1

A.F.R.

Court No. - 40
Case :- WRIT - C No. - 19608 of 2010

Petitioner :- Sangam Upnivashan Avas Evam Nirman

Sahkari Samiti Ltd.
Respondent :- State Of U.P. Thru. P.S. Housing & Urban
Planning & Ors.
Counsel for Petitioner :- A.K. Gupta,Ashok Singh,Chandan
Sharma,Rahul Agarwal
Counsel for Respondent :- C.S.C.,A.K.
Singh,R.S.Umrao,S.C.,Y.K.Srivastava,Yogendra Kumar
Srivastava

Hon'ble Amreshwar Pratap Sahi,J.

Hon'ble Shashi Kant,J.

This writ petition questions the correctness of the

order dated 25th January, 2010 whereby the District
Magistrate, Allahabad has rejected the claim of the
petitioner seeking freehold rights in favour of the
petitioner society in respect of Plot No. 2 (B-2) Civil
Station, Allahabad, which the petitioner claims as a
matter of right in terms of the Orders dated 10.01.2002,
27.02.2003, 21.11.2005, 25.03.2008 and 18.11.2009.
Further a mandamus has been sought commanding the
respondent no. 3, Allahabad Development Authority to
release the sanctioned map for raising constructions
over the site in question.

An Amendment Application No. 190749 of 2014

has also been filed praying for quashing the Government
Orders dated 28.09.2011 and 04.03.2014 contending
 2

that the said Government Orders cannot be utilized as a

tool by the State Government so as to defeat the rights
which have accrued to the petitioner in terms of the
Government Orders already brought on record.

A counter affidavit by the State to the writ petition

as well as to the amendment application has been filed
disputing the stand of the petitioner on various grounds
and also contending that the property in dispute was
originally leased out. The lessor from whom the
petitioner's society is claiming a transfer has also filed a
civil suit for cancellation of the deed executed in favour
of the petitioner's society. There was a direction to
maintain status quo by the High Court on 8 th March, 2006
in an appeal in the proceedings arising out of the said
suit which may also be taken notice of.

The respondent no. 4 namely, the Nagar Nigam

has also filed a counter affidavit even though it has
absolutely no role to play in the matter of grant of
freehold rights for which the petition has been filed.

An Impleadment Application No. 190805 of 2012

has been filed by Pushpraj Singh contending that the
rights of the original lessor who is succeeded by the
present applicant would be directly affected in the event
of this petition being finally disposed off, and therefore,
the applicant should also be heard in opposition to the
writ petition. A counter affidavit to the said impleadment
application has been filed disputing the stand of the
applicant contending that the applicant cannot claim any
rights in relation to the grant of freehold in which only the
 3

application of the petitioner is pending. A rejoinder

affidavit to the said impleadment application has been
filed reiterating that the suit with regard to the
cancellation of the deed in favour of the petitioner is
pending and in the said background, the orders passed
from time to time should also be taken into account.

Sri Umesh Narain Sharma learned Senior Counsel

and Sri Chandan Sharma, Advocate have advanced their
submissions on behalf of the petitioners, Sri Ajit Kumar
Singh, learned Additional Advocate General has
advanced his submissions along with Sri Nimai Das on
behalf of the State-respondent nos. 1 and 2, Sri Ajit
kumar Singh has also advanced his submissions on
behalf of the respondent nos. 3 and 4 and Sri R.S.
Umrao has advanced his submissions on behalf of the
proposed respondent Pushpraj Singh.

We have considered the submissions raised and at

the very outset, we may dispose of the two applications,
one seeking amendment and the other for the
impleadment, as no orders appear to have been passed
on the said applications during the pendency of the writ
petition.

Coming to the Amendment Application No. 190749

of 2014, the same challenges the Government Orders
dated 28.09.2011 and 04.03.2014, whereby the State
Government has modified the earlier procedure and
method of grant of freehold rights. The petitioner
contends that such Government Orders would not be
applicable, inasmuch as, the same provides for a
 4

deemed rejection of pending applications if they have not

been finalized. The Government Orders have been
castigated as sporadic, casual and random, on the
ground that the Government has not taken any action in
respect of the pending applications, and to the contrary,
it is proposes to defeat the rights of such applicants.

The aforesaid issue is no longer res-integra,

inasmuch as, the State Government has subsequently
issued a Government Order on 10.01.2015 which
supersedes the aforesaid Government Orders in respect
of such pending applications. It has been provided for
that the deeming clause of rejection would stand
withdrawn and pending applications would be considered
in terms of the new Government Order. The said
Government Order has already been brought on record
as Annexure No. 1 to the counter affidavit filed to the
amendment application. There is yet another reason that
deserves to be noted namely, that the Full Bench of this
Court in the case of Anand Kumar Sharma Vs. State of
U.P. & Others 2014 (2) ADJ 742 has held that by merely
moving an application for grant of freehold rights, a
person does not acquire a vested right. Secondly, it has
been held that the doctrine of promissory estoppel and
legitimate expectation is not attracted as the property
has been leased out on certain terms and conditions
subject to such arrangements that may be made by the
State Government. Thirdly, it has been held that if an
application for grant of freehold rights is to be
considered, then the Government policy as existing at
 5

the time of the passing of an order granting such benefit

would be applicable, and not the policy which was
available at the time of moving of the application. In view
of the aforesaid position of law and the promulgation of
the subsequent Government Order dated 10.01.2015 the
challenge raised to the Government Orders dated
28.09.2011 and 04.03.2014 are meaningless and
infructuous. The amendment application is accordingly,
rejected.

Coming to the Impleadment Application No.

190805 of 2012 moved by Pushpraj Singh, we find that
the said applicant is the successor of the original lessor
and Original Suit No. 538 of 2005 was filed for
cancellation of the deed dated 23.03.1987 and sale deed
dated 16.07.1988. The same is stated to have been
dismissed for want of deposit of Court fees against which
a Civil revision is pending before this Court. The interest
of the applicant is as against the petitioner's society vis-
a-vis the deed executed and relied upon by the
petitioner's society. The present dispute is in relation to
the grant of freehold rights. The petitioner is claiming
freehold rights on the strength of the Government Order
dated 10th January 2002, which clearly spells out that the
petitioner's claim ought to be considered in the category
of purchaser (kreta). The admitted case of the
petitioner's society is that the society had obtained the
deed from the predecessor in interest of the applicant
which appears to be the subject matter of the original
suit. The outcome of the suit or any proceeding arising
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therefrom, would therefore affect the rights of the

petitioner's society as the Government Order dated 10 th
January, 2002 itself recites that the freehold rights as
claimed by the petitioner is in the category of the
purchaser (Kreta). In the said circumstances, it cannot
be said that the applicant is a stranger to the
proceedings, and therefore, instead of formally
impleading the applicant, we in the exercise of the
powers under Chapter 22 Rule 5-A of the Allahabad High
Court Rules, 1952 have proceeded to hear Sri R.S.
Umrao on behalf of the said applicant. The Impleadment
Application accordingly, stands disposed of.

