LOK PAL SINGH, J
[Per: Hon’ble RAJIV SHARMA, J.]
1. Since the common questions of law and facts are involved, the present petitions have been taken up together and are being decided by this common
judgment. However, in order to maintain clarity, the facts of WPPIL No.173 of 2015 have been taken into consideration.
2. The petitioner has filed the present petition for the following reliefs: -
1.“Issue a writ, order or direction in the nature of certiorari quashing the Clause 4(ja)(Chh) order dated 1.3.2009 passed by the respondent no.1
(contained in Annexure No. 24 of the petition P.I.L.).
2. Issue a writ, order or direction in the nature of mandamus directing and commanding the respondents not to free hold any govt. land in favour of
any encroachers.
3. Issue a writ, order or direction in the nature of mandamus directing and commanding the respondent nos. 1 to 5 not to free-hold the plot at Khasra
No. 170 (Min) 171 (Min), 172 (Min), 173 (Min), 197 (Min), Plot No. 26 & 27 situated in village Jagatpura, Mohalla Kalyani View, Rudrapur, Tehsil
Rudrapur, District Udham Singh Nagar, in favour of any person and restore its original position after remove the illegal encroachment of any person,
further be directed to take necessary steps to protect the aforesaid Government agricultural barren land/Public utility land.â€
3. It is settled that the ownership of the Nazul land always remains with the State Government. However, it can be used by the statutory authorities as
‘permissible user’. In the Districts of Dehradun and Haridwar, the Nazul land is being managed by Mussoorie Dehradun Development
Authority and Haridwar Development Authority, the State Government has issued the Circular/Policy on 13.2009 making the Nazul land freehold.
4. Clauses 4(f)(g)(h) of the Nazul Policy dated 1.3.2009, which are impugned in the present petition, read as under: -“4(f) Illegal/unauthorized
occupants (under the provisions contained in Nazul Policy).
(g) Such purchasers who have not got the land by way of registered sale deed, but on mutual agreement, power of attorney or registered agreement
or by any other means, then treating such cases to be illegal, free hold proceeding shall be made as per the policy applicable to the illegal occupants.
(h) Such lease land, whose period of lease has expired and the right to re-entry has vested with the Government shall also be entitled for free hold.â€
5. A very specific question was put to learned Counsel appearing on behalf of the State Government that why the Nazul land has been made freehold.
He has drawn our attention to sub-clause (g) of Section 2 of the U.P. Public Premises (Eviction of Unauthorized Occupants) Act, 1972. It reads as
under: -
“unauthorized occupationâ€, in relation to any public premises, means the occupation by any person of the public premises without authority for
such occupation, and includes the continuance in occupation by any person of the public premises after the authority (whether by way of grant or any
other mode of transfer) under which he was allowed to occupy the premises has expired or has been determined for any reason whatsoever.â€
6. In order to adjudicate the matter effectively, we have to refer to the definition of public premise given u/s 2(3) of the Act. It reads as under: -
“Public premises means any premises belonging to, or taken on lease or requisitioned by, or on behalf of the Central Government, and includes any
premises belonging to or taken on lease by or on behalf of-
(i) any company as defined in section 3 of the Companies Act, 1956 (1 of 1956), in which not less than fifty-one per cent of the paid up share capital is
held by the State Government; or
(ii) any local authority; or
(iii) any corporation (not being a company as defined in section 3 of the Companies Act, 1956 (1 of 1956) or a local authority) owned or controlled by
the State Government; or
(iv) any society registered under the Societies Registration Act, 1860, the governing body whereof consists, under the rules or regulations of the
society, wholly of public officers or nominees of the State Government. or both:
and also includes-
(i) Nazul land or any other premises entrusted to the management of local authority (including any building built with Government funds on land
belonging to the State Government after the entrustment of the land to that local authority, not being land vested in or entrusted to the management of
a Gaon Sabha or any other local authority, under any law relating to land tenures):
(ii) any premises acquired under the Land Acquisition Act, 1894 with the consent of the State Government for a company (as defined in that Act) and
held by that company under an agreement executed under Section 41 of that Act providing for re-entry by the State Government in certain
conditions.â€
7. The State has filed a detailed counter affidavit to the petition. According to the averments made in the counter affidavit, as per the list of the cases,
the area for which the freehold rights have been granted to individual is very less and even most of the cases, it is less than 100 square meters. The
concept of regularization of unauthorized occupants is with regard to the urban development and urban population. The beneficiaries of the Nazul
policy are urban population.
