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MADHAV RAO GOLVARKAR (SHRI GURUJI) SMARAK SAMITI & ANR. versus STATE OF U.P. THRU' SECY. MINISTRY OF URBAN DEVLP. & ORS.

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Madhav Rao Golvarkar (Shri Guruji) Smarak Samiti & Anr. v. State Of U.P. Thru' Secy. Ministry Of Urban Devlp. & Ors. - WRIT - C No. 55028 of 2003 [2003] RD-AH 537 (17 December 2003)

 

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HIGH COURT OF JUDICATURE OF ALLAHABAD

COURT NO. 34

''Reserved'

CIVIL MISC. WRIT PETITION NO.55028 OF 2003

Madhav Rao Golvarkar (Shri Guruji)

Smarak Samiti, Agra & anr. ----- Petitioners

Vs.

State of U.P. & ors. -----        Respondents    

    --------------

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

Hon'ble R.C.Pandey, J.

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

This writ petition has been filed for quashing the orders dated 7.11.2003 (Annex 1), passed by respondent no. 1 and dated 25.3.2003 (Annex.2), passed by respondent no. 2 and further to restrain the respondent no. 3 from causing any interference in peaceful possession of the properties in question by the petitioners, and further to direct the respondent no. 1 State, not to give effect to the orders contained in Annex. 1 and 2.

Facts and circumstances giving rise to this case are that petitioner no. 1 claims to be a social organisation, a duly Registered Society, and petitioner no. 2 is looking after its affairs being a member of Bhartiya Janta Party. Petitioner no. 1 filed an application for allotment of land on lease before the respondent no. 4 on 5.3.2001. Similar application was filed by the petitioner no. 2 on 29th September, 2001. The Municipal Board, Koshi Kala (respondent no. 4) passed resolution on 25.7.2001 to allot the land measuring 300 sq yds to the petitioner no. 1 on lease on payment of premium of Rs.11,000/- and yearly rent of Rs.300/- for a period of 15 years. Municipal Board (respondent no. 4) also passed a resolution on 12.10.2001 granting lease of 200 sq. metres of land to the petitioner no. 2 for Rs.11,000/- and on a yearly rent of Rs.300/- for 15 years. It is claimed that lease deed was executed by respondent no. 4 in favour of petitioner no. 1 on 8.8.2001. The orders impugned dated 7.11.2003 and 25.3.2003 have been passed by the respondent nos. 1 and 2 to annul the said resolutions. Though no final decision has yet been taken by the respondent no. 1 in this regard, the petition has been filed, under the apprehension that the respondent no. 1 will annul the said resolutions passed by respondent no. 4, seeking the aforesaid reliefs.

Shri Manish Goyal, learned counsel for the petitioner has submitted that the respondents are adament to annul the resolutions in favour of the petitioners allotting the aforesaid lands on lease. The possession of the aforesaid lands have been given to the petitioners. Lease Deeds have been executed and construction have been made thereon. There is no competence with the respondents to cancel the said lease deeds, at this stage; the respondents are harassing the petitioners for political reasons on mala fide grounds. Therefore, the petition deserves to be allowed.

Shri C.K.Rai, learned Standing Counsel  appearing for the respondent nos. 1 to 3 has submitted that the lease deeds have not been executed nor registered. Petitioners have neither filed the documents showing that the lease deeds granted to them have been registered. There is no document on record to show that the petitioners had ever been handed over the possession of the land nor there is any factual foundation to show that any construction has been raised on the aforesaid lands after getting the plan sanctioned from any statutory authority, required under the law. In view of the provisions of Section 34 (1-B) of the United Provinces Municipalities Act, 1916 (hereinafter called the Act 1916), State Government is fully competent to annul any resolution passed by the Municipal Board if it is found to be contrary to the public interest or in violation of law.

In view of the provisions of the Act 1916, power of transfer of property vested in the Board (4th Amendment) Rules, 1973 (hereinafter called the ''Rules'). Land can be allotted only by holding public auction or inviting public tenders. In case, it is settled for a rate lesser than prevailing market value, previous approval of the State Government is mandatorily required, if the land is sold without previous approval of the State Government.

