Hon'ble S.N.H. Zaidi, J.
(Per Uma Nath Singh, J.) This judgment shall also govern the disposal of connected Review Petition No.210/09, as both these matters relate to and impugn the same cause of action.
This writ petition has been filed with two main prayers for (i)issuance of a writ or order in the nature of mandamus directing the respondents to accept the remaining amount of sale-consideration in respect of plot No.92A/C (Khasra No.754) Mahanagar, Lucknow with interest to be determined by this Court or the official respondents, and (ii) issuance of a writ or order in the nature of certiorari for quashment of entire proceedings relating to grant of freehold rights in favour of Smt. Khela Banerjee (respondent no.4) and Shri Chandak Banerjee (respondent no.5) qua the said plot after summoning the records of proceedings from the office of Lucknow Development Authority (respondent no.2) and Nazul Officer concerned (respondent no.3).
The petitioner-School is being run by a Society which claims to have established several educational institutions in various parts of the city of Lucknow. These institutions have been granted special status as per a Government Order dated 12.12.1971 with liberty to determine the tuition-fee even in excess of the Schedule of fee, prescribed by the State Government, which is, of course, subject to some restrictions. This liberty has been granted particularly to provide better salaries to the teaching staff so as to motivate them for improving the quality of teaching, ensuring the all-round personality development of the students and raising the standard of educational institutions. In pursuit to set up and promote the object of its educational institutions all over the city, the Society/School participated in a public auction and submitted tenders in terms of the advertisement dated 20.12.1994, and it being found the highest bidder also in respect of the plot in question namely 92A/C (Khasra No.754) was allotted the plot having its size 7305 Sq.Ft. On 12.1.1996, an agreement was entered between the petitioner-school and the Lucknow Development Authority and in furtherance thereof the possession of plot was also handed over.
As per averments contained in the writ petition, the plot in question had been given on garden-lease to one Shri Moni Mohan Banerjee in the year 1961 for a period of 7 years. On the expiry of 7 years period of garden-lease, the plot was sold to the petitioner school through auction by the official respondents for commercial use. It also appears that the erstwhile holder of garden lease Shri Moni Mohan Banerjee did not participate in the public auction announced as per advertisement in newspapers after the expiry of garden-lease. The Petitioner-School, thus, started construction of boundary-wall on the premises, but since the same was opposed by Shri Banerjee, the erstwhile garden lease holder, the petitioner-School filed a civil suit namely Regular Civil Suit No.58/1996 through its Manager Shri Jagdish Gandhi wherein Shri Moni Mohan Banerjee was impleaded as defendant no.1 and the Lucknow Development Authority as Defendant no.2. The Civil Court concerned granted a time-bound interim order on 22.2.1996 in favour of petitioner-school. That order was confirmed on 13.5.2002 after hearing both the parties. The Petitioner-School inter alia also mentioned in the pleadings that the plot in question (7305 Sq.Ft) was purchased through an agreement with defendant no.2, the Lucknow Development Authority, and its possession was also delivered to the school. It was, thus, well within the knowledge of defendant no.1, Shri Moni Mohan Banerjee, that the plot had been purchased by the petitioner-school in auction purchase and its possession had also been delivered to it.
Shri Moni Mohan Banerjee, however, went in litigation and filed a writ petition (W.P. No. 446(MB) of 1996) before this Court seeking a writ in the nature of mandamus directing the opposite parties not to violate the terms of garden-lease, although it had expired way back in 60s. He also prayed that even for the purpose of garden-lease, the plot could not have been allotted/settled in favour of any other person. However, the petitioner-school was not impleaded as a party in the writ petition. On 09.2.1996, a Co-ordinate Bench of this Court passed an interim order to the effect that till the next date, the possession of petitioner Shri Moni Mohan Banerjee over the plot was not to be disturbed. Besides, the parties were also prohibited from raising constructions on the plot. Later, the writ petition was disposed of on 30.08.2005 with liberty to petitioner Sri Moni Mohan Banerjee to approach appropriate forum, if so required.
After the death of Shri Moni Mohan Banerjee his legal heirs/successors in interest namely Smt. Khela Banerjee and Chandak Banerjee, respondent nos.4 and 5, applied for mutation of their names in the records of the property belonging to him on 17.03.2008. But since no action was taken, they filed writ petition no.5049 (MB) of 2008. When the writ petition came up for hearing before the Coordinate Division Bench on 06.06.2008, the following order was passed:-
"Hon'ble U.K. Dhaon, J.
Hon'ble Shabihul Hasnain, J.
The petitioners is permitted to implead the Nazul Officer, Lucknow as opposite party no.3.
Heard the learned counsel for the petitioners.
Sri Anuj Kudeshia has put in appearance on behalf of the Lucknow Development Authority, who prays for and is granted two weeks' time to file counter affidavit.
In the meantime the newly added opposite party shall consider and decide the application dated 17th March 2008 of the petitioner for mutation, a copy of which has been annexed as Annexure no.3 to the writ petition.
List this petition in the week commencing 7th July 2008.
Dated:06.06.2008"
However, during the pendency of the said writ petition respondent nos. 4 and 5 filed another writ petition [W.P. No.4085 of 2009 (MB)] to seek a writ of mandamus for conversion of the lease hold rights of petitioners into freehold rights in respect of the plot in question. The writ petition was disposed of vide the order dated 04.05.2009 which on reproduction reads as below:
"Hon'ble U.K. Dhaon, J.
Hon'ble Dr. Satish Chandra, J.
Heard Sri Pratish Kumar, learned counsel for the petitioners, learned Standing Counsel for opposite party no.1 and Sri D.K. Upadhyay, learned counsel for opposite parties no.2 and 3.
The petitioner has alleged that a lease of appurtenant land bearing Plot No.92 A/C measuring 6 Biswas 5 Biswansis 13 Kachwansis (7188 sq.ft.) situated at Mahanagar was granted in favour of Sri M.M. Banerji by the Nazul Officer, Lucknow for gardening purpose for a period of seven years.
Learned counsel for the petitioners submits that Sri M.M. Banerji, predecessor in interest of the petitioners 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.94 A/C, situated at Mahanagar Lucknow within two months from the date a certified copy of this order is produced."
On the other hand, the petitioner-school filed a Regular Suit (No.538/2008) to seek injunction against the dispossession from the property in question, and also for a decree of declaration in favour of its title. On 03.10.2008, the Court granted injunction to prohibit interference with the possession of plaintiff/petitioner-school. However, the Nazul Officer, issued a notice to Chandak Banerjee on 03.8.2009 directing him to deposit Rs.1,95,939/- within a period of 90 days for the purpose of grant of free-hold rights over the property. The petitioner-school through its Manager Shri Jagdish Gandhi had also sent a letter to respondent no.3 herein namely the Nazul Officer, on 06.3.1996, with request to accept the deposit of the remaining 75% amount of auction sale in instalments. Even later on, also, the petitioner-school through its Manager kept on sending reminders and representations to the authorities reiterating its willingness to deposit the balance amount. Being aggrieved by and from the inaction of respondents in not supplying the details of remaining amount and the amount of interest accrued thereon, and on the contrary undertaking the procedural exercise to grant free-hold rights in favour of the Banerjees, the petitioner filed this writ petition.
We have heard the learned counsel for the parties and perused the records.