8. There is arbitrariness in making Nazul land freehold. The cut-off date is 9.11.2011. According to the counter affidavit, it has been uniformly applied.
According to the counter affidavit, Mr. Tilak Raj Suheja was in possession of the aforesaid piece of land prior to 9.11.2011. Certain eligibility criteria
has been prescribed and the same would be strictly followed. This is the gist of the counter affidavit filed by the State Government.
9. It is admitted in the counter affidavit that the Nazul land has been declared freehold qua unauthorized occupants. How the State Government can
encourage the regularization of unauthorized occupation merely on the basis of definition given under the provisions of U.P. Public Premises (Eviction
of Unauthorized Occupants) Act, 1972. All the persons qua whom the Policy has been made applicable are encroachers/unauthorized occupants over
the government land. The leases granted in their favour have expired. They have become the unauthorized occupants. The action of the State
Government to make the Nazul land freehold qua these persons is contrary to the public policy even to the spirit of U.P. Public Premises (Eviction of
Unauthorized Occupants) Act, 1972. The purpose of enactment of Act of 1972 is to evict the persons who have occupied the public premises
unauthorizedly, as defined under the Act. The Nazul land belongs to the State Government. It is to be utilized for the benefit of citizens. The action is
so arbitrary that it would lead to lawlessness. The State should maintain the rule of law. How the State can negate the rule of law by regularizing the
possession of unauthorized occupants in this manner. It was the duty cast upon the State Government to maintain the rule of law by evicting all those
persons who were found in unauthorized occupation, as defined under Section 2(g) of the Act. The State Government instead of evicting these
persons has proposed to regularize the land who fulfill certain conditions as per the cut-off date i.e. 9.11.2011.
10. The State cannot do something indirectly which it cannot do directly. The purpose of Policy is against the constitutional scheme. The State has
encouraged unscrupulous people to remain in unauthorized occupation of the land hoping against hope that the land would be regularized by converting
the Nazul land into freehold rights. The dishonest people are given encouragement by the State agencies to remain in unauthorized occupation. How
the State Government can be privy to such a decision.
11. The action of the State Government may lead to anarchy. The State Government, instead of encouraging the honesty, has paid premium to the
dishonest people. There is an old adage that ‘Honesty is the best policy’, however, for the State the motto is dishonesty is the only policy. The
Circular/Policy framed by the State Government to freehold the land in favour of the unauthorized occupants is against the public policy. It is the
constitutional duty cast upon the State Government to protect its property at any cost and not to fritter it away to the unscrupulous people. The State
Government is custodian of the property on behalf of all of us. The public property belongs to all of us and it is to be used for public good and not for
illegal purposes. Few people cannot be permitted to be benefitted by the policies which are contrary to the constitutional schemes. The policy instead
of giving land to the poorest of poor including SC/ST/people living under Below Poverty Line, has been given to those persons who have occupied the
land un-authorizedly.
12. The State resources should be utilized for the common good and not for few unscrupulous persons. We are the part of the civilized society. The
Hon’ble Supreme Court while dealing with the concept of law of adverse possession, has considered the principle of civilized society, relying upon
the 5th Amendment in the U.S. Constitution in the case of ‘State of Haryana v. Mukesh Kumar’ 2011 (10) SCC 404 that it may lead to
lawlessness. The relevant paragraphs of the judgment are extracted hereunder:-
“37. Another important development in the protection of property rights was the Fifth Amendment. James Madison was the drafter and key
supporter for the Fifth Amendment. The Fifth Amendment states: “nor shall private property be taken for public use, without just compensationâ€.
