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Sri Syed Ali Zaheer assigned his interest under the lease in favour of Maharaja Pateshwari Prasad Singh of Balrampur. FAC |
On 7.10.1961, there was a second renewal in 185 favour of the present respondents, as the heirs of the said Maharaja Sri Pateshwari Prasad Singh. FAC |
On 11.8.1981, Respondent lessees, in collaboration with M/s Ambar Builders (P) Limited applied to the LDA under Sec.15(1) of the Act for permission to put up a multi storeyed building on the demised property. FAC |
The permission was refused on the ground, inter alia, that the proposed construction would bring about a change in the user permit ted under the lease. FAC |
The lessees preferred an appeal before the Appellate Authority who dismissed their appeal. FAC |
The RevisionPetition filed by the lessees before the Government under Sec.41(1) of the Act was partly allowed and the Government by its order dated 15.10.1984, remitted the matter to the appropriate authority under the Act for a fresh consideration. FAC |
On 31.3.1984, during the pendency of the revision petition respondents submitted a modified plan, styling the construction as consisting of "residential flats". FAC |
After remand, the Nazool Officer is said to have given his "No objection Certificate" dated 2.12.1984 for the grant of permission. FAC |
The power of attorney holder of re spondents, a certain Sri Pawan Kumar Aggarwai, filed an affidavit dated 28.12.1984 before the appropriate authority of the LDA in regard to their being no impediment under Urban Ceiling Laws and the manner in which the Lessees propose to comply with any order that may eventually be ma... |
Finally on 23.1.1985, the Vice Chairman of LDA sanctioned the permission. FAC |
This was formally communicat ed to the Respondents on 31.1.1985. FAC |
The lessees were re quired to, and did, deposit Rs. 53,440 with the LDA towards what was called 'Malba ' charges. FAC |
This marked one stage of the proceedings. FAC |
The next stage of the matter opened on 24.7.1985 with the issue of directions from Government purporting to be under sec.41(1) of the Act interdicting the progress of the construction as, in the view of the Government, the lessees had violated the conditions of the lease; that the matter would require further examinati... |
In W.P. 3732 of 1985 Respondent Lessees challenged this direction of the Government before the High Court, which allowed the petition and quashed those directions. FAC |
Thereafter, on 12.8.1985, the Government brought to the notice of the then Vice Chairman of the LDA what, according to Government, were serious illegalities in the sanction of the permission dated 31.1.1985 and indicated to the Vice Chairman that sanction earlier 186 granted on 31.1.1985 be reviewed and revoked. FAC |
The Vice Chairman, however, did not appear to share the view of Government either as to the existence of any legal infirmi ties in the grant of permission or as to the availability and the justifiability of review of the permission suggested by Government. FAC |
The disinclination of the Vice Chairman in this behalf was communicated to the Government by letter dated 12.9.1985. FAC |
This marked yet another stage of the proceedings. FAC |
The State Government, apparently, was in no mood to relent. FAC |
By communication No. 5062 37 37 3 1985 dated 15.10.1985 Shri Kamal Pandey, the then Secretary to Govern ment of Uttar Pradesh, wrote to the Chairman, LDA recapitu lating therein the previous proceedings in the matter of grant of permission for the "BalrampurTowers" on the lease land and enumerating what, according to G... |
To that letter was annexed, a show cause notice which the Chairman was asked to serve on the Lessees and the Builders associated with the construction. FAC |
It is necessary to excerpt some portion of that communication. FAC |
"It has come to the notice of the Govt.that in obtaining the said permission the following illegalities, irregularities, material misrep resentation, fraudulent statements, conceal ments of material facts etc.appear to have been committed. FAC |
" Referring to the various alleged illegalities, and breaches of covenants and of violations of law which, ac cording to Government, vitiated the grant of permission to build and also render the lease liable to forfeiture. FAC |
The communication proceeded to direct the Chairman. FAC |
"Therefore, the Governor is pleased to direct you to serve the enclosed show cause notice in the Maharani, Sri Singh and Builders and obtain their explanation within three days of the service of the notice, give them an opportunity of heating on the fourth day and submit your comments on the explanation along with your... |
