Ashok Bhushan, J.@mdashWe have heard Sri V.B. Upadhyay, senior advocate, assisted by Sri Manish Goyal, advocate for the petitioner, Sri Siddharth Shanker Ray, senior advocate for respondent No. 4, Sri A.K. Mishra, advocate for respondent No. 3 and Sri Chandra Shekhar Singh, standing counsel for respondent Nos. 1 and 2. Affidavits between the parties have been exchanged, with the consent of the parties the writ petition is being finally decided.
2. The writ petition, as originally filed, contains following relief :
(i) issue a writ, order or direction in the nature of certiorari calling for the Government order on the basis of which the respondents are trying to transfer the legally acquired property of the petitioner in favour of respondent No. 3 and thereafter to quash the said order ;
(ii) issue a writ, order or direction in the nature of mandamus commanding the respondent Nos. 1 and 2 to provide records relating to the alleged transfer of the property in favour of respondent No. 3 ;
(iii) issue a writ, order or direction in the nature of prohibition commanding the respondent No. 3 not to alienate the property further on the basis of orders passed In its favour by respondent Nos. 1 and 2 ;
(iv) issue any other writ, order or direction as this Hon''ble Court may deem fit and proper in the circumstances of the case ;
(v) to award costs to the petitioner.
By an order of this Court dated 1st August, 2001, petitioner has been permitted to add two more relief (ia and ib) praying for quashing the allotment order in favour of respondent No. 4 by respondent No. 3 dated 12.6.2001 and for quashing the orders dated 13th June, 2001 and 14th June, 2001.
3. Facts of the case, as emerge from pleadings of the parties, briefly, are; Rampur State vide letter dated 22nd February, 1942 agreed to grant a lease of land, measuring 24 bighas 8 biswas, to M/s. Rampur Maize Products Limited, Rampur for setting up an industry. By lease executed on 17th June, 1949 terms and conditions of lease were written down. The lease deed provided that deed is for a period of 30 years with effect from 22nd February, 1942, renewable on same terms and conditions at the option of Company for a further period of 30 years. The lease deed further provided that State shall on the written request of the Company within one calendar year before the expiration of the first period of 30 years grant to the Company a lease of the said premises for a further period of thirty years. The lease deed further provided that should the company on the termination of lease after the full period of 60 years wish to renew this lease for a further period on terms and conditions as to be mutually agreed and should the State not agree to extend the lease then the Company will have the right to and option to acquire the full ownership of the said piece of land on payment of Rs. 500 per acre or to remove or pull down all erections and machineries. The said lease property was mortgaged to Bharat Fire and General Insurance Company, New Delhi (hereinafter referred to as ''Bharat Insurance Company'') and on failure to pay the mortgage money, the Bharat Insurance Company took possession of all mortgaged properties and purchased the same in a court auction held on 16th March, 1961. Bharat Insurance Company entered into an agreement with the Governor of Uttar Pradesh on 7th of June, 1961 by which agreement Governor of Uttar Pradesh agreed to sell to the Bharat Insurance Company the land as described in schedule with certain conditions. The agreement provided that purchaser shall pay Rs. 7,625 being the initial payment at the rate of Rs. 500 per acre for the entire land. At the time of execution of the agreement and after the initial payment purchaser shall find a party within two years of the date of the agreement who can restart the said maize factory or can start any other industry at the premises and work the said industry for a period of at least 10 years. If the purchaser would be able to run the factory or start any other industry on the said premises, the seller shall convey the said land as freehold to the purchaser after the expiry of 10 years on the consideration of the payment of Rs. 7,625 already paid. The agreement further provided that if purchaser would fail to find a party for restarting the maize factory or would fail to start any other factory within two years and/or would fail to carry on and run the said industry for a period of at least 10 years, the purchaser/shall liable to pay to the Vendor full market price of the land prevailing at the time of the expiry of the said period of 10 years. Agreement lastly provided that until the freehold rights, as aforesaid, are granted to the purchaser, the purchaser shall continue to observe and perform all the covenants of earlier lease. On 21st November, 1970 Bharat Insurance Company wrote to State Government that it could not restart the maize factory or any other industry, hence is liable to pay full market value of the land. It