Vikas Kunvar Srivastav, J.
1. By way of this writ petition, a challenge has been made to the order dated 23.3.2019 passed by the opposite party no.2 to cancel the order dated 9.2.2002 by which land in dispute was declared freehold. It is with a direction for refund of the amount to the petioner, as was paid at time of execution of the deed.
The case has long chequered history thus need to be given in serratum for clarity.
2. By the order dated 11.3.1974, a decision was taken for lease of Nazul land in dispute to the petitioner society. The District Collector passed an order on 6.10.1976 for grant of lease for period of 30 years on an annual rent of Rs.1,135/-. It was as per the direction of the Governor of the State of U.P. under Rule 51 of the Nazul Manual. The order dated 6.10.1976 was passed in pursuance to the letter dated 7.7.1976 for grant of lease to the petitioner society. The name of the petitioner society was thereafter entered in the Nazul Register and Khatauni fasli 1389.
3. The District Collector, Raebareli sent a letter dated 4.4.193 to the Government to find out whether lease deed has been examined to undertake further process of its execution. The lease deed was however not executed despite the aforesaid. A letter was also sent by the Union Minister to the State Government for execution of lease deed as the petitioner society intend to open a Girl's college in Raebareli.
4. The State Government issued various general orders from time to time for conversion of Nazul land to freehold and accordingly the petitioner society made an application on 06.02.2001 to declare land in dispute to be freehold. The application aforesaid was supported with an amount equivalent to 25% to the value of the land in dispute. The letter aforesaid was processed by the State Government with an order on 9.2.2002 to declare land in dispute to free hold. The petitioner society accordingly paid the amount of consideration, as was directed. It was with deposit of arrear of lease rent. A total sum of Rs.30,33,600/-, apart from entire amount of lease rent, as demanded, was deposited. A deed for transfer of land was then executed on 6.3.2003. The deed was registered as per the provisions of the Registration Act, 1908.
5. A litigation by way of Writ Petition No.7464 (M/B) of 2006 was initiated by one Suresh Kumar Maurya and others with the prayer to quash the registered deed dated 6.3.2003 alleged to have obtained by fraud. The said writ petition was dismissed by the order dated 8.4.2016 on the ground of laches but with the observation that in case of fresh cause of action, the order aforesaid would not be an impediment to persue it.
6. A writ petition was preferred even by one Mani Bhadra Singh bearing Writ Petition No.11634 (M/B) of 2016. It was decided by this court vide its judgement dated 25.8.2017 after detailed discussions of facts. A direction was given to respondent no.3 therein to take a final decision in the matter within three months from the date of production of the copy of the order. The prayer in the said writ petition was also to cancel the registered deed dated 6.3.2003. The impugned order was then passed by the respondents and is being challenged by the petitioner.
7. The writ petition has been contested by the learned Standing Counsel appearing for State Government. The arguments were advanced even by the intervenor while pressing their own writ petition alongwith with the contest of present one. The allegation of forgery on the part of the petitioner and all officials have been made though it has been refuted by the Standing Counsel.
ARGUMENTS ON BEHALF OF THE PETITIONER
8. Learned counsel for the petitioner submits that the impugned order has been passed by the District Magistrate, Raebareli in a mechanical manner. The observations made by this Court in the case of Mani Bhadra Singh (supra) was taken to be final contrary to the direction therein. In view of the above, the impugned order has been passed with pre conceived notions.
9. The District Magistrate, Raebareli has recorded finding about the manipulation and incorrect statement to get the order dated 9.2.2002 whereby the land was declared to be freehold. The petitioner did not manipulate or made incorrect statement for passing of the order dated 9.2.2002. Entry in the Nazul Register was made by the Lekhpal pursuant to the direction of the District Magistrate. It was as per the Nazul Manual but ignoring the aforesaid, erroneous finding has been recorded against the Lekhpal and entries in the Nazul Register apart from the revenue record.
10. The interference in the order dated 9.2.2002 has been made even on the ground that a lease deed was not executed in favour of the petitioner, thus, conversion of Nazul land to freehold was not permissible. It is in ignorance of the fact that under Rule 14 and 19 of Nazul Manual, sale of the Nazul land can be made by the State Government. The deed executed on 6.3.2003 is nothing but sale of the land. It has been ignored by the District Magistrate. The finding has been recorded in ignorance of the fact that decision to grant lease in favour of the petitioner was taken under Rule 51 by Governor of the State. Thus, registration of lease deed was not a pre condition as it was otherwise governed by Section 2 of the Government Grants Act, 1895. It is also stated that if registration of the deed was a pre condition then the respondents should not have taken lease rent for the period of twenty seven years before execution of the sale deed dated 6.3.2003.
11. The District Magistrate has directed for cancellation of the entries made in the Nazul Register apart from revenue record without taking procss given under the Uttar Pradesh Revenue Code, 2006. The entries were made by the Lekhpal on the direction of the District Magistrate as per Rule 5-A of the Nazul Manual. The District Collector has failed to make a reference of the provisions of the Nazul Manual and ignored its own order whereby he directed the Lekhpal to make entries in the Nazul register.
