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Judgment
M. Katju, J.—This writ petition has been filed for a writ of certiorari to quash the impugned order dated 19.11.1999 Annexure-1 to the petition and the order dated 19.7.1999 Annexure-24 to the petition. The Petitioners have also prayed for a direction declaring Clause 10 of the Government order dated 1.12.1998 Annexure-13 to the petition as null and void and for a mandamus directing the Respondent Nos. 2 and 3 to grant conversion of freehold rights in respect of plot No. 1928 in favour of the Petitioners and not to grant it in favour of any other person claiming to be tenant or occupants and also not to interfere with the possession of the Petitioners over the said plot.
Heard learned Counsel for the parties.
It is alleged in para 3 of the petition that one Liyaqat Husain was the original lessee of plot No. 1928, area 2360 Sq. Yards situated at Mohalla Dholikhar, Agra. It is alleged that Liyaqat Husain transferred his leasehold rights over the said plot in favour of Sheikh Ghulam Habib, father-in-law of Petitioner No. 1 and grand-father of Petitioner Nos. 2, 3, 5 and 6 and father of Petitioner No. 4.
It is alleged in para 4 of the petition that State Government, recognizing the rights of Sri Ghulam Habib in respect of plot in question had executed a fresh lease in his favour on 4.8.1947 for a period of 30 years w.e.f. 22.1.1944 on yearly rent of Rs. 500. The said lease deed was registered at the office of the Sub-Registrar, Agra. True copy of the lease-deed dated 4.8.1944 is Annexure-2 to the petition. The said Sri Ghulam Habib died in the year 1964 and it is alleged that the lease-hold rights devolved upon his four sons, namely Ghulam Rasool, Ghulam Nasar (father of Petitioner Nos. 5 and 6) Maqbool Husain (Petitioner No. 4), Anwar Husain, the widow and sons of his eldest son Ghulam Husain and Mustaq Husain Petitioner Nos. 1, 2 and 3.
It is alleged in para 6 of the petition that on 11.11.1974 all the four sons of the deceased Sheikh Ghulam Habib submitted an application before the Respondent No. 1 for renewal of the lease for another term of 30 years. True copy of the receipt of the said application dated 11.11.1974 is Annexure-3 to the petition. It is alleged in para 7 that on 18.3.1976 the arrears of lease rent due was deposited. A true copy of the receipt of the lease rent issued by the Nagar Mahapalika. Agra, on 18.3.1976 and the receipt of acknowledgment of submission of the lease renewal application issued by the office of Respondent No. 1 are Annexures-4 and 5 to the petition.
It is alleged in para 8 that the Petitioner Nos. 1 to 3, Ghulam Rasool, Anwar Husain and the father of the Petitioner Nos. 5 and 6 also submitted an application on 7.10.1982 with the Sahayak Nagar Adhikari, Nagar Mahapalika, Agra, for renewal of the lease in their favour with reference to the earlier application. True copy of the application dated 7.10.1982 is Annexure-6 to the petition. It is alleged in para 9 of the petition that on 18.9.1986, a sum of Rs. 4,488.08 paise was deposited with the Nagar Mahapalika, Agra vide receipt dated 18.9.1986, Annexure-7 to the petition.
It is alleged in para 10 that on 27.10.1986 the Petitioner No. 4 also submitted an affidavit before the Sahayak Nagar Adhikari, Nagar Mahapalika, Agra, stating the full facts about the lease renewal application submitted earlier and deposited the entire arrears of lease rent and requested for renewal of the lease. A true copy of the affidavit is Annexure-8 to the petition. It is alleged that on 16.6.1990 the Petitioner No. 2 submitted heirship certificate of the age of the deceased Sheikh Ghulam Habib vide Annexure-9 to the petition. The Nazul Officer required further papers in connection with the lease renewal application. It is alleged in para 12 that all the papers desired by him were submitted by the Petitioner No. 2 along with an application dated 14.12.1990 vide Annexure-10 to the petition.
It is alleged in para 13 that a letter dated 15.2.1995 was issued from the office of Respondent No. 2, A.D.M. In-charge Nazul, Agra, in the name of Ghulam Habib by which it was informed that plot No. 1928 is recorded in his name and the term of the lease expired on 21.1.1974 and application for renewal is pending. By that letter an application was invited for conversion of the same into free-hold. In response, the Petitioners deposited Rs. 100 on 16.2.1995. True copy of the letter and treasury challan are Annexures-11 and 12 to the petition.
The Secretary, Government of U.P. by letter dated 1.12.1998 informed to all the Divisional Commissioners, District Magistrates and Development Authorities, in respect of management and disposal of the Nazul Land, that applications were invited from the lessees for converting lease-hold rights into free-hold vide Annexure-13 to the petition. In pursuance of that letter notices were issued to all the lessees and it was also issued in the name of Late Sheikh Ghulam Habib on 15.2.1999 calling upon them to submit applications for conversion to freehold.