Shri Shanti Bhushan, learned Senior Advocate, appearing for the petitioner, submitted that the main controversy as impugned in this writ petition is as to whether the petitioner-school being the highest bidder in the auction sale is entitled to get this plot for the purpose of constructing a school building, when its tender was accepted by the official respondents, and pursuant thereto, an agreement was also executed on 12.1.1996.
Shri Shanti Bhushan also submitted that the possession of plot was also handed over by the respondents to the petitioner-school on the date of agreement itself. It is also a submission of the learned Senior Counsel that 25% of the total bid amount being Rs.7,40,700/- was deposited within stipulated time and the balance 75% amount was agreed to be paid in ten equal instalments. As per the terms of agreement, the instalments were to carry interest and the rate of interest was to be informed to the petitioner by the respondents. Clause 1 of the agreement also provided that the balance amount would be paid in ten monthly instalments to be deposited along with the interest amount.
Shri Shanti Bhushan, learned Senior Counsel also contended that the petitioner-school wrote a letter to the Lucknow Developoment Authority on 06.3.1996 mentioning therein that the petitioner, after getting possession of the plot, had requested the Lucknow Developoment Authority to divide the balance 75% of the amount in ten monthly instalments, so that the payment is cleared. That request was repeated in the subsequent letters and by the reminders of different dates. When no action was taken on these letters and neither the rate of interest and the amount of instalments were intimated to the petitioner-school, then the petitioner-school sent a letter to the Secretary, Government of U.P., on 04.3.2009, informing that several letters sent between 1997 to 2008 have not evoked any response from the Special Nazul Officer, Lucknow Developoment Authority, and thus also requested that either the amount of ten monthly instalments along with interest be supplied and if it was not possible, then the total amount inclusive of interest payable by the petitioner be furnished to the petitioner-institution, so that the amount could be paid in one go. As again no action was taken even on this letter, a letter dated 17.7.2009 was sent to the Chief Minister with a copy to the Principal Secretary repeating the same request. However, that letter also did not elicit any response.
In the meantime, the petitioner-school came to know that a decision has been taken to settle this plot in favour of respondent nos.4 and 5 on free-hold basis on 03.8.2009 and pursuant thereto a letter was issued by the Secretary, Lucknow Development Authority, to Shri Chandak Banerjee (respondent no.5) raising a demand of Rs.1,95,939/- to be deposited for granting free-hold rights in respect of the plot in question (after reducing some area to remain available for the purpose of road widening). That letter also mentioned that in case the said amount was deposited within 90 days, a rebate of 20% on that amount would also be admissible. Thus, according to Shri Shanti Bhushan, it was obvious that such action of the State authority is wholly arbitrary. It is unthinkable that any Government authority could decide to settle a plot on any person on free-hold basis for an amount of Rs.1,95,939/-, when the very same plot had been decided to be given to the petitioner-school, on the basis of acceptance its bid in 1994, for over Rs.29 Lacs.
Shri Shanti Bhushan also referred to the garden-lease agreement of 1961 to show that it was in favour of one M.M. Banerjee only for a period of seven years from August, 1961 and it was specifically stipulated that the land could be used only for the purpose of a garden and the same would not even be used for planting of trees etc. and the lessee had to surrender the land after the expiry of seven years period. It was also provided in the garden-lease that in case Sri Moni Mohan Banerjee died before the expiry of the period of lease, his heirs could get the right to hold the land for the said seven years term only if the heirs were so permitted in writing by the Nazul Officer. Thus, hardly any right was created in favour of Shri Moni Mohan Banerjee by this garden-lease agreement and the same had expired in 1968, and had never been renewed thereafter.
The writ petition No.5049(MB) of 2008, which was filed by respondent no.4 Smt. Khela Banerjee and respondent no.5 Shri Chandak Banerjee, was filed even without impleading the petitioner-school. The Government had filed a counter affidavit to that writ petition and in paras 7 and 8 of the counter affidavit it is mentioned as follows:
"7. That further in respect of getting the additional land free hold i.e. garden lease area measuring about 7188 Sq.Ft. which was allotted to the petitioner in year 1961, the uncle of the petitioners i.e. late Mani Mohan Banerjee submitted an application on 23.3.96 and 16.8.97 and enclosed treasury challan of Rs.100/ along with application dt.29.3.97, but the period of garden lease was only up to 7 years from 1961 therefore there was no provision of its renewal and the application of the petitioners' uncle was rejected by the then Special Nazul Officer, vide order dt.29.11.1997.
8. That the application for renewal of garden lease was rejected on the ground that additional land of plot no. 92-A/C was auctioned as per government order and date of auction was fixed for 09.01.95 and in which the City Montessori School being the highest bidder was granted possession of the land on 12.01.96."
Shri Shanti Bhushan, learned senior counsel, also contended that since the period of garden-lease was only for seven years from 1961, and there was no provision for its renewal, therefore, even the application of the uncle namely Shri Moni Mohan Banerjee of respondent no.4 Smt. Khela Banerjee and respondent no.5 Shri Chandak Banerjee was rejected by the Nazul Officer vide order dated 29.11.1997 and that the plot had already been auctioned by the Government on 09.1.1995 and the City Montessori School, petitioner herein, being the highest bidder was granted the possession of land on 12.1.1996. Thus, the auction of the plot was held in terms of a Government Order dated 03.10.1994.
Para 3.19 of the aforesaid Government Order dated 03.10.1994 provided for disposal of the land of garden-lease, the period of which had expired, and it was provided in that paragraph that if the value of the land was less than Rs.1,00,000/-, it would be disposed of by means of auction, but if the value was more than Rs.1,00,000/-, then tenders were to be invited and the land was to be given to the highest bidder on the basis of his tender. It was only on the basis of this G.O. dated 03.4.1994, which was applicable at the time of auction as well as at the time when the agreement was entered into between the Government and the petitioner-school and when the possession was given to the petitioner-school on 12.1.1996, that the land was decided to be sold to the petitioner-school.
It appears that only after the auction, the acceptance of the bid, the execution of the agreement and the delivery of possession on 12.1.1996 that the G.O. in question being relied upon by respondents nos. 4 and 5 came into force/existence on 17.2.1996. Shri Shanti Bhushan, also submitted that the G.O. could possibly have no application to the prayers of opposite party nos.4 and 5 for the following reasons:
(i) The plot which was from 1961 to 1968 covered by the Garden Lease had already been auctioned by means of a tender for more than Rs.29 Lacs in 1995 and of which possession had already been given to the petitioner City Montessori School.
(ii) The period of the Garden Lease having expired in 1968 and there being no provision of its renewal and possession having already been given to the petitioner-school on the basis of an auction, the G.O. dated 17.02.1996 could not possibly apply to the plot. In fact, Clause 4 of the G.O. dated 17.02.1996 itself stated that by the G.O. dated 03.10.1994 that the the land of a Garden Lease whose period had expired had been decided to be disposed off by means of an auction or tender but it had now been decided that if the use had been altered in the Master Plan then it could be disposed off on the basis of the new G.O. at a rate determined by the Govt. by way of free-hold.
