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Court No. - 32
Case :- WRIT - C No. - 49810 of 2007
The present petition has been filed by the petitioner seeking the
following reliefs:
The facts leading to the filing of the present petition in brief are that
an agreement to sell was executed in favour of Dr. Nandlal Tahiliani on
08.03.1972 along with delivery of possession by the erstwhile lessee for a
consideration. The agreement to sell was in respect of Premise No. 22,
Hastings Road, Allahabad with all these hold rights and the rights
attached to the land in building. The said agreement was an unregistered
agreement. It is stated that in pursuance of the said agreement to sell the
father of the petitioner and, after his death, the petitioner is in actual
2
Sri Rahul Sripat has argued that both the grounds which are the
basis for passing the order dated 25.8.2006 are wholly arbitrary and illegal
inasmuch as all the rights were duly transferred in the agreement to sell
executed in favour of the predecessor in interest of the petitioner. He
further argued that this Hon'ble Court in the case of P.D. Tandon vs.
State of Uttar Pradesh, AIR 1986 56 has already held that the State
Government is bound to renew the lease and the lessee in occupation shall
continue as tenant holding over after the expiry of lease. He has further
argued that the observation of the State Government in the order dated
25.8.2006 that free hold rights cannot be granted in favour of petitioner as
the agreement to sell is an unregistered agreement is fallacious as the
requirement of compulsory registration was incorporated in Section 17 of
the Registration Act which came into effect from 01.01.1977 in the State
of Uttar Pradesh. He argues that the agreement to sell in favour of
predecessor interest was executed on 8.3.1972 which was much prior to
the amendment of Section 17 of the Registration Act with effect from
01.01.1977, as such the benefits cannot be denied merely on the ground
that the agreement to sell was not a registered one. He has further argued
that from time to time various Government Orders have been issued
laying down the policy of the State Government for conversion of lease
hold rights into free hold rights and the State Government extended the
benefit of conversion even in favour of unauthorised occupants as such
denying the benefit of free hold rights merely on the ground that the
4
Sri Rahul Sripat has also drawn our attention to an additional fact.
In a Testamentary Suit No. 12 of 1982 and Testamentary Case No. 9-10 of
1981, the heirs of the initial lessee, who had executed the agreement to
sell dated 8.3.1972, had challenged the said agreement and, in the said
proceedings, the validity of the agreement to sell in favour of the
predecessor in interest of the petitioner was upheld in the judgement dated
13.9.1983 passed in the aforesaid suits. The judgement dated 13.9.1983
was further upheld in the Special Appeal No. 15 of 1983 filed challenging
the judgement dated 13.9.1983. The judgement of the special appeal dated
10.11.1986 has also been filed as Annexure-3 in the writ petition.
Sri Rahul Sripat, learned counsel for the petitioner, thus, submits
that there is no dispute pertaining to the agreement to sell in favour of Dr.
Nandlal Tahiliani or the possession of the land in question.
The writ petition was filed in the year 2007, however, the State
Government did not file a reply for a period of twelve years.
Sri Rahul Sripat, learned counsel for the petitioner, has placed
before us the various Government Orders pertaining to the conversion of
lease hold rights into free hold rights in the State of Uttar Pradesh.
