of U.P. & Anr Vs. Satya Narain Kapoor & Ors  Insc 655 (26 October 2004)
CJI R.C. Lahoti & Ashok Bhan. WITH
IA Nos. 9-11/1999 IN CA Nos.1273-1275/1998 WITH
C.A. Nos. 1276-1278/1998 C.A. Nos. 1279-1281/1998 C.A. No. 1728/1998 C.A. No.
1886/1998 C.A. No. 2596/1998 W.P. No. 163/1999 C.A. No. 6957/2004 (Arising out
of SLP (C) No.13096/1999 R.C. LAHOTI, CJI Leave granted in SLP (C) No.
In one of the prime commercial areas of the city of Allahabad, known as
Chowk Sabzi Mandi, there are situated two shops described as Nazul Shop Nos.
195 and 196 the area whereof is 63 sq. ft. each.
We are not concerned with the earlier controversy relating to the allotment
and several claimants to the shops. The fact remains that on 30.10.1991, the
District Magistrate directed the Nagar Mahapalika to have the shops vacated so
as to be available for fresh allotment through public auction inasmuch as the
shops were continuing in illegal occupation ___ shop No.195 in the occupation
of Mohammad Ali and shop No.196 in the occupation of Anoop Kumar son of Satya
Three writ petitions came to be filed in the High Court of Allahabad. Writ
Petition No. 32605 of 1991 was filed by Satya Narain Kapoor alleging that he
was the one inducted into possession of shop No.196 in the year 1973 by the
allottee of the shop Late Wahidan Bibi who died on 27.12.1984 without leaving
any heir upon whom her rights could devolve.
According to Satya Narain Kapoor he was the person entitled to the allotment
of the shop. On 12.9.1991, an interim order was passed by the High Court
staying his eviction from the shop No.196. Satya Narain Kapoor died and in his
place the name of his son Anoop Kapoor has been substituted.
Writ Petition No. 20430 of 1992 was filed by one Rafiqunnisa claiming
herself to be the only heir of Smt. Wahidan Bibi ___ the original allottee and
hence entitled to the rights of the late allottee and also mutation in her
favour on both the shops.
Writ Petition No. 16325 of 1994 was filed by one Mohammad Ali in respect of
Shop No.195 wherein he claimed rights under a Will in his favour also
submitting that there was a partnership entered into on 17.8.1984 between Smt.
Wahidan Bibi and himself and so he was entitled to continue in possession of
the shop No.195 as lessee.
Thus, it would appear that the controversy arising for decision before the
High Court in all the three writ petitions which were connected with each other
was a very limited controversy as to who is entitled to substitution in place
of the original allottee and continue or remain in possession of the two shops
and this controversy was required to be resolved by reference to the provisions
contained in the Rules for the Grant of Leases of Subzimandi Shops in the
Allahabad District (Nazul shops). These rules are contained in the Government
Order No.2547/XI, dated 16th July, 1940, as amended by Government Order No.
789-A/XI-77-88, dated 17th February, 1942.
The three writ petitions which appeared to be raising a petty dispute
relating to allotment or right to occupy two small shops took a serious turn on
Smt. Rafiqunnisa, the petitioner in Writ Petition No.
20430 of 1992, moving an application for withdrawal of her petition having
been rendered infructuous. It was pointed out that while the three writ
petitions were pending, on application of Smt. Rafiqunnisa to the Joint
Secretary, State of U.P., the latter had agreed for converting nazul shop Nos.
195 and 196 as freehold and then being entered in her name. Communications to
this effect were made by the Joint Secretary on 14.10.1996 followed by
subsequent letters by other officials. The other two writ petitioners namely
Satya Narain Kapoor and Mohammad Ali opposed the prayer made by Smt.
Rafiqunnisa and then the centre of controversy shifted to elsewhere. Ever since
before Smt. Rafiqunnisa moved the application based on subsequent event dated
14.10.1996 the stand of the State of U.P. as taken in its counter affidavits in
all the three writ petitions was that they were liable to be dismissed as none
of the writ petitioners had the status of an eligible person to claim allotment
under the Rules and the learned Chief Standing Counsel appearing for the State
of U.P. continued to take the same stand till the end.