prayed that free hold rights be granted. On 17th February, 1971, Bharat Insurance Company again wrote to the State Government to renew the lease for a further period of 30 years. The General Insurance Business (Nationalization) Act, 1972 was passed in pursuance of which a scheme was notified by the Central Government by which Bharat Insurance Company was merged with Oriental Fire and General Insurance Company Limited. The State Government wrote to the Central Government on 10th May, 1974 asking for the views of the Central Government on the transfer of the land in view of he fact that the Government of India is now successor of Bharat Insurance Company. Letter dated 11th February, 1976 was written by the Central Government to the State Government to consider favourably the request of M/s. Oriental Insurance Company Limited (hereinafter referred to as ''Oriental Insurance Company'') for renewal of the lease for a further period of 30 years. The State Government further took a decision to add certain additional conditions for proposed renewal of the lease, letter dated 17th April, 1978 was issued in that regard. The State Government vide letter dated 17th April, 1978 addressed to the Commissioner and Director of Industries, U.P. stated that additional condition be added to the effect that renewal shall be for 30 years with effect from 22nd February, 1972 and Oriental Insurance Company shall not be entitled to get a sale deed executed in his favour as per agreement dated 17th June, 1961. It further provided that if the lessee in the prescribed period does not use the land for the specified object then the State Government in the public interest shall have power to take the land in its possession and power. The Oriental Insurance Company vide its letter dated 2nd March, 1982 objected to the addition of the aforesaid condition in the proforma of lease deed. It was prayed that renewal be granted at the earliest. Rampur Distillery Limited made an application on 23rd September, 1982 to the State Government for allotting the land to it. A letter dated 21st May, 2001 written by Secretary. Industry to the Chairman of Oriental Insurance Company communicated that land having not been utilized for industrial purposes, a decision has been taken by the State Government to transfer the land to U.P. State Industrial Development Corporation (hereinafter referred to as ''U.P.S.I.D.C.'') which will make the land available by lease for industrial purposes. The letter further stated that in case the petitioner desires. It may make an application for allotment of land to U.P.S.I.D.C. An Government order dated 26th May, 2001 was Issued to above effect. An application dated 7th June, 2001 was sent by respondent No. 4 to U.P.S.I.D.C. praying for allotment of land. On 8th June, 2001, the Collector took possession of land in question under the orders issued by the State Government. On 11th June, 2001, the petitioner wrote to the Collector requesting him to inform the orders and reasons for action of Collector in trying to dispossess the petitioner. On 12th June, 2001, U.P.S.I.D.C. allotted the land in question in reference to application of respondent No. 4 dated 7th June, 2001. On 13th June, 2001 possession is claimed to have been handed over by U.P.S.I.D.C. to respondent No. 4, The writ petition was filed in this Court which was taken on 21st June, 2001 on which date this Court passed an interim order directing for maintaining status-quo over the land in dispute. A supplementary affidavit was filed by the petitioner dated 21st June, 2001 annexing the copy of the letter dated 21st May, 2001 of the Secretary, Industry. It has further been stated in the affidavit that action of the respondents in taking a decision is in hot haste and allotment of premises to respondent No. 3 in a short span and thereafter allotting the same to respondent No. 4 smacks of arbitrariness and extraneous consideration. It was further pleaded that before allotting the premises neither any public notice was issued nor any tender as invited and the entire exercise has been undertaken only to give benefit to respondent No. 4. Petitioner was permitted to amend the pleading of the writ petition by order of this Court dated 1st August, 2001 by which relief (ia and ib) was permitted to be added as noted above.
4. The counsel for the petitioner raised following submissions in support of the writ petition :
(i) The petitioner has right of renewal of the lease in accordance with the lease deed dated 17th June, 1949 and has also right to exercise option of purchase of the property on expiry of renewal period of 30 years. The petitioner has been dispossessed from the land in dispute by the State Government Infringing his rights as protected by the aforesaid lease deed. The subsequent deed dated 7th June, 1961 does not supersede the earlier lease deed dated 17th June, 1949. The petitioner had made request for renewal one year before 22nd February, 1972, hence he has subsisting right.