12. A reference of an agreement to sell by the petitioner has also been given. It is said to be in violation of the conditions of lease, whereas lease deed was never executed even as per the statement of side opposite. The agreement to sell was executed subsequent to the registered deed dated 06.03.2003 when petitioner society became absolute owner of the land. The consideration of Rs. 30,33,600/- for execution of the sale deed dated 06.03.2003 was on the market rate prevalent at the relevant time. The deed executed therein shows State Government to be the seller and petitioner as purchaser with absolute ownership right.
13. Once the sale deed was executed with registration, it cannot be cancelled by the Administration itself but can be through a suit for cancellation of deed. It is now barred by limitation.
14. It is also stated that the nomenclature of the document cannot be a guiding factor. What would prevail is the contents of the document. The registered deed dated 6.3.2003 shows it to be nothing but sale of land in favour of the petitioner, thereby the impugned order deserves to be quashed even for a direction to S.D.M. to take steps for its cancelllation.
15. The impugned order sufferes from non-application of mind as it is based on the report given by the District Government Counsel and Deputy Collector, Raebareli indicating entries in the Nazul records to be without authority of law. The opinion aforesaid was given ignoring Rules 5A of Nazul Manual and otherwise once the entries were made, it could not have been ignored without its cancellation after taking the process, as given under the U.P. Revenue Code of 2006. The non compliance of Rule 5-A of Nazul Manual has been shown ignoring the fact that entries in the Nazul registered was made by the Lekhpal on the direction of the District Magistrate competent for the aforesaid.
16. In the light of the submissions made above, the prayer is to set aside the order dated 23.3.2019. The interference in the direction to change the name of the land holder in the Nazul register and revenue record without undertaking the process, as given under the Code of 2006 also deserves to be set aside while maintaining it to the extent of a direction to evict the trespassers. The writ petition be allowed with the aforesaid.
ARGUMENTS ON BEHALF OF THE STANDING COUNSEL
17. The Standing Counsel has contested the writ petition. It is submitted that the order dated 9.2.2002 was passed in ignorance of the provisions of Nazul Manual. The order to convert Nazul land to freehold was without a registered lease deed in favour of the petitioner society. The reasonings given by the District Magistrate to cancel the order dated 9.2.2002 were reiterated to contest the writ petition and would be considered alongwith the arguments of the counsel for the intervenor.
18. So far as the rights of the petitioner flowing from the registered deed are concerned, it has not been disputed. It is however stated that the Sub Divisional Magistrate has been given direction for its cancellation. Thus, whatever rights are flowing in favour of the petitioner out of the registered deed, would come to an end with cancellation of lease deed. It is also stated that the land would otherwise be made free from encroachments. The action for it would be taken forthwith.
19. A direction to remove encroachment exist in the impugned order and to that extent, even the writ petition has not been been pressed by the petitioner though a challenge to it has been made in connected writ petition preferred by the intervenor. The intervenor are not having any right to possess the land and being encroacher, they would be removed immediately pursuant to the direction given by the District Magistrate in its impugned order dated 23.3.2019.There even the petitioners would have no right on the land the moment registered deed is cancelled by he S.D.M. The land in dispute would vests in the Government as Nazul free from encroachment.
20. The prayer is to dismiss the writ petition.
ARGUMENTS OF THE INTERVENOR
21. Learned counsel for the intervenor submits that presently the intervenors are in possession of the land. They are carrying on their business and few are having residential houses.
22. In view of the above, connected writ petition bearing Writ Petition No.31854 (M/B) of 2019 has been filed to seek a direction for allotment of land to the intervenors.
23. Contesting the writ petition, it is stated that without execution of the lease deed in favour of the petitioner society, conversion of land from Nazul to freehold by the order dated 9.2.2002 is rightly held to be illegal.
24. Learned Senior Counsel made a reference of the document submitted by the petitioner to show fraudulent entries in the record. It is to enter the name of the petitioner society without even execution of the lease deed pursuant to the order of the Government. The requirement of lease deed was even felt by the petitioner and therefore they pursued the matter through the then Union Minister late Smt. Sheela Kaul who sent letter to the State Government. The District Magistrate has made reference of the interpolations in the record. It was otherwise noted by this Court in the case of Mani Bhadra Singh (supra) though it may not be with final conclusions. The District Magistrate has not based its order on the finding of this Court in the case of Mani Bhandra Singh (supra) but considered the issues independently.
25. Learned counsel for the intervenor has further made a reference of the registered deed dated 06.03.2003 to show it to be for conversion of Nazul land to freehold and not for its sale, as stated by the petitioner. The recital of the deed has been referred to substantiate the argument aforesaid. The case does not fall under Rule 14 or 19 of the Nazul Manual as it is not a case of sale of land but conversion of Nazul land to freehold. The registration of the lease deed was necessary as per Nazul Manual before declaring land to be freehold. The District Magistrate has rightly taken note of the aforesaid aspect. It has also noted the agreement to sale executed by the petitioner contrary to the conditions of the lease. Thus, the impugned order has right been passed other than for a direction to evict the intervenor. A challenge to the direction aforesaid has been made by maintaining a separate writ petition which has also been argued alongwith the present writ petition.