It appears that during the course of hearing the Division Bench, seized of
the hearing of the writ petitions, thought that there was an element of public
interest involved inasmuch as the property of the State known as nazul land was
being loitered away by converting the allotments into freehold much to the
prejudice of the interest of the State. The Division Bench took note of the
fact that Satya Narain Kapoor and Mohammad Ali, the two writ petitioners in
their respective writ petitions, had started staking claim for the grant of
freehold rights claiming parity with Rafiqunnisa. The shift of emphasis in the
controversy is reflected in the judgment of the High Court from the following
passage which follows soon after factual narration of the controversy between
the private parties:
"The narration of the facts as above shows that the case on the both
sides have seen changes during the pendency of these petitions. The cases
originally raised issues on who is the rightful person to receive an allotment
of the nazul shops under the Nazul Shops Rules. The cases have closed at the
close of arguments with the note that some have been granted 'freehold' rights
and some have been left out including two of the petitioners, who now contend
that they are also entitled to 'freehold' rights like the others. Those who
have not received the 'freehold' rights on nazul properties in the present set
of cases are Satya Narain Kapoor (Writ Petition No. 32605 of 1991) and Mohd.
Ali (Writ Petition No.16325 of 1994).
The person who has received freehold right is Rafiqunnisa. There is a
rivalry between them on who should be granted 'freehold' rights. Three
petitioners, in their respective three petitions would like to possess two
nazul shops No.195 and 196. Between two shops there are three contenders. This
situation cannot be unraveled by the High Court on who will be the rightful
contender or who may be a better person to receive an allotment amongst three
persons with only two shops available.
The crucial issues now are on how the issues changed from seeking allotments
of nazul shops on lease, under the Nazul Shops Rules but subsequently
'freehold' rights being granted on nazul estates? Can this be done? Now the
perspective of the cases are changing." The Division Bench noted that the
issue initially arising for decision was: Are the petitioners entitled to
receive a grant as a lease of shops which are nazul properties and governed
under the Nazul Shop Rules? And, the answer of the State administration was:
'No'. The Division Bench observed that the subsequent allotment as freehold in
favour of Rafiqunnisa was 'managed'. And this led the Division Bench on
embarking upon very wider issues of far reaching implications. Some of the
questions which the Division Bench entered into examining are noted in the
judgment itself; to wit, they are: (1) What is the concept of nazul properties
or estate? (2) What are the laws which relate to government grants? (3) How did
the State come to possess the land which it could made available as a grant on
certain terms and conditions? (4) Who possesses lands for which there is no
owner and lands which are heirless? A bare reading of the impugned judgment
shows that at no point of time the three writ petitions seeking enforcement of
certain private rights were converted into public interest litigations nor did
the Court suo motu or otherwise initiate and register any independent
proceedings by way of public interest litigation putting the State or anyone
else to notice of its desire of enlarging the scope of hearing in writ
petitions and entering upon larger issues of general importance, public
significance and far reaching implications. The Division Bench seems to have
just diverted the course of hearing as if on to a highway, abandoning the bye
lanes, and, enlarging the dimension of hearing without specifically putting the
parties and others concerned on notice. Certain queries seem to have been posed
to the learned Chief Standing Counsel for the State of U.P., who, obviously for
want of instructions, pleadings and documents, felt handicapped in responding.
This state of affairs is writ large from the following passage occurring in the
"On one aspect there is no issue that these shops are on nazul land and
nazul property originally managed by the then Municipal Board as managers to
the State of U.P. Specifically sight of the rules ought not to be forgotten.
The rules are known as "Rules for the Grant of Leases of Sabji Mandi Shops
in the Allahabad District (Nazul Shops).
How to deal with nazul shops, in context, was not in issue when the matters
were argued between the petitioners and the State. It was a straight case of
the rival contentions being examined on the interpretation of the Nazul Shop
Rules. The applicability of these rules was accepted. In the second innings of
the arguments and the emerging record no one could explain how nazul
properties, the nazul shops, were being shorn of its characteristics as nazul
and were being treated as (a) not being nazul and (b) freehold. Even upon
instructions, learned Chief Standing Counsel fairly contended that besides
pleading the original case that Nazul Shop Rules apply he has not received
instruction on how the rules, now may not apply.