(ii) The State Government without expiry of even renewal period of 30 years has taken possession contrary to the terms and conditions of the lease. The action of the State Government is totally mala-fide action and is a highhandedness on the part of the State. The action of the State Government was de hors the terms of the lease. No opportunity was given by the State to the petitioner before deciding to take possession.
(iii) The allotment in favour of respondent No. 4 by U.P.S.I.D.C. is totally contrary, no public notice was issued or tender invited before allotting the land to respondent No. 4. Respondent No. 3 being the instrumentality of the State cannot act arbitrarily in leasing out public property. The action of the respondents is arbitrary, unreasonable and is abuse of power.
5. Sri Siddharth Shanker Ray, senior advocate, appearing for respondent No. 4, justified the action of the State and that of the U.P.S.I.D.C. in allotting the land to respondent No. 4. Sri Ray submitted that petitioner has no right to maintain the writ petition since the tenure of the lease including the period of renewal has lapsed. It Is contended that petitioner has no right to be in possession of the land nor it can challenge the action of the State or U.P.S.I.D.C. Petitioner having no subsisting right, no relief can be granted to the petitioner in this writ petition. It is further contended that grievance of the petitioner is based on breach of terms of the lease for which writ petition is not the appropriate remedy. The amended pleading made by the petitioner in the writ petition being paragraphs 38 to 52 cannot be looked into since it is not properly sworn and the swearing on the amended pleading being based on legal advice, no relief can be granted on the said pleading. The petitioner has failed to start industry on the land in question for which purpose the land was leased out.
6. Sri A.K. Mishra, learned counsel appearing for respondent No. 3, emphatically submitted that the action of respondent No. 3 in allotting the land in question to respondent No. 4 is fully justified. Sri Mishra further contended that the allotment has been made to respondent No. 4 on first come first serve basis which cannot be termed to be discriminatory, unfair and arbitrary. According to guidelines of U.P.S.I.D.C. the priority in allotment to industrial house is to be given to any unit situate in the same Industrial area praying for expansion. No application for allotment by any other person was pending or made till the date land was allotted to respondent No. 4. It is further contended that it is not equitable to grant any relief to the petitioner. It is further contended that breach of terms of the lease cannot be complained by way of writ petition and the remedy of the petitioner lies in instituting suit before the competent court. Sri Mishra further contended that petitioner has concealed several material facts in the writ petition. U.P.S.I.D.C. having paid substantial amount to the State Government and allotment having been made for industrial purposes, no interference is warranted by this Court under Article 226 of the Constitution.
7. Sri Chandra Shekhar Singh, standing counsel, appearing for the State justified the action of the State Government in taking the possession and transferring the land to U.P.S.I.D.C. Learned standing counsel submitted that after 22nd February, 1972 no renewal has been granted in favour of the petitioner. The petitioner has no subsisting right to claim or retain possession on the land in dispute.
8. Learned counsel for the parties cited several decisions of the Apex Court and this Court in support of their respective contentions, which shall be referred to while considering the respective submissions.