" The relevant portions of the show cause notice annexed to the said letter and intended to be, and was later, served on the respondents Lessees said: "Therefore, in compliance with the instruc tions of the Govt. FAC |
Maharani Raj Laxmi Kumari Devi Sahiba and Sri Singh and M/s Arebar Builders (P) Ltd. are hereby given the show cause notice and an opportunity of hearing and they are required to explain within three days of the receipt of this notice as to why the Nazul lease granted in their favour be not cancelled and the unauthoris... |
"If the desired explanation is not received within three days of the service of this notice by the undersigned, it will be presumed that they have nothing to say in their defence and thereafter action for can cellation of nazul lease and building permit and the removal of the unauthorised construc tions will be taken a... |
The respondents filed their objections and representations against the proposed cancellation. FAC |
But Government, by its order No. 5496/37 3/85 dated 19.11.1985, found the explanation unacceptable to it and proceeded to terminate the lease. FAC |
The operative part of the "notice" terminating the lease reads: "Now therefore on account of the aforesaid breach of the lease conditions the Governor of U.P. does hereby terminate the lease. FAC |
You are required to hand over posses sion of the land and building standing thereon to Collector, Lucknow, within 30 days of the receipt of this notice otherwise action for eviction will be taken against you at your cost. FAC |
" 188 This order was, as stated earlier, challenged by the respondentlessees in WP No. 3463 of 1986 before the High Court. FAC |
So far as the permission for development of the property earlier granted on 31.1.1985 was concerned, separate action was taken by the Vice Chairman of the LDA who issued the notice dated 9.1.1986 to the respondents requir ing them to show cause why the permission should not be cancelled. FAC |
Respondents objected to the proposed action; but the Vice Chairman found the objections unacceptable and proceeded, by his order No. 363/VC/RBO/86 dated 19.4.1986, to cancel the permission. FAC |
The operative portion of the said order dated 19.4.1985 reads: "From the above it is clear that the above irregularities, material mis representa tion and fradulent statements have been made along with the building map plan and other documents submitted by Sri D.P. Singh and he has deliberately concealed material facts... |
Therefore, the permis sion dated 31.1.1985 granted to him is being cancelled. FAC |
" The two Lessees challenged this cancellation before the High Court in two separate writ petitions filed by each of them in WP 68 19 of 1985 and WP 367 of 1986 respectively. FAC |
The High Court was persuaded to the view that the proceedings initiated and the action taken by the Government and the Vice Chairman of the LDA in the matter, respective ly, of forfeiture of the lease and the cancellation of the permission to build were both infirm in law and required, to be quashed. FAC |
Accordingly, writ petitions 6819 of 1985 and WP 367 of 1986 were allowed and the order dated 19.11.1985 of the Government purporting to cancel the lease was quashed. FAC |
Likewise, WP 3463 of 1986 filed jointly by the Lessees was allowed and the show cause notice dated 9.1.1986 as well as the order dated 19.4.1986 of the Vice Chairman cancelling the permission were quashed. FAC |
We may first take up the appeals of the State Gov ernment and of the LDA assailing the order of the High Court quashing the cancellation of the lease. Ratio |
Sri Yogeshwar Prasad for the appellants 189 submitted that the High Court fell into an error in allowing a matter, which should properly have been the subject matter of a civil suit, to be agitated in proceedings under Article 226 of the Constitution. ARG |
Learned counsel submitted that the relationship between the parties was one of the Lessor and Lessee; the dispute between them pertained to the question whether there were breaches and non performance of the covenants and conditions of the lease justifying the forfei ture of the lease, and that these matters, pertained... |
Learned Counsel further submitted that the question whether there were breaches of covenants on the part of the lessee involved the construc tion of the terms of the lease deed and required evidence on the matter. ARG |
Disputes of this nature, learned counsel submit ted, could not be resolved on mere affidavits. ARG |
Thirdly, Sri Yogeshwar Prasad submitted that on the merits of the conten tions, the High Court should have noticed that even on the facts admitted, there were clear violations of the covenants and conditions of the lease. ARG |