The present writ petition in the aforesaid

background was heard by us on 1st May, 2018 and the
following order was passed:-

“Heard learned counsel for the

petitioner and learned Standing Counsel
appearing for the State of U.P.
Arguments which have advanced
today demonstrate that the petitioner
appears to have entered into
negotiation of the property with the
original lessor and accordingly
presented a transfer deed for being
registered before the Sub Registrar on
23rd March, 1987. The said transfer
deed on presentation was not registered
and was stayed by the by the Sub
Registrar.
On 27th May, 1987 a Government
Order emanated that this permission for
transfer is being granted in terms of
the Government Order dated 16th
October, 1986, and in the said
permission one of the conditions
imposed was the deposit of premium of a
certain amount that was to be paid
prior to the registration of the
transfer deed. Second condition imposed
 7
in the Government Order is that a new
lease would be created in favour of the
petitioner renewable at an interval of
30 years each.
Before the said Government Order
could be given effect to another
Government Order was issued on 16th
July, 1987 modifying the terms of
deposit of the premium and allowing the
petitioner to deposit the same in six-
monthly instalments with the first
instalment to be deposited forthwith.
According to the petitioner the first
instalment was tendered through Cheque
on 13th October, 1987. The Government
Order as modified on 16th July, 1987
also stipulated that the lease deed as
per Government Order dated 27th May,
1987 should be executed on the deposit
of first instalment. The lease deed was
not executed nor the subsequent six
monthly instalments were deposited in
time.
At this juncture it appears that
the Sub Registrar proceeded to register
the transfer deed on 3rd December, 1987
in terms of the Government Order dated
27th May, 1987. The endorsement of the
registration refers to the Government
Order dated 27th May, 1987 but it no
where mentions the Government Order
dated 16th July, 1987.
On 31st January, 1989, the
petitioner Society had already moved an
application for sanction of map before
the Allahabad Development Authority
that was granted subject to the
condition that the petitioner shall
obtain a no objection certificate from
the Collector.
In between, the original lessor
appears to have applied for renewal and
on 3rd June, 1987 lease was renewed in
favour of the original lessor for
thirty years with effect from
01.01.1970.
In the aforesaid background the
petitioner also appears to have pursued
the matter before the Allahabad
Development Authority but having failed
 8
to get the no objection certificate,
filed Writ Petition No. 19030 of 1992
praying for a Mandamus that the
Development Authority should be
commanded to release the map without
insisting for the condition of no
objection certificate contained
therein. The said writ petition was
ultimately allowed on 29th September,
1992 with the observation that grant of
prior permission of the Collector to
execute a transfer deed was a mere
formality and further direction was
issued that in case the petitioner
approaches the respondent nos. 1 and 2
therein then in that event said
respondents shall within two weeks' of
the presentation of the judgment
proceed to issue necessary directions
for granting permission in relation to
the execution of the lease deed in
favour of the petitioner. This was
however subject to deposits that were
to be made under the conditions already
contained in the Government Orders
issued earlier.
Against the aforesaid judgment of
the High Court the State went up in
appeal before the Apex Court. It is
informed by Sri Chandan Sharma at the
Bar that there was no interim order in
operation in the special leave petition
and finally on 26th July, 2001 the Apex
Court upheld the order of the High
Court making certain observations
therein.
There is nothing on record before
us to indicate as to whether the
petitioner has approached the
authorities for complying with the
directions issued by the High Court on
29th September, 1992.
It is at this stage that another
turn took place when the petitioner
Society appears to have staked its
claim for grant of free hold rights in
respect of the property in question. It
may be mentioned that the Government
Orders have been issued including the
Government Order dated 01.12.1998 that
was in force at that time wherein grant
 9
of free hold rights were to be
considered. Free hold rights could be
granted in favour of the lease holder
or in favour of the person nominated by
the original lease holder. A copy of
the said Government Order has been
placed before us.
On 10th January, 2002 a fresh
Government Order emanated in relation
to the present dispute and same
mentions two relevant facts firstly,
that consideration of the grant of free
hold rights of the petitioner would be
considered under the category of
purchaser (kreta) and second condition
which is worth noticing is that the
petitioner was called upon to given an
undertaking that the petitioner shall
not claim any right of any renewal of
the lease either in pursuance of the
earlier Government Orders or under
orders of the High Court and the Apex
Court referred to above. It was also
mentioned therein that the petitioner
will given an undertaking that he will
not initiate proceedings of contempt or
otherwise.
It is at this stage that the Court
has put up a query regarding the issue
of nomination in favour of the
petitioner.
Learned counsel for the petitioner
submits that he may be permitted to
further study the case and then assist
the Court accordingly.
As prayed, put up on Monday next
i.e. 07.05.2018.”
Elaborate arguments have been further advanced.
The past history relating to renewal of lease rights in our
opinion has become redundant, inasmuch as, even
though the petitioner's society had fought the battle with
regard to the renewal of lease before the High Court in
Writ Petition No. 19030 of 1992 decided on 29 th
September, 1992 and the judgment of the High Court
was not interfered with by the Apex Court in Civil Appeal
 10

No. 7397 of 1994 which was dismissed on 26 th July,

2001, yet in view of the own admitted position of the
petitioner society, it abandoned it's claim arising out of
the said judgments as per the terms and conditions set
out in the Government Order dated 10 th January, 2002.
Thus, according to the own case of the petitioner society
it is claiming only freehold rights.

To understand the said background we may

however in brief point out that the petitioner's society had
got a transfer deed dated 23.03.1987 prepared and
presented it before the Sub-Registrar for registration but
the Sub-Registrar endorsed an order thereon that the
registration will remain suspended. It appears this was
done as no permission had been obtained from the
Collector. Thereafter, the permission from the State
Government for transfer of the lease rights in terms of
the Government Order dated 16.10.1986 was sought
and accordingly, the said permission was granted on 27 th
May, 1987 indicating certain terms and conditions of
renewal of lease rights. The same also contained the
conditions for deposit of the premium and lease rent for
the said lease that was to be executed afresh for a
period of thirty years in favour of the petitioner. It also
stipulated that the lease shall be issued afresh in the
name of the petitioner. The said Government Order
dated 27th May, 1987 was modified on 16 th July, 1987
permitting the petitioner's society to deposit the entire
amount in six-monthly installments. The petitioner
admittedly tendered one cheque but did not make the
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entire payments as per the said term fixed for renewal.

Permission was granted by the Allahabad Development
Authority for sanction of map but a rider was put therein
that a no objection certificate should be obtained from
the Collector. The payments made by the petitioner for
grant of lease gains relevance as the said amount is
sought to be adjusted against the amount payable for
freehold in terms of the Government Order dated
10.01.2002.

