Arun Tandon and Anjani Kumar Mishra, JJ.@mdashHeard Sri Yashwant Verma, Senior Advocate assisted by Sri Rohan Gupta on behalf of the petitioner, Sri K.R. Singh, Standing Counsel on behalf of the State and Sri Manish Goyal on behalf of the intervener Allahabad High Court. This petition is directed against the order of the State Government dated 27.9.2012 whereunder the order of the District Magistrate dated 24.10.2007 renewing the lease of the property in question has been revoked. Petitioner has also prayed for quashing of the decision of the State Government dated 31.8.2012 wherein the same property has been leased out in favour of the High Court of Judicature at Allahabad for a period of 90 years. Petitioner has prayed for declaration that it has the right to occupy the lease hold property-Petitioner also prays for compliance of the judgment of the Writ Court dated 24.11.2011 passed in Writ Petition No. 39284 of 2010.
2. Facts in short leading to present petition are as follows:
(i) The Collector of Allahabad on behalf of the Governor of the State of U.P. had executed a lease of the property described as Plot Nos. 112, 113, 114, 118, 119, 120, 121, 122 and 123 village, Bhawapur, Mustarkharja, Pargana and Tehsil Chail, District-Allahabad in favour of Allahabad Bank on 5.7.1930. The lease was registered on 29.5.1940. Since, there were 8 plots under transfer, 8 separate lease deeds were originally executed. However, these 8 separate lease deeds were substituted by one common lease deed dated 29.5.1940, which was registered on the same date. (A copy of the lease deed is Annexure-2 to this petition)
(ii) The term of the lease was provided as 30 years with a right to renewal for a like period, subject to the condition that the total period of lease shall not exceed 90 years. A right of assignment was also conferred under the lease deed. Other conditions and restrictions applicable have been mentioned in the lease document, which shall be referred to at the appropriate stage.
(iii) The Allahabad Bank executed an Assignment Deed in favour of M/s. Newspaper Limited, Allahabad on 27.3.1941. There is no dispute with regard to the said assignment. The first renewal of the lease was due in the year 1970 and prior to it, on an application made by the assignee, first renewal was granted on 27.9.1965 for a further period of 30 years. The term whereof was to expire in the year 1990.
(iv) Prior to the expiry of the term of the renewed lease, on an application made by M/s. Newspaper Limited, second renewal of the lease was granted by the Collector, Allahabad on 5.12.1989 for a period of 30 years. The term of this last renewal would expire on 31.3.2020.
(v) M/s. Newspaper Limited executed a deed of assignment in favour of the petitioner namely Saumya Co-operative Housing Society on 10.7.1980. The deed was presented for registration in the Office of Sub-Registrar on 8.11.1990, which was impounded being insufficient in stamp duty. The proceedings in that regard concluded only on 8.10.1992, when the deed was registered. Intimation of such assignment was given to the District Magistrate under a letter on 5.12.1990.
(vi) The petitioner i.e. Saumya Co-operative Housing Society was interested in raising construction of residential houses for its member and, therefore, it made an application for sanction of map before the Allahabad Development Authority. The matter was referred to the Collector and ultimately to the State Government. The petitioner because of delay in disposal of his said application filed Writ Petition No. 8702 of 1995, which was decided vide order dated 3.4.1995 with a direction upon the Collector, Allahabad to take appropriate decision in the matter. It may be noticed that under the terms of the lease deed it was necessary for the lessee to obtain no objection from the Collector before raising any constructions.
(vii) The Collector, Allahabad vide order dated 25.4.1995 refused to grant ''No Objection Certificate''. This resulted in Writ Petition No. 13203 of 1995. The writ petition was dismissed vide order dated 24.5.1996. A Review Application No. 34312 of 1996 was filed, which was allowed vide judgment of the Court dated 13.4.2000 and the matter was remanded to the District Magistrate for reconsideration. The District Magistrate in turn sought opinion of the Law Department of the State Government. The law department vide letter dated 14.5.2000 opined that the conditions of the lease have not been violated and, therefore, ''No Objection Certificate'' could not be denied.