In the instant case, as no approval of the State Government has been sought, the resolutions itself are meaningless and cannot be given the effect to for the reason that in case where approval of higher authority is required, the order passed and the action taken remain unexecutable unless it is so approved. Therefore, petition is liable to be dismissed.

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

In the instant case, admittedly the Municipality resolved to settle the land on the prevailing market value, i.e. Rs. 11,000/- as premium and Rs.300/- and Rs.200/- as yearly rent. The relevant Rules, applicable in such a case read as under:-

"3. Subject to the provisions of Rule 3-A, a lease of immovable property vested in the Board may be made by the Board without a premium on the following conditions:

That a reasonable annual rent be reserved and made payable during the whole of the term of the lease and the lease or the agreement for the lease be not made for any term without the previous sanction of the Board at a meeting; and for any term exceeding five years and not exceeding thirty years without the previous approval of the District Magistrate, or for any term exceeding thirty years without the previous approval of the Commissioner:

Provided that when it is proposed to lease out an immovable property at a rent lower than a prevailing market rate, or without holding public auction or inviting public tenders, previous approval of the State Government shall be obtained.

3-A.  The Board shall not ordinarily transfer or lease out any property vested in it except by auction or after inviting tenders. In cases where public tenders have not been invited or an auction has not been held, the Board shall record its reasons for entertaining a private offer and the method adopted by it in fixing the rent."

Admittedly, no approval had ever been sought from the State Government in respect of the said plots.

There can be no quarrel to the settled legal proposition that if statute provides for approval of the higher Authority, the order cannot be given effect to unless it is approved and the same remains inconsequential and unenforceable.

A Full Bench of this Court in Shakir Husain Vs. Chandoo Lal & ors., AIR 1931 All 567 has held that any order is good unless disapproved. But where approval is required, the order does not become effective until it is so approved.

A similar view has been reiterated in Shanta Prasad Vs. Collector, Naini Tal & ors., 1978 ALJ 126.

A Division Bench of this Court in Mohammad Ali Vs. The State of Uttar Pradesh & ors., AIR 1958 All 681 considered a case under the provisions of U.P. Municipalities Act, 1916, providing for appointment subject to approval of the Government and considered the distinction between the appointment with permission of the Government and with approval of the Government. The Court observed as under:-

"When a person is employed under a power which is to be exercised subject to the approval of a higher authority or the Government, the appointment holds good so long as the higher authority or the Government has not disapproved of it. There is a distinction between an appointment with the permission of a higher authority or the Government, and an appointment subject to the approval of the higher authority or the Government. An appointment which is to be made with the permission of a higher authority or the Government cannot be made unless the permission is first obtained, but an appointment which can be made subject to the approval of a higher authority or the Government may be made and will be rendered invalid only when it is disapproved by the higher authority."

A Constitution Bench of the Hon'ble Supreme Court in Union of India & ors. Vs. M/s Bhimsen Walaiti Ram, AIR 1971 SC 2295 considered the similar provision requiring approval by the authority concerned and the Court held as under: -

"It is, therefore, clear that the contract of sale was not complete till the bid was confirmed by the Chief Commissioner and till such confirmation, the person, whose bid has been provisionally accepted, is entitled to withdraw his bid. When the bid is so withdrawn and before the confirmation of the Chief Commissioner the bidder will not be liable for damages on account of any breach of contract or for the short-fall of the re-sale. An acceptance of an offer may be either absolute or conditional. If the acceptance is conditional, the offer can be withdrawn at any moment until absolute acceptance has taken place.

While deciding the said case, the Hon'ble Supreme Court placed reliance upon the judgment of the Court of Appeal in Hussey Vs. Hornepayne, (1878) 8 Ch.D. 670 where offer was accepted (subject to the title being approved by the solicitor."

In that case, it was held that the contract became conclusive only on being approved by the solicitor and prior to that it was merely a conditional acceptance and contract did not stand concluded.