A fresh sale deed was executed on 16.07.1988 that

was registered on 19th January, 1991. These facts are
borne out from paragraph no. 8 of the counter affidavit
filed by the State. Thus, it is this sale deed that was
presented on 16.07.1988 and registered on 19.01.1991
that has been made the basis for claiming freehold
rights. The cancellation of this sale deed has also been
sought in the suit filed by the original lessor which is
evident from the copy of the plaint that has been filed
along with the rejoinder affidavit dated 17.02.2017 to the
impleadment application.

The original lessor from whom the petitioner had

obtained the deed referred to above was granted
renewal of the lease by the State Government on 3 rd
June, 1989 with effect from 01.01.1970 for thirty years.

In this factual backdrop, the petitioner filed a Writ

Petition No. 19030 of 1992 contending that the map
cannot be withheld by the Allahabad Development
Authority and no objection from the Collector in the wake
of the aforesaid facts was unwarranted. As stated above,
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the said writ petition was allowed and the SLP was
dismissed. However this entire episode of lease
renewal in favour of the petitioner society stood
dissolved with the Government Order dated 10 th January,
2002.

It is undisputed that after the issuance of the

Government Order dated 10th January 2002, the
petitioner applied for freehold on 23.01.2002. Three
payments were made previously on 13.10.1987 and
27.09.1989 and again a payment of Rs.3,00,000/- on
27.09.1989 that is a total of Rs.9,30,294.04/-. This was
the amount of premium and lease rent in relation to the
lease transactions which was ultimately given up by the
petitioner's society under the Government order dated
10th January, 2002. It is this amount, the adjustment
whereof is sought by the petitioner in his application for
freehold.

On 23rd December 2006, the learned Additional

Civil Judge Senior Division passed an order enhancing
the Court fees payable in the suit filed by the original
lessor on the strength of the market value of the property
treating it to be worth Rs.25 crores. This issue of Court
fees was assailed in First Appeal From Order No. 280 of
2007 by the original lessor in which the petitioner society
was the respondent no. 1. It was held that the trial Court
should reassess the valuation of the suit and the Court
fee, if payable thereon, the order of the trial court was set
aside and it was directed to pass a fresh order in this
regard, the judgment is dated 13 th December, 2007. As
 13

pointed out by the learned counsel, the suit has been

dismissed for non-payment of court fees against which a
civil revision is stated to be pending before the High
Court.

The question is as to what rights can be claimed by

the petitioner's society as per the material brought on
record. The State Government has the ultimate authority
to decide an issue relating to grant of freehold rights. It
has been held that the right of a person seeking
consideration of the application for grant of freehold
rights is not a vested right nor does it give rise to any
legitimate expectation by the Full Bench in the case of
Anand Kumar Sharma (supra). Secondly, it is not the
date of the application but the date of the consideration
for grant of such rights which would be relevant for
applying the prevalent policy.

In the aforesaid background what can be seen is

that the petitioner on the strength of the sale deed of 16 th
July, 1988 registered on 19th January, 1991 is claiming
himself to be the purchaser of the property on the basis
whereof he has a right for consideration of freehold
rights. The petitioner filed an application on 23 rd January,
2002 praying for grant of freehold rights, keeping in view
the Government Order issued on 10 th January, 2002 in
favour of the petitioner's society. The Government Order
dated 10th January, 2002 stated that the amount of
premium and lease rent already paid by the petitioner's
society shall be adjusted for the purpose of calculation of
the pre deposit to be made in terms of the Government
 14

Orders applicable including the Government Order dated

1st December, 1998. This pre deposit had to be made on
the basis of self assessment, the principles whereof have
been culled out in the said Government Order. The
amount to be calculated has to be on the basis of the
circle rate on the cut off date multiplied by the area of the
land and further multiplied by the prescribed rate for the
proposed user of the land to be converted into freehold.
It is 25% of such calculation that was to form the basis of
self assessment that had to be deposited for
consideration of the application. A deposit through a
treasury challan was a condition precedent for
entertaining the application. The petitioner admittedly in
his application instead of making the deposit urged that
in view of the Government Order dated 10 th January
2002, the amount already paid by the petitioner for grant
of lease should be adjusted, and he should then be
informed of the balance of the amount that is payable.
Instead of depositing the 25% amount on the basis of
self assessment, the petitioner raised the aforesaid
query in the application dated 23 rd January, 2002. The
State Government issued a direction on 27 th December,
2003 calling upon the District Magistrate, Allahabad to
take appropriate steps for compliance of the Government
Order dated 10th January, 2002 and clarified the query
which had been raised in this regard.

The District Magistrate rejected the application of

the petitioner on 26th February, 2004. The ground for
rejection was that the petitioner had not deposited the
 15

25% amount on self assessment and therefore his

application cannot be considered.

The petitioner approached the State Government

by filing a representation on 1st March, 2004 complaining
of the fact that the District Magistrate should be directed
to reconsider the application of the petitioner.

The District Magistrate by the Government Order

dated 21st November, 2006 was directed to proceed as
per the Government Order dated 10.01.2002 holding that
the rejection order dated 26.02.2004 was contrary to the
earlier direction of the Government on 10.01.2002 and
27.02.2003. It was also observed that such an action of
the District Magistrate questions the credibility of the
State Government and its action, therefore the District
Magistrate should observe a discipline that is expected
from all officials who are Sub-Ordinate to the State
Government. Consequently, the freehold proceedings
should be processed accordingly.

At this stage, it may be noticed that the society

appears to have entered into an agreement to sale with
Sri Bal Krishna Agarwal, Sri Anand Kumar Agarwal, Smt.
Beena Agarwal, Smt. Parul Agarwal, Sri Rajendra Kumar
Agarwal and Smt. Pratima Agarwal negotiating the
property in question with them. On the basis of this
agreement to sale, the abovenamed Agarwals' filed a
Writ Petition No. 77818 of 2005 praying for grant of
freehold rights in their favour and in the alternative to
reimburse a sum of Rs.7,52,000/- for the loss suffered by
them on account of the demolition of the boundary wall.
 16

Further reliefs of non interference with their possession

was also sought. Another writ petition was filed by
Rajendra Kumar Agarwal along with the petitioner
society being Writ Petition No. 11017 of 2008 praying for
grant of freehold rights after adjusting the amount
already deposited by the petitioner's society.

During the said period, the District Magistrate had

again raised a query, keeping in view the filing of Writ
Petition No. 77818 of 2005 from the State Government
on which a D.O. letter was issued by the Principal
Secretary Housing and Urban Department on 25 th March,
2008 calling upon the District Magistrate that there was
no occasion to treat the application of the petitioner
society as redundant. So far as the payments to be
made by the petitioner society were concerned, the
District Magistrate could have himself got it computed. It
was also pointed out therein that the amount already
deposited by the petitioner should be adjusted and
certain other directions were also issued with regard to
the payment of annual rent and interest thereon.

