull strings in the power corridors and  

get the desired relief. This is evinced from the fact that the representation made by  

him was accepted by none else than the Governor of the State, who passed order  

dated 17.12.1995 and directed that possession of the plots be handed over to the  

management of respondent No.1 and the balance amount be accepted in ten six-

monthly installments with interest which may be fixed keeping in view the rates  

charged for the schemes framed by the Development Authority.  

3.9.  In furtherance of the direction given by the Governor, the State Government  

sent letter dated 12.1.1996 to the Vice-Chairman of LDA, which reads as under:

“No.48/9-Aa-4-96-39N/91 From:

Shri Rakesh Kumar Goyal,  Joint Secretary,  Government of Uttar Pradesh

5

Page 6

To

The Vice Chairman,  Lucknow Development Authority,  Lucknow

Govt. Section-4      Lucknow dated 12Ih January, 1996

Subject:  Regarding  handing  over  possession  of  Nazul  Land  comprised  in  Khasra  no.91-A-B-754,  92-A-C-754,  10-A-758,  90-A-A-754  allotted  to  the  City  Montessori  School, Lucknow through tender

Sir, Please  refer  to  your  Letter  No.425/NS  dated  9 th  

January, 1996 on the above subject.

In  this  regard I  have  been directed  to  state  to  you  that  all  the  above  four  plots  of  land  which  have  been  approved  in  favour  of  Manager,  Shri  Jagdish  Gandhi,  City  Montessori  School  and  which  was  cancelled  vide  Government  Order  dated  14 lh June,  1995,  after  careful  consideration  in  the  matter  the  Government  has  decided  that  with reference to all  the above four  plots  of  land if  Shri  Jagdish  Gandhi  has  deposited  25%  amount  and  if  there  is  no  stay  order  against  him,  its  possession  be  handed  over  to  Shri  Jagdish  Gandhi  and  balance  75%  amount  be  realised  in  future  10 six  monthly  instalments  and  interest  payable  thereon  shall  be  informed  subsequently.

Sd/- (Rakesh Kumar Goel)

                                                           Joint Secretary”

3.10.  On the same day, an agreement was executed between the Vice-Chairman  

of LDA acting on behalf of the Governor of Uttar Pradesh and respondent No.1  

through  its  Manager  Shri  Jagdish  Gandhi.  The  relevant  portions  of  the  

6

Page 7

agreement (as contained in the paper book of Civil Appeal No.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 Rs.22,21,300.00 was required to be  deposited.  You  deposited  Rs.7,40,000.00  by  bank  drafts  in  Nazul  Fund,  details  of  which  are  given  below.  Challan  No.  BDN-8070443  dated  7.1.95  -  Rs.  25,000.00,  BDN-8070445  dated  7.1.95  Rs.2,71,200.00  BDN-8069790  dated  13.12.95  Rs.1,80,000.00,  BDN-136509  dated  2.2.95  Rs.2,64,500.00  -  Total  Rs.7,40,700.00,  which  means  that  25%  of  the  total  auction amount has been deposited. The Second Party sought  permission to deposit rest 75% amount in installments, which  the Government has granted by Government Order No. 48/9- Aa-4-96-39L/91  dated  12.1.1996  to  deposit  75%  amount  in  further ten half yearly installments from the date of delivery of  possession.  Information of rate of  interest  on the above 75%  amount will be conveyed, to the Second Party after receiving  instructions from the Government in this regard.

7

Page 8

Thus, the Agreement between the aforesaid two parties will be  as under:-

1. Whereas  The  Second  Party  has  paid  25% of  the  total  tender/auction  amount  according  to  the  demand  letter  and  remaining  75%  amount  will  be  deposited  together  with  the  interest, as fixed by the Government, by the Second Party in 10  half yearly installments without any default  from the date of  execution of the Agreement;

2. Whereas  the  payment  of  the  installments  as  indicated  above will  be paid by the Second Party compulsorily by the  prescribed  time  limit,  failing  which  or  in  case  of  failure  to  deposit two consecutive installments, this Deed of Agreement  will become void and the First Party shall be free to exercise its  discretionary  power  to  forfeit  1/4  th   of  the  total  deposit  and    refund the remaining amount and the First Party, if desired so,  shall be free to enter the land in question and shall have right to  sell it in favour of any third party;  

