Gwalior and another Vs. Cine Exhibitors P. Ltd. and another
[Civil Appeal Nos. of
2012 arising out of S.L.P. (Civil) Nos. 5810-5811 of 2011]
J U D G M E N T
Dipak Misra, J.
leave granted in both the petitions.
these two appeals, the defensibility and legal pregnability of the judgment and
order dated 28th March, 2010 passed by the Division Bench of High Court of
Judicature of Madhya Pradesh, Jabalpur, Bench at Gwalior in Writ Appeal No. 234
of 2007 and the order dated 22nd September, 2010 in R.P. No. 83 of 2010 whereby
the Division Bench has dislodged the order passed by the learned Single Judge in
Writ Petition No. 1718 of 2002 wherein the writ court had declined to interfere
with the order dated 9.8.2002 passed by the Chief Executive Officer, Gwalior
Development Authority (for short " the GDA"), who, by the said order,
had terminated the lease of the first respondent herein and directed it to surrender
the possession of the property within seven days, failing which appropriate
action to be taken against it in accordance with law, is called in question.
succinct expose' of facts are that the GDA issued an advertisement for allotment
of plot No. 1 admeasuring 40160 sq. feet situated in the locality known as Mayur
Market for the purpose of construction of a cinema house and, in the public auction,
the respondent-company, the first respondent herein, became the highest bidder
and accordingly, a lease agreement was executed on 27.5.1978 between the GDA and
the respondent company.
The said lease agreement
was for a period of thirty years with the stipulation of a right of renewal
subject to certain conditions. It was asserted in the writ petition that after
execution of the lease deed, the respondent company constructed a cinema hall and
commenced the business.
As certain disputes arose
between the directors of the company, it was eventually resolved that the licence
for running the cinema should be surrendered and in consonance with the resolution,
a letter was issued to the Collector concerned, who cancelled the licence for running
the cinema hall. After closure of the cinema hall, the GDA, by communication
dated 2.8.2002, terminated the lease and directed for handing over possession
of the land in question.
was contended before the learned Single Judge that the notice for cancellation
of lease was not served on it and the allegations that there had been violation
of the terms and conditions of the agreement were absolutely unsustainable and,
therefore, the eventual act of termination was sensitively susceptible. It was also
urged that as permission was granted for raising permanent construction, the lease
had the character of a permanent lease and could not have been terminated by
The GDA combated the aforesaid
stand put forth by the respondent-company and countered the same by contending,
inter alia, that there had been violation of the terms and conditions of the agreement;
that the stance of putting the lease on the pedestal of a permanent lease was
sans substance; that the plea that the notice for cancellation of lease was not
served was contrary to the documents brought on record; that reminders were served
on the respondent-company; that the lease was granted for a specific purpose and
when the said purpose had totally melted into extinction, it was within the
legal province of the GDA to cancel the lease and take appropriate steps for
learned Single Judge took note of the proponements canvassed by the learned counsel
for the parties and posed the question whether the GDA had the right to
terminate the lease of the petitioner and, thereafter, scanning the terms and conditions
of the lease deed, expressed the view that as there has been cancellation of
the licence of the cinema hall, the order of termination of the lease was valid
and the petitioner would have an opportunity of hearing before steps are taken for
its dispossession. Being of this view, he dismissed the writ petition.
Be it noted, a contention
was raised before the learned Single Judge that the land in question is owned
by the State but the same was granted on lease by the GDA, which is absolutely impermissible,
however, the learned Single Judge did not think it appropriate to dwell upon
the same on the foundation that the said question will be decided when the State
Government takes any action against the petitioner by the respondent GDA.
dissatisfied with the aforesaid order, the first respondent preferred a writ appeal
and the Division Bench in the intra-court appeal expressed the opinion that no
notice of termination of lease was given despite the same being imperative and
secondly, there was no commission of breach of the express conditions of the lease
deed and hence, the cancellation was totally unsustainable.