It is also a submission on behalf of the petitioner that private respondents nos.4 and 5 are not entitled to the benefits of the decision of the authorities dated 03.8.2009. The action of authorities of trying to confer free-hold rights on respondents nos.4 and 5 for an amount of Rs.1,95,939/- would not be sustainable, as the same land was given to the petitioner-school for an amount of about Rs.29 Lacs in the year 1995-96. Thus, the action of the authorities is wholly arbitrary and irrational and and it can only be termed as wholly mala fide. Learned senior counsel also referred to the judgment of the Hon'ble Supreme Court passed in Menaka Gandhi's case (AIR 1978 SC 597) to argue that any arbitrary action of a Government authority has to be deemed to be violative of Article 14 of the Constitution of India. The main function of the High Court under Article 226 of the Constitution is to sit in judicial review over all arbitrary actions of the authorities, and to quash such orders. Therefore, the order dated 03.8.2009 relating to offer free-hold rights in favour of respondent nos.4 and 5 is liable to be quashed.
Shri Shanti Bhushan also submitted that the first relief the petitioner-school has asked for, is to give a direction to the respondents to accept the total amount of balance consideration from the school in regard to plot no.92A/C, 754, Maha Nagar, Lucknow, with such interest which may be fixed either by the Court or by the respondents. As per agreement, it was stipulated by the State Government that a sale-deed would be executed in favour of the petitioner-school on payment of ten equal monthly instalments which were payable along with the interest to be specified. Thus, there was no default on the part of City Montessori School. The petitioner-school has been writing from 1996 asking for fixation of interest and instalments, so that they could make payment of the entire amount. The entire fault is on the part of the Government and its authorities. In these circumstances, the petitioner-school is entitled to get the sale-deed executed in its favour for the plot after deducting the area which has now been acquired for widening of road allowing the petitioner-school to pay the amount of its bid after adding reasonable interest over the same.
Learned senior counsel urged that the land for the school is very important and the petitioner's getting the plot is in public interest, particularly in the light of the Parliament having recently enacted the 'Right to Education Act' which requires a school in every locality, so that students of the locality can pursue their education in neighbourhood schools and the poor students also get education from the school without payment of fees. It is, therefore, necessary that the authorities be directed to execute a sale-deed of the plot in question in favour of the City Montessori School on a very early date. The petitioner-school has even stated that it is not even insisting on its legal rights in regard to the amount payable by it in accordance with the agreement dated 12.1.1996 and would be prepared to pay any reasonable amount which would be determined by this Court. Further, according to learned Senior Counsel, this Court vide its order dated 02.9.2009 had directed the respondents to indicate the present market value of the property according to commercial rate and in para 4 of the counter affidavit, filed by respondents nos.1 to 3, the commercial rate has been indicated at Rs.24,000/- per Sq.Mtr. according to D.M. Circle rate and it is stated that in open market, the value of land is a little higher than this rate.
After some area of land having been taken away from the plot in question for road widening purposes, the area of land that now remains is 4443 Sq.Ft. only, as mentioned by the authorities in their letter to respondent nos.4 and 5 dated 03.8.2009.
Respondent no. 5 on the other hand filed a short counter affidavit in Court which was sworn on 02.09.2009. In that affidavit it has been pointed out that the Plot No.92-A situated at Maha Nagar, Faizabad Road, Lucknow was leased out to late Shri Moni Mohan Banerjee, the uncle and predecessor in interest of respondent nos. 4 and 5, in the year 1958 for 90 years, upto the year 2048, through a document registered in the office of Sub-Registrar. Apart from the aforesaid land given through lease deed by respondent no.3, the Nazul Officer, the land in dispute comprising area of 7188 sq.ft. was also given for 7 years to late Moni Mohan Banerjee, as it was situated in front of his Bungalow for gardening purpose. The Nazul Officer, respondent no.3, executed a registered lease deed on 20.01.1964 and gave the lease retrospectively with effect from 01.08.1961. In the counter affidavit, it has also been averred on behalf of respondent no.5 that the land given by way of garden lease is the only way for ingress and egress of respondents to their house (no.92A). It is also pointed out in the counter affidavit that the State Government of Uttar Pradesh vide Government Order No.829-R-4-96-629No/95 dated 17.02.1996 provided that the land which is given for agricultural/gardening purpose on lease and the lease period has since expired and that the land continued to be in possession of the lessee, the lessee can get it declared freehold on depositing the requisite charges to be raised by way of demand by State of U.P. Thus upon depositing the freehold charges the land would stand converted into a freehold land in favour of the lessee. Late Shri Moni Mohan Banerjee, predecessor in interest, applied for freehold right of his house as well as of the land given on the garden lease hold right vide application dated 09.04.1996. However, prior to that, as respondent nos. 1 to 3 tried to take forcible possession of the land in question under garden lease for 7 years, late Shri Moni Mohan Banerjee filed a Writ Petition No.446 (MB) of 1996 wherein this Court passed an interim order in favour of the petitioner on 09.02.1996. The said interim order continued till the writ petition was finally disposed of on 30.08.2005 while granting liberty to late Moni Mohan Banerjee to approach appropriate forum afresh in case the respondents acted contrary to law. However, even on repeated requests made by late Shri Moni Mohan Banerjee no demand note towards the freehold charges was issued by the respondents. In the meantime, predecessor in interest Shri Moni Mohan Banerjee expired on 10.05.2006 but prior to his death he executed a registered Will dated 14.07.2005 whereby he bequeathed all his property in favour of respondent nos. 4 and 5 and thus they succeeded to his estate. It is also informed that the house of respondent nos. 4 and 5 namely 92A Maha Nagar, Faizabad Road, Lucknow, situated adjacent to the land of 92A/C, in question, once under garden lease, is presently said to be on rent to the Central Bank of India and Plot No.92A/C is being used for the ingress and egress purpose. It is also submitted in the counter affidavit that when the respondents tried to take forcible possession of the land in dispute in 2008, a Civil Suit was filed in the Court of Civil Judge (SD), Malihabad, Lucknow, who was pleased to grant interim injunction in favour of respondent nos. 4 and 5, which has continued till date. Respondent nos. 4 and 5 applied for mutation of properties standing in the name of Late Sri Moni Mohan Banerjee in their names on records on 17.3.2008, but since no action was taken, they filed Writ Petition No.5049 (MB) of 2008, and this Court vide its order dated 06.06.2008 directed respondent no.2 therein, Nazul Officer, to take decision on the said application dated 17.03.2008 for mutation of names of respondent nos.4 and 5. Thus, in compliance of the aforesaid order, State of U.P. and Nazul Officer carried out mutation in the names of respondent nos. 4 and 5 and also issued a demand note through letter no.891/NS dated 25.03.2009 towards payment of freehold charges in respect of the land of Plot No.92A, Maha Nagar, Faizabad Road, Lucknow, comprising an area of 11260 sq. ft. out of 13398 sq. ft. whereon Late Moni Mohan Banerjee constructed his house. Respondent nos. 4 and 5 thus deposited the money vide challan slip dated 26.03.2009. State of U.P., however, did not take any decision on the application for conversion of the lease hold right into freehold for the appurtenant land on the disputed Plot No.92A/C, Maha Nagar, Faizabad Road, Lucknow, comprising area of 7188 sq. ft. which had been given earlier on garden lease in 1961.