The writ petitions filed by the Agarwals' referred to

hereinabove were dismissed on 27 th May, 2009 holding
that they had no right as prospective purchasers. It was
also held therein that no rights had accrued to the
society on the basis of deposits earlier made and it was
also noticed that the Collector had fixed the amount
realizable as per the self assessment to be made as
Rs.71,91,595/-. While dismissing the writ petitions, it was
observed that the passing of the said judgment will not
 17

affect the rights of the petitioners to approach the

authority concerned if they so desire.

The District Magistrate on 15 th April, 2008 had

already written to the State Government about the
amount that was required to be deposited, but at the
same time it had also recommended that it will not be
advisable to release the land by granting freehold rights
as the land was at a very prime location, and the prices
of such land had spiralled, therefore keeping in view the
status of the land, the State Government should re-visit
the entire issue and advice the Collector accordingly.
Another letter was dispatched by the District Magistrate
to the Principal Secretary on 18 th June, 2008 that it would
be appropriate that the said land is allotted to the
Allahabad Development Authority as grant of freehold
rights to the petitioner's society would not be permissible,
keeping in view the fact that they had not made the
deposits upon self assessment and that their transaction
previously was in violation of the terms of the lease. The
Allahabad Development Authority made a similar request
and the petitioner thereafter moved a representation on
1st October, 2009 to the District Magistrate praying that
it's claim should be considered for grant of freehold
rights and also requested for issuance of the demand
note of Rs.71,95,595/- for registration of a deed of
freehold.

The State Government on 18 th November, 2009

again issued a communication stating therein that after
due consideration, directions had been earlier issued for
 18

processing the freehold rights in favour of the petitioner

and no reason has been found to deviate from the earlier
view of the State Government.

Since the action of issuing the demand note, and

then grant of freehold rights had not been executed by
the District Magistrate, Allahabad, the petitioner society
filed Writ Petition No. 70350 of 2009 which was disposed
off with a clear direction to the District Magistrate to
abide by the directions of the orders issued by the State
Government on 10.01.2002, 27.02.2003, 21.11.2006,
25.03.2008 and 18.11.2009. The District Magistrate was
called upon to pass appropriate orders in the light of the
said directions.

The impugned order dated 25th January, 2010 has

been passed rejecting the claim of the petitioner on the
ground that the petitioner did not deposit the amount as
was directed for grant of lease rights nor did the
petitioner make the deposit of 25% as required under the
Government Order for consideration of the application for
grant of freehold rights. It was also observed that the two
writ petitions filed earlier were dismissed, namely, Writ
Petition Nos. 11017 of 2008 and 77818 of 2005, and
consequently, no case was made out for grant of any
such relief. It is also observed by the District Magistrate
that First Appeal No. 162 of 2006 was filed by the original
lessee in a matter arising out of the suit filed for
cancellation of the deed where an order of status quo
had been passed on 8th March, 2006.

It is in this background that the present writ petition

 19

has been filed and learned counsel for the petitioner has
urged that the District Magistrate has failed to comply
with the orders of the State Government referred to
hereinabove as also the mandamus issued by this Court
on 23rd December, 2009. It is urged that the District
Magistrate was bound to comply with the said directions
by informing the petitioner about the exact amount to be
deposited and issuing a demand note. The District
Magistrate now cannot reject the claim of the petitioner
by taking advantage of his own inaction by not
proceeding to inform the petitioner about the amount to
be deposited or issuing a demand note.

It is submitted that this entire battle which was

fought by the petitioner right from the inception, clearly,
indicates that the State Government had been issuing
directions after directions, yet the successive District
Magistrates of Allahabad had been rejecting the
application of the petitioner on frivolous grounds. The
petitioner had never declined to make any deposit, and
to the contrary, had been making a request for letting the
petitioner know the amount that was required to be
deposited after the adjusting the amount already lying
with the respondents. The petitioner had also
categorically requested for the issuance of the demand
note of Rs.71,00,000/- and odd as referred to
hereinabove, still no action was taken and the application
of the petitioner was arbitrarily rejected. It is urged that
the action of the District Magistrate is not only arbitrary
and violative of Article 14 of the Constitution of India but
 20

also reflects complete disobedience to the directions

issued by the State Government which is the ultimate
authority to grant freehold rights. In such circumstances
and the facts narrated above, the only option left to the
District Magistrate was to allow the application of the
petitioner and grant freehold rights in respect of the
property in dispute.

Learned counsel for the respondent-State and the

Development Authority have urged that with the coming
into force of the new Government Order dated
10.01.2015, no relief can be granted to the petitioner for
consideration of freehold rights, inasmuch as, the Full
Bench judgment in the case of Anand Kumar Sharma
(supra), clearly holds that by merely moving an
application no rights accrue in favour of an applicant. It is
urged that the authority of the State Government to
either grant such rights or refuse the same is absolute,
and that the District Magistrate while passing the order
dated 25th January, 2010 has abided by the Government
Order dated 1st December, 1998 as well as the other
Government Orders relating to grant of freehold rights. It
is then urged that the very title of the petitioner is in
jeopardy as the original lessor is contesting the same in
civil proceeding. It is further submitted that non deposit of
the amount through self assessment by the petitioner till
date dis-entitles him to seek any such relief of
consideration of freehold rights. The orders of the State
Government which are being relied upon by the
 21

petitioner do not in any way amount to be in

supersession of the Government Orders which require a
deposit of 25% of the amount as a pre-requisite for
processing of the application. The very first condition,
therefore, was not fulfilled by the petitioner and the
application moved for freehold on 23.01.2002 was not
accompanied by the treasury challan of the deposited
amount. It rather raised an unnecessary query about the
amount required to be deposited. Even if the petitioner
was seeking adjustment of any previously deposited
amount as per the Government Order dated 10.01.2002,
then too even, the previous amount deposited does not
amount to fulfilling the pre-condition of 25% of deposit. It
was the obligation of the petitioner society that ought to
have made the self assessment as per the prescribed
formula in the Government Order dated 1 st December,
1998 but the petitioner society had no intention to do so,
and had moved the application with a view to negotiate a
settlement for which there was no occasion. Even if it is
presumed that the application had been appropriately
moved, the same did not create any right so as to
restrain the District Magistrate from proceeding to
consider the applicability of the relevant Government
Orders, and consequently, in the absence of any
foundation for the claim for grant of freehold rights, the
impugned order dated 25th January, 2010 has been
rightly passed which does not call for any interference.

In addition to such reasons having been given, the

counter affidavit on behalf of the State also indicates that
 22

the land in question according to the District Magistrate

of Allahabad deserves to be retained for utilization for
public purposes as the land is at a prime location that
may be required for establishing Government Offices,
including, the office of the Allahabad Development
Authority. This stand appears to have been taken as a
supervening public interest as against the claim of an
individual to develop a housing colony keeping in view
the Governmnet Order dated 10.12.2002.