The main issue is to pay just compensation for acquiring the property. There are primarily two situations when a landowner may obtain compensation
for land officially transferred to or depreciated by the Government. First, an owner may be entitled to compensation when a governmental entity
intentionally acquires private property through a formal condemnation proceeding and without the owner’s consent. The State’s power to take
property is considered inherent through its eminent domain powers as a sovereign. Through the condemnation proceedings, the Government obtains
the necessary interest in the land, and the Fifth Amendment requires that the property owner be compensated for this loss.
38. The second situation requiring compensation under the Fifth Amendment occurs when the Government has not officially acquired private property
through a formal condemnation proceeding, but “nonetheless takes property by physically invading or appropriating itâ€. Under this scenario, the
property owner, at the point in which a “taking†has occurred, has the option of filing a claim against the government actor to recover just
compensation for the loss. When the landowner sues the Government seeking compensation for a taking, it is considered an inverse condemnation
proceeding, because the landowner and not the Government is bringing the cause of action.
39. We inherited this law of adverse possession from the British. Parliament may consider abolishing the law of adverse possession or at least
amending and making substantial changes in the law in the larger public interest. The government instrumentalitiesâ€"including the policeâ€" in the
instant case have attempted to possess land adversely. This, in our opinion, is a testament to the absurdity of the law and a black mark upon the justice
system’s legitimacy. The Government should protect the property of a citizenâ€"not steal it. And yet, as the law currently stands, they may do just
that. If this law is to be retained, according to the wisdom of Parliament, then at least the law must require those who adversely possess land to
compensate the title owners according to the prevalent market rate of the land or property in question. This alternative would provide some semblance
of justice to those who have done nothing other than sitting on their rights for the statutory period, while allowing the adverse possessor to remain on
property. While it may be indefensible to require all adverse possessorsâ€"some of whom may be poorâ€"to pay market rates for the land they
possess, perhaps some lesser amount would be realistic in most of the cases. Parliament may either fix a set range of rates or to leave it to the
judiciary with the option of choosing from within a set range of rates so as to tailor the compensation to the equities of a given case.
40. Parliament must seriously consider at least to abolish “bad faith†adverse possession i.e. adverse possession achieved through intentional
trespassing, actually believing it to be their own could receive title through adverse possession, sends a wrong signal to the society at large. Such a
change would ensure that only those who had established attachments to the land through honest means would be entitled to legal relief.
41. In case, Parliament decides to retain the law of adverse possession, Parliament might simply require the adverse possession claimants to possess
the property in question for a period of 30 to 50 years, rather than a mere 12. Such an extension would help to ensure that the successful claimants
have lived on the land for generations, and are therefore less likely to be individually culpable for the trespass (although their forebears might). A
longer statutory period would also decrease the frequency of adverse possession suits and ensure that only those claimants most intimately connected
with the land acquire it, while only the most passive and unprotective owners lose title.
42. Reverting to the facts of this case, if the Police Department of the State with all its might is bent upon taking possession of any land or building in a
clandestine manner, then, perhaps no one would be able to effectively prevent them.
43. It is our bounden duty and obligation to ascertain the intention of Parliament while interpreting the law. Law and justice, more often than not,
happily coincide, only rarely we find serious conflict. The archaic law of adverse possession is one such. A serious relook is absolutely imperative in
the larger interest of the people.
44. Adverse possession allows a trespasserâ€"a person guilty of a tort, or even a crime, in the eye of the lawâ€"to gain legal title to land which he has
illegally possessed for 12 years. How 12 years of illegality can suddenly be converted to legal title is, logically and morally speaking, baffling. This
outmoded law essentially asks the judiciary to place its stamp of approval upon conduct that the ordinary Indian citizen would find reprehensible. The
doctrine of adverse possession has troubled a great many legal minds. We are clearly of the opinion that time has come for change.