Therefore, respondent nos. 4 and 5 filed another petition seeking directions to the Lucknow Development Authority and Nazul Officer concerned to convert the plot 92A/C, Mahanagar, Faizabad Road, Lucknow, in question having the area of 7188 sq.ft. into freehold in favour of respondent nos. 4 and 5 in pursuance of the Government order dated 17.02.1996. The said writ petition was registered as W.P. No. 4085(MB) of 2009. This Bench of High Court vide an order dated 04.05.2009 thus directed respondent nos. 2 and 3 to take decision on the application for settling the plot on the freehold basis in favour of respondent nos. 4 and 5. It has also been averred in the counter affidavit that respondent nos. 4 and 5 never violated the terms of the garden lease and at no point of time the possession of land was abandoned by them right from the beginning nor was it taken back even after the expiry of lease, by official respondent nos. 1 to 3. Thus, it has been asserted that till date the property in question continues to be in possession of respondent nos. 4 and 5. Respondent nos. 4 and 5 have also submitted that the order passed in Regular Suit No.58 of 1996 filed by the petitioner-school herein was obtained by fraud in a collusive proceeding with respondent no.3, the Nazul Officer concerned. It has been highlighted that vide the order dated 09.02.1996 in Writ Petition No.446 (MB) of 1996, prior to filing of suit by the petitioner-school, the right of possession in respect of the property in question was protected in favour of the predecessor in interest of respondent nos. 4 and 5 and the said right of possession continued till the disposal of the writ petition. The claim of petitioner school has been assailed by submitting that the petitioner did not honour the terms of the agreement dated 12.01.1996. It has also been submitted on behalf of respondent nos. 4 and 5 that they sought the freehold right in respect of the property in question while seeking parity with similarly situated other persons.
After filing of a short counter affidavit dated 02.09.2009, respondent nos. 4 and 5 also filed a detailed counter affidavit on 02.11.2009. In the detailed counter affidavit, a plea has been taken to persuade this court for drawing adverse inference against the petitioner school on the ground that it had challenged the auction notice in 1994 by filing a writ petition [Writ Petition No.11(MB) of 1994]. In the said writ petition, it had also been prayed to issue a command asking the official respondents not to violate the Zonal Development Plan of Zone-5, and not to auction the premises of land as commercial area. It had also been prayed to command the opposite parties to accept petitioner's tender dated 13.12.1994 and sell the land on concessional rate to the petitioner in the light of relevant Government orders and Nazul Rules.
Besides, it has also been contended that the auction notice in respect of the land in question wherein the petitioner was the highest bidder was in violation of the Zonal Development Plan as well as the provisions of the U.P. Urban Planning and Development Act, 1973. In addition to the aforesaid, it has been pleaded that the petitioner has not disclosed this fact in the writ petition with a view to take advantage from the Court. It thus amounts to fraud with the Court in terms of judgment of Hon'ble the Apex Court rendered in the case of S.P. Chengal Varaya Naidu (Dead) vs Jagannath (Dead) & others, reported in (1994) 1 SCC 1. It is also a contention on behalf of respondent nos. 4 and 5 that the petitioner was the only tenderer in the auction dated 20.12.1994 and its bids in respect of 3 plots namely 10A, 92A/C and 91A/B were accepted on 10.01.1995. Petitioner being the single tenderer, the auction should have been cancelled. However, the tenders of the petitioner were accepted in violation of the settled principle of law. Petitioner school deposited only 1/4th of the auction purchase amount and defaulted in payment of remaining 3/4th. That is why the tender was cancelled by respondent no.3, Nazul Officer, in the month of April, 1995 and 20% amount towards initial deposit was ordered to be forfeited. The intention of petitioner school has always been punctuated with malafide from the very beginning. The letter of possession is a forged document, and on the other hand, the land in question remained in exclusive possession of respondent nos. 4 and 5 or their predecessor in interest for use towards egress and ingress to their residential house. Temporary injunction granted by Civil Judge (SD) has also been termed as an order obtained by playing fraud on the Court. Thus, the petitioner school is not entitled to get any equitable relief. On the other hand, it has been asserted that respondent nos. 4 and 5 are entitled to get the benefits of the Government Order dated 17.02.1996 for getting freehold right in respect of the land in question. Thus, under the order of High Court, a demand was raised on 03.08.2009 to deposit freehold charges in the sum of Rs. 1,95,939/- for the land comprising of 4433 sq. ft., against the earlier total area of 7188 sq. ft. Earlier the land had been given to predecessor in interest for garden lease for 7 years with condition that as and when so required for the purpose of widening of road by the Government, it would be vacated. The land was only used for gardening purpose as well as for egress and ingress to their house. Vide Government order no. 82/9-AA-4-96-629/95 dated 17.02.1996 the lands which were given for agricultural and gardening purposes and the lease periods in respect thereof had since expired, were to be declared freehold on depositing the conversion charges. Thus, the predecessor in interest applied for the benefit and ultimately on the direction issued by this Court in writ petition no. 4085 (MB) of 2009, respondent nos. 2 and 3, namely, the Lucknow Development Authority and Nazul Officer concerned, raised a demand note to convert the area of land being 4433 sq. ft. into freehold in favour of the petitioner on depositing a sum of Rs.1,95,939/- which was deposited vide a treasury challan on 04.08.2009. Though the land had been given on garden lease for 7 years in 1961 and the lease deed expired thereafter but the predecessor in interest continued to be in possession of the same till 09.02.1996 without the lease deed being extended further. On 09.02.1996, the possession of the predecessor in interest was protected in Writ Petition No.446 (MB) of 1996 till 30.08.2005 when the writ petition was disposed of. Though there was an agreement entered into between the petitioner and respondents but no sale certificate was issued or sale deed executed in its favour. Respondent nos. 4 and 5 deposited the charges vide a demand note issued by Nazul Officer for conversion of land into a freehold right in favour of them whereas the petitioner school had failed to comply with the terms of the agreement to sell dated 12.01.1996.
In addition to a short counter affidavit and detailed counter affidavit, as referred to herein above, a written submission has also been submitted on behalf of respondent nos.4 & 5.
In the brief facts of the case as set out in the Written Submission it is mentioned that though the petitioner was declared as the highest bidder of the auction bid opened on 09.1.1995 in respect of the plot in question but it only deposited 25% of the total amount to the tune of Rs.7,40,700/- and the rest of the amount of Rs.22,21,300/- was not deposited within the stipulated time. In this background, the School approached the Joint Secretary Housing, who vide his letter dated 12.1.1996 granted special concession to petitioner-school by directing them to deposit the remaining 75% amount in 10 equal six monthly instalments from the date of handing over of the possession of property.
In pursuance of the aforesaid letter determining ten instalments of the remaining amount, an agreement was also signed between the petitioner and Vice Chairman, Lucknow Development Authority, on the same day. The relevant terms of the agreement have been mentioned in Clause 1, 2 and 5.
It is contended in the written submission that in terms of clause 5 of the agreement, the petitioner had an alternative remedy by way of arbitration. Thus, the writ petition is not maintainable. Tenders were invited by official respondent nos. 2 and 3 on 20.12.1994 for auction of 4 plots namely plot nos. 10A, 92A/C and 91A/B, 90A/A and because there was no other bidder, the bid of the petitioner-school was accepted on 10.1.1995 for all the three plots.
It is also submitted that in terms of order dated 04.05.2009 in Writ Petition No.4085(MB) of 2009, a direction was issued to official respondents namely the Lucknow Development Authority and Nazul Officer concerned to decide the application for granting freehold right in favour of private respondents no.4 & 5. Thus, respondent nos. 4 and 5 having deposited the requisite amount has a freehold right over the property. It is also contended in the written submission that with the change in master plan and the land being converted from commercial into residential, Nazul Officer concerned cannot execute a sale deed for commercial land in favour of the petitioner.