In State of Orissa Vs. Harinarayan Jaiswal, AIR 1972 SC 1816, the Hon'ble Supreme Court held that where the statutory provision provides for approval or acceptance by an authority the State reserves for itself the right to accept or reject even the highest bid and in such an eventuality the auction bidder cannot enforce the contract prior to approval as required under the provisions. In that case, the Hon'ble Apex Court examined a case where an auction for country-liquor contract was to be accepted by the Collector subject to the confirmation of the State Government.

In State of U.P. Vs. Vijay Bahadur Singh, AIR 1982 SC 1234, the Hon'ble Apex Court held that the State is entitled to change or revise the policy even subsequent to the acceptance of the provisional bid. The bid becomes final once being approved by the competent authority if approval is required by law. However, if State changes its policy prior to confirmation/approval of the bid, the person, i.e., the highest bidder, cannot raise any grievance whatsoever.

In  Laxmikant & ors. Vs. Satyawan & ors., AIR 1996 SC 2052, a public auction stands completed on approval by the competent authority and prior to that, no right is accrued in favour of the highest bidder. However, once the letter of confirmation is issued, it cannot be changed. In that case, the conditional letter clearly provided that the auction conceived contemplated that acceptance of the highest bid would be required approval by the Board of Trustees. While deciding the said case, the Court placed reliance upon its judgement in Trilochan Mishra etc. Vs. State of Orissa, AIR 1971 SC 733.

While dealing with the approval of the award under the Land Acquisition Act, the Hon'ble Supreme Court in Vijayadevi Navalkishore Bhartia & anr. Vs. Land Acquisition Officer & anr., (2003) 5 SCC 83, held that the authority granting approval does  not act as an Appellate Authority. The Court observed as under:-

"In the context of an administrative act, the word ''approval' does not mean anything more than either confirming, rectifying, assenting, sanctioning or consenting. This is only an administrative power which limits the jurisdiction of the authority to apply its mind to see whether the proposed award is acceptable to the Government or not."

The settled legal proposition, referred to above, makes it clear that  where any statutory provision  provides for approval by a particular authority, order/action by the lower authority remains conditional and contract stands concluded only after accord of the approval. The allotment made by the Municipality remains provisional as it has no competence to execute the lease finally, unless approval was granted by the State Government and, therefore, in such a case Court is required to examine the issue of jurisdiction/competence of the authority/Municipality to finalise a contract as per the statutory provisions dealing with the particular case.  

Thus, in view of the above, in the instant case as approval had not been sought/granted by the State Government as required under the Rules, we are of the considered opinion that no contract stood concluded between the parties, and the petitioners have no cause of action to approach this Court.

In Sacchidanand  Pandey  Vs.  State of West  Bengal, (1987) 2  SCC 295, the Hon'ble Supreme Court held that while  dealing  with  public  property,  the executive must make an endeavour to dispose it of by public  auction or by inviting tenders, though that is the ordinary  rule,  may   not  be an invariable rule. Where there are compelling circumstances necessitating the departure therefrom then the reasons for the departure must be rational  and  should  not  be  suggestive  of discrimination.   Appearance of public justice is as important  as  doing justice.   Therefore,  in case of dealing  with  public  property,  certain percepts  and principles have to be observed  and public interest  is  the paramount  consideration and when  a public property is disposed of,  they should try to get the maximum price.

In  Ram  &  Shyam Co. Vs. State  of Haryana,  AIR  1985 SC 1147, the Hon'ble  Supreme Court held as under:-

"A  welfare State exists for largest good of  the  larger  number, moreso  when  it proclaims  to  be   the  socialist  State dedicated  to eliminate poverty.  All its attempts  should  be to obtain  the  best available  price  while disposing of  its property  because  the   greater  is  the revenue,  the welfare activities will get a  fillip and shot in the arm.   Financial constrains   may  weaken   the  tempo  of activities.   Such an approach serves the larger   public  purpose   of   extending welfare  activities  primarily for  which the Constitution envisages the setting-up of a Welfare State."