45. If the protectors of law become the grabbers of the property (land and building), then, people will be left with no protection and there would be a
total anarchy in the entire country. It is indeed a very disturbing and dangerous trend. In our considered view, it must be arrested without further loss
of time in the larger public interest. No government department, public undertaking, and much less the Police Department should be permitted to
perfect the title of the land or building by invoking the provisions of adverse possession and grab the property of its own citizens in the manner that has
been done in this case.
46. In our considered view, there is an urgent need for a fresh look on the entire law on adverse possession. We recommend the Union of India to
immediately consider and seriously deliberate either abolition of the law of adverse possession and in the alternate to make suitable amendments in the
law of adverse possession. A copy of this judgment be sent to the Secretary, Ministry of Law and Justice, Department of Legal Affairs, Government
of India for taking appropriate steps in accordance with law.â€
13. No adverse possession is involved in these matters. Even no suit is maintainable merely on the basis of adverse possession. The Hon’ble
Supreme Court has sent the copy of the judgment to the Ministry of Law and Justice for taking appropriate steps in accordance with law in regard to
the law of adverse possession. The Hon’ble Supreme Court in the case of “Gurudwara Sahib v. Gram Panchayat Sirthalaâ€, 2014 (1) SCC
669, has depicted the
adverse possession on the principle of Rule of Law, Justice and Equality. In case, the unauthorized possession is permitted to continue, it will lead to
the lawlessness which is not permissible in a civilized society. The plea of adverse possession can be used as a shield and not as a sword. The
relevant paragraphs are extracted hereunder:-
“7. In the second appeal, the relief of ownership by adverse possession is again denied holding that such a suit is not maintainable.
8. There cannot be any quarrel to this extent that the judgments of the courts below are correct and without any blemish. Even if the plaintiff is found
to be in adverse possession, it cannot seek a declaration to the effect that such adverse possession has matured into ownership. Only if proceedings
are filed against the appellant and the appellant is arrayed as defendant that it can use this adverse possession as a shield/defence.â€
14. The State property could not be parted with on the basis of circular which even has not been approved by the Cabinet. The State Government
should follow dharma.
15. Learned Counsel appearing for the State could not point out any provision of law under which may authorize the State Government to issue
Circular to freehold the Nazul land. In case, if we decline to interfere in not setting aside/quashing the circular dated 01.03.2009, it would amount to
permit the State Government to Act unconstitutionally and is violative of Article 14 of the Constitution of India. Giving land on freehold to unauthorized
occupants will indirectly discriminate the others who are legally entitled for getting the land from the State Government.
16. It is the settled preposition of law that the things cannot be done indirectly, which could not be done directly. Since the public property cannot be
allotted in favour of the individuals or the society, even for public purposes without inviting the application from the public at large of the same
category, the unauthorized possession cannot be regularized by way of circular. Hon’ble Supreme Court in the case of “Institute of Law,
Chandigarh & others vs. Neeraj Sharma & othersâ€, (2015) 1 SCC 720, has held that the State property cannot be allotted even in favour of the
educational institute on premium basis. The relevant paragraphs of the judgment are extracted hereunder:-
“21. Similarly, in S.P. Gupta v. Union of India, this Court has categorically laid down the law in relation to locus standi as under: (SCC pp. 212-13,
215 & 218, paras 18-20 & 23)
“18. whenever there is a public wrong or public injury caused by an act or omission of the State or a public authority which is contrary to the
Constitution or the law, any member of the public acting bona fide and having sufficient interest can maintain an action for redressal of such public
wrong or public injury. The strict rule of standing which insists that only a person who has suffered a specific legal injury can maintain an action for
judicial redress is relaxed and a broad rule is evolved which gives standing to any member of the public who is not a mere busybody or a meddlesome
interloper but who has sufficient interest in the proceeding. There can be no doubt that the risk of legal action against the State or a public authority by
any citizen will induce the State or such public authority to act with greater responsibility and care thereby improving the administration of justice.
