TaxTMI 
TaxTMI 
TaxTMI 
2012 (7) TMI 1134
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....#39;) and granted relief to City Montessori School (Respondent No. 1 in Civil Appeal No. 10181 of 2011 and the Appellant in Civil Appeal No. 10180 of 2011) in substantially similar terms. An ancillary question which needs determination is whether the High Court had rightly quashed the action taken by LDA and Nazul Officer, Lucknow in compliance of order dated 4.5.2009 passed in Writ Petition No. 4085/2009. 2. For the sake of convenience, the parties shall hereinafter be referred to as the Appellants and Respondent No. 1. 3. Background facts and details of the cases filed by the parties 3.1. The Nazul Officer leased out plot No. 92A, Mahanagar, Faizabad Road, Lucknow to Shri Moni Mohan Banerjee (hereinafter described as 'Shri Banerjee') in 1958 for a period of 30 years with a right to seek two renewals of 30 years each. The terms of the lease were incorporated in the registered deed executed on 14.2.1959. 3.2. After about 3 years, the Nazul Officer granted lease of the adjoining plot bearing No. 92 A/C to Shri Banerjee for a period of 7 years commencing from 1.8.1961 for garden purposes. The registered lease deed dated 29.1.1964 executed between the Governor of Uttar Pra....
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....espondent No. 1. The latter deposited 25% of the bid money, i.e., ₹ 7,40,700/- but did not pay the balance amount within the stipulated period despite notices dated 21.2.1995 and 8.3.1995 issued by LDA. Instead, Shri Jagdish Gandhi, Manager of Respondent No. 1 made representation for early delivery of possession of the plots and grant of permission to pay 3/4th of the price in six-monthly installments in accordance with G.O. dated 3.10.1994. LDA did not accept the request of Shri Jagdish Gandhi by observing that the facility of paying the price of plots in six-monthly installments is not available in the cases involving disposal of open Nazul land and garden leases. Shri Jagdish Gandhi then approached the Principal Secretary to the Governor and succeeded in persuading him to send letter dated 3.4.1995 to the State Government to instruct the officers of LDA to hand over possession of the plots and accept the balance amount in easy installments. The State Government forwarded that letter to LDA, which declined to accept the request made by Shri Jagdish Gandhi on the ground that the advertisement did not contain any such stipulation. Simultaneously, a decision was taken to cance....
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....REEMENT This Deed of Agreement is executed between the Vice-Chairman, Lucknow Development Authority, on behalf of H.E. the Governor of the State of Uttar Pradesh, hereinafter referred to as the Vendor, meaning thereby its representatives, assigns and legal representatives (The First Party) AND City Montessori School, Station Road, Lucknow through its Manager, Shri Jagdish Gandhi, aged about 60 years son of late Sh. Phoolchand Agrawal resident of 12, Station Road, hereinafter referred to as the Purchaser, meaning thereby the Purchaser, its heirs, legal heirs and assigns (The Second Party). Whereas as per the directions contained in the Government Order No. 48/9-Aa-4-96-39N/91, dated 12.1.1996, issued with regard to management and disposal of Nazul land, a Nazul Land Khasra No. 92-A/C 754, area 7305 sq. ft. situated at Mahanagar Faizabad Road, Lucknow was disposed of for commercial purpose by way of free-hold tender/auction. In response to the above auction, by this office letter No. 71 N.S., dated 20.5.96 an amount of ₹ 22,21,300.00 was required to be deposited. You deposited ₹ 7,40,000.00 by bank drafts in Nazul Fund, details of which are given below. Challan No. BD....