26. Learned counsel for the intervenor has further contested the argument on the cancellation of the entries in the record by the impugned order. It is stated that when entries were fraudulently made, it was liable to be nullified or cancelled without taking the process, as provided under the Code of 2006. It is more so when a direction was given by this court for appropriate decision. Thus, the court may not cause interference in the impugned order on any of the ground raised by the petitioner. A reference of the relevant provisions of the Nazul Manual apart from the provisions of the Government Grants Act, 1895 has been given. In the written argument, an additional ground in reference to the conversion charges has been raised but that is not otherwise the ground for cancellation of the order dated 9.2.2002. The aforesaid argument was not raised earlier before this court during the course of oral arguments.
27. Learned counsel for the intervenor however submitted that the arguments for cancellation of the registered lease deed without civil suit would be of no consequence because a direction for its cancellation has been given to Sub Divisional Magistrate. The prayer is accordingly to dismiss the writ petition.
FINDINGS OF THE COURT
28. The writ petition has been filed to challenge the order dated 23.03.2019 whereby earlier order dated 09.02.2002 to declare land in dispute to freehold has been cancelled.
29. Brief facts pertaining to the case have been narrated hereinabove thus, need not to be reiterated.
30. The challenge to the order passed by the District Magistrate is mainly in reference to Nazul Manual. It is urged that the District Magistrate while passing the impugned order has ignored the provisions of Rule 14 and 19 of the Nazul Manual. It is stated to be a case of sale of land by the State Government, as permissible under Rule 14 of the Nazul Manual. It is seriously contested by the intervener in reference to the registered deed. The title of the deed and contents thereof have been referred to show it to be a case of conversion of Nazul land to freehold and not a case of sale.
31. To appreciate the arguments, it would be relevant to refer Rule 14, 19, 28, 29, 51 and 74, which are quoted hereunder:-
"14. Sale or lease of a plot for building purposes shall, subject to provisions of Rule 16, be sanctioned by-
(1) the Collector, if the estimated value does not exceed Rs. 2,500;
(2) the Commissioner, if the estimated value exceeds Rs. 2,500 but does not exceed Rs. 10,00;
(3) the State Government in other cases.
In such cases, the term of sale or lease as finally arranged, shall be subject also of to confirmation by the Commissioner or the State Government as the case may be, unless the terms have already been set forth in the proposal for sale or lease and have been approved. Copies of orders sanctioning sale of nazul property shall be forwarded to the Accountant General, Uttar Pradesh.
19. Notwithstanding anything contained in Rule 18, the State Government may sanction a lease or sale of Nazul had for such purposes and at such rates as it may, having regard to the special circumstances of the case, consider proper.
28. Execution of deed of sale or lease:- Every deed of sale or lease shall be executed in duplicate by the Secretary to the State Government or the Commissioner or the Collector, as the case may be , who has sanctioned the sale or lease. At the time of execution the vendee or lessee shall be given the duplicate copy of the sale deed or lease. If the sanction of the State Government or the Commissioner is required, three copies of the deed shall be submitted. Deeds of sale and lease will be executed in the forms approved by the State Government, copies of which can be obtained from the Superintendent, Printing and Stationary, Uttar Pradesh.
29. The date of sale or lease shall in all cases be stamped by the transferee or lessee. The duplicate copy prescribed under Rule 28 shall not be stamped. The deed of sale or lease under these rules should be registered.
51. Land for charitable purpose- Ordinarily no lease or sale of nazul land at concessional rates shall be allowed for purposes other than charitable purposes such as, for hospitals, educational institutions and orphanages, and the concession so allowed shall not exceed half the annual rental in the case of lease or half the total market value in the case of sale.
Provided that, subject to the condition that the total amount of concession does not exceed Rs. 10,000 in value, in places other than big cities the rate of concession may exceed the limit aforesaid in the case of the following categories of institutions:
(i) Girls' schools and other educational institutions for women having a popular manging body.
(ii) Institutions engaged in the uplift of Harijans and their housing and education :
Provided also that, subject to the condition that the total amount of concession does not exceed Rs. 15,000 in value in 'KAVAL' towns and Rs. 3,000 in other towns, the rate of concession may exceed the limit aforesaid in the case of educational institutions proposed to be started by local bodies in connection with the compulsory Primary Education Scheme of the Uttar Pradesh Government.
74. Removal of Encroachments:- the local body shall comply with any order of the Collector requiring the removal of any encroachment upon, or of unauthorized occupants of nazul.
32. The fact of the case shows that an application was submitted by the petitioner for grant of lease of the Nazul property to establish a girl's college. A decision to grant lease was taken by the Governor of the State by invoking Rule 51 of the Nazul Manual and accordingly, an order to grant lease for a period of 30 years was issued on 06.10.1976.The annual rent of Rs. 1,135/- was determined. A direction for execution of the lease was also given. The said order was passed subsequent to the earlier orders dated 07.07.1976 and 11.03.1974.