(viii) According to the petitioner, reminders were issued to the Collector vide letters dated 8.8.2000 and 14.8.2000 by the State Government calling upon the District Magistrate to take appropriate action in the matter. The District Magistrate vide letter dated 22.8.2000 again refused to grant the ''No Objection Certificate''. This resulted in Writ Petition No. 42687 of 2000.
(ix) During the pendency of the said petition, the District Magistrate issued a notice dated 24.4.2000 calling upon the petitioner to show cause as to why the lease deed itself may not be cancelled on the alleged violation of the terms and conditions of the lease deed. Petitioner made an application in his pending Writ Petition No. 42687 of 2000. It is the case of the petitioners that Standing Counsel was required to inform the District Magistrate to not to take any action in pursuance to the show-cause notice till the writ petition was decided. But the District Magistrate cancelled the lease under his order dated 4.9.2003.
(x) Not being satisfied with the order dated 4.9.2003 petitioner filed Writ Petition No. 52234 of 2003, which was connected with Writ Petition No. 42687 of 2000. During the pendency of these petitions the petitioner approached the State Government for reconsideration of the matter and the State Government in turn after obtaining opinion from various departments including the law department passed a detail order dated 5.12.2005 directing the Collector to restore the lease.
(xi) The aforesaid two writ petitions came to be decided under the order of the High Court dated 6.9.2006. The petitions were disposed of in the light of the order passed by the State Government on 5.12.2005 with a direction upon the District Magistrate to pass orders accordingly.
(xii) The District Magistrate again obtained clarification from the State Government. The State Government vide letter dated 29.12.2006 reiterated its earlier decision and asked the District Magistrate to comply with the order of the High Court. The District Magistrate ultimately granted ''No Objection Certificate on 24.10.2007.
(xiii) In between a dispute arose between Allahabad Development Authority and the petitioners with regards to the mutation in the relevant records leading to Writ Petition No. 39284 of 2010, which was allowed on 24.11.2011 and the Revenue Authorities were directed to maintain the records as were existing prior to the order of the Collector dated 24.10.2007.
(xiv) Since necessary steps were not taken by the authorities, petitioners filed Contempt Petition No. 1445 of 2012. In the said contempt petition an affidavit was filed on behalf of State respondents enclosing a copy of the order dated 22.5.2012 whereby the State Government had cancelled the order dated 24.10.2007 and maintained the earlier order of the Collector cancelling the lease dated 4.9.2003.
(xv) Against the order dated 22.5.2012, petitioners filed Writ Petition No 42825 of 2012, which was disposed of vide order dated 31.8.2012 and the order dated 22.5.2012 passed by the State Government was quashed. The matter was remanded for fresh consideration to the State Government.
3. The State Government in compliance to the order of the High Court dated 31.8.2012 has decided the matter afresh vide order dated 27.9.2012. It has maintained its decision qua cancellation of the lease. It has set aside the order of the District Magistrate dated 24.10.2007 whereby ''No Objection Certificate'' was granted in favour of the petitioner. It has been held that the petitioner has breached the terms and conditions of the lease.
4. It is also on record that in between on a request being made by the High Court, the State Government after repossession of the property in dispute through Collector, Allahabad allotted the same in favour of the High Court of Judicature at Allahabad under order dated 31.8.2012 for the purpose of construction of the residence of the Hon''ble Judges of the High Court.
5. The petitioner challenges the order of the State Government dated 27.9.2012 which in fact has the affect of cancelling the renewed lease in favour of the petitioner, the order of the Collector dated 24.10.2007 renewing the lease has also been set aside.
6. The order of the State Government records two reasons for the purposes of coming to the conclusion that the petitioner had breached the terms and conditions of the lease deed and, therefore, cancellation of the lease granted in favour of the petitioner was called for.
