LAXMI NARAIN Vs. STATE OF U P

JUDGEMENT

(1.) THIS is a special appeal against the judgment of our brother Tandon by which he refused to issue any writ or direction as prayed for by the appellants and dismissed their petition. The dispute between the parties relates to a market known as Fatehganj Bazar situate in the city of Lucknow. The market contains a number of buildings occupied by different persons and the rest of the market is open area, where stall holders and other persons collect and bring their goods, particularly grain for sale to the general public. The stall holders have to pay certain dues for keeping their stalls which used to be collected by the appellants. On the 3rd of August, 1960, the opposite party No. 2 the Tahsildar, Lucknow, acting under the direction of higher authorities published a notice informing the public that the aforesaid market had been resumed by the State Government and further directing the persons visiting the market and liable to pay the market dues not to pay the same to the appellants, but to make the payment to the agent appointed by the State Government for realising the aforesaid dues. On 6th of August, 1960, the Lucknow Municipal Corporation was authorised to make the said collections.

(2.) THE history of the aforesaid market goes back to 1868. On October 13 of that year by a robkar issued by the Deputy Commissioner, Lucknow, certain rights possessed by Darogha Mir Wajid Ali were exchanged with the rights possessed by the Government in certain Nazul villages and bazars including the market in dispute, viz., the Fatehganj Bazar and a sanad to that effect was granted to Daroga Mir Wajid Ali. Possession of the aforesaid Bazar was delivered to Daroga Mir Wajid Ali on November 14, 1868. It appears that Daroga Mir Wajid Ali was succeeded by his son Nazir Hasan and after the death of the latter his interest passed to his daughter Qamar Jahaa Begum. In 1932 Qamar Jahan Begum made a gift of 12 annas interest in her rights in the said bazar to her daughter Noor Jahan. In 1945 Qamar Jahan Begum and Noor Jahan Begum applied to the Collector, Lucknow for permission to sell their entire interest in Bazar Fatehganj and the necessary sanction or salt was accorded to them. They sold their proprietary rights in Bazar Falehganj on November 1, 1945, to the appellant Laxmi Narain. On 2gth November, 1945, under an agreement between the appellant No. 1 Laxmi Narain and the appellants Nos. 2 to 5, all the appellants became the owners of the Bazar.

(3.) RESPONDENT No. 1, the State of Uttar Pradesh admitted that the rights of local Agency in Bazar Fatehganj, Lucknow, and some other markets in the city of Lucknow were granted to Daroga Mir Wajid Ali by the sanad dated 26 -8 -1868/69 and some other property of the said Daroga was taken by the Government and that possession was delivered to the Daroga in pursuance of the aforesaid sanad. The market in dispute was eventually sold by Qamar Jahan Begum and Noor Jahan Begum to the appellant No. 1 and thereafter by the aforesaid agreement the five appellants became the owners of the bazar under the terms of the sanad. It was further admitted that the State Government had resumed the Bazar in pursuance of the proclamation made on the 3rd of August, 1960, and the possession of the bazar was resumed by the Government through the Tahsildar. It was, however, denied that no notice had been given to the appellants about the resumption. It was further admitted that the possession of the Bazar had been transferred to the Nagar Mahapalika. Lucknow, on the 6th of August, 1960, and that the Nagar Mahapalika had since then been its possession of the said bazar and that in consequence of the resumption of the Bazar the appellants had ceased to have any right to collect the bazar dues as the same right had become vested in the respondent No. 3, viz., the Nagar Mahapalika since 6 -8 -1960. It was further denied that the proclamation dated 3 -8 -60 and the notice dated 6 -8 -60 were ultra vires and had no legal effect and that they interfered with the appellants right of properties or that they were without authority of law or that they amounted to confiscation of property without compensation. It was further denied that the issue of the aforesaid notice was mala fide. It was contended that the appellants had been using the Bazar for the purposes of enhancing their income without looking to the needs of the Bazar and without performing their duties in connection with the said Bazar and that they had neglected the drains and roads as a result of which the Bazar had become in sanitary and the roads had become impassable and difficult for use by the people. It was further contended that the appellants had sold out the Bazar land in parcels to private persons with the result that the existence of the Bazar had been jeopardised. It was further contended that the appellants had committed breaches of the obligations imposed on them by the sanad and that notices were served on the appellants to improve the sanitary condition of the Bazar and they were informed that on their failure to do so, step would be taken to resume the Bazar. Further information had been given to the appellants that their act in selling the Bazar land bit by bit had jeopardised the very existence of the Bazar and the appellants were finally informed that were being taken to resume possession of the Bazar, it was further contended that the appellants were extracting illegal dues from the people and traders who frequented the Bazar and they had violated the terms of the sanad and that the State had no alternative but to resume possession of the Bazar under the terms of the sanad and to maintain the market under its own management. It was further alleged that the act of resumption related inter alia to the contractual conditions of the sanad and the writ jurisdiction of this Court could not be availed of to canvass the appellants claim to property when they had themselves failed to perform the conditions imposed on them. Lastly, it was contended that the dispute, involved complicated questions of title and other material facts and, therefore, the extraordinary remedy under Article 226 of the Constitution could not be availed of by the appellants.