In para 16 it is alleged that in response to the said notice the Petitioner Nos. 1, 2 and 3 deposited the amount as per terms of the Government order and submitted application for converting a portion of the Nazul plot No. 1928, measuring about 311 Sq. Metre in their favour as free-hold vide Annexure-14 to the petition.
In para 17 it is alleged that Sheikh Ghulam Habib had constructed a huge building comprising of shops, stores and godown and residential portion over the plot in question. A major portion of the godown was let-out to various persons. Respondent No. 4, Saleem Uddin s/o Sabab Uddin was occupying a small portion of the aforesaid building and he submitted an application for allotment in his favour in 1988. By the order of the Rent Control and Eviction Officer, Agra, dated 22.7.1988, the said portion of the premises was allotted to Respondent No. 4 vide Annexures-15 and 16 to the petition.
It is alleged in para 19 that despite several requests, the lease of plot No. 1928 was not renewed in favour of the Petitioners/heirs of Late Ghulam Habib, and the lease renewal application submitted by the Petitioners in the year 1974 is still pending.
It is alleged in para 20 that in pursuance of the application of the Petitioner Nos. 1, 2 and 3 for conversion of the portion of the said plot into freehold, a report was submitted by the Tehsildar, Agra, on 23.8.1999 and the Nazul Lekhpal on 27.8.1999 verifying that the Nazul plot No. 1928 was given to Sheikh Ghulam Habib vide Annexures-17 and 18 to the petition.
In para 21, it is stated that Respondent No. 4 was paying rent regarding the portion in his tenancy to Sri Ghulam Rasool, thereafter the rent was being paid by him to the Petitioner No. 4 upto end of 1994. Since 1995 the Respondent No. 4 is paying rent to the Petitioner Nos. 1, 2 and 3. The rent was being received by the Petitioner No. 2 from Respondent No. 4 on behalf of the Petitioner Nos. 1, 2 and 3 and Petitioner No. 2 was issued rent receipts for receiving rent of Rs. 250 per month. Respondent No. 4 had paid rent upto January, 2001 to the Petitioner No. 2. Photostat copies of some of the receipts collectively is marked as Annexure-19 to the petition.
In para 22 it is alleged that the Petitioner Nos. 1, 2 and 3 submitted applications on 20.11.1999 and 21.12.1999 before Respondent No. 2 requesting for issuance of demand letter but no reply was issued. True copies of the applications are Annexures-20 and 21 to the petition. On 30.1.2001 the applicant learnt that the applications submitted by the Petitioner Nos. 1, 2 and 3 had already been rejected on 19.11.1999. The application of Respondent No. 4 for conversion of an area of 367.62 Sq. Metres as freehold in his favour had been allowed on 19.7.1999. It is alleged in para 24 of the petition that Petitioner Nos. 1, 2 and 3 applied for certified copy of the order passed on their applications but the Respondent No. 2 refused to issue the certified copy of the said order dated 19.11.1999. Photocopy of the said application is Annexure-23 to the petition.
It is alleged in para 25 that the Petitioner No. 2 had also applied for issuance of certified copy of the order dated 19.7.1999 allowing the application of Respondent No. 4 but the same was refused. On inspection of the file, Respondent No. 2 came to know that the application of Respondent No. 4 had been allowed on 19.7.1999 and demand notice was issued to Respondent No. 4 vide Annexures-24, 25 and 26 to the petition.
In para 26 it is alleged that from a perusal of the allotment order passed on 22.7.1988 in favour of Respondent No. 4 it was evident that the Respondent No. 4 was in possession of a small shop and inter-connected kothari. The allotment had been issued in favour of Respondent No. 4 only in respect of the shop premises, whereas his application for conversion of an area of 367.62 Sq. Metres into freehold was for a much bigger area than under his tenancy. It is alleged that under the provisions of the relevant Government order the tenant does not have any preferential right over the landlord. Hence the application of the Petitioners was wrongly rejected.
It is alleged that Clause 10 of the aforesaid Government order which permits grant of freehold rights to the tenant is illegal. It is alleged that the application submitted by the Petitioners/heirs of the deceased Sheikh Ghulam Habib for renewal of the lease in their favour is still pending. It is alleged in para 43 of the petition that the entire proceedings in favour of the Respondent No. 4 were held secretly and behind the back of the Petitioners without any notice to them. The Petitioners came to know about the order passed in favour of Respondent No. 4 only on 30.1.2001. In para 44 it is alleged that the Petitioners have learnt through Respondent No. 4 that freehold deed has been executed in his favour.