3. Whereas 25% of the total tender amount has been paid by  the Second Party and for rest of the 75% amount an agreement  has been reached at between the parties. Possession of the land  in question is being delivered by way of the instant Agreement.  Therefore,  according  to  the  prevailing  Greater  Scheme  (Mahayojana) of 2001, if the Second Party produces building  map, it will be considered for approval, holding thereby that the  possession of the land is with the Second Party, that the Nazul  Land in question or building constructed on it can be transferred  only  when  the  entire  tender/auction  amount  and  the  total  expenditure payable by that time are cleared to the First Party.  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 lump¬sum 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 xxx xxx

8

Page 9

6. xxx xxx xxx  

7. xxx xxx xxx

Witness:  

1. 2. V K Gupta

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 above mentioned land is as under:-

East - Road Mount Carmel School

West - Land of City Montessori School

North - Sh. M M Banerjee’s house

South - Faizabad Road

Signature of the person to whom    Signature of the person who possession is delivered     delivered the possession

(Jagdish Gandhi)     (P K Mishra)     Ameen, L.D.A.”

9

Page 10

3.12.  Although the management of respondent No.1 knew that the balance price  

is required to be paid in ten six-monthly installments, it deliberately omitted to do  

so and performed the ritual of sending one letter every year to the functionaries of  

LDA on the issues of demarcation of land and fixation of installments to show  

that the balance amount could not be paid due to LDA’s failure to indicate the  

amount required to be deposited along with interest.   

3.13.  After 13 years of the execution of agreement and taking possession of the  

plot,  respondent  No.1  filed  Writ  Petition  No.8514/2009  with  the  following  

substantive prayers:  

“(i) Issue a writ, order  or direction in the nature  of  mandamus  directing  the  respondents  to  accept  forthwith  the  total  amount  of  sale  consideration with regard  to plot no. 92-A/C  754  along  with  interest  whatsoever  may  be  fixed  either by this Court or by the respondents;  

(ii) Issue an appropriate writ, order or direction  in the nature of  certiorari  to quash the entire  proceedings  of  conferring free-hold  rights on the  respondents no. 4 & 5 on the said plot no.  92- A/C  754 Mahanagar Lucknow which has already  been purchased by the petitioner in auction as  hold  on  09.01.05  and  the  agreement  dt.  12.01.96 been executed by the respondent no.  3 in favour  of  the petitioner and possession has  also  been delivered vide possession  certificate  d t . 12.01.96 after, summoning  the  record  o f  the  proceedings  from  the o f f i c e  o f  the  opp. Party  no. 2 & 3”

1

Page 11

3.14.   In  the  meanwhile,  Shri  Banerjee  filed  Writ  Petition  No.446/1996  and  

prayed that the State Government, LDA and the Nazul Officer may be restrained  

from taking any action in violation of lease deed dated 14.2.1959 or give strip of  

garden lease to any other person without taking proceedings in accordance with  

law or convert the same for any other purpose.  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,  which  related  to  plot  

1

Page 12

No.92 A/C.  The application made by Shri Banerjee was not entertained by LDA  

on that ground that after the expiry of lease period, the plot was auctioned and the  

bid given by respondent No.1 had been accepted.

3.17.  When the management of respondent No.1 started construction of boundary  

wall on plot No.92A/C, Shri Banerjee raised objection by claiming that he was in  

lawful possession of the plot. Thereupon, respondent No.1 filed Suit No.58/1996  

for  permanent  injunction.   The  trial  Court  prima  facie  felt  convinced  that  

respondent No.1 was having possession of the plot and passed injunction order  

dated 22.2.1996, which was confirmed on 13.5.2002.  

3.18.   Shri  Banerjee died on 10.5.1996.  After  about two years,  the appellants  

submitted application dated 17.3.2008 for mutation of their names in respect of  

plot No.92A.  They claimed that by virtue of Will dated 14.7.2005 executed by  

the deceased, they had become owners of the plot.  After some time, they filed  

Writ Petition No.5049/2008 with the grievance that the application made by them  

was  not  being  decided  by  the  competent  authority  and  prayed  for  issue  of  

direction to LDA to sanction mutation in their favour. The Division Bench of the  

High Court passed an interim order dated 6.6.2008 and directed the Nazul Officer,  

Lucknow  to  consider  and  decide  the  application  made  by  the  appellants.  

