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PANT COLONY COOPERATIVE HOUSING SOCIETY LTD. KHATAULI,DISTRICT MUZAFFARNAGAR AND ANOTHER versus STATE

High Court of Judicature at Allahabad

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Pant Colony Cooperative Housing Society Ltd. Khatauli,district Muzaffarnagar and another v. State - WRIT - C No. 19253 of 1991 [2005] RD-AH 2351 (5 September 2005)

 

This is an UNCERTIFIED copy for information/reference. For authentic copy please refer to certified copy only. In case of any mistake, please bring it to the notice of Joint Registrar(Copying).

HIGH COURT OF JUDICATURE OF ALLAHABAD

Court No.37

Civil Misc. Writ Petition No. 19253 of 2001

Pant Colony Cooperative Housing Society Ltd. Khatauli,district Muzaffarnagar and another vs. State of U.P.and others.    

Hon'ble R.K.Agrawal, J.

Hon'ble Mrs. M.Chaudhary, J.

By means of the present writ petition filed under Article 226 of the Constitution of India, the petitioner, Pant Colony Cooperative Housing society Ltd. through its Secretary, Sri Satpal Singh and one Sri Harish Pal are seeking the following reliefs:

(i) issue a writ, order or direction in the nature of certiorari quashing the order dated 15.2.2001 passed by respondent no.1.

(ii) issue a writ, order or direction in the nature of mandamus commanding the respondents not to cancel the sale deed executed in the name of the petitioner society dated 20.11.80 vide Annexure 11 and not to dispossess its members from plot nos. 632, 633 and 638 area 1.30 acres, situate in the town of Khatauli, district Muzaffarnagar;

(iii) issue any other writ, order or direction which this Hon'ble Court maqy deem fit and proper in the circumstances of the case to meet the ends of justice; and

(iv) award cost of the petition to the petitioners from the contesting respondents.

By means of an amendment application which has been allowed by this Court on 17th August, 2005 the following relief has also been added:

(v) issue a writ, order or direction in the nature of certiorari quashing the order dated 21.6.2001 passed by respondent no.2.

Briefly stated the facts giving rise to the present writ petition are as follows:

According to the petitioners, petitioner no.1 is a registered Cooperative Housing Society formed with an object to provide plots for the houseless refugees migrated from Pakistan and to construct houses for themselves. The District Magistrate, Muzaffarnagar was ex-officio President of the Society which has been established in the year 1951. The Government of Uttar Pradesh decided to requisition Plot Nos. 632, 633 and 638, measuring 1.30 acres for the purpose of constructing 24 refugee quarters for which purpose notice under Section 3 of the U.P. Land Acquisition (Rehabilitation of Refugees) Act, 1948 (hereinafter referred to as the Act) was published on 26th September, 1951. Subsequently, a notification under section 9(1) of the Act was issued on 14th January, 1952. The possession of the land was taken over by the Public Works Department on 16th October, 1952 whereas the award was made on 23rd July, 1952. Thereafter vide letter dated 8th June, 1961 the State Government took a decision to settle the aforesaid Plot Nos. 632 and 633 with the petitioner no.1- Society on payment of Rs. 15,768/-. The plots were transferred to the petitioner no.1 society on 1st March, 1968 by the District Relief and Rehabilitation Officer. The State Government also executed sale deed on 20th February, 1980 in respect of the aforesaid two plots in favour of the petitioner no.1- society. In the sale deed a specific clause was inserted that this is a transfer for the purposes of the Government Grants Act, 1895 as amended from time to time in its application to Uttar Pradesh and further the land hereby conveyed shall be used by the purchaser for erection within two years from the date of execution of the deed of houses for refugees as defined in Clause (VIII) of Section 2 of the Act which are in accordance with the bye-laws of the purchaser and the purchaser shall obtain necessary permission of the authority concerned for that constructions and if the land thereby transferred or any part thereof is not required for the purpose aforesaid or by the purchaser or if the purchaser shall commit a breach of the covenants hereinbefore contained, it shall be lawful for the State Government, notwithstanding the waiver of any previous right, to determine this conveyance and to resume the land hereby conveyed or such part thereof as it is not required for the said purpose without payment of any compensation to the purchaser. According to the petitioner, on account of certain litigation between petitioner no.1-Society and Bharamal the mutation of land in question could not take place with the result  the construction activities could not be started. After the litigation with Bharamal was finalized and the name of petitioner no.1-society was mutated in the revenue record one Sri Jaipal Singh, who was the successor of Bharamal, again made a complaint to the State authorities whereupon the Special Secretary, Revenue Department, Government of Uttar Pradesh vide order dated 1st June, 2000 took a decision that status of refugees no longer exists and, therefore, giving of land in question to petitioner no.1-society is not at all justified and the possession of the land be taken and proceeding for cancellation of the sale deed be started. The said order dated 1st June, 2000 is under challenge. It appears that pursuant to the direction given by the Special Secretary, Revenue Department, the District Magistrate, Muzaffarnagar issued notice to the petitioners calling upon them to show cause as to why deed be not cancelled and possession be not taken. Whereupon the petitioners submitted a reply to the effect that the matter is subjudice before this Court and an interim order directing for maintaining status quo is operating. It was requested by the petitioners that the District Magistrate should await the decision of this Court. However, the District Magistrate vide order dated 21st June, 2001 had cancelled the deed and directed that proceeding for resumption of land be started when the construction had not taken place within two years and the status of the refugees no longer existed.  The order dated 21st June, 2001 is also under challenge in the present writ petition by way of an amendment application which has been allowed by this Court vide order dated 17th August, 2005.