For the first time, the State Government issued a Government Order
on 2.12.1992 which provide for conversion of lease hold rights into free
hold rights in respect of Nazul lands in favour of the lessees. The lessees
were divided into three groups as follows and also prescribed the rates on
which the conversion can be applied:
The said policy continued upto 19.11.1998 on which date the State
Government clarified about the applicability of the rates with respect to
the applicants who had applied for conversion upto 18.8.1997. It is
relevant to state that vide Government Order dated 29.8.1996 the State
Government had provided for conversion of lease hold rights into free
hold rights in favour of the purchasers/agreement holders who had
purchased the property from the lessee by a registered agreement. The
State Government thereafter issued a Government Order dated 1.12.1998
providing for a simplified procedure for conversion of lease hold rights
into free hold rights. The said Government Order provided that an
application shall be accompanied by 25% deposit on self-assessment basis
and the conversion shall take place in accordance with other details
provided in the said Government Order dated 1.12.1998. The said order
dated 1.12.1998 also provided for free hold in favour of unauthorised
occupants. The provision with regard to unauthorised occupants are
quoted here-in-below:
^^’kklu ds laKku esa ,sls izdj.k Hkh vk, gSa ftues utwy Hkwfe dks vukf/kd`r :i ls
dqN O;fDr;ksa@ laLFkkvksa }kjk iathd`r foØ; i= }kjk fdlh vU; O;fDr dks foØ;
dj fn;k gSA bldk vFkZ ;g gqvk fd vukf/kd`r dCtsnkj }kjk iathd`r foØ; ds
ek/;e ls Hkwfe dk ewY; nsdj Hkwfe dks Ø; fd;k gS vkSj foØsrk ekSds ij dCtsnkj ugha
gSA vr% ,sls Øsrkvksa ds i{k esa mUgsa voS/k dCtsnkj ekurs gq, Ýh gksYM dh dk;Zokgh
dh tkrh gS rks mUgsa mlh Hkwfe dk nqckjk ewY; nsuk iM+sxkA ,sls izdj.k mu voS/k
dCtsnkjks ds izdj.k ls fHkUu gS ftUgksusa utwy Hkwfe ij fcuk dksbZ ewY; fn, voS/k
dCtk lh/ks fd;k gSA vr% ,sls izdj.kks esa ftuesa utwy Hkwfe fdl iV~Vsnkj ls fHkUu
O;fDr@ laLFkk ls iathd`r foØ; i= ds ek/;e ls ftuds }kjk izkIr dh xbZ gS muds
i{k esa Ýh gksYM djrs le; fj;k;r nh tk;A 101 oxZ ehVj ls 150 oxZ ehVj rd
utwy Hkwfe ds voS/k dCtsnkjksa ds fy;s ;g fj;k;r fu/kkZfjr Ýh gksYM ewY; dk 50
izfr’kr j[kk tkuk mfpr gksxk D;ksafd ,sls voS/k dCtsnkj iwoZ esa mldk ewY; ,d ckj
vnk dj pqds gSA vFkkZr vkoklh; iz;ksx ds fy, 120 izfr’kr ds LFkku ij v|ru
lfdZy jsV dk 60 izfr’kr ,o O;olkf;d iz;ksx ds fy, 200 izfr’kr ds LFkku ij
100 izfr’kr orZeku lfdZy jsV ds ewY; ij Ýh gksYM fd;k tk,A fdUrq 151 oxZ
7
ehVj ls 200 oxZ ehVj rd voS/k dCtsnkjksa ds }kjk ;g nj vkoklh; ekeyksa esa v|
ru lfdZy jsV ds 90 izfr’kr rFkk O;olkf;d ekeyksa esa 150 izfr’kr dh nj ls ewY;
ns; gksxhA bl gsrq jftLVMZ cSukek }kjk Hkwfe Ø; djus dh dV vkWQ MsV 1-1-92 gSA
bl frfFk ds ckn ls voS/k dCtsnkjks ds fo:) csn[kyh dh dk;Zokgh dh tk, vkSj
fdlh Hkh n’kk esa Ýh gksYM ugha fd;k tk,xkA 'kklukns’k tkjh gksus ds fnukad ls 2
ekg dh vof/k rd gh mijksDruqlkj Ýh gksYM djkus dh NwV jgsxhA**
The petitioner had applied for conversion of his lease hold rights in
pursuance of this Government Order dated 1.12.1998.
Sri Rahul Sripat, learned counsel for the petitioner, has drawn our
attention to the subsequent Government Order dated 10.12.2002 wherein
certain conditions were changed. The relevant paragraph with regard to
unauthorised documents is as under:
present case.