Apart from the aforesaid counter affidavits and Written Submission one supplementary affidavit was also filed on behalf of respondent no.4 and 5 wherein it is pleaded that the agreement between the petitioner and respondent nos. 1 to 3 is neither registered nor stamped. Hence, it is unenforceable under the law.
It is submitted that the agreement in question dated 12.01.1996 is a contract, therefore, it is not enforceable under the writ jurisdiction. It is also submitted that a Coordinate Bench cannot take a view contrary to one taken by another Coordinate Bench particularly between the same parties and in respect of the same controversy.
It is also contended on behalf of respondent nos. 4 and 5 that under Section 54 of Transfer of Property Act, 1882, as amended and applicable in State of Uttar Pradesh, an agreement in question would be required to be registered. Besides, Article 5(b-1) of the Indian Stamp Act and Section 17 of the Indian Registration Act would also govern the enforceability of the transaction/agreement. Further, the agreement between the petitioner and official respondents was entered only on a stamp paper of Rs.100/-, therefore, it has no evidentiary value in the eyes of law.
It is also argued that in respect of a contract relating to immovable property, a writ would not lie in terms of ratio of the judgment reported in 2005(6) SCC 657 (M/s Binni Limited v. Sadashivam). As the agreement in question was not registered in terms of the provisions of Section 17(1)(b) of the Registration Act read with Section 54 of the Transfer of Property Act, as amended, for the State of Uttar Pradesh vide U.P. Act No.57 of 1976 to be made applicable w.e.f. 01.01.1977, a suit for specific performance would not lie, therefore, a writ for enforcement of such unenforceable agreement would also not be maintainable. Besides, since the nature of land has changed from commercial to residential, the agreement being a contract has also been frustrated. Now, the official respondents would not be able to execute the sale deed of the property in question as commercial plot. Moreover, an agreement contrary to the settled principle of law as mentioned under Section 21 of the Indian Contract Act would be void and thus the agreement to sell has since also become void by the operation of law and therefore no writ of mandamus for enforcement of a void contract can lie. Thus, the petitioner has no legal right to file the present writ petition for enforcement of agreement dated 12.01.1996 on the ground that the agreement to sell itself does not create any interest in or on such property. At the most, the petitioner can only claim refund of deposit of 20% amount made by him. For seeking a writ of mandamus, there should be a legal right in favour of the petitioner which should be in the nature of such statutory duty cast upon the public authorities.
It is mentioned in the supplementary affidavit that the petitioner school has failed to establish some statutory duty cast upon Nazul Officer or the Lucknow Development Authority to perform aforesaid agreement between the parties. Petitioner school did not make any effort also in the last 13 years by filing any petition for the enforcement of agreement. Thus, there was no readiness or willingness on the part of petitioner school to perform its obligation within a reasonable time. Petitioner school even did not make any effort to deposit the principal amount in terms of the agreement. Petitioner's bids in respect of three plots were accepted, but no sale-deed in respect of any of three plots has been executed in favour of the petitioner. The agreement between the petitioner school and opposite party nos.2 and 3 was cancelled on 14.6.1995 after he failed to deposit 3/4th amount which was demanded vide letters dated 21.2.1995 and 08.3.2005. However, on a written request made by the petitioner school, the payment schedule was re-arranged and a second agreement was entered on 12.1.1996, but petitioner school again failed to perform its part of obligation and did not deposit any money. Thus, there was no intention on the part of petitioner school and that is why it can be said that the petitioner school was not ready and willing to perform its obligation.
Petitioner School did not deposit a single penny even towards the principal amount right since the date of execution of the second agreement i.e. on 12.01.1996 till date. Petitioner school only kept on making correspondence just in order to avoid its liability and to delay the proceedings. Petitioner school has unnecessarily dragged the property into litigation. The principal outstanding amount was well within the knowledge of petitioner school but with a malafide intention it did not deposit any amount during the last about 13 years after 1996 agreement was entered into. Besides, the agreement also provided vide Clause 5 an alternative remedy to invoke the arbitration clause. Petitioner school has deliberately not taken recourse to the said clause of agreement. Therefore, it has been asserted on behalf of respondent nos. 4 & 5 that petitioner school has no right and title over the property in question. However, it was also brought to the notice of the Court that the commercial rate of the land in question according to DM Circle rate is Rs. 24,000/- per square meter whereas in the open market the value of the land would be approximately Rs.2,00,00,000/- (Rupees two crores) because the land is situated on the main Badshah Nagar Chauraha.
While espousing the case of respondent nos. 4 & 5, it was submitted that vide Government order dated 17.02.1996, even though the garden lease in respect of the land in question expired way back in 60s, their predecessor in interest, late Shri Moni Mohan Banerjee, rightly submitted an application to declare it as a free hold land in his favour, since throughout he continued to be in the possession of that land. It has again been clarified that out of the total area of 7188 sq. ft., 2755 sq. ft. has been left for the widening of road, and only the remaining area of 4433 sq. ft. was sought to be converted into free hold. The controversy also led to the filing of a writ petition in the High Court, which was disposed of vide an order dated 04.05.2009, and pursuant thereto, a demand for depositing the free hold charges was issued to the private respondent on 03.08.2009.
Shri Shanti Bhushan, learned Senior Counsel answering the submissions of Learned Senior Counsel Shri Anil Tiwari appearing on behalf of respondent nos. 4 & 5 by way of rejoinder submitted that if the action of Government or its Authorities is found to be arbitrary, then it must be deemed to be violative of Article 14 of the Constitution and, thus, a writ petition can lie for enforcement of an agreement as well. Thus, the instant writ petition filed for enforcement of agreement dated 12.01.1996 would thus be maintainable. Shri Shanti Bhushan, learned Senior Counsel contended that petitioner school has approached the Court with clean hand. Though it had challenged the notice of public auction dated 20.12.1994 in respect of the property in question by filing writ petition no. 11 (MB) of 1995 before the bid was finalized, but finally the said bid was accepted in favour of petitioner school. An agreement was also entered into between the school and the Government on 12.01.1996, and the possession was handed over. In view of the subsequent developments like acceptance of bids of petitioner school the cause of action of the aforesaid writ petition did not survive, therefore, it was not pressed by petitioner school. Thus, this argument would not be relevant for the purpose of decision of this writ petition.
Shri Shanti Bhushan, learned Senior Counsel, arguing on the question of law regarding the compulsory registration of agreement relating to immovable property in question as advanced on behalf of respondent nos. 4 & 5 contended that by the operation of provisions of Section 17(2)(vii) of the Registration Act, the provisions of Section 17(1) of the U.P. Act no. 57 of 1976 amending the Transfer of Property Act would not apply in any grant of immovable property by the Government. Besides even though by the U.P. Act no. 57 of 1976 certain amendments were made to Section 17(1) as well as Section 17(2) of the Registration Act, Clause (vii) of sub-section 2 was left untouched by the State Legislature. Thus, an agreement between two private parties in respect of immovable property became registrable but the agreement between a Government and private party under which agreement the Government was to grant some immovable property was not required to be registered.
Shri Shanti Bhushan referred to Section 2 of U.P. Government Grants Act, 1895, which, on reproduction, reads as under:-
"Transfer of Property Act, 1882, not to apply to Government grants - Nothing in the Transfer of property Act, 1882, shall apply or be deemed ever to have applied to any grant or other transfer of land or of any interest therein heretofore made or hereafter to be made [by or on behalf of the [Government] to, or in favour of, any person whomsoever, but every such grant and transfer shall be construed and take effect as if the said Act had not been passed."