33. The fact however remains, is that a lease deed was not executed in favour of the petitioner. It is despite a request of the petitioner and the then Union Minister. A letter dated 04.04.1993 was also sent by the District Magistrate to find out whether lease deed has been examined so as to take further process. The lease deed was however not executed though name of the petitioner's institution was recorded in the Nazul Register and Khatauni Fasali 1389. It was even in khataunies. The name of the institution was recorded by the Lekhpal in pursuance to the order passed by the District Magistrate authorized for the aforesaid but it is a fact that registered lease deed was not executed, as per the Nazul Manual.
34. The petitioner's society made an application in the year 2001 to convert Nazul land to freehold. The twenty five percent of the amount, as provided under Nazul Manual, was deposited along with the application. The application was processed and finally a decision was taken to convert Nazul land to freehold and an order for it was passed on 09.02.2002, which has been cancelled by the impugned order dated 09.02.2002.
35. The main ground to cancel the order dated 09.02.2002 is absence of a registered lease deed and even manipulation of the enteries in Nazul Register as well as in the revenue records. It is also for violation of the condition of lease by entering into agreement to sale.
36. After proper consideration of the facts of this case in reference to the Rules quoted above, we find that despite a provision requiring registration of lease deed and request of the petitioner, it was not executed. The Rules referred above not only requires execution of lease deed but even registration thereof, which does not exist in the present case.
37. According to the petitioner, it is not a case of conversion of Nazul land to freehold but sale of land under Rule 14 and 19 of the Nazul Manual. The contest on the aforesaid has been made in reference to the registered deed dated 06.03.2003 executed in favour of the petitioner. The title of the deed and few references therein show it to be conversion of Nazul land to freehold though at many places deed makes a reference of sale of land pursuant to the direction of the State Government. The entries in the register has also been questioned by the District Magistrate in its order under challenge.
38. The issues aforesaid need to be considered in reference to the subsequent development also i.e. execution of registered deed dated 06.03.2003. A direction has been given to the Sub Divisional Magistrate for its cancellation.
39. The question for our consideration would be as to whether a direction for cancellation of registered deed can be given in the manner exist in this case. If it is not permissible than what would be the effect on the impugned order dated 23.03.2019 to cancel earlier Government order dated 09.02.2002 to declare land in dispute to freehold. It is for the reason that after the order dated 09.02.2002, a registered deed was executed. The cancellation of registered deed is not permissible in the hands of the Sub Divisional Magistrate or by the State Government rather it can only by way of a suit for cancellation of deed. It is even if deed is said to have obtained by fraud.
40. This court is accordingly considering this case first in reference to the existence of the registered deed in favour of the petitioner. The Court would even consider the argument of learned counsel for the intervener who has urged that order for conversion of Nazul land to freehold was not permissible without execution of the lease deed in favour of the petitioner. It is even allegation of manipulation in the record apart from other grounds for cancellation of the order dated 09.02.2002. It would be after consideration of the direction to cancel the registered deed executed in favour of the petitioner. The registered deed was executed to transfer land in dispute to petitioner society after receiving consideration. It was registered under the Registration Act, 1908.
41. The issue in that regard was recently considered by this Court in the case of Smt. Kusum Lata Vs. State of U.P. and others in its judgment dated 18.05.2018 passed in Writ C No. 2973 of 2016. A larger bench was constituted in view of the divergent views taken by different courts. Following issues were referred to the larger bench.
"(a). Whether after a sale deed has been registered, the Assistant Registrar has any authority of law to cancel the registered sale deed under the provisions of the Registration Act, 1908 even if allegation of impersonation/fraud are made?
(b). Whether the allegations of fraud are essentially, an allegation of fact which need examination of oral or documentary evidence and can be adjudicated on the basis of evidence to be led by the parties before competent civil court?
(c). Whether the judgment in the case of Raj Kumari (supra) or the judgment in the case of Radhey Shyam Arora (supra) lays down the correct law?"
42. The relevant paragraphs of the said judgment are quoted hereunder for ready reference:-
"Precisely, the issue before us that whether a sale deed registered under the Act, 1908 can be cancelled or set aside by registering authority or by any other authority invoking administrative powers, if the registration is questioned on the count of impersonation/fraud?
