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S.N. Kapoor v. State Of U.P. & Others - WRIT - C No. 32605 of 1991 [2007] RD-AH 5026 (21 March 2007)


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Civil Misc. Writ Petition No. 32605 of 1991

Satya Narain Kapoor (dead) through L.R.


State of U.P. & Ors.

Hon'ble Dr. B.S. Chauhan, J.

Hon'ble Ran Vijai Singh, J.

(By Hon. Dr. B.S. Chauhan, J)

This case has a chequered history, as it has earlier been decided by this Court and the Hon'ble Supreme Court has set-aside the said judgment and order and remanded the case for deciding a fresh. This petition has been filed for seeking the relief of quashing the order dated 31/10/1991 passed by the A.D.M. (Nazul), Allahabad to put the property in dispute for auction for the purpose of allotment rejecting the application of the petitioner for allotment on the ground of his continuous possession, as the original lessee has violated the terms of the lease inducting the petitioner illegally.

Facts and circumstances giving rise to this case are that the shop in dispute was originally allotted to Smt. Wahidun Bibi (Now deceased) widow of late Sri Abdul Aziz by Nazul Department Nagar Mahapalika Allahabad. In 1973 she inducted the petitioner in the said shop to meet her expenses and since then the petitioner claims to be in possession of the said shop. The said lessee Smt. Wahidun Bibi died on 27/12/1984 issueless. After her death one person by name Sri Riaz Ahmad (non party) applied for transfer of lease of the said shop in his favour claiming himself as an adopted son of late Wahidun Bibi. One Smt. Rafiqunnisa (non-party) also moved an application for seeking free hold rights in the said shop on the ground of certain Government Order dated 19/9/1996 passed in her favour.  According to the said order a direction was issued that Free Hold rights be created in her favour in the said shop. As her case was not considered, she filed Writ Petition No. 20430 of 1992 claiming to be the only heir of Smt. Wahidun Bibi, the original allottee seeking direction for creating the free hold rights in respect of the said shops and also to carry out the mutation in her favour. One Sri Mohammed Ali also filed Writ Petition No. 16325 of 1995 in respect of another Shop No. 195 wherein he claimed the rights under the will in his favour and also submitted that there was a partnership with Smt. Wahidun Bibi so he was entitled to continue in possession of the said shop.  All the three writ petitions relate to the properties left by Smt. Wahidun Bibi. However, considering the controversy involved therein this Court suo motu extended its scope and examined the validity of the Government Orders providing for conversion of nazul land into free hold, though validity of any such Government Order had never been challenged by any of the petitioners. This Court disposed of all the three writ petitions by a common judgment in Satya Narain Kapoor Vs. State of U.P. & Ors, (1998) 1 AWC 1, and issued large number of directions, observing that the character of nazul land cannot be changed and free hold rights cannot be created out of nazul estate. Perpetual lease on nazul leases cannot be granted in favour of individuals etc. The said judgment was challenged before the Hon'ble Supreme Court and in State of U.P. & Anr.  Vs. Satya Narain Kapoor (2004) 8 SCC 630, the Hon'ble Supreme Court set-aside the said judgment and order observing that the Court could not travel beyond the pleadings and the validity of the Government Orders could not be examined without framing proper issue and giving notice to the State to the effect that the Court wanted to examine the validity of the said orders suo motu. The cases have been remanded to be decided de novo. None of the counsel appearing in this petition (which is being heard with a bunch of cases) has challenged the validity of the Government Orders providing for such a conversion, nor any of them is willing to make any submission on such issues, thus the Court proceeds only on the pleadings taken in the petition and examine as to whether the relief sought by the petitioner herein can be granted.

Shri Manish Goyal, learned counsel appearing for the petitioner has raised large number of issues and made grievance against Smt. Rafiqunnisa, in whose favour certain orders have been passed by the State in respect of the shop in dispute. As to whether the petitioner has a right to challenge the order dated 31/10/1991, or seek consideration of his application for conversion of the said shop from nazul land to free hold or direction to consider his application dated 29/3/1997 for that purpose requires consideration as the prime issues.

Shri S.M.A. Kazmi, learned Advocate General duly assisted by Shri C.K. Rai, learned Standing Counsel and Smt. Archana Srivastava have vehemently opposed the petition contending that the application for conversion of nazul land into free hold rights can be filed by a person who is a lessee, his assignee or having an agreement to sell with the lessee or his nominee or tenant under the Rent Control Act.