Sri R.S. Umrao, learned counsel for the intervenor

Pushpraj Singh has urged that the very title of the
petitioner society has been disputed and in the wake of
such facts, the District Magistrate has rightly refused to
grant freehold rights to the petitioner. He has invited the
attention of the Court to the affidavit filed in support of
the impleadment application as well as the other facts
brought on record.

We have considered the submissions raised. The

purpose to grant freehold rights to the erstwhile lease
holders, the unauthorized occupants or to the nominees
of the lessee's or the occupants or sale deed holders
was to promote stability and access to easy availability of
land for housing and commercial purpose, in order to,
speed up development in urban areas and also to
augment the revenue of the State. This also aided in
providing certainty to ownership of land and the building
of a house or a business premises for decent living and
earning a livelihood. This purpose touches Article 21 of
the Constitution of India. The grant of freehold rights was
 23

with a purpose to create rights in land. The entire

process through the Government Orders that have been
placed before us indicates, that if, a decision is taken to
grant a freehold right the same with the actual grant ends
up in the creation of a vested right which is of course
subject to the control of Article 300-A of the Constitution
of India. There is yet another dimension, namely, that
while considering grant of such rights, the State and its
authorities are bound not to violate the equality Clause of
Article 14 and discriminate in matters of such grant
between the same class of applicants. To this extent
also, a person claiming a right of freehold can complain
of violation of Article 14 of the Constitution of India which
is a fundamental right in the event any such Act of hostile
discrimination, or otherwise is complained of. Such
action of the State, therefore has to pass the twin test of
arbitrariness and discrimination. We are mentioning this
as we find that these aspects were not for consideration
and have not been dealt with by the Full Bench in the
case of Anand Kumar Sharma (supra) that was confined
only to the applicability of the Government Orders. It
was held that the policy existing on the date of
consideration would be relevant and not the date when
the application was moved. The Full Bench also held that
this process prior to grant of any such rights, the same
does not amount to a vested or accrued right to claim
freehold rights nor does it gave rise to any legitimate
expectation. The Full Bench, however did not proceed
further and, we therefore, find that it necessary to
indicate that once there is a decision to grant freehold
 24

rights then the element of discrimination between the

same set of applicants and any arbitrary act would give
rise to violation of fundamental rights guaranteed under
Article 14 of the Constitution of India, the judicial review
whereof would be permissible. This would remove any
element of uncertainty and eliminate possibility of
arbitrariness as and when the occasion arises.

Viewed from the above principles, what can be

seen in the present case is that the petitioner began it's
investment by seeking grant of lease in the year 1987
itself. This battle while being contested along with the
issue of sanction of a map by the Allahabad
Development Authority was judicially pronounced in
favour of the petitioner both by this Court and affirmed by
the Apex Court but this dispute stood dissolved with the
petitioner itself giving up the claim of lease rights in
terms of the Government Order dated 10 th January,
2002. It was clarified therein, that the petitioner's claim
would now be considered only for grant of freehold rights
in the category of a purchaser. This was possibly on the
presumption that the petitioner had a valid sale deed
from the original lessee which is dated 16.07.1988 but
which came to be registered on 19 th January, 1991. We
are not concerned with the validity of such transaction
which according to the intervenor is subject matter of a
suit, and it would certainly be a matter of consideration
for the authority that proceeds to consider the grant of
freehold rights.

There is no doubt that the order of the State

 25

Government dated 10th January, 2002 recites that the

concerned Deputy Secretary has been directed to say
that there is a request of the petitioner to grant freehold
rights upon adjustment of the amount that had been
deposited by the petitioner while contesting his claim for
lease rights. It further says that upon a consideration, it
has been decided that on a calculation of self
assessment as per the relevant Government Order, the
amount already deposited by the petitioner be adjusted
and his claim be treated in the category of a purchaser
for consideration of freehold rights provided the petitioner
files an affidavit with an undertaking that he will not claim
any rights with regard to the grant of lease in terms of the
previous litigation, nor the petitioner would raise an issue
of contempt of the judgment of this Court and of the Apex
Court. So far as the circle rate is concerned, the same
shall be decided on the basis of the application that
would be moved by the petitioner society.

The petitioner, accordingly moved the application

on 23rd January, 2002 without any pre-deposit in terms of
the Government Order applicable to the controversy. The
relevant portion of Clause-1 of the Government Order
dated 1st December, 1998 is extracted hereinunder:-

“1- vko sn u dh ÁfØ;k

1-1 Ýh gksYM gsrq fu/kkZfjr vkosnui= ds lkFk Ýh gksYM gsrq ns;

/kujkf'k dk 25 izfr'kr fuEukuqlkj LoewY;kadu ds vk/kkj ij tek dj
Vªstjh pkyku dh izfrfyfi layXu djrs gq, vkosnu i= ftl frfFk dks
tek fd;k tk;sxk] ogh frfFk vkosnu dh frfFk ekuh tk;sxhA
Loe wY ;k ad u dh /kujkf'k % lEcfU/kr Hkw[k.M dk fu/kkZfjr
dV&vkWQ&MsV dk lfdZy jsV x {ks=Qy x Ýh gksYM d fy;s izLrkfor
 26

Hkw&mi;ksx gsrq fu/kkZfjr nj x 25%.”

The self assessment calculation was not made by

the petitioner nor any deposit was tendered. Rather the
District Magistrate was requested to inform the amount
that was to be paid after adjustment of the amount
already tendered by the petitioner for grant of lease
rights. The District Magistrate sought instructions from
the State Government to which a reply was given on
27.02.2003 by the Government that the issues raised by
the District Magistrate in no way affect the case of the
petitioner's society, and therefore, the District Magistrate
should proceed to comply with the earlier direction dated
10th January, 2002.

The District Magistrate on 26th February, 2004

rejected the application of the petitioner on the ground of
non deposit of 25% of the amount. The petitioner
represented before the State Government and the State
Government reiterated its earlier stand vide order dated
21st November, 2006 to carry out the direction as per the
order dated 10th January, 2002 as per the rates then
prevalent.

The District Magistrate again raised a query,

keeping in view, the filing of Writ Petition No. 77818 of
2005 by Bal Krishna Agarwal & Others with whom the
petitioner society had entered into an agreement of sale.
On receiving the said information, the Principal Secretary
of the Urban Planning and Development Department,
Government of Uttar Pradesh on 25 th March, 2008
reiterated the earlier position indicating therein that the
 27

District Magistrate could have himself got the amount

calculated and there does not appear to be any reason
to deny grant of freehold rights on such a ground. Other
directions were also issued.

In response thereto, the District Magistrate,

Allahabad on 15th April, 2008 informed the Principal
Secretary that a sum of Rs.71,91,595/- was the
computation for the calculation of self assessment but no
deposit was made by the petitioner, and even otherwise,
keeping in view the prime location of the land it will not
be advisable to grant freehold rights and that the State
Government may revisit the matter.

The Allahabad Development Authority through its

Vice Chairman on 1st May, 2008 also raised a proposal
for providing the said land to enable the Development
Authority to set up its office and administrative building.