Sri Rahul Sripat has drawn our attention to the Government Orders
extracted above and submits that on the one hand the State Government is
refusing to convert the lease hold rights into free hold rights as prayed by
the petitioner on a technical ground that the agreement to sell was not
registered on the other hand as per the own policy of the State
Government even the possession of unauthorised occupants is being
legitimised by converting free hold rights in their favour, this according to
the counsel for the petitioner, smacks of arbitrariness and thus the stand
taken by the State Government against the petitioner is violative of his
rights enshrined under Articles 14 and 21 of the Constitution of India. He
further submits that the reasoning given by the State Government that the
rights cannot be converted only because the petitioner holds an an
unregistered agreement to sell whereas the State Government is ready and
willing to convert the rights in favour of the unauthorised documents
makes the order wholly arbitrary, illegal and the impugned order can be
said to be suffering from 'Wednesbury arbitrariness'. He further submits
that prior to 1.1.1977 the agreement to sell were not required to be
registered under law and thus the rights flowing from such an agreement
cannot be curtailed only by a Government Order. He submits in terms of
the an unregistered agreement to sell which has been duly upheld and
accepted in the testamentary case and the rights that flow from the
agreement cannot be denied the benefit only on account of a subsequent
amendment made in the Registration Act with effect from 1.1.1977 which
has no retrospective effect. He states that an unregistered agreement to
sell prior to 1977 has to be treated at par with the registered agreement to
sell after 1.1.1977 as both are in accordance with law that prevailed on the
date of the execution of the agreement. He further argues that the intent of
mentioning registered agreement in the Government Order dated
1.12.1998 is only to ascertain the genuineness of the transaction and
cannot be used to deny the benefit that flow from an agreement, as in the
9
Sri Rahul Sripat has relied upon the judgement of this Court in Writ
– C No. 19608 of 2010 (Sangam Upnivashan Avas Evam Nirman Sahkari
Samiti Ltd. vs. State of U.P. Thru P.S. Housing & Urban Planning & Ors.)
decided on 11.5.2018 wherein this Court observed as under:
The next case relied upon by learned counsel for the petitioner is
Ram Singh and others vs. Sughar Singh, 2010 SCC OnLine All 1728
wherein the this High Court has observed as under:
Sri Rahul Sripat has also relied upon the judgement of the Supreme
Court in the case of Kunal Kumar Tiwari alias Kunal Kumar vs. State
of Bihar and another, (2018) 16 SCC 74 to impress that the construction
of a statute should be one that would promote the purpose or object
underlying the Act and he thus submits that the intent of the State
Government by issuing Government Orders was to convert the lease hold
rights into free hold rights in favour of the persons who are in legal
occupation of the land based upon the documents which are legal on the
date of its execution.
He has next relied upon the judgement of the Supreme Court in the
case of Union of India and another vs. Pfizer Limited and others,
(2018) 2 SCC 39 to stress that while interpreting statute words can only
be added if the literal interpretation of the Section leads to an absurd
result, he thus submits that the literal interpretation of the Government
13
Order as was done while passing the impugned order will lead to absurd
results as on the one hand and unauthorised occupants would be entitled
to conversion of his rights and, on the other hand, a person, who has the
valid legal instrument in his favour, is not entitled to the benefits of the
free hold rights. He has also placed before us a Full Judgement of this
Court in Writ C No 41958 of 2008 (Anand Kumar Sharma vs. State of
U.P. Thru Secretary and others), decided on 13.2.2014 wherein a
reference was made before the Full Court pertaining to the rates on which
the free hold rights were to be granted, whether it would be the rates
applicable on the date of application or the date on which the actual free
hold rights are granted.
Learned counsel for the petitioner has relied upon the case on State
of Uttar Pradesh and another vs. Harish Tandon, (2016) 15 SCC 242
to argue that the Apex Court had directed the lease hold rights to be
converted into free hold rights in accordance with Government Order
dated 1.12.1998. The Hon'ble Supreme Court in the said case was dealing
with the issue as to whether the rates mentioned in the Government
Orders i:e based upon the circle rate would prevail or the rates as notified
by the U.P. Avas Evam Vikas Parishad and Development Authorities for
conversion of their land would apply to the Nazul lease. The Hon'ble
Supreme Court held that the Schemes are different and the rates as
prescribed for conversion by U.P. Avas Evam Vikas Parishad and
Development Authorities could not apply for calculating the rates for
conversion which would be governed on rates as specified in the
Government Orders for conversion of leasehold right into freehold right
i:e on the basis of circle rate. However, the Supreme Court transposed the
petitioner to the appropriate point of time and directed the conversion of
his rights on the basis of Government Order dated 1.12.1998. Para 7, 8
and 9 of the judgement are quoted herein below:
8. We, therefore, take the view that the High Court was
not correct in direction that the conversion of the
respondent-writ petitioner's leasehold rights to
freehold should be government by the G.O. Of 1995
which admittedly apply to the lease granted by the U.P.
Avas Evam Vikas Parishad and Development
Authorities.