Thus, according to Shri Shanti Bhushan, learned Senior Counsel, even the provisions of Transfer of Property Act would not apply in any transfer of land made by or on behalf of the Government in favour of any person whomsoever. Thus, the amendment made to Section 54 of the Transfer of Property Act by the U.P. Act no. 57 of 1976 would not cover and apply to any transfer of land made on behalf of the Government in favour of any person whomsoever. Learned Senior Counsel also referred to Section 3 of the Government Grants Act as given below to clarify the position:-
"3. Government grants to take effect according to their tenor - All provisions, restrictions, conditions and limitations over contained in any such grant or transfer as aforesaid shall be valid and the effect according to their tenor, any rule of law, statute or enactment of the Legislature to the contrary notwithstanding."
Thus, neither the 'Registration Act' nor the 'Transfer of Property Act' or any provision of any other Statute will be applicable under such transfer of land by the Government. Further, subsequent to U.P. Act No.56 of 1976, which came into force on 01.1.1977, the law of registration was further amended by the Parliament by the Act No.58 of 2001 in which sub-section (1-A) has been introduced in Section 17 to the following effect:-
"(1A). The documents containing contract to transfer for consideration, any immovable property for the purpose of section 53A of the Transfer of Property Act, 1882 (4 of 1882) shall be registered if they have been executed on or after the commencement of the Registration and Other related laws (Amendment) Act, 2001 and if such documents are not registered on or after such commencement, then, they shall have no effect for the purpose of the said section 53A."
Thus, the above provision shows that the Parliament has clearly demonstrated a clear intention that contract to transfer for consideration, any immovable property shall be registered only if it has been executed on or after 2001. The agreement between the Government and the petitioner-school was executed on 12.1.1996, which was prior to 2001. According to clear intention of the Parliament, it did not require registration.
Shri Shanti Bhushan also referred to Article 254(2) of the Constitution of India to show that even where the State Legislature has made an amendment which is repugnant to any law of Parliament but since such State Legislation has received the assent of the President of India and, therefore, prevails over the earlier Parliament law, still the Proviso to Article 254(2) clearly provides that the Parliament can even thereafter enact a law with respect to the same matter including a law amending or repealing the law. Thus, any subsequent law enacted by the Parliament prevails over any earlier State law, and even where the State law had received the assent of the President. For this reason also, the law enacted by the Parliament by introducing sub-section 1-A in Section 17 which deals with the registration of the documents is the law which has to prevail over the U.P. Act No.57 of 1976. Moreover, even if an agreement between the Government and a private party is not enforceable for any reason, the Hon'ble Supreme Court has now laid the law of Promissory Estoppel. Once on the basis of a promise made by the Government, another person has altered his position, the promise made by the Government would be enforceable at the instance of such a person. In fact, after a deposit of Rs.7,40,700/- had been made by the petitioner-school in the year 1995 because the Government had promised to transfer the plot to it, even if the agreement dated 12.1.1996 had not been enforceable for any legal reason, the promise of the Government to transfer the property would still be enforceable on the principle of Promissory Estopple. The principle has been discussed at length in the leading judgment of Hon'ble the Supreme Court reported in AIR 1979 Supreme Court 621. The law has been elucidated by the Hon'ble Supreme Court in the following terms in paragraph 24:-
"The law may, therefore, now be taken to be settled as a result of this decision, that where the Government makes a promise knowing or intending that it would be acted on by the promisee and, in fact, the promisee, acting in reliance on it, alters his position, the Govt. would be held bound by the promise and the promise would be enforceable against the Govt. at the instance of the promisee, notwithstanding that there is no consideration for the promise and the promise is not recorded in the form of a formal contract as required by Art. 299 of the Constitution."
While dealing with the point of frustration of contract Shri Shanti Bhushan submitted that though on the date of agreement dated 12.1.1996 the plot in question was shown as a commercial area under the then existing Master Plan, and that Master Plan has since been modified, and thus the area in question has been declared as a residential area, still a school can be set up in that area and, thus, the arguments that the agreement dated 12.1.1996 must be deemed to have got frustrated and is no longer enforceable, is also misconceived. According to Shri Shanti Bhushan,learned senior counsel, there appears to be a gross misconception about the Master Plan on the part of private respondent. A school is permitted both in a commercial area as well as a residential area. Even under the new Master Plan, after the area has been declared to be a residential area, a school is still permitted under the new Master Plan. Thus, the Master Plan cannot possibly frustrate the agreement under which the Government had agreed to transfer the plot in favour of petitioner school for the purpose of a school.
Shri Shanti Bhushan while referring to Supplementary Affidavit I (Vol. III), which contains the zonal regulation of master plan 2021 submitted that an area which had been declared to be residential area (Avasi) is mentioned in Column No.2 and both, namely Primary School as well as Higher Secondary School and Intermediate Colleges are permitted to be run in such area, but establishment of a University or a Polytechnic or any Engineering or Medical or Dental Colleges is not permissible in such residential area.
On a careful reading of the pleadings it appears that Shri Moni Mohan Banerjee, predecessor in interest of respondent nos.4 and 5 was given residential plot no.92-A at Mahanagar, Lucknow, on lease in the year 1958 for 90 years which is valid upto the year 2048. Apart from the aforesaid residential plot, the plot in dispute being No.92 A/C comprising an area of 7188 sq. ft. was also given on garden lease for 7 years to Shri Moni Mohan Banerjee vide a registered lease deed dated 20.01.1964 with effect from 01.08.1961 which was mainly used for egress and ingress to plot no.92-A whereon Shri Banerjee built up a residential house.
On expiry of 7 years period of garden-lease, the plot was sold through auction by official respondents to petitioner for commercial use. It also appears that the holder of garden lease Shri Moni Mohan Banerjee, predecessor in interest of respondent Nos. 4 and 5, did not participate in the public auction announced as per advertisement in newspapers after the expiry of garden-lease. The Petitioner-School, thus, started construction of boundary-wall on the premises, but it was opposed to by Shri Banerjee. The petitioner-School therefore filed Regular Civil Suit No.58/1996 through its Manager Shri Jagdish Gandhi wherein Shri Moni Mohan Banerjee was impleaded as defendant no.1 and the Lucknow Development Authority as Defendant no.2. The Civil Court granted a time-bound interim order on 22.2.1996 in favour of the petitioner-school. That order was confirmed on 13.5.2002 after hearing both the parties. The Petitioner-School inter alia also urged in the pleadings that the plot in question was purchased through an agreement with defendant no.2, the Lucknow Development Authority, and the possession was also delivered. It was, thus, well within the knowledge of defendant no.1, Shri Moni Mohan Banerjee, that the plot had been purchased in an auction sale by the petitioner-school and its possession had also been delivered to it.
Shri Moni Mohan Banerjee also went in litigation and filed a writ petition (W.P. No. 446(MB) of 1996) before this Court seeking a writ of mandamus to direct the opposite parties not to violate the terms of garden-lease which had expired way back in 60s. He also prayed that even for the purpose of garden-lease, the plot could not have been allotted in favour of any other person. It appears that the petitioner-school was not impleaded as a party in that writ petition. On 09.2.1996, a Co-ordinate Bench of this Court passed an interim order in favour of Shri Moni Mohan Banerjee to the effect that till the next date, his possession of the plot in question was not to be disturbed and the parties shall not raise any construction on that land. Later, the writ petition was disposed of on 30.08.2005 with liberty to petitioner Sri Moni Mohan Banerjee to approach appropriate forum if so required.