9. The first and second submissions of counsel for the petitioner being interrelated are taken together. There is no dispute that period of 30 years lease was coming to an end on 21st February, 1972 and the predecessor-in-interest of the petitioner before expiry of the said period has made an application on 17th February, 1971 for renewal of the lease. The renewal, however, was not granted by the State Government, rather the State Government decided to add certain conditions for proposed renewal to which petitioner did not agree. As noted above, the petitioner had entered into an agreement with the State Government on 7th June, 1961 which provided that petitioner has to find out a party within two years who will restart the maize factory or can start any other factory and work the said industry for a period of 10 years and in the event said industry is not run, petitioner shall be liable to pay the full market value after expiry of 10 years. There is no dispute between the parties that petitioner could not start the maize factory or run any factory in the leased land even after expiry of the period of 10 years as contemplated in the agreement dated 7th June, 1961. The thrust of submission of the petitioner is that petitioner was entitled for renewal of lease on same terms and conditions as of the original lease and further it had option to purchase the property which it could have very well exercised even after expiry of term of first renewal. The counsel for the petitioner has also referred to letter dated 21st May, 2001 of the Secretary, Industry in which it was observed that renewal be assumed for 30 years which submission has been refuted by learned counsel for the State stating that the State having never executed a renewal deed nor having ever taken a decision to renew the lease, renewal cannot be assumed. The issues which are sought to be raised in the writ petition are entitlement of renewal of the lease by the petitioner with effect from 22nd February, 1972 and thereafter right of purchasing the property. The submission of the petitioner is that action of the State is de hors the terms of the lease and action of State in taking possession before expiry of lease is highhandedness on the part of the State. Petitioner has also complained violation of principle of natural justice in taking possession by the State.
10. The question as to whether lease was entitled to be renewed by the State with effect from 22nd February, 1972 and whether the petitioner has right to purchase the property are issues based on various terms and conditions of the lease deed dated 17th June, 1949 and the agreement dated 7th June, 1961 and further also the breach of terms of the lease by the State Government are the issues which have to be agitated by Instituting a suit before the civil court. This Court in exercise of writ jurisdiction cannot Issue any direction for specific performance of any terms of an agreement or to grant a relief with regard to breach of terms of agreement. The Apex Court in
"23. A rather desperate argument which has been addressed to us on behalf of the appellants is that they were entitled to an opportunity to show cause against the cancellation of the leases. It was urged, on the strength of
The same view was again reiterated by the Apex Court in
"11. .................... If the State thought that the constructions should be removed or that the condition as to resumption of the land should be invoked, it was open to the State to take appropriate legal action for the purpose. Even if the State proceeded on the footing that the trust was a public trust it should have taken appropriate legal action for the removal of the trustee as was opined by the State''s Legal Remembrancer. It is well recognized that a suit u/s 92, Civil Procedure Code, may be brought against persons in possession of the trust property even if they claim adversely to the trust, that is, claim to be owners of the property, or against persons who deny the validity of the trust."
The aforesaid case is fully distinguishable and has no application in the present case. In the present case, the State had admittedly leased the land in question to the petitioner. The lease was regulated by terms and conditions as laid down in original lease and the subsequent agreement dated 7th June, 1961. The action of the State in not renewing the lease at best can be termed as breach of conditions of the lease. The State had not renewed the lease of the petitioner and took a decision to transfer the land to U.P.S.I.D.C. It is relevant to note that the original lease itself provided that lease is being given to the predecessor-in-interest of the petitioner for establishing an Industry. Subsequent agreement dated 7th June, 1961 also contain emphasis on restarting of maize factory or starting any industry in which petitioner miserably failed. The State decided to add certain conditions in the proposed renewal which was not agreed upon by the petitioner. We make it clear that in this writ petition, we are not expressing any opinion as to whether it was open to the State to insist upon some additional conditions or not or as to whether the petitioner is entitled to renewal without any additional condition or not. All these questions are left open to be decided in the appropriate forum. The State having decided to take possession from the petitioner and transfer the land to U.P.S.I.D.C. can at best be termed as breach of contract by the State.
11. The judgment of Division Bench of this Court in Durga Prasad''s case (supra) was a case where for execution of public irrigation project land of agriculturist has been acquired without due process of law. No proceedings were taken for acquisition of the land. The project was completed. Petitioners complained depriving of their land without any compensation. The said judgment is clearly distinguishable and has no application in the facts of the present case.