With regard to taking
over possession, the Division Bench opined that the authority cannot assume the
jurisdiction of taking possession without taking recourse to law. It is apt to
note that on behalf of the State, a stand was vigorously canvassed that when
there has been no transfer of the land by the State in favour of the GDA, the
grant of lease by the GDA in favour of the first respondent-company is ab initio
void and, therefore, no right flows in favour of the said respondent to retain the
The learned Judges repelled
the said stand on the base that when the GDA had granted lease in the auction that
was conducted with the knowledge of the State, it is estopped from raising the
plea that the land had not been transferred to the GDA. Expressing this view, the
appeal was dismissed in the ultimate eventuality.
B.S. Banthia, learned counsel appearing for the appellants, questioning the sustainability
of the impugned orders, has raised the following contentions: -
a. When an issue was raised
before the High Court that the State had not transferred the land in favour of
the GDA and, therefore, the GDA had no authority to deal with the land in any
manner whatsoever, the said facet should have been dealt with in proper
perspective and not brushed aside on the ground of estoppel.
b. The concept of
promissory estoppel does not have any play when no competent authority of the Government
had transferred the land in favour of the GDA as per the requisite procedure and
as a sequitur, any step taken by the GDA even in the presence of an officer will
not debar the State to raise the plea as regards its right, title and interest
within the period of limitation.
c. The grant of lease
being per se wholly vulnerable, the basic infrastructure collapses and once the
infrastructure is foundered, the super structure is bound to be razed to the
ground. To put it differently, when the GDA had no right to lease the land in question,
the respondent-company cannot claim a better right as a lessee than that of a
d. It has become a common
phenomenon to grab public property by adopting maladroit methodology and, therefore,
the Division Bench should not have scuttled the right of the State and its
authorities on the ground of estoppel which, in fact, does not arise remotely.
e. The GDA has
unequivocally admitted before this Court that the land in question was not transferred
in its favour. The action taken by the State Government should be given the
stamp of approval.
Dhruv Mehta, learned senior counsel appearing for the respondent No. 1, countering
the aforesaid submissions, submitted that the approach of the High Court in the
writ appeal cannot be found fault with inasmuch as the scope of the writ
petition out of which the writ appeal emerged was limited, i.e., whether the lease
could be cancelled by the GDA. It is canvassed by him that there may be a cavil
between the GDA and the State Government but by any stretch of imagination, the
same cannot create any kind of concavity or dent in the right of the first respondent
to enjoy the benefit of the lease.
It is his further
submission that when the State Government has become totally oblivious of its
right, if any, it cannot rise like a phoenix and put forth its claim to the property.
It is highlighted by him that under the M.P. Town Improvement Trust Act, 1960 (for
short "the 1960 Act"), and Madhya Pradesh Nagar Tatha Gramin Adhiniyam,
1973 (for brevity "the 1973 Act") the schemes having come into
existence, the property had vested in the GDA and, therefore, the State
Government has no right to interfere and in that backdrop, the finding recorded
in the intra-court appeal that there has been lack of notice prior to the
cancellation of the lease and further no violation of any of the postulates of the
lease agreement cannot be flawed.
Neeraj Sharma, learned counsel appearing for the 2nd respondent, the GDA, contended
that the land was recorded as 'Nazul' meant for the Public Works Department and
was never transferred to the GDA and in that background, the question of
estoppel or acquiescence by the State Government does not arise.
In fact, submits the
learned counsel, by a total mistaken impression, the land was put to auction and
the lease deed was executed in favour of the first respondent. Additionally, it
is propounded by him that if any dispute has arisen, there is an arbitration clause
which would enable the respondent- company to agitate its grievances barring
eviction especially when the grant of lease is a void one.
seminal issue that emanates for consideration is whether the Division Bench is justified
in stating in a sweeping manner that when the GDA had granted the lease of the
land in auction within the knowledge of the State, the State is estopped from raising
any such ground that the land had not been transferred to the GDA after lapse of
thirty years. It is not disputed before us that the first respondent had not
perfected its right, title and interest by way of adverse possession as it could
not have been.