The matter was taken up by the State Government

and five queries were raised by the State Government to
which the District Magistrate, Allahabad gave a reply on
18th June 2008, detailing therein the entire past history of
the transaction of the said land and the existence of the
litigation and the orders passed from time to time. The
Government was also informed about the pendency of
two writ petitions being Writ Petition No. 77818 of 2005
Bal Krishna Agarwal & Others and 11017 of 2008 filed by
Rajendra Kumar Agarwal and the petitioner society in
which a counter affidavit had been filed by the State. It
was categorically stated therein that since the earlier
deposit made by the petitioner also did not fulfill the
 28

terms and conditions that were imposed in relation to

grant of lease rights and there was no compliance of the
pre requisite deposit of 25% for freehold either, therefore
and in the above circumstances it would be appropriate
not to accept the request of the petitioner and allot the
land to the Allahabad Development Authority for its
office.

The two writ petitions filed by Bal Krishna Agarwal

& Others and Rajendra Kumar Agarwal, as well as, the
petitioner's society being Writ Petition No. 77818 of 2005
and 11017 of 2008 were dismissed on 27 th May, 2009 by
the following judgment:-

“Both the aforesaid writ

petitions being connected are placed
before this Court for analogous
hearing.
In the first writ petition, being
Civil Misc. Writ Petition No. 77818 of
2005, initially following prayers were
made:
"(i) issue a writ, order or
direction in the nature of mandamus
commanding respondent no. 2, the
Collector, Allahabad to grant freehold
rights in regard to 2508 sq. mts. of
land forming part of Nazul Site 2(B-2),
Civil Station, Allahabad, and bungalow
No. 4/6, Thornhill Road, Allahabad;
(ii) issue a writ, order or
direction in the nature of mandamus
commanding respondents, the Collector,
Allahabad, and the Additional District
Magistrate (Nazul) to reimburse the
petitioners to the tune of
Rs.7,52,000/- for the loss suffered by
him on account of wholly illegal and
highhanded and grossly irresponsible
act of demolition of boundary wall
raised by the petitioners over the
property in dispute;
 29
(iii) issue a writ, order or
direction in the nature of mandamus
restraining the respondents from in any
manner interfering with the possession
of the petitioners and peaceful
enjoyment of the property in dispute by
the petitioners;
(iv) issue any other suitable
writ, order or direction in the nature
writ as this Hon'ble Court may deem fit
and proper on the facts and
circumstances of the case; and
(v) award costs of this petition
to the humble petitioners throughout."
However, on 22nd December, 2005
the petitioners have made a statement
before the Court that they do not want
to press the 'Prayer No. 1'. Hence, the
'Prayer No. 1' was deleted under the
order of the Court dated 22nd December,
2005. Therefore, such writ petition was
restricted only with regard to
reimbursement of certain amount on
account of demolition of boundary wall
and restraining the respondents from
interfering with the possession of the
petitioners, if any. It has been
contended by Mr. Somesh Khare, learned
Counsel appearing for the petitioners,
that such prayer was deleted since the
Samiti, namely, Sangam Upnivashan Avas
Avam Nirman Sahkari Samiti Ltd. was not
made party to such writ petition.
However, from the order dated 22nd
December, 2005 no such submission is
reflected. On the other hand, we find
that by a further order of the Court
dated 16th August, 2007 the Samiti has
been incorporated as party-respondent
no. 6 in such writ petition. This
earlier writ petition was filed by the
pen of six individuals inclusive of one
Sri Rajendra Kumar Agrawal, as
petitioner no. 5 therein.
However, we find that during
pendency of such writ petition another
writ petition, being Civil Misc. Writ
Petition No. 11017 of 2008, was filed
by said Sri Rajendra Kumar Agrawal and
the said Samiti by making both of them
as petitioners, with the following
 30
prayers:
"(i) Issue a writ, order or
direction in the nature of mandamus
directing the respondent authorities to
freehold the Plot No. 2 (B-2), Civil
Station, Allahabad in favour of the
petitioners in accordance with law
forthwith after adjusting the amount
already deposited by the Samiti-
petitioner no. 2.
(ii) Issue any other suitable
writ, order or direction in the nature
of case, as this Hon'ble Court may deem
fit and proper in the circumstances of
the case.
(iii) Award the cost of the
petition to the petitioners."
In such circumstances, the Court
was compelled to call upon Mr. Khare to
establish how the second writ petition
can be maintainable when they
themselves have not pressed such prayer
in the earlier writ petition. Then it
has been contended by him that the
prayer is not identical but subject to
adjustment of the amount deposited by
the Samiti. According to us, it is
circumventing approach. BOTH the
prayers are identical in nature.
Therefore, the writ petitions are not
maintainable. However, Mr. Khare
further submitted before this Court
that there is no bar in approaching
this Court by filing fresh writ
petition by the pen of the petitioner
no. 1, Rajendra Kumar Agrawal, as well
as the Samiti because they are sailing
in the same boat. On enquiry we have
come to know that the petitioner no. 1
of the second writ petition is a
prospective purchaser. Therefore, we
are eager to know how the Samiti is
represented before this Court being
petitioner no. 2. There is no
resolution to reflect that the Samiti
is inclined to proceed with the writ
petitions for the benefit of such
Samiti. No aims and objects are
reflected from any of the annexures
that in what way the Samiti is entitled
to proceed. Hence, it can be construed
 31
that the petitioner no. 1 appears to be
really interested person at the behest
of the Samiti. He is an individual.
Therefore, when the interest of the
Samiti can not be fulfilled, how it
will be fulfilled in favour of a
private individual, is best known to
them. Moreover, it is a matter between
him and the Samiti.
Apart from raising objections to
the maintainability of the writ
petitions, Mr. Chandra Shekhar Singh,
learned Additional Chief Standing
Counsel, contended before this Court
that the State has called upon the
Samiti to deposit a sum of
Rs.15,75,735.10 as premium long back on
25th July, 1987, which has not been
paid. Only three amounts, two of
Rs.3,15,147.02 each were paid on 13th
October, 1987 and 27th September, 1989
and thereafter on 27th September, 1989
another amount of Rs.3,00,000/- was
paid. Hence, no right can be accrued in
favour of the Samiti far to say about
an individual. Mr. Khare himself
invited our attention to go through the
letter written by the concerned
District Magistrate, Allahabad on 15th
April, 2008, being Annexure-16 to the
counter affidavit filed by the State.
There we find that on the basis of the
circle rate prevalent as on 23rd
January, 2002 the amount to convert the
land from Nazul to freehold was fixed
at Rs.71,91,595.00, which, according to
him, has increased a lot by the passage
of time and now it has become Rs. 17.16
crores. Apart from that, the District
Magistrate also stated therein certain
descriptions with regard to importance
of the locality. We are of the view
that if the petitioners are aggrieved
by such order, they can at best
challenge the same having certain
established rights in their favour.
Admittedly, neither of the petitioners
are accrued any right because the sum
as called upon by the State or its
authority has not been deposited.
Therefore, it is entirely open to the
writ petitioners how to proceed before
 32
the authority and convince them to have
the land freehold but it can not be
done under the direction of the Court
in such circumstances. Hence, both the
writ petitions are dismissed, however,
without imposing any cost.
In any event, passing of this
order will no way affect the right of
the petitioners to approach the
authority concerned, if so desire.”
Thus from the gamut of facts as narrated up to the
said stage, it is evident that the claim of the petitioner
was neither accepted by the District Magistrate nor by
this Court in the above writ petitions. It goes without
saying that in the second writ petition, the petitioner
society was a petitioner.