In Chenchu Rami Reddy Vs. The Government of Andhra  Pradesh & ors., AIR 1986 SC 1158, the Hon'ble Apex Court indicated that the best method  of disposal  of  public  property  is  by  public auction and  not  by private negotiation and the authorities entrusted with care of public  property are required to show exemplary vigilance. Similar view has been reiterated  in Rashbihari  Panda Vs.  State of Orissa, AIR  1969 SC 1081;   M/s.   Kasturi Lal Lakshmi  Reddy  Vs. State of  J & K, AIR 1980 SC 1992;  and State  of Haryana Vs.  Jage Ram, AIR 1983 SC 1207.

Thus, it is settled law that even if the law does not require settling the public property by auction or inviting tenders, larger public interest demands to adopt the said course.

Provisions of Section 34 (I-B) of the Act 1916 confers unfettered powers on the State Government to annul any resolution/order passed by any Municipal Board or its officer if "in its opinion, such resolution or order is prejudicial to the public interest or has been passed in abuse of powers or in flagrant breach of provisions of any law for the time being in force."      

The State Government has not yet pased any order annulling the resolutions passed by the respondent no.4. This writ petition has been filed for restraining the State Government from annulling the same. We, fail to understand that as to how a writ court can ask a statutory authority not to perform its function.

The Court has no competence to issue a direction contrary to law. (vide Union of India & another vs. Kirloskar Pneumatic Co. Ltd. (1996) 4 SCC 453; State of U.P. & ors. V. Harish Chandra & ors., (1996) 9 SCC 309; and Vice Chancellorl University of Allahabad & ors. V. Dr. Anand prakash Mishra & ors., (1997) 10 SCC 264).

In State of Punjab & ors. V. Renuka Singla & ors. (1994) 1 SCC 175, dealing with a similar situation, the Hon'ble Apex Court observed as under:-

"We fail to appreciate as to how the High Court or this Court can be generous or liberal in issuing such directions which in substance amount to directing the authorities concerned to violate their own statutory rules and regulations."

Similarly, in Karnataka State Road Transport Corporation v. Ashrafulla Khan & ors., JT2002 (2) SC 113, the Hon'ble Apex Court has held as under:-

"The High Court under Article 226 of the Constitution is required to enforce rule of law and not pass order or direction which is contrary to what has been injected by law."

We are, therefore, not in a position to issue a direction to respondent no.1 not to take a decision on merit, as to whether the said resolutions passed by respondent no.4 had not been in public interest.

There are allegations of mala fide in the petition without impleading any person by name, therefore, it is not possible for this Court to entertain the petition. (Vide J.M. Banawalikar Vs. Municipal Corporation, Delhi & ors., AIR 1996 SC 326; State of Bihar & ors. Vs. P.P. Sharma, 1992 (Suppl) 1 SCC 122; I.K. Mishra Vs. Union of India & ors., (1997) 6 SCC 228; and Federation of Officers Association Vs. Union of India & ors., 2003 AIR SCW 1764).

There is nothing on record to show that the lease deed had ever been executed in favour of the petitioner no.1, what to talk of its registration.  It has been mentioned that lease deed had been executed in favour of the petitioner no.1, but pleadings do not disclose that it stood registered, and we fail to understand as in absence of registration how the lease deed even in favour of petitioner no.1 would create an interest in its favour as it would be in contravention of the statutory provisions of the Transfer of Property Act as well as the Stamp Act and the Rules framed thereunder.   Legal submissions have been made presuming that lease deeds had been executed and registered in favour of the petitioner no.1, but no material has been placed on record to substantiate the same. Rather contrary stands proved from the letter dated 23.11.2002, produced by Shri C.K. Rai, learned Standing Counsel.