We have heard Sri B.D.Mandhyan, learned counsel for the petitioners, learned standing counsel appearing for respondent nos. 1 and 2 and Sri Pankaj Mittal, learned counsel appearing for Jaipal Singh, who has been impleaded as respondent no.3 vide Court's order dated 19th December, 2001 on the impleadment application filed by Sri Jaipal Singh.

Learned counsel for the petitioner submitted that as the plots in question have been acquired by issuance of notice under Section 9(1) of the Act and the sale deed has been executed by the State Government in favour of petitioner no.1 on 20th November, 1980 it was not open to the State Government to cancel the sale deed and to take proceeding for the release of the acquired plots. In support of the aforesaid plea, the learned counsel placed reliance of the following two decisions:

(i) Balwant Narayan Bhagde vs. M.D.Bhagwat and others (AIR 1975 SC 1767) and

(ii) Mahesh Dutta and others vs. State of U.P. and others (1999(3) A.W.D. 2646).

According to him as the possession has been taken over by the State Government in the year 1952 itself and was handed over to the petitioner no.1-society on 30th October, 1966 the proceedings for release of the acquired land cannot be initiated at all. In the alternative, he submitted that the proceeding for cancellation of sale deed has been initiated at the behest of the State Government without giving any notice or opportunity of hearing resulting in an empty formality before the District Magistrate for consideration of the explanation given by the petitioner. Specific averments regarding no notice or opportunity of hearing having been given to the petitioners by the State Government has been mentioned in paragraph 44 of the writ petition, which is reproduced below:

"44. That direction has been issued by respondent no.1 to respondent no.2 to cancel the sale deed and take possession of the land, therefore, respondent no.2 is adamant to cancel the sale deed and take possession of the land forcibly without providing opportunity of hearing to the petitioner. No notice has given to the petitioners. No date was fixed for hearing and no opportunity of hearing was afforded to the petitioner. Rather the impugned order has been passed behind the back of the petitioners and there was gross violation of the principles of natural justice. Now due to impugned order dated 15.2.2001 there is likelihood of cancellation of the sale deed any time and possession take forcibly. Therefore, it is eminently a fit case for staying operation of the impugned order dated 15.2.2001 passed by respondent no.1 directing respondent n.2 to cancel the sale deed and take possession."

In the counter affidavit filed by Sri Shiv Dayal, Tehsildar (Judicial) Tehsil Jansath, District Muzaffarnagar on behalf of respondents in paragraph 21 the averments made in paragraph 44 of the writ petition has been specifically denied without stating therein as to whether any notice or opportunity of hearing had been given to the petitioner or not. He thus submitted that the State government had not given any notice before taking a decision on 1.6.2000.