12. From the materials brought on the record, it is clear that there has been correspondence between the State and the petitioner right from the application given by the petitioner for renewal of the lease. The petitioner was duly communicated the insistence of additional conditions for renewal of the lease vide letter dated 17th April, 1978. The Director of Industries communicated the petitioner about the additional conditions which fact is admitted by the petitioner in his letter dated 2nd March, 1982 copy of which has been filed by the State as Annexure-7 to the counter-affidavit. The petitioner was, thus, aware that the State is insisting for addition of certain conditions for renewal of the lease. As observed above, the petitioner having not put the premises for industrial use for which lease was granted and for which agreement was also entered on 7th June, 1961, we are not persuaded to accept the submission of the petitioner that action of the State in transferring the land to U.P.S.I.D.C. was arbitrary or unreasonable.
13. The third submission of the petitioner raises challenge to the allotment made by respondent No. 3 in favour of respondent No. 4. There is no dispute between the parties with regard to the course of event which took place. It is admitted fact that possession is claimed to be taken by the Collector on behalf of the State on 8th June, 2001 and the Collector claims to have handed over the possession of the land in question to U.P.S.I.D.C. on 8th June, 2001 itself. The allotment was made in favour of respondent No. 4 on 12th June, 2001 in response to his application dated 7th June, 2001.
14. The principles governing sale/lease of public property granting largess to public are well settled. Apex Court in
"12, .................... The power or discretion of the Government in the matter of grant of largess including award of jobs, contracts quotas, licenses etc., must be confined and structured by rational, relevant and non-discriminatory standard or norm and If the Government departs from such standard or norm in any particular case or cases, the action of the Government would be liable to be struck down, unless it can be shown by the Government that the departure was not arbitrary, but was based on some valid principles which in itself was not irrational unreasonable or discriminatory."
The Apex Court in the same Judgment has also laid down that where a corporation is an instrumentality or agency of the Government, it would, in the exercise of its power or discretion, be subject to the same constitutional or public law limitations as Government. Following was laid down in paragraph 20 :
"20. Now, obviously where a corporation is an instrumentality or agency of Government, it would, in the exercise of its power or discretion, be subject to the same constitutional or public law limitations as Government. The rule inhibiting arbitrary action by Government which we have discussed above must apply equally where such corporation is dealing with the public, whether by way of giving jobs or entering into contracts or otherwise, and it cannot act arbitrarily and enter into relationship with any person it likes at its sweet will, but its action must be in conformity with some principle which meets the test of reason and relevance."
While dealing with the use and disposal of public property by the State, the Apex Court held in
"12. Let us put into focus the clearly demarcated approach that distinguishes the use and disposal of private property and socialist property. Owner of private property may deal with it in any manner he likes without causing injury to any one else. But the socialist or if that word is jarring to some, the community or further the public property has to be dealt with for public purpose and in public interest. The marked difference lies in this that while the owner of private property may have a number of considerations which may permit him to dispose of his property for a song. On the other hand, disposal of public property partakes the character of a trust in that in its disposal there should be nothing hanky panky and that it must be done at the best price so that larger revenue coming into the coffers of the State administration would serve public purpose viz, the welfare State may be able to expand its beneficent activities by the availability of larger funds. This is subject to one important limitation that socialist property may be disposed at a price lower than the market price or even for a token price to achieve some defined constitutionally recognized public purpose, one such being to achieve the goals set out in Part IV of the Constitution........."
15. Apex Court in
"39. On a consideration of the relevant cases cited at the bar the following propositions may be taken as well established. State-owned or public-owned property is not to be dealt with at the absolute discretion of the executive. Certain precepts and principles have to be observed. Public Interest is the paramount consideration. One of the methods of securing the public interest, when it is considered necessary to dispose of a property, is to sell the property by public auction or by inviting tenders. Though that is the ordinary rule, it is not an invariable rule. There may be situations where there are compelling reason necessitating departure from the rule but then the reasons for the departure must be rational and should not be suggestive of discrimination. Appearance of public justice is as important as doing Justice. Nothing should be done which gives an appearance of bias, jobbery or nepotism."