It is settled proposition of law that a party has to plead the case and produce/ adduce sufficient evidence to substantiate his submissions made in the petition and in case the pleadings are not complete, the Court is under no obligation to entertain the pleas. (Vide Bharat Singh Vs. State of Haryana, AIR 1988 SC  2181; M/s. Larsen &  Toubro  Ltd.  Vs.  State of Gujarat  & ors., AIR 1998 SC 1608; National  Building  Construction  Corporation Vs. S.  Raghunathan  &  ors., AIR  1998  SC 2779; Ram Narain  Arora  Vs. Asha Rani  &  ors., (1999) 1 SCC 141; Chitra  Kumari Vs. Union  of India & ors., AIR 2001  SC 1237;  and  State  of U.P.  & ors.  Vs. Chandra  Prakash Pandey, AIR 2001 SC 1298).                

In   Atul   Castings   Ltd.   Vs. Bawa  Gurvachan  Singh,  AIR 2001 SC 1684, the  Hon'ble  Apex Court observed as under:-    

"The findings in the absence of necessary pleadings and supporting evidence cannot be sustained in law."                        

Similar view has   been reiterated in Vithal N. Shetti  &  Anr.  Vs.   Prakash   N. Rudrakar & ors., (2003) 1 SCC 18.

Petitioners, for the reasons best known to them, did not file any documents to substantiate the pleading/averments made on their behalf.

Petitioners have not laid down any factual foundation as how they could get the lease deeds in their favour without previous approval of the State Government or raised the construction without  getting the plan sanctioned from any competent authority under the law, nor there is any document to substantiate the averments made orally by Shri Goyal on behalf of the petitioners.

On the contrary, Shri C.K. Rai, learned Standing Counsel has relied upon the order dated 23rd November, 2002, passed by the respondent no.4, making it clear that neither the possession of the aforesaid lands had ever been handed over to the petitioners nor any deed had been executed.

Writ jurisdiction is a discretionary. It is not issued merely because if it is lawful to do so. Once a factual stand is taken, it cannot be changed on any legal proposition whatsoever nor it is permissible for the Court to examine the correctness of the findings of fact unless it is found to be perverse being based on no evidence or contrary to evidence, as the writ Court exercises its supervisory jurisdiction and not of appellate forum. The purpose of the writ Court is not only to protect a person from being subjected for violation of law but also to advance justice and not to thwart it. The Constitution does not place any fetter on the power of the extraordinary jurisdiction but leaves it to the discretion of the Court. However, being the power discretionary, the Court has to balance competing interest, keeping in mind that interest of justice and public interest can coallesce in certain circumstances. (Vide Champalal Binani Vs. Income Tax Commissioner, West Bengal, AIR  1970 SC 645; Ramniklal N. Bhutta Vs. State of Maharastra, (1997) 1 SCC 134; Chimajirao K. Shrike Vs. Oriental Fire and General Insurance Co. Ltd., AIR 2000 SC 2532; Ganpatrao Shama Prashant Raje Vs. Ganpat Rao, AIR  2000 SC 3094; LIC of India Vs. Asha Goyal, AIR  2001 SC 549; Roshandeen Vs. Preeti Lal, AIR  2002 SC 33; S.D.S. Shipping Pvt. Ltd. Vs. Jay Container Services Co. Pvt. Ltd. & Ors., 2003 (4) Supreme 44; and Chandra Singh Vs. State of Rajasthan & Anr. JT 2003 (6) SC 20).

Much reliance has been placed by Shri Goel on the Constitution Bench judgment of the Hon'ble Supreme Court in Bishan Das Vs. State of Punjab & Ors., AIR 1961 SC 1570 wherein  placing reliance upon the judgments in Narain Das Vs. Jatindranath, AIR 1927 PC 135; and Beni Ram Vs. Kundan Lal, 26 Indian Appeals, the Apex Court held that a person who raised the construction with the consent/permission of the owner, cannot be held to be a trespasser and, thus, cannot be evicted by an executive fiat.