It is also necessary to point out that if no one can have standing to maintain an action for judicial redress in respect of a public wrong or public injury,
not only will the cause of legality suffer but the people not having any judicial remedy to redress such public wrong or public injury may turn to the
street and in that process, the rule of law will be seriously impaired.
19.There is also another reason why the rule of locus standi needs to be liberalised. Today we find that law is being increasingly used as a device of
organised social action for the purpose of bringing about socio-economic change. The task of national reconstruction upon which we are engaged has
brought about enormous increase in developmental activities and law is being utilised for the purpose of development, social and economic. It is
creating more and more a new category of rights in favour of large sections of people and imposing a new category of duties on the State and the
public officials with a view to reaching social justice to the common man. … In other words, the duty is one which is not correlative to any individual
rights. Now if breach of such public duty were allowed to go unredressed because there is no one who has received a specific legal injury or who was
entitled to participate in the proceedings pertaining to the decision relating to such public duty, the failure to perform such public duty would go
unchecked and it would promote disrespect for the rule of law. It would also open the door for corruption and inefficiency because there would be no
check on exercise of public power except what may be provided by the political machinery, which at best would be able to exercise only a limited
control and at worst, might become a participant in misuse or abuse of power. It would also make the new social collective rights and interests created
for the benefit of the deprived sections of the community meaningless and ineffectual.
20. If public duties are to be enforced and social collective ‘diffused’ rights and interests are to be protected, we have to utilise the initiative and
zeal of public-minded persons and organisations by allowing them to move the court and act for a general or group interest, even though, they may not
be directly injured in their own rights. It is for this reason that in public interest litigation â€" litigation undertaken for the purpose of redressing public
injury, enforcing public duty, protecting social, collective, ‘diffused’ rights and interests or vindicating public interest, any citizen who is acting
bona fide and who has sufficient interest has to be accorded standing. What is sufficient interest to give standing to a member of the public would
have to be determined by the court in each individual case. It is not possible for the court to lay down any hard-and-fast rule or any straitjacket
formula for the purpose of defining or delimiting ‘sufficient interest’. It has necessarily to be left to the discretion of the court.
*Â Â Â Â Â Â Â Â Â *Â Â Â Â Â Â Â Â Â *
23. We would therefore, hold that any member of the public having sufficient interest†* can maintain an action for judicial redress for public injury
arising from breach of public duty or from violation of some provision of the Constitution or the law and seek enforcement of such public duty and
observance of such constitutional or legal provision.â€
(emphasis supplied)
22. Further, in Dattaraj Nathuji Thaware v. State of Maharashtra5, this Court held that public interest litigation is a weapon which has to be used with
great care and circumspection. It has to be used as an effective weapon in the armoury of law for delivering social justice to citizens. The aim of
public interest litigation should be to redress genuine public wrong or public injury.
23. It is clear to us that Respondent 1, the writ petitioner has filed a bona fide writ petition and he has the necessary locus. There is an apparent
favour shown by the Union Territory of Chandigarh in favour of the appellant Institute which is a profit-making company and it has not shown to this
Court that the allotment of land in its favour is in accordance with law. Hence, we are of the view that there is a strong reason to hold that the writ
petition is maintainable in public interest. We completely agree with the views taken by the High Court, wherein it has rightly held that the writ petition
is a public interest litigation and not a private interest litigation. The writ petition in question is the first petition filed by the first respondent and his first
endeavour to knock the doors of the constitutional court to protect the public interest by issuing a writ of certiorari.