The question noticed above has been considered and dealt with threadbare by a Division Bench of this Court in Krishna Kumar Saxena and another Versus State of U.P. and 9 others, 2018 (127) ALR 466. In this case, the Assistant Inspector General (Registration/Stamp), Rampur by an order dated 18.10.2016 withdrew registration of a sale deed and annulled that on the count that the same was executed by fraud and misrepresentation. The Division Bench after examining all relevant provisions of the Act, 1908 and the law applicable held that in no case registration of sale deed could have been withdrawn and the sale deed could have been annulled by administrative fiat. The Division Bench also quashed the order dated 13.08.2013 conferring powers upon registering authority to withdraw registration of a registered deed and to annul that. The discussion made by the Division Bench and the findings arrived in the case of Krishna Kumar Saxena and another (supra) deserves to be quoted and that is as follows:-
"In the light of the rival stand made by the parties and upon consideration of the various provisions of law, we find that the Registration Act is a complete Code by itself for registration of a certain documents. The procedure for registration of a document is spelt out in Part-VI of the Registration Act. Section 32 provides for persons to be present for registration of the document. If the document is required to be compulsorily registered, in which case it becomes optional for the persons to be present under section 33 of the Act. Section 34 stipulates that enquiry is required to be done by Registering Officer before registering a document. Section 35 provides the procedure for admission or denial of execution of the document. Section 35 of the Act does not confer any quasi-judicial power on the Registering Authority.
The Registering Officer is expected to reassure himself that the document to be registered is accompanied by supporting documents. The Registering Officer is not required to evaluate the title or irregularity in the documents. The examination to be conducted by the Registering Officer is only to ascertain that there is no violation of the provisions of the Registration Act. Section 58 provides particulars to be endorsed on document admitted to registration. Section 59 provides for an endorsement to be made and signed by Registering Officer and Section 60 provides for the registration of the document. Where the registering officer finds that a particular document cannot be registered in which case he is required to give reasons under section 71. Any persons who intentionally makes any false statement during the course of enquiry, a penalty could be imposed under section 82 with imprisonment or with fine. Section 69 provides power to the Inspector General to frame Rules which is consistent with the Act. Such Rules so framed are required to be published in the Official Gazette.
In so far as the case of Thota Ganga Laxmi versus State of A.P (2010) 15 SCC 207 is concerned, the said decision was based on a provision of Rule 26(k)(i) of the Andhra Pradesh Registration Rules 1960 which were framed in exercise of the power conferred under section 69 of the Act. It is in the light of the provision of the Rule 26(k)(i) that the Full Bench of the Andhra Pradesh High Court held that Registering Authority had the power to annul a document where fraud had been played by the parties. The said decision of Andhra Pradesh in Yanala Malleshwari (Supra) was explained by the Supreme Court in Satya Pal Anand versus State of M.P and others 2016(10) SCC 761 holding that the Andhra Pradesh High Court was only called upon to consider whether a person can nullify the sale by executing and registering a cancellation deed and whether the Registering Officer was bound to refuse registration when a cancellation deed was presented. The Supreme Court held that in view of the provisions of Rule 26(k)(i) of the Andhra Pradesh Registration Rules, which was expressly provided in the Rules applicable to that State, the registration of a document be annulled and labelled as fraudulent or nullity in law.
No such Rules have been framed under Section 69 of the Registration Act in so far as the State of U.P is concerned. In the absence of any express provision, the registration of a document cannot be withdrawn nor a sale deed could be annulled by an executive fiat on the basis of a Government Order dated 13.8.2013.
Unless and until there is an express provision in the Act or in the Rules, no Government Order could be issued giving power to a Registering Authority to annul a document on the administrative side. Such powers given would be wholly arbitrary and against and against the provisions of the Act.
The State Government cannot, while taking recourse to the executive power of the State under Art. 162, deprive a person of his property. Such power can be exercised only by authority of law and not by a mere executive fiat or order. Article 162, as is clear from the opening words, is subject to other provisions of the Constitution. It is, therefore, necessarily subject to Art. 300A. The word 'law' in the context of Art. 300A must mean an Act of Parliament or of a State Legislature, a rule, or a statutory order; having the force of law, that is positive or State made law. This principle was pronounced by the Supreme Court in Bishambhar Dayal Chandra Mohan and others versus State of Uttar Pradesh and others(1982) 1 SCC 39.
The aforesaid principle is also in consonance with Section 31 of the Specific Relief Act which sates that it was only the Court which has the power to cancel an instrument where it is alleged that the written instrument is void or violable."
43. The judgment referred above was given when process for cancellation of lease was taken by the Sub-Registrar and thereupon, passed an order to cancel the sale deed.
44. In the instant case, a dispute about the nature of the deed has been raised. It is as to whether it is a sale deed after declaring land to be freehold. The fact however, could not be disputed by either parties that deed executed on 06.03.2003 was registered. The registration of instrument was necessary in view of the Rule 29 read with Rule 28 of the Nazul Manual. In the instant case, it is not a lease deed but to be considered a sale deed after declaring land to freehold because the provisions of the Nazul Manual does not provide a deed of any other kind than lease deed or sale deed. The lease deed is executed on annual rent whereas sale deed on payment of consideration. In any case, it can not be disputed that an registered instrument exists which cannot be cancelled other than by a civil suit.
45. It is even in view of the judgment of the Apex Court in the case of Narendra Kumar Mittal vs. M/s Nuper Housing Development Pvt. Ltd. and anothers (Civil Appeal No. 5979 of 2019) dated 31.07.2019. In that case also, deed was executed in favour of the company. The challenge to it was made by filing a civil suit. The prayer was to cancel the sale deed. The maintainability of suit was challenged in reference to Section 331 of the Uttar Pradesh Jamindari Abolition and Land Reforms Act, 1950. It was precisely on the ground that a civil suit is barred in a case of agricultural land. The arguments aforesaid was not accepted by the Apex Court. The distinction between the jurisdiction of the Civil Court and the Revenue Court was made. The Apex Court held that a challenge to the registered deed can be made only by maintaining a civil suit. The jurisdiction for cancellation of registered deed lies only with the Civil Court.