In the instant case, the petitioner does not fall in any of the category, therefore, the petition itself is not maintainable and the Court cannot issue a direction to consider his application/representation as no relief can be granted by the authority concerned. More so, relief against Smt. Rafiqunnisa cannot be granted by quashing the orders challenged by the petitioner passed in her favour as she has not been impleaded as a party. It is further contended that the Court cannot issue direction to decide the representation if the petitioner is not eligible to make the said representation.

We have considered the rival submissions made by the learned counsel for the parties and have perused the material available on record.

We find full force in the submissions made by Shri Kazmi, learned Advocate General that this Court cannot issue direction to the authority concerned to consider an application/representation without assessing the fact situation and examining as to whether the petitioner can get a relief sought by him before the said authority as the submissions so made stands full fortified by the judgments of the Hon'ble Apex Court in A.P.S.R.T.C. & Ors. Vs. G. Srinivas Reddy & Ors,. JT 2006 (3) SC 189 and Employees State Insurance Corporation Vs. All India I.T.D.C. Employees Union & Ors., JT 2006 (4) SC 26.

Mr. Manish Goyal, appearing on behalf of the petitioner could not point out as under what category he could seek the relief of conversion.

Paragraph 5 of the writ petition reads as under:

"That during the year 1973 said Wahidun Bibi being an old and issueless lady, inducted  the petitioner into possession of the shop in question to meet out her expenses and since then the petitioner has been in occupation of the shop in question to the full knowledge of the officials and employees of the Nagar Mahapalika, Allahabad."    

The petitioner for the reasons best known to him has not filed the copy of the lease deed in favour of the original lessee, thus it is not possible to determine whether under the terms of the lease, petitioner's induction could be valid.

In paragraph 22 of the writ petition, the petitioner himself has quoted Clause 15 of the Government Order dated 16/7/1940 as amended by Government Order 17/2/1942 which provided as under:

"No sub letting or transfer of shops shall be allowed. Any lessee found to have sublet or otherwise transferred his shop shall be deemed to have automatically forfeited his lease and shall be immediately evicted and the shop put to auction again." (Emphasis added).

Induction of the petitioner as per his own admission had been in violation of the Government Orders issued from time to time, therefore, a person who has the audacity to enter into the possession in contravention of law does not have a right to be heard in equity Courts as it would revive an illegality committed by him. So far as the conversion of the free hold rights is concerned, we are not in a position to issue any direction to consider his application as Sri Manish Goyal, learned counsel appearing for the petitioner is not in a position to point out in which category of eligible persons the petitioner has applied or could apply.

There was a clause to consider such application on behalf of the rank trespasser. However, this Court in Noorjahan (Smt.) Vs. State of U.P. & Ors., (2003) 2 ARC 450, struck down the said clause observing that there could be no policy decision giving support to such illegal activities. In pursuance thereof, the Government Order dated 18/4/2005 has been issued deleting such category of persons as it encourages criminal minded anti social elements to forcibly grab the land.

Mr. Manish Goyal has vehemently submitted that the judgment of this Court and the operation of the Government Order dated 18/4/2005 are prospective in nature and as his application is pending since 1996, it requires to be decided as per law existing on the date of submission of the application.    

The Hon'ble Supreme Court in Union of India & Ors. Vs. Indian Charge Chrome & Anr., (1997) 7 SCC 314 held that the law which is to be applied in such a case is the law prevailing on the date of decision making. A pendency of an application does not create any legal right in applicant's favour.

In State of Tamil Nadu Vs. M/s. Hind Stone & Ors., AIR 1981 SC 711, while dealing with a similar issue the Hon'ble Supreme Court held that the application is to be decided as per the law applicable on the date of decision and not as per the law applicable on the date of filing the application. The Court held as under:-

"While it is true that such application should be dealt with within a reasonable time, it cannot on that account be said that right to have an application disposed of in a reasonable time, clothes an applicant for a lease with a right to have the application disposed of on the basis of rules in force at the time of making of the application. No one has a vested right to the grant or renewal of a lease and none can claim a vested right to have an application for the grant or renewal of a lease dealt with in a particular way, by applying particular provisions. In the absence of any vested rights in any one, an application for a lease has necessarily to be dealt with according to rules in force on the date of the disposal of the application despite the fact that there is a long delay since the making of application."