7. The first ground is that the Allahabad Newspaper had executed the Assignment Deed on 10.7.1990 and had presented the same for registration on 8.11.1990. Information of the Assignment Deed was given to the Collector only on 5.12.1990 whereas under the terms of the lease, such intimation or assignment is required to be provided to the District Magistrate within 30 days of the assignment. Since, intimation was not given within prescribed period, it has been held that the petitioner has violated the terms of the lease deed.
8. Second ground mentioned in the order is that the assignment in favour of the petitioner-society is for a purpose, which is contrary to the conditions of the lease, as the object of the petitioner-society is commercial in nature and there is a bar under the lease deed qua any trade or commerce being carried on/over the plot in question.
9. Sri Yashwant Verma, Senior Advocate challenges both the grounds mentioned in the order impugned. He at the outset submits that absolutely no notice was given to the lease disclosing the grounds on which it was proposed to cancel the lease. Therefore, it is his case that the impugned order is in violation of principle of natural justice. He explains that in the reply submitted before the State Government after the matter was remanded under the order of the High Court dated 31.8.2012, the petitioner had specifically stated in paragraph 44 that till date petitioner has not been apprised of the grounds or the material on the basis whereof his lease is sought to be cancelled and, therefore, the explanation which is being furnished is confined to the merits of the order dated 27.9.2012, which was challenged before the High Court by means of the said writ petition.
10. On merits also it is contended by Sri Verma that the assignment deed would come into effect only when it is registered, or at least when it is presented for registration. Within 30 days from the date the assignment deed was presented for registration, intimation was given to the District Magistrate. According to him, the Assignment Deed was presented for registration on 8.11.1990 and intimation was given to the District Magistrate of such assignment on 5.12.1990. For the purpose Sri Verma has placed reliance upon judgment of the Apex Court in the case of
11. He further submits even assuming without directing that there has been a breach of the time period prescribed for intimating the assignment, which was at best 3 months in the facts of the case, such breach may not result in the extreme penalty of cancellation of the lease, in as much as, every breach of conditions may not entail the extreme penalty of cancellation. He clarifies that if the Collector or the State Government had afforded opportunity to explain the delay, the petitioners would have furnished reasons for the delay and that extreme penalty of cancellation was not required. He submits that the penalty of cancellation of the lease on mere some delay in submission of the intimation of assignment is too harsh in the facts of the case and, therefore, unconscionable.
12. Sri Verma refers to the letter of the Advocate General of Uttar Pradesh wherein he had opined that the date for the purposes of registration of the Assignment Deed would be 10.7.1990 but for the purposes of intimation of the assignment, the relevant date would be 8.11.1990, i.e., when the assignment deed was presented for registration, inasmuch as, assignment being in respect of an immovable property worth more man Rs. 100/-, would take effect only on being registered.
13. He, therefore, submits that in the said factual background it cannot be doubted that there are two opinions possible with regards to the exact date from which the period of 30 days is to be counted for ascertaining as to whether due intimation of assignment was given to the District Magistrate in terms of the lease deed or not. The issue is at least debatable and if the lessee has opted for one of the possible interpretation it cannot be said that their had been deliberate breach of the terms of the lease, so as to entail the punishment of cancellation of the lease deed.
14. So far as the second ground is concerned, he submits that the same is based on mere presumptions namely that the petitioner would carry on trade/commerce activity on the leased property without the consent of the District Magistrate. In the order dated 22.5.2012 it was recorded by the State Government that commercial activity could be carried on from the plot only with the prior permission of the District Magistrate.
15. He submits that the petitioner had applied for ''No objection certificate'' before the Collector prior to taking any commercial activity on the plot as is reflected from the facts noticed above. If the ''No Objection'' was refused by the Collector, the petitioner would complied with the same or would have taken recourse to law. But merely because the aims and object of the society provide for construction of houses for its members, it cannot be said that any conditions of the lease have been breached merely by execution of the assignment deed. In fact, no commercial activity had been started or had been permitted to be carried on from and over the property in question up to the date the cancellation order has been made.
16. Lastly, it is the case of the petitioner that the entire exercise of cancellation of the lease has been undertaken only to accommodate the High Court.