The ratio of the said judgment has no application in the facts of this case for the reason that here petitioners, admittedly, had never been given possession of the plot nor they raised the constructions, if any, after getting the plan sanctioned by a statutory authority, therefore, it cannot be claimed that they had raised constructions with the consent/permission of the respondents. The law laid down by the Hon'ble Apex Court in the said case cannot be disputed but the facts are quite distinguishable. In that case, one Ramji Lal, with the joint family funds, had constructed Dharmshala, temple and shops  with the permission of Government. The Government wanted to evict and demolished the construction. The Apex Court held that he could not be removed without following the procedure prescribed by the law. The said judgment has been reconsidered and approved time and again by the Hon'ble Apex Court in A.D.M. Jabalpur Vs. Shivakant Shukla, AIR 1976 SC 1207; M/s. Bishamber Dayal Chandra Mohan etc. Vs. State of U.P. & Ors., AIR 1982 SC 33; Express Newspapers Pvt. Ltd. & Ors. Vs. Union of India & Ors., AIR 1986 SC 872; and State of U.P. & Ors. Vs. Maharaja Dharmendra Prasad Singh, AIR 1989 SC 997. The ratio of the aforesaid judgments had been that the land cannot be resumed without  following the procedure prescribed by law.

Undoubtedly, even the trespasser has a right not to be thrown out of the possession forcibly. Even on the assumption that he has no right to remain in possession, he can be evicted only by recourse to law. (Vide Lallu Yeshwant Singh Vs. Rao Jagdish Singh & Ors., AIR 1968 SC 620; Ram Ratan Vs. State of U.P., AIR 1977 SC 619; Krishna Ram Mahale Vs. Mrs. Shobha Vankat Rao, AIR 1989 SC 2097; and Midnapur Zamindary Company Ltd. Vs. Naresh Narain Roy, AIR 1924 PC 124). Similar view has been taken by this Court in Mohammed Yunus Vs. Urban Improvement Trust, Jodhpur & Ors., AIR 1999 Raj. 334.

In Nagar Palika, Jind Vs. Jagat Singh, AIR 1995 SC 1377, the Hon'ble Apex Court has observed that "Section 6 of the Specific Relief Act 1963 is based on the principle that even a trespasser is entitled to protect his possession except against the true owner and purports to protect a person in possession from being dispossessed except in due process of law.

But in the instant case, it cannot be submitted that the petitioners are being evicted without following due process of law. If the proceedings have been initiated to annul the said resolution by respondent no.1, fact situation fortifies the submissions of the respondents and it becomes evident that petitioners are not being thrown out if they had illegally possessed the said land without following the procedure prescribed by law. However, it cannot be forgotten that any statutory provision, which is based on public policy requires strict adherence for the reason that the same had been enacted to protect the interest of the community as a whole. ( Vide Murlidhar Agrawal & Anr. Vs. State of U.P. & Ors., AIR 1974 SC 1924).

The Court is not supposed to interfere and protect a person where the order has been passed in his favour against the public interest or who claims to have settled or acquired a right in clear violation of the Rules or provisions of the Act or where the orders remain void ab initio, being against the public policy or otherwise. The common law doctrine of public policy can be enforced wherefrom an action affects/offends the public interest or where the harmful result of permitting the injury to the public at large is evident.

Thus, from the above discussion, it is evident that the petitioners miserably failed to substantiate the pleadings to show that there has been execution/registration of the lease deeds in their favour from the competent authority nor they had raised the construction after getting the plan sanctioned, nor there is any material to show as under what circumstances the properties in dispute were not put to auction or settled by inviting tenders as was mandatorily required under the law.

We see no justification for restraining the State Government from performing its statutory duty and considering the case of annulling the resolutions passed by the respondent no. 4 in favour of the petitioners.

In the instant case, there is no occasion for the State Government to annul the resolution passed by the respondent no.4, as the same had not been approved by the State Government. The resolutions further required approval of the State Government, as mandatorily required under the law, has not been accorded. Petitioners cannot claim that any right interest had ever stood created in their favour in the said plots. The resolutions remain inexecutable and unenforceable for want of approval of the State Government

Petition is devoid of any merit and is, accordingly, dismissed.

17.12.2003

AKSI


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