It is further relevant to note judgment of the Apex Court in
"25. The cases aforesaid on which reliance was placed on behalf of the appellants, have also reiterated that once the State decides to grant any right or privilege to others, then there is no escape from the rigour of Article 14; the executive does not have an absolute discretion, certain precepts and principles have to be followed, the public interest being the paramount consideration. It has also been pointed out that for securing the public interest one of the methods recognized is to invite tenders affording opportunity to submit offers for consideration in an objective manner. However, there may be cases where in the special facts and circumstances and due to compelling reasons which must stand the test on Article 14 of the Constitution, departure of the aforesaid rule can be made. This Court while upholding the contracts by negotiation in the cases referred to above has impressed as to how in the facts and circumstances of those cases the decisions taken by the State and the authorities concerned were reasonable, rational and in the public interest. The decisions taken in those cases by the authorities concerned, on judicial scrutiny were held to be free from bias, discrimination and under the exigencies of the situation then existing to be just and proper. On the basis of those Judgments it cannot be urged that this Court has left to the option of the authorities concerned whether to invite tenders or not according to their own discretion and to award contracts ignoring the procedures which are basic in nature, taking into account factors which are not only irrelevant but detrimental to the public interest."
In the aforesaid case before the Apex Court a supplemental agreement was entered with M.T.N.L. without inviting any tender, the Apex Court held that if the supplemental agreement has been executed without following the procedure then the same is infirmity in decision making process vitiating the action of the State. Following was held in paragraph 29 of the said judgment :
"29. The supplemental agreement is really a fresh agreement with fresh terms and conditions which has been entered by M.T.N.L. without inviting any tender for the same. The supplemental agreement has been entered to benefit the parties who are admittedly defaulters by not publishing directories for Bombay for the years 1988, 1989, 1990 and 1991 and for Delhi for the years 1989, 1990 and 1991 although they had collected several crores of rupees for the advertisements for the directories to be published in the aforesaid years. We fail to understand as to how a fresh contract for a period up to 1998/1999 was awarded to U.I.P./U.D.I./Sterling in the garb of an agreement for extension of the period of the original agreement taking into account irrelevant factors as already enumerated above. If the supplemental agreement has been executed without following the procedures which are essential in view of the repeated pronouncements of this Court and taking into consideration irrelevant factors, then can it be said that "decision-making process" before the supplemental agreement was entered into was consistent with the requirement of Article 14 of the Constitution? In such a situation there is no scope for argument that any interference by court shall amount to an intervention like a court of appeal. Once the process through which the supplemental agreement was executed is held to be against the mandate of Article 14 of the Constitution, the supplemental agreement shall be deemed to be void."
It is well settled that State decisions/actions must be in consonance with Article 14 of the Constitution and the decision-making process and not the merits of the decision is reviewable. The grounds for reviewing the administrative decision of a State were clearly laid down by the Apex Court and the Apex Court held in the aforesaid judgment that the judicial review is permissible when the decision-making process itself is arbitrary. Applying the principles as laid down by the Apex Court in the present case, it is clear that U.P.S.I.D.C. got the possession of the property only on 8th June, 2001. The U.P.S.I.D.C. has allotted the land in question in favour of respondent No. 4 by issuing an order on 12th June, 2001. The grant in favour of respondent No. 4 is sought to be justified by U.P.S.I.D.C: stating that under existing guidelines allotment was to be made on first come first serve basis and priority was to be given to Units requiring land for expansion in the same industrial area. In paragraphs 6 and 7 of the counter-affidavit, the U.P.S.I.D.C. for justifying its action stated :
"6. That, the answering respondent allots its Industrial plot upon first come first serve basis as per the existing guidelines framed by the Corporation. The relevant portion of the guidelines is being reproduced hereinafter for the kind perusal of this Hon''ble Court:
"(iii) Allotment are made on ''first come first serve'' basis but subject to following priorities :
(e) Units requiring land for expansion in the same industrial Area."
