RAJ KUMAR SONI Vs. STATE OF UTTAR PRADESH

JUDGEMENT

(1.) Whether any person who had purchased only 'malwa' of a building can validly assert that by his purchase he had also purchased the remaining constructions, if any, of which the purchased Malwa is not its part and even the land on which the 'Malwa' was kept and secure an order of transfer of that land on that basis which belongs to the Govt.?; (ii) Whether despite the express bar created by G.O. No. 1501/85(24)-I-6010 dated 9-10-1987 issued under the Government Grants (U. P. Amendment) Act authorising the Collector of a district to make grant of the Govt. land up to an area only and the Sub-Divisional Officer, Kotdwar was correct in ordering transfer in favour of the petitioners of the land in question, after penalising their transferor in whose favour he had made the grant earlier and after nullifying that grant, on the request of the petitioners who had claimed to have purchased only the 'malwa" yet had prayed to transfer the land in dispute itself without making any grant in their favour? (iii) Whether in the facts and circumstances the District Magistrate/Collector, Pauri Garhwal, was correct in law in nullifying the order of transfer aforementioned passed by the Sub-Divisional Officer in favour of the petitioners?, (iv) whether the transfer order passed by the Sub-Divisional Officer can be held to be a Govt. Grant?; and (v) Whether in the peculiar facts and circumstances the order of the District Magistrate/Collector, Garhwal requires interference by this Court under Article 226 of the Constitution of India? are the five questions which require our adjudication in this writ petition.The Prayers :-

(2.) . The first prayer of the petitioners is to quash the order dated 10-5-1999 passed by District Magistrate/Collector, Pauri (Respondent No. 2), as contained in Annexure-1, in Grant Case No. 65/98-99 State v. Umesh Kumar, setting aside the order dated 15-6-1995 passed by the Sub-Divisional Officer, Kotdwar transferring 0.053 hectare of land in Khasra No. 1003, village Jhonk, District Pauri Garhwal (hereinafter referred to as the land in dispute) in case No. 9/94-95, by grant of a writ of Certiorari. Their further prayer is to command the respondents not to give effect to the impugned order.The Facts :-

(3.) . According to the petitioners the land in question was allotted to their co-villager Mahanth Govind Das disciple of Mahanth Mani Ram Das by the Sub-Divisional Officer, Kotdwar vide his order dated 31-3-1993 (as contained in Annexure-2). A 30 years lease (as contained in Annexure-3) was also executed on 2-5-1995 in his favour. Mahanth Govind Das got a map sanctionedby the Development Authority, Haridwar for raising constructions on the lands in dispute. On 21-7-1994 sanction (as contained in Annexure-4) was granted and he started raising construction. Meanwhile they (the petitioners) purchased the constructions raised (Malwa) by means of transfer deed dated 26-4-1995 (as contained in Annexures-5 and 5A). Thereafter the Revenue Inspector submitted a report that stamp duty paid on the deeds was insufficient. A case was started. Vide order dated 27-11-1995 (appended as Annexure-6) the Collector,Stamps imposed an additional stamp duty amounting to Rs. 2090.00, which was paid by them vide Challan dated 29-11-1995 (the receipt appended as Annexure-7). Thereafter they moved an application on 15-5-1995 (copy appended as Annexure-8) before the Deputy Collector, Kotdwar, District Pauri Garhwal seeking permission for transfer of the land in dispute in their favour. The Deputy Collector, Kotdwar vide his order dated 15-6-1995 (appended as Annexure-9) cancelled the Patta executed in favour of Mahanth Govind Das and granted the same in their favour. On the basis of the Patta their names were mutated vide order dated 12-7-1995 (copy appended as Annexure-10) and an entry was also made in the revenue records (copy of Khatauni Shreni 10(2) appended as Annexure-11). While granting patta the Deputy Collector fixed rent at the rate of Rs. 157.50 paise per annum. They paid that lease rent for the years 1995 to 1998, appending the first and last receipts as Annexures-12 and 12A. As they had purchased incomplete constructions (Malwa) from Mahanth Govind Das they completed the constructions according to the map sanctioned to Mahanth Govind Das by the Development Authority, Haridwar. They also paid Circumstances (cesses) and Property Tax to the Zila Parishad at the rate of Rs. 1050.00 per annum, (the latest receipt of which appended as Annexure-13). Thereafter notices were issued by respondent No. 2 to them on 5-4-1999 (copy of the notice appended as Annexure-14) in Misc. Case No. 65 of 1999 to show cause as to why the order granting lease not cancelled on the ground that the authority concerned lacked powers to do so which was vested in respondent No. 2 alone. They submitted their explanation on 26-4-1999 (copy appended as Annexure-15) stating, inter alia, that the patta was validly executed in their favour; that they had also complied with the terms of the lease and, therefore, it is not liable to be cancelled, that their lease being valid, action could be taken only under the provisions of the U.P.Z.A. and L. R. Act; that permanent constructions having been raised worth more than Rs. 5 lacs after due sanction by the Development Authority the lease/licence is irrevocable; that they had inherited the rights of Mahanth Govind Das in whose favour the patta still stands; that after the cancellation of the lease the respondents are threatening to demolish the constructions and have also directed that their names from the revenue records be expunged. As they have got no other efficacious alternative remedy except to invoke the extraordinary jurisdiction of this Court and thus, this writ petition.The Submissions :-