46. The same view was taken by Apex Court in another case of Thota Ganga Laxmi and Another vs. Government of Andhra Pradesh and others reported in (2010) 15 SCC 207. In the said case, after execution of sale deed, a deed for its cancellation was executed and even registered by one of the party. A challenge to the aforesaid was made. The Apex Court held that for cancellation of the deed, one need to approach the Civil Court and thereby, the cancellation deed after its registration was held to be wholly void and non est. A reference of section 69 of the Registration Act 1908 has been given. The relevant paragraphs of the said judgment are quoted hereunder:-
"2.It appears that the father of the appellants purchased the plot in question from Respondent 4 by a registered sale deed dated 21.06.1983 and since then the appellants have been in possession and enjoyment of the said property. Subsequently, it appears that the fourth respondent purported to get the said sale deed cancelled unilaterally, executing the cancellation deed dated 04.08.2005 and the same was registered by the third respondent without any notice to the appellants.
3. A writ petition was filed seeking declaration that the cancellation deed is illegal and that has been disposed of by the impugned judgment holding that the appellants should approach the civil court.
4. In our opinion, there was no need for the appellants to approach the civil court as the said cancellation deed dated 4-8-2005 as well as registration of the same was wholly void and non est and can be ignored altogether. For illustration, if A transfers a piece of land to B by a registered sale deed, then, if it is not disputed that A had the title to the land, that title passes to B on the registration of the sale deed(retrospectively from the date of the execution of the same) and B then becomes the owner of the land. If A wants to subsequently get that sale deed cancelled, he has to file a civil suit for cancellation or else he can request B to sell the land back to A but by no stretch of imagination, can a cancellation deed be executed or registered. This is unheard of in law.
47. In the light of the aforesaid, the direction of the District Magistrate to the Sub Divisional Magistrate for cancellation of deed without a civil suit would be illegal and otherwise mere cancellation of the order dated 09.02.2002 on any ground whatsoever would not be of any avail after execution of instrument with its registration unless the process of cancellation of registered deed by a civil suit is taken, as clarified hereinabove.
48. We are not going deep on the issue of limitation for filing of the civil suit as it is otherwise provided under the Limitation Act, 1963.The district magistrate in passing the impugned order dated 23.03.2019 has ignored the provisions of law and its authority because at the end, following directions have been given which are quoted hereunder for ready reference:-
49. The direction in para no. 2 is for cancellation of the registered deed, as per law. If it is by filing a civil suit, there would be no illegality but it cannot be cancelled at the instance of the Sub Divisional Magistrate. The limitation for it may however come in their way.
50. The direction in para 3 to modify the entries in the revenue record is again in ignorance of the process provided for it. For the sake of argument, it is assumed that enteries in the Nazul register and even khataunies were made without execution of the lease deed and even allegation of manipulation is also taken note of, the authorities were required to take the process, as given under the Uttar Pradesh Revenue Code, 2006 and Nazul Manual to cancel the entries. It cannot be done in the manner directed in the impugned order.
51. At this place, a reference of the judgment of this Court in Writ Petition No. 11634 (M/B) of 2016 (Mani Bhadra Singh Vs. State of U.P. and others) would be relevant. In the aforesaid case, this court has made certain observation regarding non execution of the lease deed and other aspects but while concluding the judgment, it was made clear that it has not recorded conclusive finding on the issue, as the enquiry is pending with administration and final decision on it is yet to be taken. The Court therein has made a reference of the provisions of the Transfer of the Property Act, 1882 and also Section 2 of the Government Grants Act, 1985. A fact regarding payment of consideration to the tune of Rs. 30,33,600/- on execution of the instrument dated 06.03.2003 has been given to bring it under the ambit of Transfer of Property Act, 1882. The District Magistrate should not have taken judgment in the case of Mani Bhadra Singh (supra) to be final in view of the direction therein. The Court therein no doubt made reference of all the relevant facts but conclusive finding was not recorded. It did not touch the issue in reference of the Registration Act, 1908. The district magistrate ignored the fact that before registration of the deed, a direction for payment of total lease amount was given and paid by the petitioner society. It is apart from sale consideration of Rs. 30,33,600/-
52. Learned counsel for the intervener has invited our attention towards agreement to sale by the society going contrary to terms of lease. The fact aforesaid has been clarified by the petitioner. It is submitted that agreement to sale is after a registered deed dated 06.03.2003 in favour of the petitioner, without a bar for sale of land. The petitioner society had paid the amount of consideration on circle rate at the relevant time. The restriction on sale was put in the order at the time of grant of lease deed and not in the registered deed dated 06.03.2003.In fact no lease deed was executed rather it was only in the order for grant of lease. When lease deed was not executed with a condition that land would not be sold, the District Magistrate could not have taken aforesaid ground to cancel the order dated 09.02.2002. The condition was not imposed in the registered deed executed subsequently on transfer of land in terms of section 54 of the Transfer of the Property Act, 1882. There exist difference in the lease deed and sale passing on the title on receipt of consideration. The property rights are safeguarded by the law.