On the letter of the District Magistrate dated 18 th

June, 2008 mentioned above the under Secretary
Government of Uttar Pradesh of the Urban Housing and
Planning Development Department on 18 th November,
2009 reiterated the earlier communications of the
Government with a recital that the earlier order issued
did not require any deviation, and therefore, future action
should be ensured accordingly.

At that stage, since the petitioner society was not

able to secure the freehold rights, it filed Writ Petition No.
70350 of 2009 that was disposed off with a direction to
the District Magistrate on 23.12.2009 to pass an
appropriate order in the light of the orders of the State
Government referred to hereinabove. The said judgment
is extracted hereinunder:-

“We have heard learned counsel

for the petitioner, Sri Sanjay
Goswami, Additional Chief Standing
 33
Counsel appearing for respondents no.1
and 2 and Sri A.K.Mishra, learned
counsel appearing for respondent no.3.
The counsel for the petitioner states
that respondent no.4 is a formal
party.
By a lease deed dated 8.8.1912 of
nazul plot no.2 (B-2), Civil Station,
Allahabad (area 2.809 acres). The land
was leased out by the Secretary of the
State for India in Council through
Collector, Allahabad in favour of one
Trigaman Rathori David for a period of
90 years. The lease was to be renewed
after 30 years. Last renewal of the
lease was made by order dated 3.6.1989
issued on behalf of the Governor by
the Collector, Allahabad in favour of
Smt. Praveen Kumari, wife of late Raja
Martand Singh. Smt. Praveen Kumari
executed a sale deed dated 23.03.1987
registered on 27.05.1987 in favour of
the petitioner and the State
Government by order dated 27.5.1987
granted permission on certain
conditions to transfer the land in
favour of the petitioner and the
petitioner was put in possession. The
petitioner filed Civil Misc. Writ
Petition No.19030 of 1992 for
execution of fresh lease deed in
favour of the petitioner and the writ
petition was disposed of on 29.9.1992
with the direction that the petitioner
will deposit the amount and the
respondents will execute the lease
deed in accordance with law and the
respondents will also release the map
of the petitioner. This order dated
29.9.1992 was challenged by the State
of U.P. and others before the apex
court. The apex court dismissed the
Civil Appeal No.7397 of 1994 on
26.7.2001 and affirmed the order of
the High Court. Meanwhile the State
Government took a policy decision that
nazul plot would be converted into
free hold after payment of necessary
charges. In pursuance of the policy of
the government the petitioner filed a
representation on 19.10.2001 before
the State Government that the land
 34
purchased by the petitioner be
converted into free hold instead of
granting fresh lease. The State
Government, on the representation of
the petitioner, issued a government
order dated 10.1.2002 and directed the
District Magistrate/Collector,
Allahabad that whatever premium
towards the rent for grant of fresh
lease has been deposited by the
petitioner, be adjusted in the amount
which is to be paid by the petitioner
for granting free hold rights and an
affidavit be obtained from the
petitioner that he does not want a
fresh lease to be executed and wants
to get the land converted into free
hold and thereafter needful be done in
the matter. The petitioner on
23.1.2002 gave a letter to the
District Magistrate along with an
affidavit that he does not want to get
a fresh lease executed and instead the
land be converted into free hold and
the amount deposited by the petitioner
for execution of fresh lease as
premium be adjusted towards 25% of the
amount which is required to be
deposited for grant of free hold
rights.
It appears that the District
Magistrate wrote a letter to the State
Government on 30.5.2002 pointing out
that there is some difficulty in
granting free hold rights to the
petitioner as the petitioner's case is
similar to the case of Sushil Kumar
Kharbanda. The State Government on
27.2.2003 issued a government order to
the District Magistrate, Allahabad to
the effect that the case of Sushil
Kumar Kharbanda was different than
that of the petitioner and the earlier
order of the State Government dated
10.1.2002 be complied with. The
District Magistrate on 26.2.2004 wrote
a letter to the petitioner and since
the petitioner had not deposited 25%
amount and had not submitted the
treasury challan in the format
prescribed for making application, the
petitioner's application cannot be
 35
considered. The petitioner made a
representation on 1.3.2004 challenging
the order of District Magistrate dated
26.2.2004 before the State Government.
The Secretary to the State Government
passed an order on 21.11.2006 to the
effect that a decision was taken on
10.1.2002 by the State Government to
convert the land of the petitioner
into free hold and the District
Magistrate has not given intimation
about the self assessment to the
petitioner, therefore, the petitioner
could not complete the formalities.
When the petitioner submitted an
affidavit along with representation,
the District Magistrate, Allahabad
should have acted on it in view of the
directions of the State Government. It
further mentioned in the order that
the directions of the State Government
are binding on its subordinate
officers. Therefore, the order of the
District Magistrate dated 26.2.2000
was not found to be reasonable in view
of the government orders and the
directions given by the State
Government. The State Government
directed the District Magistrate,
Allahabad to comply with the
government order dated 10.1.2002 and
to convert the land of the petitioner
into free hold on the rates prevailing
at that time. In this order dated
21.11.2006 the State Government has
issued a positive direction to
District Magistrate, Allahabad to
convert the land of the petitioner
into free hold on the then prevalent
rates. It appears that this order was
also not complied by the then District
Magistrate, Allahabad and another
letter was written on 27.10.2007 to
the State Government raising
objection. The State Government again
on 23.5.2008 directed the District
Magistrate, Allahabad that on the
application of the petitioner dated
23.1.2002 it has been found by the
State Government that the conversion
of lease land into free hold on the
then prevalent rates was justified and
 36
issued direction to the District
Magistrate, Allahabad that further
proceedings be conducted by him.
Certain conditions were also imposed
in the order dated 25.3.2008 and the
District Magistrate, Allahabad was
directed to take necessary steps. It
appears that the District Magistrate
again wrote a letter dated 18.6.2008
to the State Government for
withdrawing the earlier government
orders and the State Government passed
an order on 18.11.2009 and directed
that in earlier orders the State
Government had given correct
directions on 10.1.2002, 27.2.2003,
21.11.2006 and 25.3.2008 and affirmed
the aforesaid government orders and
refused to rescind the aforesaid
government orders and necessary steps
were to be taken by the District
Magistrate, Allahabad. It appears that
for one reason or the other the
District Magistrate is not complying
with the orders of the State
Government for converting lease land
of the petitioner into free hold.
The facts narrated above are not
disputed by A.D.M. (Nazul) Sri Subhash
Uttam, who is present in the court and
the issuance of the government orders
and directions by the State Government
could not be disputed by Sri
S.Goswami, Additional Chief Standing
Counsel. The policy of converting
lease land into free hold has been
framed by the State Government and the
State Government is the ultimate
authority and once the State
Government directs the District
Magistrate to convert the lease land
into free hold land the District
Magistrate has no jurisdiction to
question the legality and propriety of
the orders passed by the State
Government as this will amount to act
of insubordination because the
District Magistrate, Allahabad acts in
representative capacity on behalf of
the State Government and he has no
authority to question the decisions
taken by the State Government. Since
 37
the facts are not disputed, we do not
propose to call for any counter
affidavit.
We dispose of this writ petition
with a direction to District
Magistrate, Allahabad to pass
appropriate orders in light of the
State Government orders dated
10.1.2002, 27.2.2003, 21.11.2006,
25.3.2008 and 18.11.2009. The orders
shall be passed by the District
Magistrate, Allahabad within a period
of one month from the date a certified
copy of this order is produced before
District Magistrate, Allahabad.
There shall be no order as to
costs.”
There is one striking feature in the above quoted
judgment, namely, there is no mention or consideration
of the impact of the earlier judgment dated 27 th May,
2009 extracted hereinabove.