Sri Mandhyan further submitted that even though the District Magistrate had issued notice to the petitioner no.1 calling upon it to show cause as to why the deed be not cancelled and possession of the land be not taken by him the petitioner had submitted in its reply that the matter is subjudice before this Court and he ought to await the result of the Court proceeding. Thereafter no notice or any opportunity of hearing was given by the District Magistrate before passing the order dated 21st June, 2001. According to him, the District Magistrate could not have taken any decision except in conformity with the decision taken by the State Government and, therefore, the order dated 21st June, 2001 is wholly illegal and contrary to law.

Learned standing  counsel submitted that present is not a case of release of land, on the other hand it is case of cancellation of deed on account of non fulfillment of the terms and condition mentioned therein for not constructing the quarters for rehabilitation of the refugees within the time specified and therefore, the decision was taken  for resumption of land. He further submitted that a notice was given by the District Magistrate to the petitioners and after considering the reply which was submitted by the petitioner, the order has been passed, therefore, no interference is called for.

Sri Pankaj Mittal, learned counsel appearing for respondent no.3 while adopting the arguments made by the learned standing counsel submitted that as the petitioner had failed to construct the quarters for rehabilitation of the refugees within time, the authority was right to cancel the deed in terms of the deed dated 20th November, 1980 and this Court should not interfere at all.

Having given our anxious consideration to the various pleas raised by the learned counsel for the parties, we find that present is not a case of release of land as canvassed by Sri Mandhyan. In fact, it is a case of action taken for the alleged violation of the terms of the sale deed dated 20th November, 1980 and, therefore, the decisions relied upon by the learned counsel referred to above, have no bearing on the issue in question. It may be mentioned here that under the terms and condition of the sale deed, the petitioner no.1 was specifically required to construct quarters for rehabilitation of the refugees within two years and for non fulfillment of the said condition the State Government had been empowered to cancel the deed and to take possession of the land. Whether or not, the petitioners have violated the  on specific terms and condition of the sale deed could have been determined objectively if a notice would have been issued by the State Government. On the other hand the Special Secretary, Revenue Department, Government of U.P. had already taken a decision on 1st June, 2000 for resuming the possession of the land and for initiating the proceeding of cancellation of sale deed. The specific averments made in paragraph 22 of the writ petition stands un-rebutted by the State respondents as their averments made in paragraph 21 of the counter affidavit filed by Shiv Dayal is wholly vague and it has not fully dealt with the specific averments made in paragraph 44 of the writ petition. Thus the Court is left with no option but to accept the averments made in paragraph 44 of the writ petition and come to conclusion that the Special Secretary, Revenue Department while taking a decision on 1st June, 2000 for resumption of the land and for initiation of the proceedings for cancellation of the sale deed, had not given any notice for opportunity of hearing to the petitioner. In this view of the matter the order dated 1st June, 2000 cannot be allowed to stand as it has been passed in utter disregard and complete violation of the principles of equity, fair play and natural justice. The Court is further of the opinion that once a decision has been taken by the State Government to resume the land the District Magistrate being an officer subordinate was left with no discretion but to follow the decision taken by the State Government. Thus, both the orders dated 1st June, 2000 passed by the State Government and 21st June, 2001 passed by the District Magistrate cannot be sustained which are hereby quashed. However, in the interest of Justice, we direct that the Principal Secretary, Revenue Department, U.P.Lucknow to afford an opportunity of hearing to the petitioners who shall submit their explanation/reply within a month from today. Respondent no.3 shall also file his reply within the same period. The Principal Secretary shall take final decision in accordance with law after giving an opportunity of personal hearing to both the parties within three months from the date a certified copy of this order is filed before him. Till the decision is taken by the Principal Secretary, the interim order passed by this Court on 18th May, 2001 shall continue to remain in operation. It goes without saying that as the State Government had already taken over the possession of the land in question and having transferred it  to the petitioner no.1-society. In the event it comes to the conclusion that the terms of the sale deed have been violated by petitioner no.1 the question of releasing the same would not arise and it can be settled only by ways of public auction.

With the aforesaid observations, the writ petition is disposed of.

5.9.05

MZ.


Copyright

Reproduced in accordance with s52(q) of the Copyright Act 1957 (India) from judis.nic.in, indiacode.nic.in and other Indian High Court Websites

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