26 October 2004
Supreme Court
Download

STATE OF U.P. Vs SATYA NARAIN KAPOOR (DEAD) BY LRS.

Case number: C.A. No.-001273-001275 / 1998
Diary number: 1309 / 1998
Advocates: RAVI PRAKASH MEHROTRA Vs P. K. JAIN


1

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 1 of 7  

CASE NO.: Appeal (civil)  1273-1275 of 1998

PETITIONER: State of U.P. & Anr.                                     

RESPONDENT: Satya Narain Kapoor (Dead) by Lrs. & Ors.                

DATE OF JUDGMENT: 26/10/2004

BENCH: CJI R.C. Lahoti & Ashok Bhan.

JUDGMENT: J U D G M E N T

WITH IA Nos. 9-11/1999 IN CA Nos.1273-1275/1998 WITH C.A. Nos. 1276-1278/1998 C.A. Nos. 1279-1281/1998 C.A. No. 1728/1998 C.A. No. 1886/1998 C.A. No. 2596/1998 W.P. No. 163/1999 C.A. No. 6957/2004 (Arising out of SLP (C) No.13096/1999

R.C. LAHOTI, CJI

Leave granted in SLP (C) No. 13096/1999.         In one of the prime commercial areas of the city of Allahabad,  known as Chowk Sabzi Mandi, there are situated two shops described  as Nazul Shop Nos. 195 and 196 the area whereof is 63 sq. ft. each.          We are not concerned with the earlier controversy relating to  the allotment and several claimants to the shops.  The fact remains  that on 30.10.1991, the District Magistrate directed the Nagar  Mahapalika to have the shops vacated so as to be available for fresh  allotment through public auction inasmuch as the shops were  continuing in illegal occupation ___ shop No.195 in the occupation of  Mohammad Ali and shop No.196 in the occupation of Anoop Kumar  son of Satya Narain Kapoor.

       Three writ petitions came to be filed in the High Court of  Allahabad.  Writ Petition No. 32605 of 1991 was filed by Satya  Narain Kapoor alleging that he was the one inducted into possession  of shop No.196 in the year 1973 by the allottee of the shop Late  Wahidan Bibi who died on 27.12.1984 without leaving any heir upon  whom her rights could devolve.

       According to Satya Narain Kapoor he was the person entitled to  the allotment of the shop.  On 12.9.1991, an interim order was passed  by the High Court staying his eviction from the shop No.196.  Satya  Narain Kapoor died and in his place the name of his son Anoop  Kapoor has been substituted.          Writ Petition No. 20430 of 1992 was filed by one Rafiqunnisa  claiming herself to be the only heir of Smt. Wahidan Bibi ___ the  original allottee and hence entitled to the rights of the late allottee and  also mutation in her favour on both the shops.

       Writ Petition No. 16325 of 1994 was filed by one Mohammad

2

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 2 of 7  

Ali in respect of Shop No.195 wherein he claimed rights under a Will  in his favour also submitting that there was a partnership entered into  on 17.8.1984 between Smt. Wahidan Bibi and himself and so he was  entitled to continue in possession of the shop No.195 as lessee.   

       Thus, it would appear that the controversy arising for decision  before the High Court in all the three writ petitions which were  connected with each other was a very limited controversy as to who is  entitled to substitution in place of the original allottee and continue or  remain in possession of the two shops and this controversy was  required to be resolved by reference to the provisions contained in the  Rules for the Grant of Leases of Subzimandi Shops in the Allahabad  District (Nazul shops).  These rules are contained in the Government  Order No.2547/XI, dated 16th July, 1940, as amended by Government  Order No. 789-A/XI-77-88, dated 17th February, 1942.

       The three writ petitions which appeared to be raising a petty  dispute relating to allotment or right to occupy two small shops took a  serious turn on Smt. Rafiqunnisa, the petitioner in Writ Petition No.  20430 of 1992, moving an application for withdrawal of her petition  having been rendered infructuous.  It was pointed out that while the  three writ petitions were pending, on application of Smt. Rafiqunnisa  to the Joint Secretary, State of U.P., the latter had agreed for  converting nazul shop Nos. 195 and 196 as freehold and then being  entered in her name. Communications to this effect were made by the  Joint Secretary on 14.10.1996 followed by subsequent letters by other  officials.  The other two writ petitioners namely Satya Narain Kapoor  and Mohammad Ali opposed the prayer made by Smt. Rafiqunnisa  and then the centre of controversy shifted to elsewhere.  Ever since  before Smt. Rafiqunnisa moved the application based on subsequent  event dated 14.10.1996 the stand of the State of U.P. as taken in its  counter affidavits in all the three writ petitions was that they were  liable to be dismissed as none of the writ petitioners had the status of  an eligible person to claim allotment under the Rules and the learned  Chief Standing Counsel appearing for the State of U.P. continued to  take the same stand till the end.