24. The appellants have miserably failed to show the mala fide intention on the part of Respondent 1 in filing writ petition and we agree with the view
of the then Chief Justice in his order who has held that the respondent is a public spirited person. The cause ventilated by him is definitely worth
consideration and the record of the AAO (Audit) submitted to the Chandigarh Administration proves the allegations made by him. Further it is
observed that His Excellency, the Governor of Punjab-cum-Administrator, Chandigarh has rightly come to the conclusion in his decision that the
impugned allotment of land in favour of the first appellant Institute requires taking up of corrective steps. The Administration of the Union Territory of
Chandigarh has conferred largesse on the appellant Institute by allotting land in its favour for inadequate consideration without following procedure.
Therefore, we hold that the writ petition filed by the first respondent is maintainable as the allotment of the land in question made in favour of the first
appellant Institute is arbitrary, illegal and the same is in violation of Article 14 of the Constitution.
Answer to Points (ii), (iii) and (iv)
25. We have carefully considered and examined the question of the legality of the allotment order of the land made in favour of the appellant Institute.
It is submitted on behalf of the first respondent that the allotment of public land at throwaway price or at no price to the private educational institutions
with an avowed object to serve the public interest is contrary to the theory of “charitable education†that serve the pious cause of literacy. The
aforementioned legal issue was visualised by this Court and has lucidly laid down the law in Union of India v. Jain Sabha6 wherein the plea of
charitable intentions or philanthropic goal behind the establishment of private educational institution was not accepted by this Court, holding that: (SCC
p. 171, para 11)
“11. we think it appropriate to observe that it is high time the Government reviews the entire policy relating to allotment of land to schools and other
charitable institutions. Where the public property is being given to such institutions practically free, stringent conditions have to be attached with
respect to the user of the land and the manner in which schools or other institutions established thereon shall function. The conditions imposed should
be consistent with public interest and should always stipulate that in case of violation of any of those conditions, the land shall be resumed by the
Government. Not only such conditions should be stipulated but constant monitoring should be done to ensure that those conditions are being observed
in practice. While we cannot say anything about the particular school run by the respondent, it is common knowledge that some of the schools are
being run on totally commercial lines. Huge amounts are being charged by way of donations and fees. The question is whether there is any
justification for allotting land at throwaway prices to such institutions. The allotment of land belonging to the people at practically no price is meant for
serving the public interest i.e. spread of education or other charitable purposes; it is not meant to enable the allottees to make money or profiteer with
the aid of public property. We are sure that the Government would take necessary measures in this behalf in the light of the observations contained
herein.â€
26. Further, in another case, this Court set aside the allotments of land made by the Allotment Committee even though most of the allottees had
constructed the buildings, because, the Allotment Committee had not followed any rational or reasonable criteria for inviting the applications for the
allotment of land through an open advertisement. Reliance is placed on the decision of this Court in New India Public School v. HUDA7, which states
as under: (SCC p. 515, para 4)
“4. … Therefore, the public authorities are required to make necessary specific regulations or valid guidelines to exercise their discretionary
powers; otherwise, the salutary procedure would be by public auction. The Division Bench, therefore, has rightly pointed out that in the absence of
such statutory regulations exercise of discretionary power to allot sites to private institutions or persons was not correct in law.â€
27. Further, we have to refer to Akhil Bhartiya Upbhokta Congress v. State of M.P.8, wherein this Court has succinctly laid down the law after
considering a catena of cases of this Court with regard to allotment of public property as under: (SCC pp. 51-55 & 57-58, paras 50, 54-56, 59 & 61-
62)
“50. For achieving the goals of justice and equality set out in the Preamble, the State and its agencies/instrumentalities have to function through
political entities and officers/officials at different levels. The laws enacted by Parliament and the State Legislatures bestow upon them powers for
effective implementation of the laws enacted for creation of an egalitarian society. The exercise of power by political entities and officers/officials for
providing different kinds of services and benefits to the people always has an element of discretion, which is required to be used in larger public
interest and for public good. … In our constitutional structure, no functionary of the State or public authority has an absolute or unfettered discretion.
The very idea of unfettered discretion is totally incompatible with the doctrine of equality enshrined in the Constitution and is an antithesis to the
concept of the rule of law.