Evidently, the High
Court has proceeded on the basis of the doctrine of promissory estoppel. It is
settled in law that the said doctrine is founded on the principles of equity and
to avoid injustice. The said principle cannot be soundly embedded or treated to
be sacrosanct when a public authority carries out a representation or a promise
which is prohibited by law or is devoid of the authority of law.
In Union of India and
others vs. Godfrey Philips India Ltd., a three Judge Bench of this Court has crystallised
the principle thus:- "....that there can be no promissory estoppel against
the legislature in the exercise of its 1 AIR 1986 SC 806 legislative functions nor
can the Government or public authority be debarred by promissory estoppel from enforcing
a statutory prohibition.
It is equally true
that promissory estoppel cannot be used to compel the Government or a public authority
to carry out a representation or promise which is contrary to law or which was
outside the authority or power of the officer of the Government or of the
public authority to make"
Dr. Ashok Kumar Maheshwari vs. State of U.P . and another2 , a two-Judge Bench
of this Court, after referring to the decision in Rishabh Kumar vs. State of U.P.
3, proceeded to state as follows: - "21. This principle was reiterated in Union
of India v. R.C. D'Souza AIR 1987 SC 1172 : (1987) 2 SCC 211, where a retired army
officer was recruited as Assistant Commandant on temporary basis and was called
upon to exercise his option for regularisation contrary to the statutory rules.
It was held that it would
not amount to estoppel against the Department. 22. Whether a Promissory Estoppel,
which is based on a `promise' contrary to law can be invoked has already been considered
by this Court in Kasinka Trading v. Union of India, (1995) 1 SCC 274 : (1995
AIR SCW 680) as also in Shabi Construction Co. Ltd. v. City & Industrial
Development Corporation (1995) 4 SCC 301 wherein it is laid down that the Rules
of "Promissory Estoppel" cannot be invoked for the enforcement of a
`promise' or a `declaration' which is contrary to law or outside the authority or
2 AIR 1998 SC 9663 AIR 1987 SC1576 power of the Government or the person making
In this context, we may
profitably refer to the decision of this Court in M/s. Sharma Transport vs. Government
of A.P. and others , wherein a three-Judge Bench opined that it is equally
settled law that promissory estoppel cannot be used compelling the Government or
a public authority to carry out a representation or promise which is prohibited
by law or which is devoid of the authority or power of the officer of the Government
or the public authority to make.
In this regard, we
may also usefully refer to the observations made in S. Sethuraman vs. R. Venkataraman
and others5 which is to the effect that if jurisdiction cannot be conferred by consent,
it cannot clothe the authority to exercise the same in an illegal manner.
Recently, in Rajendra
Agricultural University vs. Ashok Kumar Prasad and others6, it has been laid
down that non-compliance with the mandatory statutory requirement will make the
act invalid and cannot be regarded as a representation held out by the Government
creating any right to seek the benefit by 4 AIR 2002 SC 3225 AIR 2007SC 24996
(2010) 1 SCC 730 inviting the doctrine of promissory estoppel against the
the case at hand, admittedly, the land is nazul land meant for the Public Works
Department. It had been urged before the High Court that the land in question was
not transferred in favour of the GDA. The submission of Mr. Mehta, learned senior
counsel for the respondent No. 1, is that the land had vested with the Town
Improvement Trust, Gwalior constituted under the 1960 Act and the said vesting
continued under the 1973 Act. To appreciate the said submission, we may analyse
the scheme of the 1960 Act.
The said Act was
enacted to consolidate and amend the law relating to the establishment of improvement
trust for the purpose of making and executing town improvement scheme in
certain towns of Madhya Pradesh. Chapter II of the Act deals with the
Constitution of the Trust. Chapter III provides for conduct of business. Chapter
IV deals with improvement schemes.