       It appears that during the course of hearing the Division Bench,  seized of the hearing of the writ petitions, thought that there was an  element of public interest involved inasmuch as the property of the  State known as nazul land was being loitered away by converting the  allotments into freehold much to the prejudice of the interest of the  State. The Division Bench took note of the fact that Satya Narain  Kapoor and Mohammad Ali, the two writ petitioners in their  respective writ petitions, had started staking claim for the grant of  freehold rights claiming parity with Rafiqunnisa.  The shift of  emphasis in the controversy is reflected in the judgment of the High  Court from the following passage which follows soon after factual  narration of the controversy between the private parties:

"The narration of the facts as above shows that the  case on the both sides have seen changes during  the pendency of these petitions.  The cases  originally raised issues on who is the rightful  person to receive an allotment of the nazul shops  under the Nazul Shops Rules. The cases have  closed at the close of arguments with the note that  some have been granted ’freehold’ rights and some  have been left out including two of the petitioners,  who now contend that they are also entitled to  ’freehold’ rights like the others.  Those who have  not received the ’freehold’ rights on nazul  properties in the present set of cases are Satya  Narain Kapoor (Writ Petition No. 32605 of 1991)  and Mohd. Ali (Writ Petition No.16325 of 1994).  

3

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 3 of 7  

The person who has received freehold right is  Rafiqunnisa.  There is a rivalry between them on  who should be granted ’freehold’ rights. Three  petitioners, in their respective three petitions  would like to possess two nazul shops No.195 and  196.  Between two shops there are three  contenders.  This situation cannot be unraveled by  the High Court on who will be the rightful  contender or who may be a better person to receive  an allotment amongst three persons with only two  shops available.  

The crucial issues now are on how the issues  changed from seeking allotments of nazul shops on  lease, under the Nazul Shops Rules but  subsequently ’freehold’ rights being granted on  nazul estates?  Can this be done?

Now the perspective of the cases are changing."

The Division Bench noted that the issue initially arising for decision  was: Are the petitioners entitled to receive a grant as a lease of shops  which are nazul properties and governed under the Nazul Shop Rules?  And, the answer of the State administration was: ’No’.  The Division  Bench observed that the subsequent allotment as freehold in favour of  Rafiqunnisa was ’managed’.  And this led the Division Bench on  embarking upon very wider issues of far reaching implications.  Some  of the questions which the Division Bench entered into examining are  noted in the judgment itself; to wit, they are: (1) What is the concept  of nazul properties or estate?  (2) What are the laws which relate to  government grants? (3) How did the State come to possess the land  which it could made available as a grant on certain terms and  conditions? (4) Who possesses lands for which there is no owner and  lands which are heirless?

       A bare reading of the impugned judgment shows that at no  point of time the three writ petitions seeking enforcement of certain  private rights were converted into public interest litigations nor did the  Court suo motu or otherwise initiate and register any independent  proceedings by way of public interest litigation putting the State or  anyone else to notice of its desire of enlarging the scope of hearing in  writ petitions and entering upon larger issues of general importance,  public significance and far reaching implications.  The Division  Bench seems to have just diverted the course of hearing as if on to a  highway, abandoning the bye lanes, and, enlarging the dimension of  hearing without specifically putting the parties and others concerned  on notice.  Certain queries seem to have been posed to the learned  Chief Standing Counsel for the State of U.P., who, obviously for want  of instructions, pleadings and documents, felt handicapped in  responding.  This state of affairs is writ large from the following  passage occurring in the judgment:

"On one aspect there is no issue that these shops  are on nazul land and nazul property originally  managed by the then Municipal Board as managers  to the State of U.P. Specifically sight of the rules  ought not to be forgotten.  The rules are known as  "Rules for the Grant of Leases of Sabji Mandi  Shops in the Allahabad District (Nazul Shops).   How to deal with nazul shops, in context, was not  in issue when the matters were argued between the  petitioners and the State. It was a straight case of  the rival contentions being examined on the