After the death of Shri Moni Mohan Banerjee his legal heirs/successors in interest namely Smt. Khela Banerjee and Chandak Banerjee, respondent nos.4 and 5, applied for mutation of their names in the records of the properties belonging to him on 17.03.2008. But since no action was taken, they filed writ petition no.5049 (MB) of 2008. When the writ petition came up for hearing before a Coordinate Division Bench on 06.06.2008, the following order was passed:-
"Hon'ble U.K. Dhaon, J.
Hon'ble Shabihul Hasnain, J.
The petitioners is permitted to implead the Nazul Officer, Lucknow as opposite party no.3.
Heard the learned counsel for the petitioners.
Sri Anuj Kudeshia has put in appearance on behalf of the Lucknow Development Authority, who prays for and is granted two weeks' time to file counter affidavit.
In the meantime the newly added opposite party shall consider and decide the application dated 17th March 2008 of the petitioner for mutation, a copy of which has been annexed as Annexure no.3 to the writ petition.
List this petition in the week commencing 7th July 2008.
Dated:06.06.2008"
During the pendency of the said writ petition, respondent nos. 4 and 5 also filed another writ petition [W.P. No.4085 of 2009 (MB)] to seek a writ of mandamus for conversion of the lease hold rights into freehold rights of the petitioner qua the plot in question. This writ petition was disposed of vide the order dated 04.05.2009 which on reproduction reads as below:
"Hon'ble U.K. Dhaon, J.
Hon'ble Dr. Satish Chandra, J.
Heard Sri Pratish Kumar, learned counsel for the petitioners, learned Standing Counsel for opposite party no.1 and Sri D.K. Upadhyay, learned counsel for opposite parties no.2 and 3.
The petitioner has alleged that a lease of appurtenant land bearing Plot No.92 A/C measuring 6 Biswas 5 Biswansis 13 Kachwansis (7188 sq.ft.) situated at Mahanagar was granted in favour of Sri M.M. Banerji by the Nazul Officer, Lucknow for gardening purpose for a period of seven years.
Learned counsel for the petitioners submits that Sri M.M. Banerji, predecessor in interest of the petitioners 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.94 A/C, situated at Mahanagar Lucknow within two months from the date a certified copy of this order is produced."
On the other hand, prior to the filing of above writ petition, the petitioner-school filed a Regular Suit No.538/2008 to seek injunction against the dispossession from the property in question, and also for a decree of declaration in favour of its title. On 03.10.2008, the Court granted injunction against the interference with the possession of plaintiff/petitioner-school. However, towards the directions to take a final decision on pending application, the Nazul Officer, issued a notice to Chandak Banerjee on 03.8.2009 directing him to deposit Rs.1,95,939/- within a period of 90 days for the purpose of grant of free-hold rights over the property.
In the submissions on behalf of respondent nos.4 and 5, it has also been contended that under the provisions of Section 17(1-b) of the Registration Act read with Section 54 of the Transfer of Property Act, 1882, as amended for the State of U. P. vide U. P. Act No.57 of 1976 (made applicable w.e.f. 1.1.1977), a suit for specific performance would not lie, therefore, a writ for enforcement of such unenforceable agreement would also not be maintainable. It is also urged that even if the agreement dated 12.01.1996 is a contract, it is not enforceable in the exercise of writ jurisdiction because it relates to immovable property [vide the ratio of judgment in M/s Binni Ltd's case (supra)].
These arguments have been adequately answered by Shri Shanti Bhushan, learned senior advocate, who argued hereinabove that by the operation of provisions of Section 17(2)(vii) of the Registration Act, the provisions of Section 17(1) of the U.P. Act no. 57 of 1976 amending the Transfer of Property Act would not apply in any grant of immovable property by the Government. Besides, even though by the U.P. Act no. 57 of 1976 certain amendments were made in Section 17(1) as well as Section 17(2) of the Registration Act, Clause (vii) of sub-section 2 was left untouched by the State Legislature. Thus, an agreement between two private parties in respect of immovable property became registrable but the agreement between a Government and private party under which agreement the Government was to grant some immovable property was not required to be registered vide Section 2 of U.P. Government Grants Act, 1895, which, on reproduction, reads as under:-
"Transfer of Property Act, 1882, not to apply to Government grants - Nothing in the Transfer of property Act, 1882, shall apply or be deemed ever to have applied to any grant or other transfer of land or of any interest therein heretofore made or hereafter to be made [by or on behalf of the [Government] to, or in favour of, any person whomsoever, but every such grant and transfer shall be construed and take effect as if the said Act had not been passed."
Thus, the provisions of Transfer of Property Act would not apply in any transfer of land made by or on behalf of the Government in favour of any person whomsoever. In view of this fact the amendment made to Section 54 of the Transfer of Property Act by the U.P. Act no. 57 of 1976 would not cover and apply to any transfer of land made on behalf of the Government in favour of any person whomsoever. The position is further clarified vide Section 3 of the Government Grants Act which is given below:
"3. Government grants to take effect according to their tenor - All provisions, restrictions, conditions and limitations over contained in any such grant or transfer as aforesaid shall be valid and the effect according to their tenor, any rule of law, statute or enactment of the Legislature to the contrary notwithstanding."
Thus, neither the 'Registration Act' nor the 'Transfer of Property Act' or any provision of any other Statute will be applicable under such transfer of land by the Government. Further, subsequent to U.P. Act No.56 of 1976, which came into force on 01.1.1977, the law of registration was further amended by the Parliament by the Act No.58 of 2001 in which sub-section (1-A) has been introduced in Section 17 to the following effect:-
"(1A). The documents containing contract to transfer for consideration, any immovable property for the purpose of section 53A of the Transfer of Property Act, 1882 (4 of 1882) shall be registered if they have been executed on or after the commencement of the Registration and Other related laws (Amendment) Act, 2001 and if such documents are not registered on or after such commencement, then, they shall have no effect for the purpose of the said section 53A."
Thus, the above provision shows that the Parliament has amply demonstrated a clear intention that contract to transfer for consideration, any immovable property shall be registered only if it has been executed on or after 2001. The impugned agreement between the Government and the petitioner-school was executed on 12.1.1996, which was prior to 2001, therefore according to clear intention of the Parliament, it did not require registration.
Besides, the provisions of Article 254(2) of the Constitution of India would show that even where the State Legislature has made an amendment which is repugnant to any law of Parliament but since such State Legislation has received the assent of the President of India and, therefore, prevails over the earlier Parliament law, still the Proviso to Article 254(2) clearly provides that the Parliament can even thereafter enact a law with respect to the same matter including a law amending or repealing the law. Thus, any subsequent law enacted by the Parliament prevails over any earlier State law, and even where the State law had received the assent of the President. For this reason also, the law enacted by the Parliament by introducing sub-section 1-A in Section 17 which deals with the registration of the documents is the law which has to prevail over the U.P. Act No.57 of 1976.