Thereafter, LDA passed order dated 25.3.2009 and sanctioned conversion of plot  

No.92/A  from  leasehold  to  freehold.   Thereafter,  the  appellants  deposited  

Rs.4,97,692/- as conversion charges.  

1

Page 13

3.19. During  the  pendency  of  Writ  Petition  No.5049/2008,  appellant  No.2  –  

Chandak  Banerjee  filed  Suit  No.538/2008  for  a  declaration  that  auction  held  

pursuant to advertisement dated 20.12.1994 was illegal and inoperative. He also  

prayed that  the respondents  be restrained from interfering with his  possession  

over plot No.92A/C.  The appellants also filed Writ Petition No.4085/2009 for  

issue of a mandamus to LDA to convert leasehold rights into freehold in respect  

of plot No.92A/C.  The same was disposed of by the High Court vide order dated  

4.5.2009, which reads as under :

“Heard Sri Pratish Kumar, learned counsel for  the petitioners,  learned Standing Counsel  for  opposite  party  no.l  and  Sri  D.K.  Upadhyay,  learned counsel for opposite parties no.2 and  3.

The  petitioner  has  alleged  that  a  lease  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.

1

Page 14

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 of plot No.92A/C into freehold. The remaining area was  

retained for widening the road.  On next day, the appellants deposited conversion  

charges amounting to Rs.1,95,939/-.   

3.21.   In  the  writ  petitions  filed  by  them,  the  appellants  did  not  implead  

respondent No.1 as a party, but the latter impleaded them as respondent Nos.4 and  

5 in Writ Petition No.8514(M/B) of 2009.  Respondent No.1 also gave details of  

the cases filed by the parties and annexed copies of the orders passed by the Civil  

Courts and the High Court.  The appellants contested Writ Petition No.8514/2009  

and pleaded that the State Government did not have the power to ordain delivery  

of possession of the plot to respondent No.1 because the bid given by it had been  

cancelled by LDA on account of non payment of the balance price. They also  

pleaded that agreement dated 12.1.1996 was nullity and was not binding on them.  

1

Page 15

3.22. After noting the factual matrix of the case, the Division Bench of the High  

Court considered the question whether respondent No.1 could seek a mandamus  

for enforcement of agreement dated 12.1.1996 and answered the same in negative  

by making the following observations :  

“Though we accept  and hold  in  terms of  the  legal  submissions,  as  above,  urged  by  Shri  Shanti  Bhushan,  Learned  Senior  Counsel,  yet  looking to the factual  background of  “Though  we  accept  and  hold  in  terms  of  the  legal  submissions, as above, urged by Shri Shanti  Bhushan,  Learned  Senior  Counsel,  yet  looking to the factual background of this case,  we  are  of  the  considered  view  that  the  impugned agreement entered into between the  petitioner  and  the  official  respondents  on  12.01.1996  would  not  be  enforceable  in  law  after the lapse of a period of 13 years only on  the  strength  of  depositing  an  amount  of  Rs.7,40,700/-, said to be the one-fourth of the  total consideration amount. It appears that the  petitioner  engaged  itself  only  in  correspondence  with  the  official  respondents  and in litigation, in stead of paying the rest of  the principal amount, leaving aside the interest  amount,  which  could  have  been  determined  later  by  the  Authority  concerned.  Even  no  efforts  were made to seek direction from the  Courts  to  accept  the  deposit  of  principal  amount before the filing of this writ petition. It  also  appears  that  the  initial  agreement  was  cancelled  on  14.06.1995  for  default  in  depositing  the  rest,  say,  3/4th  of  the  

1

Page 16

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 instalments.  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 Rs.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  surrendered  to  the  State  after  the  expiry  of  lease  deed.  Moreover,  after  the  garden  lease  period  was  over,  no  effort  was  made by Shri Moni Banerjee for a renewal and  perhaps, it was also not renewable under the  terms of the lease deed.  Thereafter, the land  was  converted  into  a  commercial  property,  and it was advertised for auction sale wherein  the  tender  of  the  petitioner  school  being  the  highest  bidder  was  accepted  and  a  lease  agreement  was  executed  between  the  petitioner  and  the  official  respondents.  