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.... by paying required stamp fees. Stamp fee and other expenses will be borne by the Second Party; 4. Whereas the Second Party shall deposit the remaining aforementioned tender amount in 10 half yearly installments under relevant accounts titled "0075 legal general services-105 Sale of Land & Property -03 lumpsum amount on converting Nazul land into freehold property" by the prescribed date by treasury challan/ bank draft in main branch of the State Bank at Lucknow; 5. xxx 6. xxx 7. xxx Witness: 1. V K Gupta 2. Special Nazul Officer/Joint Secretary LDA, Lucknow (Underlining is ours) 3.11. Simultaneously, Certificate dated 12.1.1996 was issued by LDA showing delivery of possession of plot No. 92A/C to Shri Jagdish Gandhi. The same reads as under: Office of the Lucknow Development Authority (Nazul Department) Lucknow Possession Certificate Possession of Nazul land Khasra No. 92-A/C(754), area 7305 sq. ft., situated at Mahanagar, Faizabad Road, Lucknow is handed over to Sh. Jagdish Gandhi, Manager, City Montessori School, Lucknow today 12.1.1996. Boundary of the above mentioned land is as under: East Road Mount Carmel School West Land of City Montessori Sch....
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.... issued another order dated 17.2.1996 for conversion of Nazul land from leasehold to freehold and made the same applicable to the cases in which the lease had already expired but the lessee was continuing in possession. The primary object of this order was to legitimize the continued illegal occupation of land by the erstwhile lessees. 3.16. With a view to take advantage of the policy contained in order dated 17.2.1996, Shri Banerjee submitted application dated 23.3.1996 to the Vice-Chairman, LDA for conversion of plot No. A-92, Faizabad Road, Mahanagar into freehold. He submitted another application dated 29.3.1996 to the Special Nazul Officer, LDA with similar prayer by stating that the plot had been allotted to him for the purpose of gardening. Along with the first application, Shri Banerjee annexed photostat copy of lease deed dated 29.1.1964, which related to plot No. 92 A/C. The application made by Shri Banerjee was not entertained by LDA on that ground that after the expiry of lease period, the plot was auctioned and the bid given by Respondent No. 1 had been accepted. 3.17. When the management of Respondent No. 1 started construction of boundary wall on plot No. 92A/C, Sh....
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....tioners in pursuance of the Government Order dated 17.02.1996 had applied for free hold rights of the property after depositing the requisite amount but till date no decision has been taken by the Nazul Officer, Lucknow with respect to the free hold rights to the Petitioner who are successors of late Sri M.M. Banerji, who was the original lease holder. In view of the aforesaid facts, we dispose of the writ petition with a direction to the opposite party No. 2 to take a final decision with respect to the free hold rights of Nazul Plot No. 92 A/C, situated at Mahanagar Lucknow within two months from the date a certified copy of this order is produced. 3.20. In compliance of the direction given by the High Court, the Nazul Officer passed order dated 3.8.2009 and converted 4433 sq. feet of land out of the total area of 7188 sq. feet of plot No. 92A/C into freehold. The remaining area was retained for widening the road. On next day, the Appellants deposited conversion charges amounting to ₹ 1,95,939/-. 3.21. In the writ petitions filed by them, the Appellants did not implead Respondent No. 1 as a party, but the latter impleaded them as Respondent Nos. 4 and 5 in Writ Petition N....
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....ioner school was not ready and willing to perform its obligation under the agreement and in Law. 3.23. The Division Bench then adverted to the Appellants' plea that the direction in Writ Petition No. 4085 (M/B) /2009 cannot be nullified by entertaining a petition filed under Article 226 of the Constitution and held that they are not entitled to get the plot in dispute by paying the paltry amount of ₹ 1,95,939/-. This is evinced from the following extracts of the impugned order: Here, in the instant case, the garden lease in respect of the property in question was granted for a brief period of 7 years in favour of Shri Moni Mohan Banerjee, the predecessor in interest of private Respondent Nos. 4 and 5, which expired in 1968. As per the condition of garden lease agreement, the plot in question was to stand surrendered to the State after the expiry of lease deed. Moreover, after the garden lease period was over, no effort was made by Shri Moni Banerjee for a renewal and perhaps, it was also not renewable under the terms of the lease deed. Thereafter, the land was converted into a commercial property, and it was advertised for auction sale wherein the tender of the Petition....