7. That, a bare reading of the above guidelines shows that allotment is made on first come first serve basis and priority is given to existing Industrial unit, seeking allotment for its expansion. In the present case respondent No. 4 moved an application dated 7.6.2001 seeking allotment of the Industrial Plot in issue for the purpose of expansion. No other application was pending nor any application by anybody has been filed seeking allotment by any other body. The application filed first by the respondent No. 4 was taken on priority as per aforesaid guidelines and allotment letter was issued on 12.6.2001. A copy of the application of the respondent No. 4 dated 7.6.2001 as well as letter of allotment dated 12.6.2001 are filed herewith and is marked as Annexure-1 to this counter-affidavit. The applications received for allotment are to be processed expeditiously as per the existing guidelines of the Corporation. The guidelines for expeditious disposal is being reproduced hereinafter for the kind perusal of this Hon''ble Court:
"U.P.S.I.D.C. shall issue formal letter (on receipt of complete application) as per indicative time schedule below :
"TIME AFTER MAKING REQUEST
Issue of allotment letter 30 days
Execution of License
Agreement 30 days"
In paragraph 10 of the counter-affidavit, it was clearly admitted that Collector, Rampur has handed over possession to U.P.S.I.D.C. on 8th June, 2001. There is no averment in the counter-affidavit of the U.P.S.I.D.C. that at any point of time, any public notice was issued by the U.P.S.I.D.C. inviting persons for allotment of land for industrial purpose. From the Government order dated 26th May, 2001 filed along with the counter-affidavit of the State it is clear that the State Government has transferred the land to U.P.S.I.D.C. for making available the same on lease for industrial purpose. Thus, it is clear that land was transferred to U.P.S.I.D.C. to grant lease for industrial purposes. The object was to utilize the land for industrial purposes. The stand of U.P.S.I.D.C. in the counter-affidavit is that no other application was pending nor any application by any body has been filed seeking allotment. The possession of land being given to the U.P.S.I.D.C. only on 8th June, 2001, no body can make an application for allotment unless it was made known to desirous persons that land is available on lease for industrial purposes. From the facts, it is clear that U.P.S.I.D.C. received the application of respondent No. 4 only and allotted the land to respondent No. 4 without even making effort to know as to whether there are any other persons desirous to make an application. The stand of U.P.S.I.D.C. that no application was pending nor anybody filed has no substance since unless a public notice is issued or even particular category of persons are invited to apply, occasion for pendency of application or giving of application does not arise. There was no occasion for any application even pending since U.P.S.I.D.C. claims taking of possession only on 8th June, 2001 and after three days it has been allotted to respondent No. 4. There being not even sufficient time to give any opportunity to any one to apply, as laid down by the Apex Court, the action of the State instrumentality neither fair nor reasonable. The fact situation of the present case clearly shows that action of the U.P.S.I.D.C. to allot the land in question in favour of respondent No. 4, was arbitrary which was taken without even making it known to anyone that the land in question is open for allotment for industrial use. The petitioner has stated that on 8th June, 2001 alone they came to know that respondent Nos. 2 and 3 have come to take possession of land In question. The petitioner has categorically stated that he was not aware of any order or action and a letter was written on 11th June, 2001 asking the Collector to give the copy of the orders on the basis of which action is being taken and the land was allotted on 12th June, 2001. Thus, even petitioner cannot be said to be aware that the land Is open for allotment by U.P.S.I.D.C, The letter dated 21st May, 2001 which was written by Special Secretary to petitioner has been pleaded In the writ petition not to be served on the petitioner.
16. Sri Ray, senior advocate, has much emphasized that pleadings of the petitioner in paragraphs 38 to 52 of the writ petition cannot be relied since they are not properly sworn and swearing is only on the basis of legal advice which cannot be looked into. His submission is that there is no averment that no public notice was issued prior to allotment in favour of respondent No. 4. It is not necessary to dwell this matter any further in view of specific averment made In paragraphs 10 and 11 of the supplementary affidavit filed by petitioner dated 21st June, 2001 in which it was categorically stated that before allotting the premises neither any public notice was issued nor any tender was invited and the entire exercise has been taken only to give benefit to Rampur Distilleries or its other sister concern. The contents of paragraphs 10 and 11 of the supplementary affidavit have been sworn on personal knowledge. Paragraphs 10 and 11 of the supplementary affidavit dated 21st June, 2001 is quoted below :
"10. That the action of the respondent In taking a decision in hot haste and by one hand allotting the premises to respondent No. 3 and in a short span thereafter allotting the same in favour of M/s. Radico Khaitan Ltd., smacks of arbitrariness and extraneous consideration making the entire action of the respondent as unfair and unreasonable.