53. Learned Standing Counsel appeared before this Court could not defend the directions of para nos. 2 and 3 of the impugned order, as quoted hereinabove i.e cancellation of the registered deed and even to change the entries in the Nazul register as well as in the revenue record without undertaking the process, as provided under the Code of 2006. The cancellation of registered deed cannot be without maintaining a civil suit for it.
54. The prayer of the learned Standing Counsel at this stage was that instead of setting aside the directions at para nos. 2 and 3 of the impugned order, a liberty may be given to undertake the process for it though limitation to maintain a civil suit would come in their way. It is however, submitted that so far as the direction of para no. 4 to remove the encroachment is concerned, interference therein may not be made. The provision of the Nazul Manual gives authority to remove the encroachment and it would be removed forthwith.
55. The prayer of the learned Standing Counsel is for disposal of the writ petition with necessary clarification in the impugned order instead of quashing it. It was however, admitted that if the registered deed can not be cancelled, it would have favourable consequence to the petitioner society and otherwise process to nullify the enteries made in the Nazul register as well as in the revenue record would be undertaken only if a suit for cancellation is maintained followed by a decree in favour of the State otherwise till existence of the registered deed, the process for it would unnecessarily multiply the litigations.
56. In the light of the discussion made above, till the registered instrument dated 06.03.2003 remain operational, the impugned order would not be given effect other than to remove the encroachment followed by the possession thereof to the petitioner. Since the learned Standing counsel has stated about immediate action for it, the respondents are directed to remove the encroachment forthwith, as otherwise encroachment on the land was either due to connivance of the officers or their negligence.
57. With the aforesaid, the writ petition is allowed.
Order in Writ Petition No. 31854 of 2019
1. By this writ petition, a challenge has been made to para no. 4 of the order dated 23.03.2019.
2. In para no. 4 of the impugned order dated 23.03.2019, a direction has been given for initiation of process for eviction of the encroachers. The challenge to it has been made by the petitioner precisely on the ground that after quashing of the order dated 09.02.2002 declaring Nazul land to freehold, entitlement of the petitioner for grant of lease persuant to their application should have been considered. After declaring the land to be freehold, deed be executed in their favour.
3. Learned counsel for the petitioner submits that number of persons are either residing or running their business in the land in dispute. The claim has been made alleging possession of the land in dispute for last 40 to 45 years. Reference of various circulars issued by the Government as well as the provisions of Nazul Manual has been given. It is after reiterating all the facts and arguments raised while contesting the connected petition, which has been decided in the first part of this Judgment.
4. It is further submitted that pursuant to the circulars issued by the Government from time to time, even, trespassers are entitled for a lease, if it is for an area up to 100 square meter.
5. Learned counsel for the side opposite submits that impugned order dated 23.03.2019 having been interfered by this Court in the light of the registered instrument dated 06.03.2003, the claim made by the petitioner would not survive. It has been held by Apex Court in its recent judgment that encroachers have no right to seek regularization of the land and otherwise land occupied by the petitioners is more than 100 square meter in many cases. Reference of the judgments of the Apex Court as well as provision of Nazul Manual has been given to strengthen their arguments. The prayer is accordingly to dismiss the writ petition.
6. We have considered the submission made by the counsel for the parties and perused the record.
7. History of this case has been given while dealing with the Writ Petition No. 13415 of 2019. In the judgment of the aforesaid case, interference in the order dated 23.03.2019 has been made. Interference in the direction at para no. 4 of the impugned order dated 23.03.2019 has not been made because as per provisions of Nazul Manual, the official respondents have right to remove the encroachment.
8. The record available does not reflect that petitioners are in possession of the land for the last 40 to 45 years rather few encroachers occupied the land recently due to inter say dispute between the Kamla Nehru Educational Society and the official respondents.
9. So far as the grant of lease deed in favour of the petitioner in reference to the circular dated 27.09.2007 concerned, the direction therein is not in consonance to the provisions of Nazul Manual and otherwise, the land occupied by the petitioners is more than 100 square meter in many cases. They are not otherwise falling in the category of poor or below poverty line as no material has been placed to prove it. It is otherwise stated that some of the occupant are even running restaurants and doing many other commercial activities after encroaching the land. Thus, the circular dated 20.12.2007 or earlier circulars referred therein would of no assistance to the petitioners. The allotment of land can be made only as per the provisions of Nazul Manual. The last circular was issued on 04.03.2014. The petitioners have made allegation against the Society for getting registered deed and prior to it an order dated 09.02.2002 in violation of the Nazul Manual but at the same time they want allotment of land in their favour in violation of Nazul Manual. The circular cannot be applied even if it is in violation of Nazul Manual.