Various schemes are being
enumerated under various provisions in the said chapter. Section 52 which
occurs in Chapter IV provides for issuance of notification of sanction of improvement
schemes and order regarding vesting a property in the Trust. The said provision
being relevant is reproduced below : -"52. Notification of sanction of
improvement scheme and order regarding vesting of property in the Trust. –
1. Whenever the State Government
sanctions an improvement scheme, it –
a. shall announce the fact
by notification and except in the case of a deferred street scheme, development
scheme, or town expansion scheme, the Trust shall forthwith proceed to execute
the same; and
b. may order that any street,
square, park, open space or other land, or any other part thereof, which is the
property of the Government and managed by the Central Government or the State Government
shall, subject to such condition as it may impose, vest in the Trust for the purpose
of the scheme.
2. The publication of a notification
under sub-section (1) in respect of any scheme shall be conclusive evidence that
the scheme has been duly framed and sanctioned."On scanning of the
aforesaid provision, it is luminous that sub-Section (2) of Section 52
postulates that publication of a notification under sub-section (1) in respect
of any scheme 15shall be conclusive evidence that the scheme has been duly
framed and sanctioned.
V of the Act deals with acquisition and disposal of land. Section 67 empowers
the Trust to acquire by purchase, lease or exchange any land within the area
comprised in a sanctioned scheme for many persons under an agreement with such person.
Section 68 provides for notice of acquisition of land. As the learned senior
counsel for the respondent has placed heavy reliance on the said provision, the
same is reproduced below :- "68. Notice acquisition of land-
1. If in the opinion of
the Trust any land is required for the purposes of any scheme sanctioned by the
State Government under Section 51, the Trust shall by a notice published in the
Gazette and in such other manner may be prescribed, signify its intention to
acquire such land. Such notice shall specify the place where and the hours during
with the maps and specifications of the land proposed to be acquired may be
2. The owner of the land
which has been notified under sub-section (1) or any other person interested therein
may object to the acquisition of such land within 80 days after the publication
of the notice in the Gazette.
3. Every objection under
sub-section (2) shall be made to the Trust in writing and the Trust shall give
the objector an opportunity of being heard in person or by a duly authorised agent
or pleader 16 and shall after hearing all such objections and making such further
inquiry, if may, as may be necessary," take such decision as it may deem fit."
On a plain reading of the aforesaid provision, it is clear as noon day that if in
the opinion of the Trust any land is required for the purpose of any scheme sanctioned
by the State Government under Section 51, the Trust shall by notice published in
the Gazette and by any such other manner as may be prescribed, signify its
intention to acquire such land. Such notice, as stipulated therein, shall
specify the place etc. The rest of the provision is, in a way, procedural in nature.
Section 69 makes a provision whereunder the Trust may apply to the State Government
for sanction to acquire the land. Section 70 provides for procedure for sanction
of acquisition. Section 71 provides for notification of acquisition and vesting
of land in the Trust.
Mehta has drawn immense inspiration from Section 71 which is as follows:- "71.
Notification of acquisition and vesting of land in Trust –
1. After the acquisition
of land is sanctioned by the State Government under Section 70 the Trust may acquire
such land by publishing in the Gazette a notice stating that it had decided to
acquire the land and has obtained the sanction of the State Government for the acquisition
2. When a notice under sub-section
(1) is published in the Gazette the land shall, on and from the date of such publication,
vest absolutely in the Trust free from all encumbrance.
3. Where any land is vested
in the Trust under sub-section (2), the Trust may by notice in writing , order
any person who may be in possession of the land to surrender or deliver possession
thereof to the Trust or any person duly authorised by it in this behalf within thirty
days of the service of the notice.
4. If any person refuses
or fails to comply with an order made under sub-section (3), the Trust may take
possession of the land and may for that purpose cause to be sued such force as may
a closer scrutiny of the schematic conception of the Act, especially the
provisions contained in Chapter 5 of the 1960 Act dealing with the acquisition
of land belonging to private persons, it is demonstrable that the various
provisions deal with the acquisition and improvement of the area under the
It is seemly to note
that the type of improvement schemes being delineated under Section 31 of the 1960
Act are fundamentally general improvement schemes, re-building scheme, re-housing
schemes, a street scheme, deferred street scheme, development scheme, housing accommodation
scheme, town expansion scheme, drainage or drainage including sewage disposal scheme;
and playground, stadium and recreation ground scheme.