17. The contentions raised on behalf of petitioner are refuted by Sri K. R. Singh, Standing Counsel and it is submitted that the Assignment Deed would take effect from the date of its execution. On being registered the provisions of section 47 of the Registration Act would come into play. The assignment deed would become operational from the date it had been executed in the facts of the case i.e. 10.7.1990. In support of his case he has placed reliance upon the judgment of Apex Court reported in
18. He explains that M/s. Newspaper Limited had not intimated the execution of the assignment deed in favour of the petitioner dated 10.7.1990 within the prescribed period of 30 days. Therefore, breach of the conditions of the lease deed is writ large on the record. The order of the State Government in that regard cannot be faulted with. He further contends that the assignee Saumya Co-operative Housing Society has as its aim and objects the activity to construct residential houses for its members. It has no other purpose, object or aim. Therefore, when M/s. Allahabad Newspaper Ltd. has assigned the property in favour of Saumya Co-operative Housing Society it has to be accepted that the assignment is for commercial purposes, which is contrary to the conditions of the lease. The State Government has not committed any error in coming to a conclusion that the said assignment results in breach of terms and conditions of the lease deed, which required prior permission of the Collector before any commercial activity being undertaken.
19. On the issue of violation of principles of natural justice it is submitted that the petitioner had ample opportunity to represent his case before the State Government under the order of the High Court dated 31.8.2012 whereby the State Government was directed to re-examine the issue of cancellation of the lease. The lease holder for reasons best known to it did not explain the delay in supply of the intimation to the Collector, of the assignment. Even otherwise, in the facts of the case since the date of execution of the assignment deed and the date of intimation to the District Magistrate are admitted on record, it is clear that the intimation was given beyond the prescribed 30 days. There is no other view possible. Therefore, giving of an opportunity of hearing would only be an empty formality.
20. It is also submitted on behalf of the State that from the order of the State Government impugned, it is clear that the State through Collector had repossessed the land in question on 25.5.2012 and that a lease of the same property had been granted in favour of the High Court of Judicature at Allahabad under Government Order dated 31.8.2012 for a period of 90 years for the purpose of construction of the residence of Hon''ble Judges. He, therefore, submits that in the facts of the case no relief need be granted to the petitioner.
21. Sri Manish Goyal on behalf of the intervener High Court of Judicature at Allahabad points out that there is no prayer in the present petition for the petitioner being put back in possession even after re-possession of the leased property by the Collector has been intimated to the petitioner under the counter-affidavit.
22. He also submits that the State had a right of re-entry under the terms of the lease for public purpose after giving one months notice even during the validity period of the lease. Lease of the property in favour of the High Court as noticed above is for a public purpose. Therefore, even if the petitioner is able to make out a case for interference against the order of the State Government, then to this Court may not pass an order for possession being delivered back to the petitioner. It has to be kept in mind that only 7 years period remains under the renewed lease for the maximum terms of 90 years being completed in accordance with the original lease. If the entire case of the petitioner is accepted by this Court at best the petitioner would become entitle to retain possession for a further period of 7 years and since no commercial activity is permissible over the property in question, the petitioner housing society will not be able to achieve anything by merely being put back in possession. He submits that it will not be equitable in the facts of the case to direct restoration of the possession in favour of the petitioner in any circumstance.
23. This Court after having heard Counsel for the parries for the purposes of obtaining their views as to what could be the relief, which the petitioner can be granted if the cancellation of the lease is found to be illegal and restitution of possession to the petitioner is denied i.e., what would be the fair compensation, which could fie granted to the petitioner for illegal cancellation of his lease.
24. The Counsel for the petitioner submitted that the principles which apply in the matter of acquisition of land in respect of a person who has a lease of more than 7 years may be applied and the petitioner may be compensated accordingly. While the Standing Counsel and the Counsel for the High Court submitted that in view of the judgment of the Apex Court in the case of Union of India v. Harisli Chand Anand (Dead) through L.Rs. (2010) 15 SCC 591, the issue of compensation may be left to be examined by a competent Court of Law and even otherwise, since the petitioner at best could have retained the possession for 7 more years, this Court may determine the compensation with reference to the said right only.