1

Page 17

Simultaneously,  the  possession  of  the  property  was  also  delivered  to  the  petitioner  school.  It  is  also  noticeable  that  Shri  Moni  Mohan  Banerjee  did  not  participate  in  the  auction  sale  despite  having  knowledge  about  the  status  of  property  through  the  advertisement.  It  is  only  when  the  petitioner  school  wanted  to  construct  a  boundary  wall  that  Shri  Moni  Mohan  Banerjee  put  a  resistance and went in litigation but in none  of  the  litigations  any  title  in  respect  of  the  property was settled in favour of Shri Banerjee  or  his  successors  in  interest.  Shri  Moni  Mohan Banerjee had no sanction of any lease  agreement  or  Government  order  to  continue  with possession of the property and as noticed  above, even some attempts were also made by  the  official  respondents  to  take  back  the  possession of property from Shri Moni Mohan  Banerjee and his successors. Thus, the official  respondents  had  a  clear  intention  that  the  impugned property was in illegal possession of  Shri  Moni  Mohan  Banerjee.  Moreover,  with  the  efflux  of  time  between  1968  and  1996  when  the  Government  Notification  dated  17.02.1996  was  issued  to  provide  for  conversion  of  lease  hold  right  into  freehold  right, in respect of Nazul lands in occupation  of  people,  the  nature  of  land  had  been  changed  to  commercial  property  and  it  was  put  to  auction.  Thus  the  claim  of  private  respondents  had  become  stale  which  could  not  have  been  revived  by  a  direction  of  this  Court  to consider  or  take a final  decision on  the application of  respondent  nos.4 and 5 in  view  of  the  ratio  of  Judgment  in  C.  Jacob's  case (supra) and the property could not have  been  settled  for  a  paltry  amount  of  Rs.1,95,939/- whereas the same property was  sold  in  auction  for  an  amount  of  over  Rs.29  lacs  in  favour  of  the  petitioner  way  back  in  1995,  and presently,  its  market price  is  over  

1

Page 18

Rs.2  Crore.  The  direction  to  consider  the  claim of  respondent  nos.4 and 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 xxx 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  

under:

“Needless to say that this Court is not only the court of law  but also a Court of equity and, therefore, its decision must  subserve the cause of justice and in an appropriate case it  may grant such relief to which the writ petitioner would be  

1

Page 19

entitled to in law as well in equity. Equity is not anti-law but  a  moral  dimension  of  law.  Rather  it  is  a  grace  and  conscience of living law, and thus, a Court's discretion is to  be  exercised  with  circumspection  within  the  precincts  of  justice, equity and good conscience while keeping in view  the  given  facts  and  circumstances  of  the  case.   Thus, taking into consideration the facts that the Parliament  has passed the Right to Education Act,  that the petitioner  deposited 25% (Rs. 7,40,700/-) of the consideration amount  way back in 1995, and that he is ready to pay the present  market  price of  the plot  whereas no such offer  has come  from private respondent nos. 4 and 5 during the course of  hearing,  we think it  expedient  in the interest  of  justice to  direct the settlement of property in question in favour of the  petitioner school upon making payment of cost price at the  current  market  rate  prevailing  in  the  locality.   In the premises set out hereinabove, we partly allow the writ  petition with direction to official respondents to hand over  the possession of the plot in question and execute the sale  deed after  completing necessary  procedural  formalities  on  payment  of  market  price  at  current  rate  prevailing  in  the  locality  where the plot  is  situated  within a  period of  two  months from the date of receiving a copy of this order. In  case, the petitioner fails to pay the market price at current  rate to be determined by the authority concerned, the official  respondents would be at liberty to invite fresh tender for the  auction of the same at a price not less than the prevailing  market  price so that  the public  exchequer  is  not  made to  suffer in any manner and the property is able to fetch the  maximum price.”

4. Learned counsel for the appellants argued that the direction given by the High  

Court is legally unsustainable and is liable to be set aside because in the writ  

petition filed by it, respondent No.1 had not claimed relief.  He further argued  

that  letter  dated  12.1.1996  sent  by  the  State  Government  to  the  Vice-

Chairman, LDA with a direction to hand over possession of four plots to Shri  

Jagdish Gandhi and to accept the balance price in ten six-monthly installments  

1

Page 20

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  

repeated representations, LDA neither gave the schedule of installments nor  

indicated  the  rate  of  interest.  Learned  senior  counsel  laid  considerable  

emphasis on the fact that respondent No.1 is a charitable institution and argued  

that even though it  may have committed default  in payment of the balance  

price, the High Court was not justified in directing payment of current market  

price as a condition for transfer of the plot in question.  