The aforesaid has
nothing to do with the land belonging to the State Government. Any land coming under
the scheme or covered under it has to be governed by the procedure and
guidelines for improvement. It is a different concept altogether.
will be failing in our duty if we do not refer to certain provisions, namely,
Sections 38 and 87 of the 1973 Act as our attention has been drawn by Mr.
Mehta, learned counsel for the respondent No. 1. They read as follows: "38.
Establishment of Town and Country Development Authority. –
1. The State Government may,
by notification, establish a Town and Country Development Authority by such name
and for such area as may be specified in the notification.
2. The duty of implementing
the proposal in the development plan, preparing one or more town development schemes
and acquisition and development of land for the purpose of expansion or improvement
of the area specified in the notification under sub- section (1) shall, subject
to the provision of this Act vest in the Town and Country Development Authority
established for the said area. Provided that the duty imposed on the Town and Country
Development Authority shall, till that authority is established for any area under
sub-section (1), be performed by the local authority having jurisdiction over
such area as if it were a Town and Country Development Authority established under
3. On the establishment of
the Town and Country Development Authority for the area to which the proviso to
sub-section (2) applies, the following consequences shall ensue in relation to
that area, namely : -
assets and liabilities acquired and incurred by the local authority in the
discharge of the duty under the proviso to sub-section (2) shall belong to and
be demand to be the assets and liabilities of the Town and Country Development
Authority established in place of such local authority;
records and papers belonging to the local authority referred to in clause (i)
shall vest in and be transferred to the Town and Country Development Authority
established in its place. xxx xxx xxx xxx87. Repeal, Savings and construction of
references. (1) As from the date of, -
a. the coming into force
of the provisions of Chapter II the reference to Chief Town Planner in any enactment
for the time being in force, shall be construed as a reference to the Director;
b. the Constitution of a
planning area, the following consequences shall ensue, namely –
Madhya Pradesh Town Planning Act, 1948 (No. 17 of 1948), shall stand repealed
in such area;
land use map, draft development or development plan prepared under the said Act,
shall be deemed to have been prepared under this Act and all papers relating
thereto shall stand transferred to the Director;
c. the establishment of the
Town and Country Development Authority for any area the following consequences shall
ensue in relation to that, area, namely –
Madhya Pradesh Town Improvement Trust Act, 1960 (No. 14 of 1961), shall stand repealed
in its application to the said area,
Town Improvement Trust functioning within the jurisdiction of the Town and Country
Development Authority so established shall stand dissolved and any Town Improvement
Scheme prepared under the said Act, shall in so far as it is not inconsistent with
the provisions of this Act be deemed to have been prepared under this Act,
assets and liabilities of the Town Improvement Trusts shall belong to and be
deemed to be the assets and liabilities of the Town and Country Development Authority
established in place of such Town Improvement Trust under Section 38; 21iii-a) grants
and contributions payable to the Town Improvement Trust shall continue to be payable
to the Town and Country Development Authority established in place of such Town
Improvement Trust under Section 38;
employees belonging to or under the control of the Town Improvement Trust referred
to in sub-clause (ii) immediately before the date aforesaid shall be deemed to be
the employees of the Town and Country Development Authority established for
such area under Section 38; Provided that the terms and conditions of service of
such employees shall be the same until altered by the Town and Country
Development Authority with the previous sanction of the State Government : Provided
further that no sanction under the foregoing proviso shall be accorded by the
State Government until the person affected thereby is given a reasonable opportunity
of being heard;
records and papers belonging to the Town Improvement Trusts referred to in sub-clause
(ii) shall vest in and be transferred to the Town and Country Development
Authority established in its place under Section 38.(2) Notwithstanding the
repeal of the Madhya Pradesh Town Improvement Trusts Act, 1960 (No. 14 of 1961)
(hereinafter referred to as the repealed Act), under sub-clause (i) of clause
(c) of sub-section (1), -
a. all cases relating to
compensation in respect of acquisition and vesting of land 22 in the Town Improvement
Trust under Section 71 of the repealed Act and pending before the Town Improvement
Trust or the Tribunal or the Court of the District Judge or the High Court immediately
before the date of such repeal shall be dealt with and disposed of by –
Town and Country Development Authority established in place of such Town Improvement
Trust under Section 38;
Tribunal to be constituted under Section 73 of the repealed Act after the commencement
of the Madhya Pradesh Nagar Tatha Gram Nivesh (Sanshodhan) Adhiniyam, 1979;
Court of the District Judge; (iv) the High Court; As the case may be, in
accordance with the provisions of the repealed Act, as if this Act had not been
b. the Town and Country Development
Authority, the Tribunal, the Court of the District Judge or the High Court, as
the case may be, may proceed to deal with and disposed of the same from the
stage at which such cases were left over at the time of repeal."