25. Sri Yashwant Verma, Counsel for the petitioner has referred to Sarkari Sampatti Prabandhan Niyamawali, 2003 for contending that the petitioner could avail the right of further renewal of his lease in terms of the said Niyamawali of 2003.
26. Counsel for the High Court, in reply, points out that the petitioner can seek the remedy of being put back in possession only before the Civil Court and that reasonable compensation alone be directed to be paid.
27. We have heard the Counsel for the parties and examined the records of the present petition.
28. For the purposes of appreciating the controversy raised on behalf of the parties it is worthwhile to reproduce the two clauses of the lease deed which are subject-matter of interpretation by both the sides.
29. The first clause is with regards to the intimation of assignment, the relevant portion whereof reads as follows:
Also will upon every assignment of the said premises or any part thereof or within one calendar month thereafter deliver a notice of such assignment to the Collector of Allahabad setting forth the names and description of the parries to such assignment and the particulars and effect thereof.
30. The clause putting restrictions on the use of the leased property for the purpose of trade or business without the consent of the Collector in writing reads as follows:
Also will not at any time carry on or permit to be carried on upon the said premises any trade or business whatsoever or upon the same for any other purpose then as a private dwelling without the consent in writing of the Collector of Allahabad first and obtained.
31. The clause conferring the power of cancellation of the lease and for repossession of the property is also being reproduced hereunder:
Provided always that if and whenever the said rent or any part thereof shall be in arrears and unpaid for the space of one calendar month whether the same shall have been lawfully demanded or not or if there shall be breach of non observance of any of the covenants by the Lessee hereinbefore contained and in any such case the Lessor (notwithstanding the waiver of any previous case or right of re-entry) may re-enter upon the said premises and expel the Lessee and all occupiers of the same therefrom and the demise shall absolutely determine and the Lessee shall forfeit all right to remove or recover any compensation for any buildings erected by the Lessee on the said premises.
32. We may, at the very outset record that there has been some dispute between the parties with regards to the clause pertaining to prior permission being obtained from the Collector for carrying on trade or business from and over the said property. Parties were at variance as to whether such clause continues to exist under the renewed lease deed or not.
33. On behalf of State it is stated that under the renewed lease deed, the provision of permission being obtained from the Collector to carry on trade or business upon the leased property has been done away with. For the purpose reference was made to the terms of the renewed lease deed specifically page 108 of the paper book.
34. The said issue may not detain the Court for long, inasmuch as in the order passed by the State Government dated 22.5.2012 itself it has been noticed that permission from the Collector in writing to carry on trade or commercial activity over the land had to be obtained first. This Order of the Secretary dated 22.5.2012 was subject-matter of challenge in Writ Petition No. 42825 of 2012. It was specifically stated in the order that in terms of the lease deed, the lease holder could carry on either himself or can permit somebody else to carry on commercial or trade activity only with the permission of the Collector and since such permission had not been asked for before executing the Assignment Deed in favour the Housing Society, the aim and object of which was only commercial in nature, the petitioner had breached the terms of the lease. This order of the State Government was quashed by the High Court and the matter was remanded to the State Government to take a fresh decision after affording opportunity of hearing to the petitioners. No further notice was issued to the petitioner nor it was the case of the State at any point of time that the commercial or trade activity over the property in question could not be carried on in any circumstance i.e., even with permission of the Collector.
35. We are, therefore, inclined to hold that according to the case of the State Government itself commercial and trade activities could be carried on from and over the property in question subject, however, to the prior permission being obtained from the Collector and not otherwise in terms of the lease.
36. We shall, address first the issue of violation of principles of natural justice as had been canvassed before us. It may be recorded that the order of the State Government dated 22.5.2012 which was subjected to challenge before the High Court in Writ Petition No. 42825 of 2012 had determined the lease granted only on one ground namely that the Assignment Deed as executed in favour of the petitioner was for the purposes of commercial activity and since prior permission from the Collector had not been obtained, the conditions of the lease have been violated. After the said order was quashed by the High Court and a direction was issued to the State Government to decide afresh, no fresh/further notice was issued to the petitioner.