4

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 4 of 7  

interpretation of the Nazul Shop Rules.  The  applicability of these rules was accepted.  In the  second innings of the arguments and the emerging  record no one could explain how nazul properties,  the nazul shops, were being shorn of its  characteristics as nazul and were being treated as  (a) not being nazul and (b) freehold.  Even upon  instructions, learned Chief Standing Counsel fairly  contended that besides pleading the original case  that Nazul Shop Rules apply he has not received  instruction on how the rules, now may not apply.   Clearly there is confusion amongst the  administration on how to deal with nazul property.  There does not appear to be any clear concept on  the characteristics of nazul properties."

xxx             xxx             xxx             xxx

The issues before the Court now are not who is to  be evicted or who is unauthorized or who is  entitled to allotment or the grant of a lease; but,  clearly, one of alienation of nazul property the  question to be answered before the Court is what is  the concept of the estate called ’nazul’.  No party,  either on behalf of the petitioners or the State  respondents has aided the Court by submitting on  this aspect, though initially both sides referred to  the Nazul Shop Rules and the Nazul Manual in  great detail.

xxx             xxx             xxx             xxx

The Court had asked the petitioners and the  respondents alike that they must at least address  the Court on what the origins of their rights may be  in either seeking a claim or for that matter  defeating a claim on a nazul estate.  The Court also  required the parties to address the Court on how  the State has the sanction to deal with nazul  properties and under what law.  The Court is  disappointed to note but is obliged to record that  no assistance came from any quarter."

(emphasis supplied)

However, the learned Chief Standing Counsel for the State did make  available whatever records he could produce off the hand and as could  be made available by the officials of the State.   

       In the abovesaid state of affairs and backdrop of events it seems  that the Division Bench embarked upon research of its own and  constructed the judgment from whatever material it could collect.  The  Division Bench traced the history of law relating to nazul lands  extending for over 200 years reaching back to the times of British rule  and beginning with the United Provinces Land Revenue Act, 1801.   The concept of nazul as understood in Mohammedan Law and Hindu  Law was dealt with.  The provisions of Crown Grants Act 1895 were  referred to.  The Court extensively read and utilized the contents of a  Manual of the Land-Tenures of Land-Revenue Administration  Prevalent in the Several Provinces, by B.H. Baden-Powell, F.R.S.E.,  F.R.F.  Late of the Bengal Civil Services, and one of Judges, of the  Chief Court of the Punjab.  Some of the current laws and of  comparatively recent origin and having bearing on the ownership and

5

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 5 of 7  

management of nazul lands were also referred to such as U.P. Urban  Planning and Development Act 1973, Delhi Development Act 1957.   A good number of rules, circulars, manuals have been referred to.   The Division Bench then proceeded to examine the legality and  validity of conversion of nazul land into freehold land testing the  same in the light of the provisions of the Constitution specially the  Preamble, Articles 39 and 51A.  As to the several Government Orders  issued from time to time during 1990s which were contained in the  original file of Government Orders relating to nazul properties placed  before the Court by the learned Chief Standing Counsel in compliance  of the Court’s order, the Division Bench observed:-

"These government orders were utilized to convert  nazul estate into ’freehold’. After noticing the law,  government instructions since more than a hundred  years ago, the Nazul Manual, the Nazul Shop  Rules, all in the nature of administrative  instructions, it is clear even lease in perpetuity  cannot be granted and the question of changing the  character of nazul estates to ’freehold’ does not  arise.  Having held that no ’freehold’ rights can be  granted to nazul estates, and these estates were, are  and will continue to vest with the Government in  trust, the Court is left with no option but to quash  all the Government Orders mentioned above as  this would be permitting nazul estates to be  converted into ’freehold’; and would amount to an  anti trust measure (Amanat men Khayanat), against  the larger public interest which the law and the  concept of nazul, in any case, does not permit."

The Division Bench went on to observe that the government’s  decisions (if it be of the government) giving freehold rights to Smt.  Rafiqunnisa was ’a making of a land scam’.  The Court concluded its  judgment by issuing several directions A to J (ten in number) and  directed the petitions to be disposed of in terms of the said directions.   It is not necessary to extract and reproduce the said directions.   Suffice it to observe that the effect of the directions so issued is to  nullify as unconstitutional the several government decisions the  validity whereof was not specifically in issue before the Court.  Not  only the three writ petitioners but at least 32 others who are similarly  situated and holding similar shops were adversely affected though not  parties before the Court.  Hundreds of others whose estates had  already stood converted to freehold were prejudicially affected.   Could this all have been done and that too in the manner in which the  High Court has done?   