On the other hand, the learned Standing Counsel has tried to defend
the impugned order in the writ petition and has contended that no vested
right flows in favour of the petitioner in terms of the an unregistered
agreement to sell dated 8.3.1972 and have relied upon the judgement of
Anand Kumar Sharma vs. State of U.P. Thru Secretary and others,
15
2014 2 ADJ 742 (FB) wherein this Court has held that mere expectancy
of a future benefit is not vested right. The Standing Counsel has also
argued that the State Government rightly rejected the claim of the
petitioner for grant of free hold rights as the agreement to sell dated
8.3.1972 was unregistered document and no sale deed was executed in
between the parties. The Standing Counsel has further relied upon the
decision of the Hon'ble Supreme Court in the case of Raheja Universal
Limited vs. NRC Limited and others, (2012) 4 SCC 148 to contend that
the Supreme Court has held that the agreement to sell does not of itself
create any interest or charge on the property and another judgement of the
Hon'ble Supreme Court in the case of Meghmala and others vs. G.
Narsimha Reddy and others, (2010) 8 SCC 383 to the same effect that
an agreement to sell does not create any right or title in favour of the
intending purchaser. In the written arguments filed by the Standing
Counsel, it has been reiterated that a registered sale deed was never
executed between the parties and, therefore, the petitioner is not entitled
to seek grant of free hold rights over the property.
Coming to the case relied upon by the Standing Counsel in the case
of Raheja Universal (supra) the question raised before the Supreme
Court was in respect of the jurisdiction BIFR under the Sick Industrial
Companies (Special Provisions) Act, 1985 (hereinafter referred to as the
'SICA') and its overriding effect on Transfer of Property Act. The
Supreme Court held that SICA 1985 was special law and would prevail
over the Transfer of Property Act. The Supreme Court on considering the
provisions of SICA Act and its overriding effect on the Transfer of
Property Act had held that an agreement to sell of itself does not create
interest in land. There is no quarrel with the argument that an agreement
to sell by itself does not create any interest in the immovable property,
however, the right that flow from the covenant cannot be denied to the
holder of the agreement in an arbitrary and illegal manner. It cannot be
said that any interest with regard to the right to seek renewal of lease or
conversion of free hold charges do not flow from such an agreement. We
are afraid that the said judgement has no application to the facts of the
present case as the present case relates to the grant of free hold rights in
pursuance of a policy decision of the State Government framed for the
benefit of lessees of the Nazul leases and the benefit flowing from the said
policy decision can be denied only on the grounds which pass the test of
Article 14.
Shri Rahul Sripat learned senior counsel for the petitioner has relied
upon the case on State of Uttar Pradesh and another vs. Harish
Tandon, (2016) 15 SCC 242 to argue that the Apex Court had directed
the lease hold rights to be converted into free hold rights in accordance
with Government Order dated 1.12.1998. The Hon'ble Supreme Court in
the said case was dealing with the issue as to whether the rates mentioned
in the Government Orders i:e based upon the circle rate would prevail or
the rates as notified by the U.P. Avas Evam Vikas Parishad and
Development Authorities for conversion of their land would apply to the
Nazul lease. The Hon'ble Supreme Court held that the Schemes are
different and the rates as prescribed for conversion by U.P. Avas Evam
Vikas Parishad and Development Authorities could not apply for
calculating the rates for conversion which would be governed on rates as
specified in the Government Orders for conversion of leasehold right into
freehold right i:e on the basis of circle rate. However, the Supreme Court
transposed the petitioner to the appropriate point of time and directed the
conversion of his rights on the basis of Government Order dated
1.12.1998. Para 7, 8 and 9 of the judgement are quoted herein below:
8. We, therefore, take the view that the High Court was
not correct in direction that the conversion of the
respondent-writ petitioner's leasehold rights to
freehold should be government by the G.O. Of 1995
which admittedly apply to the lease granted by the U.P.
Avas Evam Vikas Parishad and Development
Authorities.
The Full bench after considering the submissions recorded that the
applicant for free hold right has no vested right in his favour and,
secondly, it is not the date on application but the date of consideration for
grant of such rights which would be relevant for applying the prevalent
policy. We are bound by said Full Bench decision to the extent of law laid
down. The Full Bench had answered the questions raised before it in the
following manner:
was wholly wrong for passing the order dated 25.8.2006 rejecting the
application of the petitioner for grant of free hold rights.
We quash the same and direct that the application of the petitioner
for grant of free hold rights be considered on the rates that were prevalent
on 25.8.2006 treating the agreement to sell dated 8.3.1972 as an
agreement in conformity with the agreement referred to in the
Government Order dated 1.12.1998.
No order as to costs.