37. In the reply submitted by the petitioner before the State Government in paragraph 44 it was specifically stated as follows:
Today we appear before you pursuant to the order of the High Court referred to above. However, it is relevant to point out here that till date the Objector has not been issued any notice nor has been apprised of any grounds or material on the basis of which the lease is sought to be cancelled. It is for this reason that this write up is confined to the merits of the order dated 22.5.2012 alone. The Objector reserves his rights to file further replies as and when a notice disclosing the grounds on which the lease is sought to be cancelled are disclosed and communicated to it in writing.
38. The State Government while hearing the matter had taken note of the said case of the petitioner (reference page 32) and yet it has proceeded to cancel the lease on an additional ground namely that the lease holder had not intimated the assignment within 30 days of its execution to the Collector.
39. Sri Verma, Counsel for the petitioner appears to be justified in contending before this Court that the aforesaid ground qua delay in the intimation of the assignment was never brought to the notice of the petitioner nor he was confronted with the same at the time of oral submission or by any notice in writing The State Government could not have relied upon the said facts for alleging violation of the lease deed without bringing the same to the knowledge of the petitioner.
40. We are also of the considered opinion that the reply of the State that giving of an opportunity in respect of the said violation would be an empty formality as the date of execution of the Assignment Deed and the date of intimation are admitted on record, does not appear to be correct.
41. If the said ground had been brought to the notice of the petitioner he could have pleaded that there had been no mala fide intention to withhold the intimation, as it has been so intimated although, after a delay of few months only Even if, there has been some breach of the period prescribed for such intimation it may not result in extreme penalty and some other punishment would suffice. This denial of right to the petitioner to plead before the State Government that there has been no deliberate breach of the time period in respect of the intimation of the assignment and even otherwise, mere delay in intimation of assignment cannot entail extreme penalty, results in the order impugned being rendered bad for denial of fair opportunity of hearing.
42. We hold that in the facts of the case an opportunity should have been afforded to the petitioner to meet the charge of violation of the time period in intimation of the assignment, which has not been so done. Therefore, the plea of violation of principles of natural justice as raised has subsistence.
43. So far as the second ground mentioned in the order impugned is concerned, we may record that it was the case of the State Government in its order dated 22.5.2012 that the commercial and trade activity could be carried on/upon the premises in question subject to the prior permission being granted by the Collector. The records do reflect that the petitioner did submit a no objection application before the Collector as has been noticed in detail herein above. In fact, the petitioner did not start any commercial activity or trade on/upon the premises in question at any point of time. The breach of the condition of the lease as quoted above would arise only when some trade/commercial activity is actually undertaken and not merely because there is a presumption of such activity may be undertaken.
44. We further find that the presumption of the State Government that since the petitioner is a Housing Co-operative Society it will undertake the commercial activity on/upon the premises in question without prior permission of the Collector is totally unfounded. We find substance in the stand taken on behalf of the petitioners by Sri Verma that if the Collector had refused the permission to carry on any commercial or trade activity from and over the plot in question, the petitioner would abided by the same or would have taken recourse to law, but in no case the petitioner would have violated the order.
45. We, therefore, find that in the facts of the case both the grounds mentioned in the cancellation order are unsustainable in the eyes of law. We are also of the opinion that merely because there has been some delay in the intimation of the Assignment Deed by the lease holder to the Collector, such delay in the facts of the case could not have resulted in extreme penalty of cancellation of the lease.
46. There is another aspect of that matter. The Advocate General of the State of U.P. himself had opined as noticed in the order of the State Government dated 5.12.2005 that the date for counting the period of 30 days for the purpose of intimation of the assignment would be 8.11.1990. Intimation had been given within 30 days therefrom to be precise on 5.12.1990.