*Â Â Â Â Â Â Â Â Â *Â Â Â Â Â Â Â Â Â *
54. In Breen v. Amalgamated Engg. Union9, Lord Denning MR said: (QB p. 190 B-C)
‘…The discretion of a statutory body is never unfettered. It is a discretion which is to be exercised according to law. That means at least this: the
statutory body must be guided by relevant considerations and not by irrelevant. If its decision is influenced by extraneous considerations which it ought
not to have taken into account, then the decision cannot stand. No matter that the statutory body may have acted in good faith; nevertheless the
decision will be set aside. That is established by Padfield v. Minister of Agriculture, Fisheries and Food10 which is a landmark in modern
administrative law.’
55. In Laker Airways Ltd. v. Deptt. of Trade11 Lord Denning discussed prerogative of the Minister to give directions to Civil Aviation Authorities
overruling the specific provisions in the statute in the time of war and said: (QB p. 705 F-G) ‘Seeing that the prerogative is a discretionary power to
be exercised for the public good, it follows that its exercise can be examined by the courts just as any other discretionary power which is vested in the
executive.’
56. This Court has long ago discarded the theory of unfettered discretion. In S.G. Jaisinghani v. Union of India12, Ramaswami, J. emphasised that
absence of arbitrary power is the foundation of a system governed by rule of law and observed: (AIR p. 1434, para 14)
‘14. In this context it is important to emphasise that the absence of arbitrary power is the first essential of the rule of law upon which our whole
constitutional system is based. In a system governed by rule of law, discretion, when conferred upon executive authorities, must be confined within
clearly defined limits. The rule of law from this point of view means that decisions should be made by the application of known principles and rules
and, in general, such decisions should be predictable and the citizen should know where he is. If a decision is taken without any principle or without
any rule it is unpredictable and such a decision is the antithesis of a decision taken in accordance with the rule of law.’
*Â Â Â Â Â Â Â Â Â *Â Â Â Â Â Â Â Â Â *
59. In Kasturi Lal Lakshmi Reddy v. State of J&K13, Bhagwati, J. speaking for the Court observed: (SCC pp. 13-14, para 14)
‘14. Where any governmental action fails to satisfy the test of reasonableness and public interest discussed above and is found to be wanting in the
quality of reasonableness or lacking in the element of public interest, it would be liable to be struck down as invalid.’
*Â Â Â Â Â Â Â Â Â *Â Â Â Â Â Â Â Â Â *
61. The Court also referred to the reasons recorded in the orders passed by the Minister for award of dealership of petrol pumps and gas agencies
and observed: (Common Cause case14, SCC p. 554, para 24)
‘24. While Article 14 permits a reasonable classification having a rational nexus to the objective sought to be achieved, it does not permit the power
to pick and choose arbitrarily out of several persons falling in the same category. A transparent and objective criteria/procedure has to be evolved so
that the choice among the members belonging to the same class or category is based on reason, fair play and non-arbitrariness. It is essential to lay
down as a matter of policy as to how preferences would be assigned between two persons falling in the same category.’
62. In Shrilekha Vidyarthi v. State of U.P.15 the Court unequivocally rejected the argument based on the theory of absolute discretion of the
administrative authorities and immunity of their action from judicial review and observed: (SCC p. 239, para 29)
‘29. It can no longer be doubted at this point of time that Article 14 of the Constitution of India applies also to matters of governmental policy and if
the policy or any action of the government, even in contractual matters, fails to satisfy the test of reasonableness, it would be unconstitutional.’â€
(emphasis supplied)
28. In the light of the abovementioned cases, we have to record our finding that the discretionary power conferred upon the public authorities to carry
out the necessary regulations for allotting land for the purpose of constructing a public educational institution should not be misused.