The said judgment has been approved and a similar view has been reiterated by the Hon'ble Supreme Court in V. Karnal Durai Vs. District Collector, Tuticorin & Anr., (1999) 1 SCC 475, wherein it has been held that if during the pendency of an application for grant of a mining lease the rules are amended, the application is to be decided as per the amended rules.

Similar view has been reiterated in Howrah Municipal Corporation & Ors. Vs. Ganges Rope Company Ltd. & Ors., (2004) 1 SCC 663, wherein reliance had been placed by the Court on its earlier judgments in Usman Ganij. Khatri of Bombay Vs. Cantonment Board & Ors., (1992) 3 SCC 455 and State of West Bengal Vs. Terra Firma Investment & Trading Pvt. Ltd, (1995) 1 SCC 125, wherein the Apex Court had held that application is to be decided on the basis of the law existing on the date of decision and not on the basis of the law prevailing on the date of submission of the application.

Thus, the submissions made by Shri Goyal are preposterous and not worth merit.

By amendment, petitioner sought quashing of the order dated 19/9/1996, and all other consequential orders creating free hold rights in favour of Smt. Rafiqunnisa. However, the relief sought cannot be granted to the petitioner for non-joinder of necessary party. Smt. Rafiqunnisa is not impleaded as a respondent, nor any application for impleadment has been filed. Application filed by Smt. Rafiqunnisa for her impleadment in this case as respondent had been rejected by this Court vide order dated 15/10/1997, as it was opposed by the petitioner himself. Maintainability of such an application also seems to be doubtful as principle enshrined in the doctrine of resjudicata is applicable in the proceedings at different stages in the same suit.

In Satyadhyan Ghosal & Ors. Vs. Smt. Deorajin Debi & Anr., AIR 1960 SC 941, the Supreme Court considered the applicability of the doctrine in the proceedings at different stages in the same Suit and held as under:-

"The principle of res judicata is based on the need of giving a finality to judicial decision. What it says is that once a res is judicata, it shall not be adjudged again. Primarily, it applies as between past litigation and future litigation....... This principle of res judicata is embodied in relation to Suits in Section 11 of the Code of Civil Procedure; but even where Section 11 does not apply, the principle of res judicata has been applied by courts for the purpose of achieving finality in litigation...... The principle of res judicata applies also as between two stages in the same litigation to this extent that a court, whether the trial court or a higher court, having, at an earlier stage, decided a matter in one way, will not allow the parties to re-agitate the matter again at the subsequent stage of the same proceedings."

This view has consistently been approved and followed by the Supreme Court in large number of cases. In Arjun Singh Vs. Mohindra Kumar, AIR 1964 SC 993, the Apex Court observed as under:-

"...... though Section 11 of the Code of Civil Procedure clearly contemplates the existence of two Suits and the findings in the first being res judicata in the later Suit, it is well established that the principle underlying it is equally applicable to the case of decision rendered at successive stages of the same Suit or proceeding. But where the principle of res judicata is involved in the case at the different stages of proceedings in the same Suit, the nature of the proceedings, the scope of the inquiry which the adjective law provides for decision being reached as well as the specific provisions made on matters touching decision are some of the material and relevant factors to be considered before the principle is held applicable."

Similar view has been reiterated by the Supreme Court in L.R. Ganapathi Thevar (dead) by his legal representatives Vs. Sri Navaneethaswaraswami Devasthanam, AIR 1969 SC 764; and Ishwar Dutt Vs. Land Acquisition Collector, AIR 2005 SC 3165.  

Necessary means what is indispensable, needful and essential, in respect of which, nothing is vague or nebulous (Vide J. Jaya Lalitha Vs. Union of India & Anr, AIR 1999 SC 1912).