Clearly there is confusion amongst the administration on how to deal with
There does not appear to be any clear concept on the characteristics of
nazul properties." xxx xxx xxx xxx The issues before the Court now are not
who is to be evicted or who is unauthorized or who is entitled to allotment or
the grant of a lease; but, clearly, one of alienation of nazul property the
question to be answered before the Court is what is the concept of the estate
called 'nazul'. No party, either on behalf of the petitioners or the State
respondents has aided the Court by submitting on this aspect, though initially
both sides referred to the Nazul Shop Rules and the Nazul Manual in great
xxx xxx xxx xxx The Court had asked the petitioners and the respondents
alike that they must at least address the Court on what the origins of their
rights may be in either seeking a claim or for that matter defeating a claim on
a nazul estate. The Court also required the parties to address the Court on how
the State has the sanction to deal with nazul properties and under what law.
The Court is disappointed to note but is obliged to record that no assistance
came from any quarter." (emphasis supplied) However, the learned Chief
Standing Counsel for the State did make available whatever records he could
produce off the hand and as could be made available by the officials of the
In the abovesaid state of affairs and backdrop of events it seems that the
Division Bench embarked upon research of its own and constructed the judgment
from whatever material it could collect. The Division Bench traced the history
of law relating to nazul lands extending for over 200 years reaching back to
the times of British rule and beginning with the United Provinces Land Revenue
The concept of nazul as understood in Mohammedan Law and Hindu Law was dealt
with. The provisions of Crown Grants Act 1895 were referred to. The Court
extensively read and utilized the contents of a Manual of the Land-Tenures of
Land-Revenue Administration Prevalent in the Several Provinces, by B.H.
Baden-Powell, F.R.S.E., F.R.F. Late of the Bengal Civil Services, and one of
Judges, of the Chief Court of the Punjab. Some of the current laws and of
comparatively recent origin and having bearing on the ownership and management
of nazul lands were also referred to such as U.P. Urban Planning and Development
Act 1973, Delhi Development Act 1957.
A good number of rules, circulars, manuals have been referred to.
The Division Bench then proceeded to examine the legality and validity of
conversion of nazul land into freehold land testing the same in the light of
the provisions of the Constitution specially the Preamble, Articles 39 and 51A.
As to the several Government Orders issued from time to time during 1990s which
were contained in the original file of Government Orders relating to nazul
properties placed before the Court by the learned Chief Standing Counsel in
compliance of the Court's order, the Division Bench observed:- "These
government orders were utilized to convert nazul estate into 'freehold'. After
noticing the law, government instructions since more than a hundred years ago,
the Nazul Manual, the Nazul Shop Rules, all in the nature of administrative
instructions, it is clear even lease in perpetuity cannot be granted and the
question of changing the character of nazul estates to 'freehold' does not
arise. Having held that no 'freehold' rights can be granted to nazul estates,
and these estates were, are and will continue to vest with the Government in
trust, the Court is left with no option but to quash all the Government Orders
mentioned above as this would be permitting nazul estates to be converted into
'freehold'; and would amount to an anti trust measure (Amanat men Khayanat),
against the larger public interest which the law and the concept of nazul, in
any case, does not permit." The Division Bench went on to observe that the
government's decisions (if it be of the government) giving freehold rights to
Rafiqunnisa was 'a making of a land scam'. The Court concluded its judgment
by issuing several directions A to J (ten in number) and directed the petitions
to be disposed of in terms of the said directions.
It is not necessary to extract and reproduce the said directions.
Suffice it to observe that the effect of the directions so issued is to
nullify as unconstitutional the several government decisions the validity
whereof was not specifically in issue before the Court. Not only the three writ
petitioners but at least 32 others who are similarly situated and holding
similar shops were adversely affected though not parties before the Court. Hundreds
of others whose estates had already stood converted to freehold were
Could this all have been done and that too in the manner in which the High
Court has done? The principal submission made by Shri Dinesh Dwivedi, the learned
Senior Advocate for the State of U.P., has been that the issue arising for
decision in the writ petitions before Court was confined to two shops only and
within the scope of hearing of the writ petitions it was open for the High
Court to uphold or not to uphold the allotment of shops and then to decide that
in the event of allotment being upheld which of the three writ petitioners was
entitled to which of the shops.