2

Page 21

6. Before  dealing  with  the  respective  arguments,  we  consider  it  necessary  to  

mention that even though the prayer made in Writ Petition No.11/1995 gives  

an impression that respondent No.1 was claiming relief in respect of plots for  

which tender notice was issued on 24.11.1994, the contents of paragraphs 15  

to  34  thereof  clearly  show  that  respondent  No.1  was  really  claiming  plot  

No.92A, Faizabad Road, Mahanagar, Lucknow of which lease was granted to  

Smt. Rajrani Srivastava sometime in 1958.  We may also mention that the Will  

executed by Shri Banerjee in favour of the appellants was only in respect of  

plot No.92-A.

7. The  first  question  which  merits  consideration  is  whether  the  conclusion  

recorded by the High Court on the issue of enforceability of agreement dated  

12.1.1996 is correct and respondent No.1’s prayer for issue of a direction to  

LDA  to  accept  the  balance  price  was  rightly  rejected.   It  is  an  admitted  

position that  in response to tender notice dated 20.12.1994, respondent No.1  

gave bids for four plots including plot No.92A/C and paid 25% of the price  

offered by it but did not pay the balance amount necessitating cancellation of  

the  bid,  about  which  intimation  was  given  vide  letter  dated  14.6.1995.  

Respondent  No.1  did  not  challenge  the  cancellation  of  bids  by  availing  

appropriate  legal  remedy  but  its  Manager  succeeded  in  convincing  the  

Governor of the State to pass an unusual order for handing over possession of  

the plots and acceptance of the balance amount in six-monthly installments.  

2

Page 22

The reasons which prompted the Governor to act in violation of the rules of  

business and ordain restoration of the plots in favour of respondent No.1 albeit  

without setting aside the decision of LDA to cancel the bids are not borne out  

from the records produced before this Court. Therefore, we hold that the order  

passed  by  the  Governor  and  the  consequential  actions  taken  by  the  State  

Government and LDA including the execution 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  instalments  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.   

2

Page 23

9. The next  question  which requires  consideration  is  whether  the  High Court  

could invoke the provisions of the 2009 Act and direct  LDA to hand over  

possession of plot No.92A/C to respondent No.1 and execute the sale deed on  

payment of market price at the current rate.  In the writ petition filed on behalf  

of respondent No.1 it was not claimed that in view of the provisions contained  

in the 2009 Act, LDA is bound to allot plot No. 92A/C or allow respondent  

No.1 to retain the plot for which its bid had been accepted by the competent  

authority.  Therefore, neither the appellants nor the official respondents had  

the opportunity to controvert such claim and show that the provisions of the  

2009  Act  do  not  provide  for  allotment/sale  of  land  to  the  educational  

institutions.  The High Court has made a passing reference to the 2009 Act and  

granted relief to the respondent No.1 only on the ground that it had already  

deposited 25% of the bid amount way back in 1995 and respondent Nos.4 and  

5 had not made an offer to take the plot by paying the current market price. We  

have carefully gone through the provisions of the 2009 Act and find that they  

do not even remotely deal with the issue of allotment of land to the educational  

institutions. Therefore, the Division Bench of the High Court was not at all  

justified in ordering transfer of the plot to respondent No.1 and that too by  

ignoring its own finding that the said respondent was a ranked defaulter and  

the writ petition was filed after a time gap of 13 years without any tangible  

explanation.