Learned counsel also submitted that the view of the High Court that a reasonable opportuni ty of being heard had been denied to the respondents was erroneous and that, at all events, no hearing could be contemplated in the context for forfeiture of a lease of this nature. ARG |
Sri Sorabjee for the respondents contended that the State, even as a lessor, could not act arbitrarily either in the grant or premature termination of the leases of public property and disputes arising in such contexts cannot always be reckoned as private law situations and that, at all events, the threatened exercise ... |
The show cause notice preceding the cancellation of the lease and the decision dated 19.11.1985 to cancel the lease, refer to and rely upon 10 grounds. Ratio |
Grounds 1 to 7 pertain to what the Government consider to be violations and breaches of the terms and conditions of the lease. Ratio |
They pertain to an alleged change of user, to subletting and sub division of the leasehold property. Ratio |
The grounds also refer to the alleged non disclosure of the terms and condi tions of the Memorandum dated 7.7.1984 between the Lessees on the one hand and Messrs Amar Builders Private Limited on the other. Ratio |
The grounds for forfeiture also refer to the likelihood of fraud being practised on the prospective pur chasers of the fiats as to the nature and extent of the lessees ' subsisting interest under the lease and the limitations thereon. Ratio |
190 We do not propose to go into the merits of these grounds and their sufficiency in law to support the purported for feiture as, in our view, this exercise, having regard to the disputed questions of fact that are required to be gone into in that behalf, are extraneous to proceedings under Article 226 of the Constitu... |
In regard to the merits of the grounds for forfei ture of the lease, the High Court after an elaborate discus sion of the relevance and tenability of each of the grounds, the learned judge held: "From the comments made by me on the above nine grounds it would be seen that some of the grounds are irrelevant or illusory ... |
It has also been seen that while under the lease deed the right of re entry could be exercised only for a breach of the term of the lease in presenti, the lease has been cancelled for a breach in future. Ratio |
In this view of the matter the im pugned order of the State Government cannot be sustained. Ratio |
" Shri Yogeshwar Prasad says that this exercise Was extra neous to a proceeding under Article 226 as the question whether the construction with 39 flats would be one unit or multiplicity of units; whether if third party rights were created by the transfer, or use, of the flat, that would amount to sub letting or assign... |
Learned counsel submitted that even according to the learned judges there were serious questions to be examined. ARG |
On a consideration of the matter, we think, in the facts and circumstances of this case, the High Court should have abstained from the examination of the legality or correctness of the purported cancellation ' of the lease which involved resolution of disputes on questions of fact as well. Ratio |
In Express News Papers vs Union of India, [1985] Supp. 3 SCR 382 Venkataramiah, J. in a somewhat analogous situation observed: "The rest of the questions relate truly to the civil rights of the parties flowing from the lease deed. PRE |
Those questions cannot be effectively disposed of in this petition under Article 32 of the Constitution. Ratio |
The questions arising out of the lease, such as, whether there has been breach of the convenants 191 under the lease, whether the lease can be forfeited, whether relief against forfeiture can be granted etc. PRE |
are foreign to the scope of Article 32 of the Constitution. PRE |
They cannot be decided just on affidavits. PRE |
These are matters which should be tried in a regular civil proceeding. PRE |
One should remember that the property belongs to the Union of India and the rights in it cannot be bartered away in ac cordance with the sweet will of an Officer or a Minister or a Lt.Governor but they should be dealt with in accordance with law. PRE |
At the same time a person who has acquired rights in such property cannot also be deprived of them except in accordance with law. PRE |
The stakes in this case are very high for both the parties and neither of them can take law into his own hands. PRE |
" Accordingly, we hold that the question whether the purported forfeiture and cancellation of the lease were valid or not should not have been allowed to be agitated in proceedings under Article 226. ARG |