10. If a direction, as prayed by the petitioner is given than it would be in conflict with the judgment passed in the connected petition and even to the provisions of the Nazul Manual. Relevant provisions of it has been quoted in the connected petition. The period of occupation of the land for last 40 to 45 years has not been proved by producing materials, which are required even as per the Government Order dated 28.09.2011. Documents produced by the petitioners do not demonstrate possession of the land for the last 40 to 45 years.
11. In the light of the facts available on record and also the judgment passed in the connected petition, we are unable to accept the prayer made by the petitioners. In this regard a reference of the judgment of the Apex Court in the case of City and Industrial Development vs. Ekta Mahila Mandal & Anr dated 17.09.2007 would be relevant. Para 7 of the said judgment is quoted hereunder for ready reference:-
"7. It is to be noted that Local Commissioner's report pointed out that the land in question was earmarked as a green belt. It is the stand of the CIDCO that lower level tree plantation has already been done and the balance work is being carried on in a systematic manner. There is no policy for regularization and as such any change in the reserve
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d area and earmarked areas under the development plan has to be under the Act. Article 21A of the Constitution cannot come to aid to respondent No.1. What was essentially sought for by the direction was regularization of unauthorized construction. In essence what the High Court has directed is to regularize an unauthorised occupation and regularization of unauthorised encroachment. Merely because Article 21A of the Constitution has treated primary education as a fundamental right, that does not confer any right on an encroacher to seek regularization of encroachment on the ground that ultimately some children of the particular age group would be taught in the school. In Dr. G.N. Khajuria & Ors. v. Delhi Development Authority & Ors. (1995 (5) SCC 762) it was held that merely because some structures of permanent nature had been constructed is not relevant as the construction was made in a land reserved for park in residential colonies. The allotment of the land of the Delhi Development Authority was held to be illegal and the same was considered to be misuse of power and was illegal. The High Court has also not indicated any reasons as to why the allotment was to be done at concessional rate at the rate prevailing in the year 1981. Though this aspect loses relevance in view of the conclusion that the High Court's view is not sustainable, yet this adds to the vulnerability of the High Court's order. " 12. In this regard, a reference of the judgment of the Apex Court in the case of jagpal Singh & Ors vs State of Punjab & Ors dated 28.01.2011 would also be relevant. Para 13 and 14 of the said judgment are quoted hereunder for ready reference:- "13. We find no merit in this appeal. The appellants herein were trespassers who illegally encroached on to the Gram Panchayat land by using muscle power/money power and in collusion with the officials and even with the Gram Panchayat. We are of the opinion that such kind of blatant illegalities must not be condoned. Even if the appellants have built houses on the land in question they must be ordered to remove their constructions, and possession of the land in question must be handed back to the Gram Panchayat. Regularizing such illegalities must not be permitted because it is Gram Sabha land which must be kept for the common use of villagers of the village. The letter dated 26.9.2007 of the Government of Punjab permitting regularization of possession of these unauthorized occupants is not valid. We are of the opinion that such letters are wholly illegal and without jurisdiction. In our opinion such illegalities cannot be regularized. We cannot allow the common interest of the villagers to suffer merely because the unauthorized occupation has subsisted for many years. 14. In M.I. Builders (P) Ltd. vs. Radhey Shyam Sahu, 1999(6) SCC 464 the Supreme Court ordered restoration of a park after demolition of a shopping complex constructed at the cost of over Rs.100 crores. In Friends Colony Development Committee vs. State of Orissa, 2004 (8) SCC 733 this Court held that even where the law permits compounding of unsanctioned constructions, such compounding should only be by way of an exception. In our opinion this decision will apply with even greater force in cases of encroachment of village common land. Ordinarily, compounding in such cases should only be allowed where the land has been leased to landless labourers or members of Scheduled Castes/Scheduled Tribes, or the land is actually being used for a public purpose of the village e.g. running a school for the villagers, or a dispensary for them. " 13. In view of the above, we do not find it appropriate either to cause interference in the direction to remove the encroachment or for allotment of land to the petitioners. The Nazul Manual does not promote allotment of Nazool land to the encroachers. The circulars issued by the government are in ignorance of the provisions of the Nazul Manual. They cannot be applied de-hors the Nazul manual. It is more so when the petitioners, who themselves have urged for strict compliance of the provisions of Nazul Manual while contesting the writ petition of the Society. 14. The encroachment of the government or Nazul Land takes place either in connivance of the Government officials or their negligence otherwise there was no reason for the petitioners to occupy the land without applying the means, provided under the law. 15. The Apex Court has not endorsed the direction for regularizing of the land in favour of the encroachers even if they raised construction or are even running a school. 16. In view of the above, we do not find any reason to direct the respondents to allot the land to the encroachers or to restrain them to remove the encroachment rather learned Standing Counsel has emphasized immediate eviction of the trespassers to make land free from encroachment. 17. In view of the above, we do not find any merit in the petition to cause interference in para 4 of the impugned judgment and it is accordingly, dismissed.