At this stage, it would be appropriate to refer to the

previous judgment dated 27.05.2009 where Writ Petition
No. 11017 of 2008, which was filed by Rajendra Kumar
Agarwal and the petitioner society jointly, was found to
be not maintainable, and further the Court observed that
there is no reflection as to in what manner the petitioner
Samiti was entitled to proceed. It was also observed that
since the interest of the petitioner Samiti cannot be
fulfilled, then the private individual may not be able to
succeed in establishing any claim. It was further
observed that no right can be stated to have accrued in
favour of the Samiti much less the individual who had
joined in the petition. The Court, however, observed that
it is for the petitioner to proceed before the authority and
convince them about their claim of freehold but the same
 38

would not be possible under the direction of the Court.

The subsequent judgment dated 23 rd December,

2009 without taking notice of the said observations
issued a mandamus to the District Magistrate to pass an
appropriate order in accordance with law.

It is in this background that the impugned order

dated 25th January, 2010 has been passed by the District
Magistrate clearly denying consideration of grant of
freehold rights to the petitioner society on the ground that
the petitioner had failed to make good the deposits as
per the applicable Government Order, that there was a
litigation pending with regard to the original title between
the petitioner society and the original lessee, there was a
need to reconsider the retention of a land for other public
utility purpose and that the freehold could not be granted
in violation of the Government Orders.

At this stage, we may clarify that we are not

proceeding to consider the claim of the intervenor
Pushpraj Singh who may assert his rights before the
appropriate forum and which is a matter between the
petitioner, the intervenor and the concerned authorities.

This petition is about the judicial review of the order

passed by the District Magistrate on the grounds raised
herein. We find that the State Government while
proceeding was of the opinion that the orders passed by
the State Government should be complied with by the
District Magistrate, and therefore, the freehold should be
processed in terms of the order dated 10 th January,
2002. We may record that the order dated 10 th January,
 39

2002 is in the shape of a Government Order and so is

the order dated 21st November, 2006. But the said
Government Orders are subject to the Government
Orders in general which are applicable to grant of
freehold rights. The District Magistrate, Allahabad had
been returning back the files continuously on the issue of
non deposit of the requisite amount and later on also on
the issue of the viability of granting freehold rights,
keeping in view the supervening public interest of setting
up the office building of the Allahabad Development
Authority. In our considered opinion, the State
Government while issuing orders through its officials
does not appear to have considered the entire matter in
a comprehensive manner. The orders issued by the
State Government appear to be clearly directed for
extending the benefit of freehold rights to the petitioner
society without considering anything further. The State
Government did not consider that if an application is
moved without the pre deposit as required through a
treasury challan, then whether such application moved
by the petitioner would be competent or not. The State
Government also did not look into, as to whether, such a
recourse was permissible and whether the same would
not result in discrimination if other applicants of the same
category have been dealt with strictly as per the relevant
Government Orders. The requirement of the land as
stipulated in the Government Order dated 10.12.2002
was also not taken into account.

However, at the same time, we find that the District

 40

Magistrate, Allahabad kept on harping on the same

issues again and again inspite of the repeated directions
of the State Government. Even the Division Bench
judgment dated 23.12.2009 does not appear to have
been complied with in letter and spirit. On the other hand
if an application for grant of freehold rights is moved,
then the same has to be disposed off within a reasonable
period of time and the District Magistrate cannot keep
pondering over the matter for years together and create
a disadvantage to the detriment of the applicant for no
fault on his part. Any delayed action or in-action on the
part of the District Magistrate cannot be an excuse for
declining or withholding the consideration of an
application for grant of freehold rights under the relevant
policy. At the same time the impact of the judgment
dated 27th May, 2009 has also to be considered.

Thus from what has been observed above, apart

from the other considerations, the right of the petitioner
to claim the processing of its application for freehold
rights on the basis of a valid deed, the application moved
by the petitioner for grant of freehold rights in terms of
the order dated 10th January 2002, the issue of deposit
upon self assessment as per the terms and conditions of
the relevant Government Orders extracted hereinabove,
the impact of the two judgments dated 27.05.2009 and
23.12.2009 and now coupled with the latest Government
Order dated 10.01.2015 and the ratio of the Full Bench
judgment in the case of Anand Kumar Sharma (supra)
does require a reconsideration. Any other supervening
 41

public interest would also have to be taken into

consideration. At the same time, the respondents will
have to ensure that no discrimination or arbitrariness
results upon the taking of any such decision in the light
of what has been observed hereinabove.

For all the aforesaid reasons we do not find that

the State Government has taken a satisfactory or
comprehensive view of the matter but we find no
justification for the District Magistrate to act in defiance of
the directives issued by the State Government, or by the
High Court. The writ petition, therefore deserves to be
allowed to the extent that the impugned order dated 25 th
January, 2010 be quashed with a direction to the
respondent no. 1 to summon the entire records
pertaining to the said claim of the petitioner and then
proceed to take an appropriate decision after hearing the
petitioner or any other concerned party and pass an
appropriate order in accordance with law in the light of
the observations made hereinabove within three months.

The writ petition, is accordingly, allowed. The order

of the District Magistrate dated 25 th January, 2010 is
hereby quashed. The matter is remitted back to the State
Government-respondent no. 1 to decide the matter as
per the directions and observations contained
hereinabove preferably within a period of three months
from the date of production of a certified copy of this
order before him.

Order Date :- 11.5.2018

S.Chaurasia