A necessary party is one without whom no effective order can be made; a proper party in whose absence an effective order can be made but whose presence is necessary for a complete and final decision on the question involved in the proceedings. (Vide Udit Narain Singh Malpaharia Vs. Additional Member, Board of Revenue, Bihar & Anr.), AIR 1963 SC 786. A person who may be adversely affected directly by the decision of a Court is a necessary party, for the reason that any order passed behind his back may not be binding upon him being passed in violation of the principles of natural justice. (Vide  Prabodh Verma & Ors Vs. State of U.P. & Ors, AIR 1985, SC 167; Ishwar Singh & Ors  Vs. Kuldeep Singh & Ors, 1995 (Supp) 1, SCC 179; Bhagwanti & Ors. Vs. Subordinate Services Selection Board, Haryana & Anr., 1995 (Supp) 2 SCC 663; Central Bank of India Vs. S. Satyam & Ors., (1996) 5 SCC 419; J. Jose Dhanapaul Vs. S. Thomas & Ors., (1996) 3 SCC 587; Arun Tewari & Ors. Vs. Zila Mansavi Shikshak Sangh & Ors., AIR 1998 SC 331; Azar Hasan & Ors. Vs. District Judge, Saharanpur & Ors, (1998) 3 SCC 246; Ram Swarup & Ors. Vs. S.N. Maira & Ors., AIR 1999 SC 941; L. Chandrakishore Singh Vs. State of Manipur & Ors., (1999) 8 S.C.C. 287; Mohd. Riazul Usman Gani & Ors. Vs. District & Sessions Judge, Nagpur & Ors., AIR 2000 SC 919; Nirmala Anand Vs. Advent Corporation (P) Ltd. & Ors., AIR 2002 SC 2090; M.P. Rajya Sahkari Bank Maryadit Vs. Indian Coffee Workers' Cooperative Society Ltd. & Ors., AIR 2002 SC 3055; and Ramrao & Ors. Vs. All India Backward Class Bank Employees Welfare Association & Ors., AIR 2004 SC 1459; K.H. Siraj Vs. High Court of Kerala & Ors., AIR 2006 SC 2339; and Avtar Singh Hit Vs. Delhi Sikh Gurudwara Management Committee & Ors. , (2006) 8 SCC 487).

In Ramesh Hirachand Kundanmal Vs. Municipal Corporation of Greater Bombay & Ors., (1992) 2 SCC 524, the Hon'ble Supreme Court held that parties, whose presence before the Court is necessary in order to enable the Court effectually and completely to adjudicate upon and settle all the questions involved in the suit, are necessary parties. What makes a person a necessary party is not merely that he has relevant evidence to come on some of the questions involved, nor it is merely that he has interest in the correct solution of some questions involved, and as relevant arguments to advance. The only reason which makes it necessary to make a person a party to an action is so that he should be bound by the result of the action, and the question to be settled, therefore, must be a question in the action which cannot be effectually and completely settled unless he is a party.

In Savitri Devi Vs. District Judge, Gorakhpur & Ors., AIR 1999 SC 976, the Hon'ble Supreme Court held that the presence of a necessary party which is  necessarily required as one of the parties is to implead as necessary party is to avoid multiplicity of the proceedings, which is also one of the main objects of the Order 1 Rule 10 CPC. If a necessary party is not impleaded or its application for impleadment is rejected and he is adversely affected, it may not be bound by the said judgment or would have a right to come up with a separate suit to enforce his alleged rights, which would amount to ultimately multiplicity of the proceedings.

In Razia Begum Vs. Sahebzadi Anwar Begum & Ors., AIR 1958 SC 886 the Hon'ble Supreme Court held that the person claiming to be a necessary party must be a person who must have a direct interest in the action.

In Director of Technical Education & Anr Vs. Smt K. Sitadevi, AIR 1991 SC 308, the Hon'ble Supreme Court examined a case regarding the correction of the date of birth in the service record. The case was filed by the employee without impleading the State (employer), and the submission that the relief was sought only against the Technical Education Board; which had issued the certificate containing the date of birth on the basis of which the date of birth had been entered in her service book, and thus, employer was not a necessary party, was rejected observing as under:-

"We, therefore, clarify the legal position that a decree without the State being a party is not binding on the employer (State) in the matter of determination of the date of birth."

Undoubtedly, a party can be added at any stage of the proceedings as held by the Hon'ble Supreme Court in Bal Niketan Nursery School Vs. Kesari Prasad, AIR 1987 SC 1970, but no application for this purpose has been filed. Non-joinder of a necessary party is always fatal as provided in the principles enshrined in proviso to order I Rule 9 C.P.C.

Therefore, question of interfering with the orders passed in favour of Smt. Rafiqunnisa, is not permissible as she is not a party before us.

In view of the above, we do not find any force in the writ petition. It is accordingly dismissed. Interim order, if any, stands vacated.




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