       The principal submission made by Shri Dinesh Dwivedi, the  learned Senior Advocate for the State of U.P., has been that the issue  arising for decision in the writ petitions before Court was confined to  two shops only and within the scope of hearing of the writ petitions it  was open for the High Court to uphold or not to uphold the allotment  of shops and then to decide that in the event of allotment being upheld  which of the three writ petitioners was entitled to which of the shops.   Instead, the High Court has proceeded to nullify several government  orders, eight in number, without giving notice to the government of  what the High Court proposed to do. As a consequence of the  judgment delivered by the High Court, the property of the government  in nazul itself has been put in jeopardy and the right of the State to  deal with it consistently with its policy decision and the law enacted in  accordance therewith has been taken away as the State has been  declared only a trustee of the nazul land.

       We find merit in the submission made by Shri Dwivedi, the

6

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 6 of 7  

learned Senior Counsel for the State.  The private parties represented  before us in several civil appeals have also found it difficult to support  the impugned judgment.  We are not doubting the jurisdiction of the  High Court to take cognizance of an issue wherein the element of  public interest is involved and to take up and entertain the same as  public interest litigation and pronounce upon such issues exercising  the jurisdiction which the Constitution does vest in the High Court but  that has to be done by following the established rules of practise and  procedure consistently with the rules of natural justice.  The High  Court, if convinced, should have framed specific issues with which it  proposed to deal with in public interest and then should have put the  State on specific notice inviting its pleadings and documents.  Any  other party likely to be adversely affected and interested in being  heard may have been allowed the opportunity of doing so.  A larger  issue involving public interest and far reaching implications should  not have been dealt with so lightly, casually and hurriedly as the High  Court has done.  So far as the dispute raised by the private parties as  writ petitioners in the High Court is concerned, the High Court could  have postponed the decision in such individual writ petitions until the  larger issue of public interest was decided; or else the High Court  could have adjudicated upon the limited dispute as to the right of  allotment over the two shops and then taken up the larger public  interest issue for adjudication as a separate writ petition, the decision  wherein would have become applicable even to shop Nos. 195 and  196 as they being similarly situated as other shops, would have been  liable to be treated equally.         For the foregoing reasons, all the appeals are allowed.  The  impugned judgment of the High Court is set aside.  The cases are  remanded to the High Court for hearing and decision afresh  consistently with the observations made hereinabove.         Before parting, we would like to place on record that we have  not expressed any opinion on the correctness or otherwise of the  findings arrived at as a result of research so painstakingly undertaken  by the learned Judges constituting the Division Bench of the High  Court.  Rather we have a word of appreciation for the industrious  labour which the learned Judges must have invested in tracing the  history of development of the law governing nazul lands without any  assistance from the parties.  We have been constrained to set aside the  judgment of the High Court solely for the reason that before recording  a finding on such a vital issue the High Court ought to have afforded  an adequate opportunity to the State for defending itself by raising  necessary pleadings and tracing out the documents from its archives  and place the same on record.  May be the result could have been  different.  May be after full-dressed hearing which will be held afresh  now, subject to availability of pleadings and documents, and the  parties, especially the State having been put on notice of the issues,  the Court may be inclined to take the same view. It will be premature  to formulate any opinion either way.  Though the impugned judgment  is being set aside, the historical facts and information collected and set  out therein would still be available to be made use of by the Bench  hearing the matter afresh consequent upon this order of remand. I.A. Nos.9-11/1999 in C.A. Nos. 1273-1275/1998         The applications sought for certain directions during the  hearing of the appeals.  They are now infructuous.  Be treated as  disposed of. W.P.(C) No. 163/1999         This petition under Article 32 of the Constitution was filed by  way of public interest litigation seeking quashing and  setting aside of  G.O. No. 2268/9 AS-4-98, 704/N/97 dated 1.12.98 issued by  Government of U.P. as illegal, void and ultra vires of the  Constitution, and certain associated reliefs, in view of C.A. Nos.  1273-1275/1998 having been filed in this court.  As the appeals  themselves have been disposed of, with an order of remand to the  High Court, we do not consider it necessary to keep the petition  pending for hearing in this Court.  The petition be treated as disposed

7

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 7 of 7  

of without any adjudication on merits. The writ petitioner is at liberty  to pursue such other remedy as may be open and available to him and  as advised.