we have correctly understood the submission of Mr. Mehta, learned senior counsel,
he has placed reliance on the said provisions solely for the purpose that the
right 23created in favour of the GDA remained unaffected and, in fact, was protected
under the 1973 Act. There is no cavil over the said proposition of law. But, a
pregnant one, the crux of the matter is whether the land that was recorded as
Nazul land meant for the Public Works Department got transferred to the GDA so
that its right got concretized.
is apt to note that the lands belonging to the State Government are dealt with in
the Revenue Book Circular and nazul lands are specifically adverted to in Part
IV of the said Circular. It deals with management and disposal of nazul lands within
the limits of Municipal Corporation, municipal towns and notified areas. Under
the heading `What is Nazul', it has been stated thus: - "`Nazul' and
`Milkiyat Sarkar' Land which is the property of Government and which -
a. is not included in a
holding in a village;
b. is not recorded as
Banjar, scrub jungle, hills and rocks, rivers, village-forest or Government-forest;
c. is not recorded as village
roads, Gothan, grazing land Abadi and pastures;
d. is not reserved for any
communal purpose for the Nistar of the village; and
e. is not service land; falls
under two classes viz. "Nazul" and "Milkiyat Sarkar".
Nazul includes such Government
land as is used either for building purposes or purposes of public convenience
such as markets, or recreation grounds or which is likely to be used for such
purposes in future. Government land in the occupation or on the books of a department
of the State Government or of the Central Government are not to be excluded
from the classification and will be recorded as "Nazul" or "Milkiyat
Sarkar", as the case may be. In brief, it may be stated that "Nazul"
is that land which has a site value as opposed to an agricultural
value."Clause 12 of Section IV provides how nazul land can be disposed of.
It reads as follows: - "12. Nazul land can be disposed of in the following
annual licence; and
in favour of a department of the State Government or other State Governments or
the Government of India and vesting in favour of a local body."Clause 13
deals with the manner in which permanent leases are granted and Clause 14 deals
with reservation of special 25plots. For the sake of completeness, both the Clauses
are reproduced below: -
"13. Permanent leases
leases are granted either through auction or without auction.
lease may be granted without auction in the following cases: -
1. When the land in
question is adjacent to the land of the applicant and will not be of any use to
any person other than the applicant.
2. When it is decided to
condone the encroachment of an encroacher and to grant the encroached area to the
encroacher on permanent lease.
3. When the land in
question will be used for religious charitable, educational, co-operative,
public or social purposes.
4. Plots given to very poor
persons in a locality where only poor persons live.
5. Any other land for which
there are adequate reasons for foregoing auction, e.g., land required by the Madhya
Pradesh Electricity Board, State Road Transport Corporation, etc.
14. Reservation of special
At regular settlement
all Government plots or sites which are likely to be valuable for any special reason,
such as their situation near a line of railway or the like, or which in any scheme
of development have been set aside as specially valuable or as being required
for a public purpose are marked of by the Settlement Officer in 26 consultation
with the Collector as reserved and the disposal of all such plots will be subject
to the sanction of the State Government upon such special terms as may be
decided for each plot.