Besides, we also find considerable force in the submission of Shri Shanti Bhushan that even if an agreement between the Government and a private party is not enforceable for any reason, the Hon'ble Supreme Court has now laid the law of Promissory Estoppel. Once on the basis of a promise made by the Government, another person has altered his position, the promise made by the Government would be enforceable at the instance of such a person. In the leading judgment of Hon'ble the Supreme Court rendered in the case Moni Lal Padampat Sugar Molls Co. Ltd. (AIR 1979 Supreme Court 621), as referred to in the arguments of Shri Shanti Bhushan, learned senior counsel, the law has been elucidated by Hon'ble the Supreme Court in the following terms in paragraph 24:-
"The law may, therefore, now be taken to be settled as a result of this decision, that where the Government makes a promise knowing or intending that it would be acted on by the promisee and, in fact, the promisee, acting in reliance on it, alters his position, the Govt. would be held bound by the promise and the promise would be enforceable against the Govt. at the instance of the promisee, notwithstanding that there is no consideration for the promise and the promise is not recorded in the form of a formal contract as required by Art. 299 of the Constitution."
Though we accept and hold in terms of the legal submissions, as above, urged by Shri Shanti Bhushan, Learned Senior Counsel, yet looking to the factual background of this case, we are of the considered view that the impugned agreement entered into between the petitioner and the official respondents on 12.01.1996 would not be enforceable in Law after the lapse of a period of 13 years only on the strength of depositing an amount of Rs.7,40,700/-, said to be the one-fourth of the total consideration amount. It appears that the petitioner engaged itself only in correspondence with the official respondents and in litigation, in stead of paying the rest of the principal amount, leaving aside the interest amount, which could have been determined later by the Authority concerned. Even no efforts were made to seek direction from the Courts to accept the deposit of principal amount before the filing of this writ petition. It also appears that the initial agreement was cancelled on 14.06.1995 for default in depositing the rest, say, 3/4th of the consideration amount which had been demanded vide the letters dated 21.02.1995 and 08.03.1995. However, taking a considerate view, on a written request made by the petitioner school, the payment schedule was rearranged vide the agreement dated 12.01.1996 but again no amount was deposited towards the payment of any of the instalments. Thus, the petitioner school was not ready and willing to perform its obligation under the agreement and in Law.
As we hold that the agreement in question is not enforceable in Law, therefore, the question regarding invoking of arbitration clause thereunder may not arise. So far as the change of nature of property under the changed master plan is concerned, since a school of the description and in the nature of institution proposed to be run by the petitioner from the premises in question is permissible to be set up in the residential as well as commercial area, there is no prohibition for the petitioner under the Law to run a school from the plot in dispute. Our view gathers further support from and in the Legislation passed by the Parliament namely 'the Right to Education Act'.
Now, coming to the question as to whether this Division Bench can take a view contrary to the view taken by a coordinate Bench directing official respondents to consider the application for conversion of garden lease which expired in 1968 into freehold right in favour of the private respondent Nos.4 and 5, we do not find any answer in the submissions on behalf of the petitioner school. However, we are guided by the ratio of a judgment of Hon'ble the Apex Court rendered in the case of C. Jacob v. Director of Geology and Mining and others reported in (2008) 10 SCC 115 wherein, vide Para 11 of the judgment, it has been held that on a direction to consider or deal with the matter being issue, usually the directee examines the matter on merits, being under the impression that failure to do so may amount to disobedience. However, the Court has also emphasized the need for circumspection and care in issuing the direction for consideration so that stale claim is not revived. 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 Mohan 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 petitioner school being the highest bidder was accepted and a lease agreement was executed between the petitioner and the official respondents. Simultaneously, the possession of the property was also delivered to the petitioner school. It is also noticeable that Shri Moni Mohan Banerjee did not participate in the auction sale despite having knowledge about the status of property through the advertisement. It is only when the petitioner school wanted to construct a boundary wall that Shri Moni Mohan Banerjee put a resistance and went in litigation but in none of the litigations any title in respect of the property was settled in favour of Shri Banerjee or his successors in interest. Shri Moni Mohan Banerjee had no sanction of any lease agreement or Government order to continue with possession of the property and as noticed above, even some attempts were also made by the official respondents to take back the possession of property from Shri Moni Mohan Banerjee and his successors. Thus, the official respondents had a clear intention that the impugned property was in illegal possession of Shri Moni Mohan Banerjee. Moreover, with the efflux of time between 1968 and 1996 when the Government Notification dated 17.02.1996 was issued to provide for conversion of lease hold right into freehold right, in respect of Nazul lands in occupation of people, the nature of land had been changed to commercial property and it was put to auction. Thus the claim of private respondents had become stale which could not have been revived by a direction of this Court to consider or take a final decision on the application of respondent nos.4 and 5 in view of the ratio of Judgment in C. Jacob's case (supra) and the property could not have been settled for a paltry amount of Rs.1,95,939/- whereas the same property was sold in auction for an amount of over Rs.29 lacs in favour of the petitioner way back in 1995, and presently, its market price is over Rs.2 Crore. The direction to consider the claim of respondent nos.4 and 5 was passed in Writ Petition no.4085 (MB) of 2009 vide the order dated 04.05.2009, which on reproduction reads as under:
"Hon'ble U.K. Dhaon, J.
Hon'ble Dr. Satish Chandra, J.
Heard Sri Pratish Kumar, learned counsel for the petitioners, learned Standing Counsel for opposite party no.1 and Sri D.K. Upadhyay, learned counsel for opposite parties no.2 and 3.
The petitioner has alleged that a lease of appurtenant land bearing Plot No.92 A/C measuring 6 Biswas 5 Biswansis 13 Kachwansis (7188 sq.ft.) situated at Mahanagar was granted in favour of Sri M.M. Banerji by the Nazul Officer, Lucknow for gardening purpose for a period of seven years.
Learned counsel for the petitioners submits that Sri M.M. Banerji, predecessor in interest of the petitioners 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.94 A/C, situated at Mahanagar Lucknow within two months from the date a certified copy of this order is produced."
It is a settled principle of law that if an authority is directed to consider the case, it should consider judiciously on merit and in accordance with law and not arbitrarily causing a huge loss to public exchequer under the umbrella 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.
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 conscience of living law, and thus, a Court's discretion is to be exercised with circumspection within the precincts of justice, equity and good conscience while keeping in view the given facts and circumstances of the case.
Thus, taking into consideration the facts that the Parliament has passed the Right to Education Act, that the petitioner deposited 25% (Rs. 7,40,700/-) of the consideration amount way back in 1995, and that he is ready to pay the present market price of the plot whereas no such offer has come from private respondent nos. 4 and 5 during the course of hearing, we think it expedient in the interest of justice to direct the settlement of property in question in favour of the petitioner school upon making payment of cost price at the current market rate prevailing in the locality.
In the premises set out hereinabove, we partly allow the writ petition with direction to official respondents to hand over the possession of the plot in question and execute the sale deed after completing necessary procedural formalities on payment of market price at current rate prevailing in the locality where the plot is situated within a period of two months from the date of receiving a copy of this order. In case, the petitioner fails to pay the market price at current rate to be determined by the authority concerned, the official respondents would be at liberty to invite fresh tender for the auction of the same at a price not less than the prevailing market price so that the public exchequer is not made to suffer in any manner and the property is able to fetch the maximum price.
This writ petition and the Review Petition (210 of 2009) are, thus, disposed of.
Dated: 01.02.2011 (S.N.H. Zaidi, J.) (Uma Nath Singh, J.) A.Nigam/Katiyar