17. Hon’ble Supreme Court had the occasion to deal with the definition of Nazul Land in Narain Prasad Aggarwal v. State of M.P., (2007) 11
SCC 736). Their Lordships have held as under: -
19. The term “nazul land†has a definite connotation. It inter alia means “land or buildings in or near towns or villages which have escheated to
the Government; property escheated or lapsed to the State: commonly applied to any land or house property belonging to the Government either as an
escheat or as having belonged to a former Governmentâ€.
20. Even in the Revenue Book Documents, Part Four, Serial No. 1, nazul land situated within the prescribed limits of the Municipal Corporation and
the Nagar Palika is stated as under:
“1. ‘Nazul’ and ‘government land’â€
(i) that land which is the property of the Government and whichâ€
(a) is not forming part of the records in the account of any village;
(b) is not recorded as banjar, jharidar jungle, hilly and chattans, rivers, village trees or government trees;
(c) is not recorded for village roads, gothan, charai land, or in the shape of grazing in abadi charagahs;
(d) is not earmarked and reserved for development of the village or any other community development projects; or
(e) is not service land.
There are two categories i.e. ‘nazul’ and ‘government land’. In ‘nazul’ lands, such government lands are included which are used
for construction projects or for general public facilities like bazars or entertainment parks, or the lands which may possibly be required to be used in
future for such projects.
The categorisation of the land which is in custody of any department of the State Government or Central Government or which is recorded in the
records of government lands, will be done. In brief, it can be said that ‘nazul’ is that land which if kept as open site carries more importance and
not agriculture related. The lands which are generally categorised as ‘nazul’ lands, are as under:
• plots of lands near the buildings, whether they are government or non-government;
• cantonment lands;
• parks;
• plots of lands used for bazars, haats or fairs;
• lands of shamshan ghat (crematorium);
• lands where possibility of construction is there, and other such lands where there is a possibility that these can be used for public purposes in the
near future.
Under the ‘nazul’ land, those government plots of land will also be included which are meant for sarais, kanji hauzes, bazars, etc. and which are
in possession of the local residents or which are standing in their names.â€
18. It was submitted by Mr. S.K. Mandal, Advocate for one of the petitioners that the land which was being declared in Rudrapur Tehsil, Rudrapur
(U.S. Nagar) as free hold is more than 1900 acres. The Court can take judicial notice of the fact that if 1900 acres of land was being declared
freehold in Rudrapur Tehsil only, the land in the entire State, to be declared freehold, would not be less than 20000 acres.
19. Surprisingly, while we were dealing with the matter pertaining to establishment of National Law University, learned Advocate General, in that
matter, gave a statement that land measuring merely
10 acres is not available in the Districts of Nainital and Udham Singh Nagar. Why this much of land is not available because the State Government,
instead of retaining its land, has permitted the same to be granted to unscrupulous people under the unauthorized occupation of the government land.
The State Government has not shown any concern for the establishment of the University but has vehemently defended the circular framed to declare
the Nazul land as freehold.
20. Accordingly, all these petitions are allowed.
A. Clauses 4(f)(g)(h) of the Nazul Policy dated 1.3.2009 issued by the State Government is struck down along with all consequential orders by
applying the principle of severability. The State Government is directed to take possession of the Nazul land which was declared freehold as per the
Notification dated 1.3.2009.
B. The land in occupation of unauthorized occupants will be deemed to be in occupation of the State Government free from all encumbrances.
C. The State Government has admitted all these persons to be in unauthorized occupation as per Section 2(g) of the U.P. Public Premises (Eviction of
Unauthorized Occupants) Act, 1972. No separate order of eviction is required issued qua them but they are still required to be evicted.
D. The State Government is restrained from issuing general policy or Nazul policy to regularize the unauthorized occupants/encroachments in future
and even if any policy has come into force after 01.03.2009, the same shall not be given effect.
E. Costs is quantified as Rs.5.00 lakh. The costs imposed shall be deposited in the corpus for creating the National Law University in the State of
Uttarakhand.
21. All pending applications including the impleadment applications stand disposed of in terms of the aforesaid judgment.