Instead, the High Court has proceeded to nullify several government orders,
eight in number, without giving notice to the government of what the High Court
proposed to do. As a consequence of the judgment delivered by the High Court,
the property of the government in nazul itself has been put in jeopardy and the
right of the State to deal with it consistently with its policy decision and
the law enacted in accordance therewith has been taken away as the State has
been declared only a trustee of the nazul land.
We find merit in the submission made by Shri Dwivedi, the learned Senior
Counsel for the State. The private parties represented before us in several
civil appeals have also found it difficult to support the impugned judgment. We
are not doubting the jurisdiction of the High Court to take cognizance of an
issue wherein the element of public interest is involved and to take up and
entertain the same as public interest litigation and pronounce upon such issues
exercising the jurisdiction which the Constitution does vest in the High Court
but that has to be done by following the established rules of practise and
procedure consistently with the rules of natural justice. The High Court, if
convinced, should have framed specific issues with which it proposed to deal
with in public interest and then should have put the State on specific notice inviting
its pleadings and documents. Any other party likely to be adversely affected
and interested in being heard may have been allowed the opportunity of doing
so. A larger issue involving public interest and far reaching implications
should not have been dealt with so lightly, casually and hurriedly as the High
Court has done. So far as the dispute raised by the private parties as writ
petitioners in the High Court is concerned, the High Court could have postponed
the decision in such individual writ petitions until the larger issue of public
interest was decided; or else the High Court could have adjudicated upon the
limited dispute as to the right of allotment over the two shops and then taken
up the larger public interest issue for adjudication as a separate writ
petition, the decision wherein would have become applicable even to shop Nos.
195 and 196 as they being similarly situated as other shops, would have been
liable to be treated equally.
For the foregoing reasons, all the appeals are allowed. The impugned
judgment of the High Court is set aside. The cases are remanded to the High
Court for hearing and decision afresh consistently with the observations made
Before parting, we would like to place on record that we have not expressed
any opinion on the correctness or otherwise of the findings arrived at as a
result of research so painstakingly undertaken by the learned Judges
constituting the Division Bench of the High Court. Rather we have a word of
appreciation for the industrious labour which the learned Judges must have
invested in tracing the history of development of the law governing nazul lands
without any assistance from the parties. We have been constrained to set aside
the judgment of the High Court solely for the reason that before recording a
finding on such a vital issue the High Court ought to have afforded an adequate
opportunity to the State for defending itself by raising necessary pleadings
and tracing out the documents from its archives and place the same on record.
May be the result could have been different. May be after full-dressed hearing
which will be held afresh now, subject to availability of pleadings and
documents, and the parties, especially the State having been put on notice of
the issues, the Court may be inclined to take the same view. It will be
premature to formulate any opinion either way. Though the impugned judgment is
being set aside, the historical facts and information collected and set out
therein would still be available to be made use of by the Bench hearing the
matter afresh consequent upon this order of remand.
I.A. Nos.9-11/1999 in C.A. Nos. 1273-1275/1998 The applications sought for
certain directions during the hearing of the appeals. They are now infructuous.
Be treated as disposed of.
W.P.(C) No. 163/1999 This petition under Article 32 of the Constitution was
filed by way of public interest litigation seeking quashing and setting aside
of G.O. No. 2268/9 AS-4-98, 704/N/97 dated 1.12.98 issued by Government of U.P.
as illegal, void and ultra vires of the Constitution, and certain associated
reliefs, in view of C.A. Nos.
1273-1275/1998 having been filed in this court. As the appeals themselves
have been disposed of, with an order of remand to the High Court, we do not
consider it necessary to keep the petition pending for hearing in this Court.
The petition be treated as disposed of without any adjudication on merits. The
writ petitioner is at liberty to pursue such other remedy as may be open and
available to him and as advised.