47. At least, one thing is established from the above that two views were reasonably possible qua the date from which the period of 30 days would start. If the petitioner has acted on one such reasonable view, it cannot be said that he had breached the conditions of the lease deliberately so as to entail extreme penalty of cancellation of the lease. In our opinion, for every breach of the conditions of the lease it is not necessary that the extreme penalty of cancellation of lease should be resorted to. The said aspects of the matter has completely been ignored by the State Government while passing the order impugned.
48. We, therefore, hold that the orders of cancellation of the lease impugned are legally not sustainable, both being in violation of principles of natural justice and even otherwise, bad on merits.
49. We would have directed the State Government to comply with the principles of nature justice and to pass a fresh order in light of the reasons recorded above but, in the facts of the case we feel that such a direction may not be equitable.
50. Larger public interest must prevail over the private interest of the petitioners so far the restoration of possession is concerned. Only 7 years period of the maximum term of the lease remains as on date. It is admitted on record that the maximum period of 90 years would expire in the year 2020. We are conscious of the fact that in between the State Government has repossessed the land through Collector, Allahabad and has transferred the same to the High Court of Judicature at Allahabad for the purpose of residence of the Hon''ble Judges, which is a public purpose. It may be noticed that under the first renewed lease a power was conferred upon the State Government to determine the lease at any point of time after giving one month notice for public purpose.
51. Allotment of the land to the High Court is for public purpose as has been held by the Apex Court in the case of
52. This takes the Court to the issue as to what relief be granted to the petitioner having come to the conclusion that the order of cancellation of the lease deed was legally not justified in lieu of restoration of possession.
53. Counsel for the petitioner could not explain as to how the provisions of ''Sarkari Sampati Prabandhan Niyamawali, 2003'' would apply in respect of the property in question. The Standing Counsel with reference of the said Niyamawali has rightly pointed out that it has no application qua the subject-matter in dispute.
54. The petitioner would then insist that compensation should be provided in terms of the provisions of Land Acquisition Act and the Government Order No. 1-1 (5)/1981-102-5505-81 dated 5.6.1981, which according to the petitioner provides that a lease holder who has subsisting lease of more than 7 years to be provided full compensation for the land as a bhumidar thereof.
55. The learned Standing Counsel and the Counsel for the High Court on the contrary submit that a period of 7 years of the lease remains. The petitioner could at best remain in possession of vacant piece of land, which cannot be put to any commercial use or trade purposes except with the prior permission of the Collector for these 7 years.
56. The aim and object of the petitioner society is to raise constructions of residential houses for its members. For the remaining period of 7 years neither any construction of the houses will be undertaken nor it will be commercial viable. Even otherwise, creation of 3rd party rights during this period or 7 years could only complicate the issues.
57. The land has been repossessed by the State through Collector and even otherwise, the Court must keep in mind the right of re-entry provided for, under the lease deed itself with State Government after giving one month notice to the lease-holder for public purpose. We are also aware that the petitioner has not made any prayer for restoration of possession in the present petition even after being made aware of dispossession by Collector.
58. We, in the facts of the case, deem it fit and proper to provide that the petitioner should be compensated in terms of money by the State Government for illegal cancellation of the lease resulting on deprivation of the right to possession of the lease hold property for the remaining term as well as towards litigation cost, which the petitioner was forced to undertaken because of illegal orders issued from time to time as noticed above.
59. We allow the present writ petition by providing as follows:
(i) The order of the State Government dated 27.9.2012 cancelling the lease is quashed being unsustainable in the eyes of law but the petitioner would not be entitled to possession over the property.
(ii) Repossession by the State Government through Collector and lease granted in favour of the High Court of Judicature at Allahabad under notification dated 31.8.2012 shall remain unaffected.
(iii) The petitioner shall be entitled to compensation of Rs. 20,00,000/- (rupees twenty lacs) for the reasons recorded above, which shall be paid by the State Government within 3 months from the date a certified copy of this order is filed before respondent No. 1 (Secretary, Department of Revenue, State of U.P., Lucknow).
We further provide that the petitioner can always approach the State Government for enhancement of the compensation and it is left open to the State Government to consider the matter in accordance with law.
Writ petition is allowed with aforesaid observations.