2

Page 24

10.The Nazul Rules on which reliance has been placed by Shri Shanti Bhushan do  

not have any bearing on the issues raised in these appeals.  Rule 50 of the  

Nazul Rules lays down that in all cases, whether of sale or of new leases or of  

renewal  of  leases  which  have  expired  without  option  of  renewal  which  

involves a concession in favour of the vendee or the lessee, e.g., in which it is  

proposed to fix the sale price or the rent at a rate lower than the prevailing  

market rate or at which it is proposed to sell or lease the land without holding a  

public  auction  or  inviting  public  tenders,  prior  approval  of  the  State  

Government shall be obtained before sanction, even though such cases, owing  

to the value of the land being within the limits laid down in the rules, could  

otherwise be sanctioned without reference to the State Government. Rule 50-A  

deals with lease of small stretches for gardening purposes and 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  

2

Page 25

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 the  

action taken by the LDA and the Nazul Officer in furtherance of order dated  

4.5.2009 passed in Writ Petition No.4085/2009.  It is not in dispute that the  

term  of  the  garden  lease  had  ended  on  31.7.1968  and  the  same  was  not  

extended by the competent authority.  Therefore, in view of the stipulations  

contained in lease deed dated 29.1.1964, he was bound to hand over the plot to  

the Government. However, Shri Banerjee continued to unauthorisedly occupy  

the plot till its disposal by LDA in 1994 by inviting bids. Although, respondent  

No.1 also failed to  abide by the terms of  agreement  dated 12.1.1996,  Shri  

Banerjee was not entitled to take benefit of order dated 17.2.1996 and seek  

conversion  of  leasehold  rights  into  freehold  because  LDA  had  already  

accepted the bid given by respondent No.1 and delivered possession of the plot  

to Shri Jagdish Gandhi. The appellants who claim to be beneficiaries of the  

Will  executed  by  Shri  Banerjee  cannot  claim  a  better  right.  Writ  Petition  

No.4085/2009 filed by them was nothing but an abuse of the process of law.  

Unfortunately, the Division Bench of the High Court, which disposed of the  

writ petition vide order dated 4.5.2009 did not even bother to call upon the  

2

Page 26

respondents to admit or controvert the averments contained in the writ petition  

filed  by  the  appellants  and  directed  the  Nazul  Officer  to  decide  their  

representation for grant of freehold rights in respect of plot No.92A/C. The  

error  committed  by the  High Court  in  entertaining the writ  petition  of  the  

appellants was compounded by the Nazul Officer who ordered conversion of  

leasehold  rights  into freehold rights  in  respect  of  4433 sq.  ft.  and gave an  

opportunity to the appellants to grab a valuable piece of land by depositing a  

paltry amount of Rs. 1,95,939/- as against the market price of Rs.2 crores. It is  

a different thing that the appellants did not succeed in their design and the  

High Court quashed the action taken by the Nazul Officer for conversion of  

the plot.

12.In  the  result,  Civil  Appeal  No.  10181  of  2011  is  partly  allowed  and  the  

direction given by the High Court for handing over possession of plot No. 92  

A/C to respondent No.1 on payment of the current market price is set aside.  

However, the decision of the High Court to quash the action taken by LDA  

and the Nazul Officer in furtherance of order dated 4.5.2009 passed in Writ  

Petition  No.  4085  of  2009  is  upheld.  Civil  Appeal  No.  10180  of  2011  is  

dismissed.  For  filing  frivolous  and  unwarranted  litigation,  which  has  

consumed  substantial  time  of  various  Courts  including  this  Court,  the  

appellants and respondent No.1 are saddled with cost of Rs. 10 lakhs each.  

2

Page 27

They are directed to deposit the amount of cost with the Supreme Court Legal  

Services Committee within a period of two months from today.

13.Respondent No.1 is directed to hand over possession of plot No.92A/C to the  

Vice-Chairman,  LDA  within  a  period  of  15  days.  If  the  appellants  have  

managed to take possession of the plot then they shall surrender the plot to the  

Vice-Chairman, LDA with 15 days.  Thereafter, LDA shall dispose of the plot  

by public auction keeping in view the propositions laid down by this Court in  

Akhil Bhartiya Upbhokta Congress v. State of Madhya Pradesh (2011) 5 SCC  

29 (paragraphs 65 and 66).  It is needless to say that respondent No.1 shall be  

free  to  participate  in  the  auction  which  may  be  conducted  by  LDA  in  

compliance of this order.  The appellants shall be free to withdraw the amount  

deposited for conversion of plot No.92 A/C.

…..……….....……..….………………….…J.                  [G.S. SINGHVI]

…………..………..….………………….…J.                   [SUDHANSU JYOTI MUKHOPADHAYA]

New Delhi, July 02, 2012.

2