All land within a radius
of 100 yards of a railway station and all land within 40 yards of a railway station
boundary should be reserved. There will necessarily be exceptions such as for instance
where there is a lay out already sanctioned by Government the Collector will maintain
a list of these plots and with the approval of the State Government will alter it
as the changing circumstances of the town may demand."
Revenue Book Circular also stipulates that the classification of land is done
at the time of settlement. The Collector of the district has been bestowed with
the power to make alterations in the settlement classifications on the ground that
they have been incorrectly made or that the purpose for which the land was used
had changed in the settlement.
In such type of
cases, 'Abadi' lands are recorded as nazul lands and, accordingly, the vacant spaces
are administered as nazul lands. The aforesaid schematic concept read with the language
employed in the 1960 Act and the 1973 Act would clearly reveal that nazul land,
unless notified, does not automatically get vested in any authority or trust.
The State Government,
from time to time, has been issuing notifications to the effect of vesting or
transferring of nazul land to be part of improvement trust and giving advance possession
to the Town Improvement Trust. That apart, the State Government has issued notifications
framing guidelines for distribution of the Nazul plots.
is not out of place to mention here that this Court in Akhil Bhartiya Upbhokta Congress
vs. State of M adhya Pradesh and Ors. had not approved the manner in which the State
Government had granted the land belonging to the State in favour of the appellant
therein. After referring to the Revenue Book Circular, this Court decried the action
of the State Authorities in allotment of Nazul land without following the criteria
and by treating it as State largesse wherein the public has an interest.
After the said
decision was rendered on 06.04.2011, the State of Madhya Pradesh, Department of
Revenue, has issued Circular No. 6-53/2011-Nazul dated 8.8.2011 describing certain
guidelines in the distribution of Nazul land. In the 7 AIR 2011 SC 1834 said
circular, it has been stated that the said circular shall be treated as a part of
Section 1 of the Revenue Book Circular.
have referred to these aspects singularly to highlight that unless affirmative steps
are taken by the State Government by issuing a notification changing the
character of the land and transferring it in favour of any authority,
corporation or municipality, it maintains its own character, i.e., nazul land. In
the case at hand, the land is recorded as nazul land for the Public Works Department.
Nothing has been brought
on record that it had ever been notified for transfer in favour of the GDA. Thus
analysed, the GDA never became the owner of the land or had the authority to deal
with the land and, therefore, it could not have put the land to auction for any
purpose whatsoever. Ergo, the first respondent cannot assert any right or
advance any claim to remain in possession and run the cinema hall and that too after
cancellation of the licence, solely on the basis of a lease granted by its lessor,
a statutory authority, who had no right on the land for the simon pure reason that
the ownership still remained with the State Government.
When no right lies
with the GDA in respect of the land in view of the conditions precedent as
stipulated in the Revenue Book Circular not having been satisfied and the nature
of the land has remained in a sustained state, no legal sanctity can be attached
to the lease executed by it in favour of the Ist respondent. The grant is fundamentally
ultra vires and hence, the respondent-company has to meet its Waterloo.
apart from the above, it is condign to note that in a case of the present nature,
the common law doctrine of public policy can be invoked. The said doctrine
becomes enforceable when an action affects or offends public interest or where injury
to the public at large is manifest.
As is perceptible,
the GDA could not have granted the lease of the property belonging to the State
Government as it was Nazul land meant for the Public Works Department. The collective
interest in the property could not have been jeopardised by usurpation of
power/authority by the GDA. Such assumption of power by the GDA makes the whole
action sans substratum and thereby a nullity. Needless to say, any grant has to
have legal sanctity and legitimacy.
the reasons aforementioned, the appeals are allowed and the orders passed in the
writ appeal and the application for review, being unsustainable, are set aside.
The State Government and its functionaries are at liberty to proceed against the
first respondent for its eviction. It is open to the first respondent to take recourse
to the arbitration clause against the GDA for any other relief as advised in
law. There shall be no order as to costs.