Sri Sorabjee submitted that great hardship and injustice would be occasioned to the respondents if the State Government, on the self assumed and self assessed validity of its own action of cancellation of the lease, attempts at and succeeds in, a resumption of possession extra judicially by physical force. ARG |
Sri Sorabjee referred to the notice dated 19.11.1985 in which the Government, accord ing to Sri Sorabjee, had left no one in doubt as to its intentions of resorting to an extra judicial resumption of possession. ARG |
Sri Sorabjee referred to paras 3.10 and 4 of the order dated 19.11.1985. ARG |
A lessor, with the best of title, has no right to resume possession extra judicially by use of force, from a lessee, even after the expiry or earlier termination of the lease by forfeiture or otherwise. Ratio |
The use of the expression 're entry ' in the lease deed does not authorise extrajudicial methods to resume possession. Ratio |
Under law, the possession of a lessee, even after the expiry or its earlier termination is juridical posSessiOn and forcible dispossession is prohibit ed; a lessee cannot be dispossessed otherwise than in due course of law. Ratio |
In the present case, the fact that the lessor is the State does not place it in any higher or better position. Ratio |
On the contrary, it is under an additional inhibition stemming from the requirement that all actions of Government and Governmental authorities should have a 'legal pedigree '. Ratio |
In Bishandas vs State of Punjab, ; this Court said: "We must, therefore, repel the argument based on the contention that the petitioners were trespassers and 192 could be removed by an executive order. PRE |
The argument is not only specious but highly dangerous by reason of its implications and impact on law and order." PRE |
Before we part with this case, we feel it our duty to say that the executive action taken in this case by the State and its officers is destructive of the basic principle of the rule of law. Ratio |
" Therefore, there is no question in the present case of the Government thinking of appropriating to itself an extra judicial right of re entry. Ratio |
Possession can be resumed by Government only in a manner known to or recognised by law. Ratio |
It cannot resume possession otherwise than in accord ance with law. Ratio |
Government is, accordingly, prohibited from taking possession otherwise than in due course of law. Ratio |
In the result, the appeals of the State of Utter Pradesh (SLPs 4761 and 4762 of 1987) and of the LDA (SLPs 13298 and 11498 of 1987) directed against the common Judgment dated 8.12.1985 in so far as it pertains to WP 6819 of 1985 and WP 357 of 1986 are allowed and the said two writ petitions are dismissed, leaving the q... |
Any developmental work that may be made by the lessees or at their instance would, of course, be at their own risk and shall be subject to the result of such proceedings. Ratio |
We may now turn to the controversy of the cancella tion or revocation dated 19.4.1986 of the permission earlier granted under section 15 of the "Act", which was the subject matter of writ petition No. 3463 of 1986. Ratio |
The order of revocation was passed by the successor Vice Chairman, Shri Govindan Nair, IAS. Ratio |
The earlier permission was granted by the then Vice Chairman, Shri Babu Ram. Ratio |
A show cause notice dated 9.1.1986 preceding the cancel lation was issued by Vice Chairman, Shri Govindan Nair himself. Ratio |
The order dated 19.4.1986 revoking the permission was challenged before the High Court on four grounds, viz., (a) that the lessees had had no reasonable opportunity of showing cause against the action proposed in the notice dated 9.1.1986 and that an opportunity of an oral hearing had 193 been denied; (b) that the Vice... |
The High Court accepted grounds at (a), (b) and (d). Ratio |
It did not find it necessary to go into ground (c) in regard to which the High Court observed: "The petitioners also contended that the ViceChairman of Lucknow Development Au thority was estopped from cancelling the sanction to build, more so when it was acted upon . . . . . Ratio |
In the instant case this question need not be gone into detail inasmuch as sanction to build was sought to be cancelled on the ground of sup pression of material facts, fraud and misrep resentation etc. Ratio |
" In regard to the Lessees ', grievance at (a) supra of denial of natural justice, the High Court said: "He even did not give any opportunity of hearing to the petitioner on the said question and passed an order some 2 1/2 months thereaf ter without even touching the objection of the petitioner regarding the competence... |
Some new facts which found place in para 3 of the show cause notice also found place in the order. Ratio |
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