BAL KRISHNA AGARWAL Vs. STATE OF U P

JUDGEMENT

(1.) BOTH the aforesaid writ petitions being connected are placed before this Court for analogous hearing. In the first writ petition, being Civil Misc. Writ Petition No. 77818 of 2005, initially following prayers were made: "(i) issue a writ, order or direction in the nature of mandamus commanding respondent no. 2, the Collector, Allahabad to grant freehold rights in regard to 2508 sq. mts. of land forming part of Nazul Site 2(B-2), Civil Station, Allahabad, and bungalow No. 4/6, Thornhill Road, Allahabad; (ii) issue a writ, order or direction in the nature of mandamus commanding respondents, the Collector, Allahabad, and the Additional District Magistrate (Nazul) to reimburse the petitioners to the tune of Rs.7,52,000/- for the loss suffered by him on account of wholly illegal and highhanded and grossly irresponsible act of demolition of boundary wall raised by the petitioners over the property in dispute; (iii) issue a writ, order or direction in the nature of mandamus restraining the respondents from in any manner interfering with the possession of the petitioners and peaceful enjoyment of the property in dispute by the petitioners; (iv) issue any other suitable writ, order or direction in the nature writ as this Hon'ble Court may deem fit and proper on the facts and circumstances of the case; and (v) award costs of this petition to the humble petitioners throughout." However, on 22nd December, 2005 the petitioners have made a statement before the Court that they do not want to press the 'Prayer No. 1'. Hence, the 'Prayer No. 1' was deleted under the order of the Court dated 22nd December, 2005. Therefore, such writ petition was restricted only with regard to reimbursement of certain amount on account of demolition of boundary wall and restraining the respondents from interfering with the possession of the petitioners, if any. It has been contended by Mr. Somesh Khare, learned Counsel appearing for the petitioners, that such prayer was deleted since the Samiti, namely, Sangam Upnivashan Avas Avam Nirman Sahkari Samiti Ltd. was not made party to such writ petition. However, from the order dated 22nd December, 2005 no such submission is reflected. On the other hand, we find that by a further order of the Court dated 16th August, 2007 the Samiti has been incorporated as party-respondent no. 6 in such writ petition. This earlier writ petition was filed by the pen of six individuals inclusive of one Sri Rajendra Kumar Agrawal, as petitioner no. 5 therein. However, we find that during pendency of such writ petition another writ petition, being Civil Misc. Writ Petition No. 11017 of 2008, was filed by said Sri Rajendra Kumar Agrawal and the said Samiti by making both of them as petitioners, with the following prayers: "(i) Issue a writ, order or direction in the nature of mandamus directing the respondent authorities to freehold the Plot No. 2 (B-2), Civil Station, Allahabad in favour of the petitioners in accordance with law forthwith after adjusting the amount already deposited by the Samiti-petitioner no. 2. (ii) Issue any other suitable writ, order or direction in the nature of case, as this Hon'ble Court may deem fit and proper in the circumstances of the case. (iii) Award the cost of the petition to the petitioners." In such circumstances, the Court was compelled to call upon Mr. Khare to establish how the second writ petition can be maintainable when they themselves have not pressed such prayer in the earlier writ petition. Then it has been contended by him that the prayer is not identical but subject to adjustment of the amount deposited by the Samiti. According to us, it is circumventing approach. BOTH the prayers are identical in nature. Therefore, the writ petitions are not maintainable. However, Mr. Khare further submitted before this Court that there is no bar in approaching this Court by filing fresh writ petition by the pen of the petitioner no. 1, Rajendra Kumar Agrawal, as well as the Samiti because they are sailing in the same boat. On enquiry we have come to know that the petitioner no. 1 of the second writ petition is a prospective purchaser. Therefore, we are eager to know how the Samiti is represented before this Court being petitioner no. 2. There is no resolution to reflect that the Samiti is inclined to proceed with the writ petitions for the benefit of such Samiti. No aims and objects are reflected from any of the annexures that in what way the Samiti is entitled to proceed. Hence, it can be construed that the petitioner no. 1 appears to be really interested person at the behest of the Samiti. He is an individual. Therefore, when the interest of the Samiti can not be fulfilled, how it will be fulfilled in favour of a private individual, is best known to them. Moreover, it is a matter between him and the Samiti. Apart from raising objections to the maintainability of the writ petitions, Mr. Chandra Shekhar Singh, learned Additional Chief Standing Counsel, contended before this Court that the State has called upon the Samiti to deposit a sum of Rs.15,75,735.10 as premium long back on 25th July, 1987, which has not been paid. Only three amounts, two of Rs.3,15,147.02 each were paid on 13th October, 1987 and 27th September, 1989 and thereafter on 27th September, 1989 another amount of Rs.3,00,000/- was paid. Hence, no right can be accrued in favour of the Samiti far to say about an individual. Mr. Khare himself invited our attention to go through the letter written by the concerned District Magistrate, Allahabad on 15th April, 2008, being Annexure-16 to the counter affidavit filed by the State. There we find that on the basis of the circle rate prevalent as on 23rd January, 2002 the amount to convert the land from Nazul to freehold was fixed at Rs.71,91,595.00, which, according to him, has increased a lot by the passage of time and now it has become Rs. 17.16 crores. Apart from that, the District Magistrate also stated therein certain descriptions with regard to importance of the locality. We are of the view that if the petitioners are aggrieved by such order, they can at best challenge the same having certain established rights in their favour. Admittedly, neither of the petitioners are accrued any right because the sum as called upon by the State or its authority has not been deposited. Therefore, it is entirely open to the writ petitioners how to proceed before the authority and convince them to have the land freehold but it can not be done under the direction of the Court in such circumstances. Hence, both the writ petitions are dismissed, however, without imposing any cost. In any event, passing of this order will no way affect the right of the petitioners to approach the authority concerned, if so desire.