11. That before allotting the premises neither any Public Notice was issued nor any Tender was invited and the entire exercise has been undertaken only to give benefit to M/s. Rampur Distillery or its other sister concern. As evident from the records, M/s. Rampur Distillery has its boundary on the east and south of the property in dispute."
17. The allotment, in view of the foregoing discussions, dated 12th June, 2001 in favour of respondent No. 4 cannot be sustained and is hereby quashed.
18. Now the question remains that as result of quashing the allotment in favour of respondent No. 4 whether petitioner is entitled to possession of the land in question. Much emphasis has been laid by Sri Ray on the Apex Court Judgment in
"31, Further a person, whose lease has expired is still entitled to maintain possessory right so long as and until he be evicted by due process of law, various decisions have been cited before this Court, but we do not consider them relevant in the matter under consideration. The factual aspect of the matter has to be gone into to make the provisions of law or judicial precedence applicable, the proposition which is noticed above pertains to the possessory right and eviction in accordance with law. The lessee has lost his possessory right and the same stands shifted on to the State : Once, however, the possessory right is transferred or shifted from the lessee and the lease deed stands terminated during this temporary interregnum when lessee was deprived of its possession, question of putting back, the lessee on to the possession, after the expiry of the lease in accordance with the provisions of law, does not and cannot arise. The Court has to do equity and in doing so, it has to consider the fact-situation of the matter in issue and it is only thereafter pass certain orders thereof. There is not even iota of right existing in favour of the Mimanis to call for its possessory right. The right of the lessee stands obliterated by reason of efflux of time coupled with the issuance of the requisition order which temporarily suspended the lessee''s right to occupy though does not put an end to the lessor''s right to own the premises unless of course, acquisition follows the requisition order and the provisions of law on the basis of which the order for requisition was passed also expired by lapse of time."
The Apex Court further in the said Judgment held that there must be some semblance of right at least and that right must continue till the judgment is pronounced, because on the day of the pronouncement of the judgment, the Court can pass appropriate order only in the event of entitlement of such judgment, but not otherwise. It was observed in paragraph 32 :
"32. Significantly, the lessee addressed a letter to the Chief Minister of the State of Bengal, wherein it was stated "the above place was taken on a lease from Dawn family by Kanhaiyalal and Surajmal Mimanis, the partners of the firm for a period of 50 years commencing from 1939, on the terms and conditions contained in the said lease..... the said lease is due to expire on 31st December, 1988...... There is no renewal clause in the said lease, and the same has not been renewed....." Does this letter imply a right or a mere plea before the Chief Minister to help the Mimanis in the matter? There must be some semblance of right at least and that right must continue till the judgment is pronounced, because on the day of the pronouncement of the judgment, the Court can pass appropriate order only in the event of entitlement of such judgment, but not otherwise. The Mimanis were in fact not entitled to obtain the possession on the date of the judgment by reason of the expiry of the deed of lease and how can that right be enforced by the Court in the event of non entitlement thereof there is no satisfactory reply thereto."
The Apex Court ultimately dismissed the appeal refusing the claim of the tenants for restoration of possession.
19. The above judgment of the Apex Court fully support the contention raised by the respondents that the petitioner is not entitled for any direction for restoration of possession by this Court. This order, however, is without prejudice to the rights and contentions of the parties and without prejudice to the rights of the petitioner to file a suit for appropriate proceeding for recovery or otherwise and/or to enforce the agreement for purchasing of the properties in accordance with law.
20. In the result, subject to observations as made above, the writ petition is partly allowed. The order of allotment dated 12th June, 2001 issued by respondent No. 3 in favour of respondent No. 4 is quashed.
21. Parties shall bear their own costs.