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....lla of a Court's order directing to consider or take final decision on the case. Thus, the order of official Respondent Nos. 2 and 3, Lucknow Development Authority and Nazul Officer, as also the demand notice and subsequent proceedings regarding grant of freehold right in favour of private Respondent Nos. 4 and 5 deserve to be and is hereby quashed. 3.24 Notwithstanding its finding that a mandamus cannot be issued for enforcing agreement dated 12.1.1996, the High Court virtually allowed the writ petition of Respondent No. 1 by relying upon the 2009 Act and directed the official Respondents to hand over possession of the plot No. 92 A/C to the said Respondent and execute the sale deed on payment of market price at the current rate. The reasons recorded by the High Court for granting relief to Respondent No. 1 are as under: Needless to say that this Court is not only the court of law but also a Court of equity and, therefore, its decision must subserve the cause of justice and in an appropriate case it may grant such relief to which the writ Petitioner would be entitled to in law as well in equity. Equity is not anti-law but a moral dimension of law. Rather it is a grace and co....
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....at the writ petition filed by Respondent No. 1 was highly belated and the High Court committed serious error by entertaining the same. 5. Shri Shanti Bhushan, learned senior Counsel appearing for Respondent No. 1 argued that agreement dated 12.1.1996 was binding on the parties and the High Court committed serious error by declining to issue a mandamus for its enforcement only on the ground that Respondent No. 1 had not paid the balance price. Learned senior Counsel relied upon Rules 50, 50A and 51 of the Nazul Manual and the provisions of the 2009 Act and argued that having accepted the bid of Respondent No. 1, LDA and its functionaries could not refuse to act in accordance with the agreement. Learned senior Counsel submitted that the installments of price could not be paid by Respondent No. 1 because despite repeated representations, LDA neither gave the schedule of installments nor indicated the rate of interest. Learned senior Counsel laid considerable emphasis on the fact that Respondent No. 1 is a charitable institution and argued that even though it may have committed default in payment of the balance price, the High Court was not justified in directing payment of current ma....
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....stallments of balance price within the prescribed time limit then the agreement would become void and LDA will be free to sell the plot to any other person. Admittedly, Respondent No. 1 did not pay the installments of balance price. Therefore, the agreement stood automatically terminated and LDA became entitled to dispose of the plot by adopting an appropriate mechanism consistent with the doctrine of equality enshrined in Article 14 of the Constitution. It is rather intriguing as to why the functionaries of LDA remained silent for more than 13 years and did not repossess the plot in question. This was perhaps due to the pressure brought by the Manager of Respondent No. 1 from different quarters, administrative as well as political. 9. The next question which requires consideration is whether the High Court could invoke the provisions of the 2009 Act and direct LDA to hand over possession of plot No. 92A/C to Respondent No. 1 and execute the sale deed on payment of market price at the current rate. In the writ petition filed on behalf of Respondent No. 1 it was not claimed that in view of the provisions contained in the 2009 Act, LDA is bound to allot plot No. 92A/C or allow Respo....
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....al in the case of lease or half of the total market value in the case of sale. Two provisos to this rule specify the limits of concession. Rule 52 contains a non-obstante clause and empowers the State Government to sanction a lease or sale of nazul land for the particular purpose and at the particular rate keeping in view the special circumstances of the case. These rules do not, in any manner, support the cause of Respondent No. 1 because it failed to pay the price of land in terms of the bid given pursuant to tender notice dated 20.12.1994 or even in terms of agreement dated 12.1.1996 and tried to concoct evidence to show that LDA was the defaulter. 11. The issue which remains to be considered is whether the Appellants are entitled to plot No. 92 A/C and the High Court committed an error by quashing the action taken by the LDA and the Nazul Officer in furtherance of order dated 4.5.2009 passed in Writ Petition No. 4085/2009. It is not in dispute that the term of the garden lease had ended on 31.7.1968 and the same was not extended by the competent authority. Therefore, in view of the stipulations contained in lease deed dated 29.1.1964, he was bound to hand over the plot to the ....