A counter-affidavit has been filed on behalf of Respondent Nos. 1, 2 and 3 and we have persued the same.
In para 3 of the same it is alleged that on an enquiry it was found that the Petitioners were not entitled to grant of freehold rights, and hence their applications were rejected on 22.11.1999 and that order was never challenged.
In para 6 it is alleged that no application dated 11.11.1974 for renewal of the lease was filed by the Petitioners, and hence there is no question of deposit of lease rent. In para 9 of the same it is alleged that the term of the lease expired in 1974.
It is stated in para 11 that since the Petitioners lease expired in 1974, no notice was issued to them. Instead notice was sent in the name of Ghulam Habib.
In para 13 it is denied that any notice dated 15.2.1999 was issued to the Petitioners. In para 14 it is alleged that when the Petitioner Nos. 1, 2 and 3 applied on 4.3.1999 for grant of freehold rights an enquiry was held by the Tahsildar who found that the Petitioners were not in possession of the land in question and they did not submit any evidence to that effect. Hence, their applications were rejected by the District Magistrate after consideration of the facts on 26.11.1999.
In para 15 it is denied that no construction was made on the land in dispute. In para 16 it is stated that Respondent No. 4 was found in possession of the disputed land and hence under the relevant Government order he was held to be the person to be entitled for grant of freehold rights. Hence a deed was executed on 10.1.2001 in his favour vide Annexure-C.A. 1 to the counter-affidavit.
In para 17, it is stated that Ghulam Habib never applied for renewal of the lease in 1974. In para 20 it is stated that the order dated 26.11.1999 passed by the District Magistrate was communicated to the Petitioners by post.
In para 25 it is stated that after the death of Ghulam Habib the name of heirs were not mutated, and on enquiry it was found that the Petitioners were not in possession of the land in question. Hence, their application was rejected. In para 26, it is stated that in view of Clause 14 of the Government order dated 1.12.1998 freehold right was granted to the person in possession as tenant under the Rent Control Act. In para 28 it is alleged that after expiry of the lease in 1974 no application was submitted for renewal of the lease or for mutation of the names of the heirs of the deceased Ghulam Habib.
In para 34, it is stated that under the Government policy freehold can be granted to the person in possession of the land. In para 40, reference has been made to Government order dated 23.5.1992 and the subsequent Government orders for grant of freehold rights. In para 41, it is stated that the name of heirs of the Ghulam Habib have not been mutated even till today.
A counter-affidavit has also been filed by the Respondent No. 4 and we have perused the same.
In para 4, it is stated that the ancestor of Respondent No. 4 Ewaz Hussain was tenant and in possession over the area measuring 367.62 Sq. yards and thereafter his son Zaqawat Hussain inherited the tenancy rights on the rent of Rs. 37 per month and thereafter the Respondent No. 4 came in possession over the plot at the rent of Rs. 150 per month, and the receipt was issued by Ghulam Rasool s/o Ghulam Habib and Respondent No. 4 had been paying rent to the Petitioner regularly vide receipt Annexure-1 to the counter-affidavit.
In para 5, it is stated that by order dated 22.7.1988, four shops situated in the plot measuring area 367.62 Sq. yards were allotted to the Respondent No. 4 on rent of Rs. 150 vide Annexures-2 and 3 to the counter-affidavit.
In para 7 it is stated that the Respondent No. 4 made an application dated 1.9.1997 to the District Magistrate, Agra, for grant of freehold rights for the land in his possession and deposited challan of Rs. 100 vide Annexure-4. Thereafter he deposited challan for Rs. 22,058 for declaration of the land in dispute as freehold in his favour vide Annexure-5 to the counter-affidavit. The Respondent No. 1 through a letter dated 31.7.1999 directed the Respondent No. 4 to deposit Rs. 8,45,526 within 90 days for grant of freehold rights vide Annexure-6.
It is stated that through a letter dated 12.8.1999 the Respondent No. 4 requested to the Chief Secretary, U.P., that since he is a tenant under the Rent Control Act and is in possession over the land for a long period hence he is entitled to pay rent according to the year 1991, and he is entitled to pay 40% of the amount according to the rate of 1991. True copy of the said letter is Annexure-7 to the counter-affidavit.
In para 11, it is stated that through challan dated 26.10.1999 Respondent No. 4 deposited Rs. 6,54,363 according to the demand made by the Respondent No. 1 for grant of freehold rights and Rs. 5,500 as rent vide Annexure-8 to the counter-affidavit. The Respondent No. 4 through a letter dated 27.10.1999 requested to the Prabhari Adhikari Nazul Vibhag to issue a certificate for freehold rights and to give the details of stamp fees for execution of registry vide Annexure-9. Respondent No. 2 issued a certificate of freehold rights through a letter dated 26.9.1999 vide Annexure-10 to the counter-affidavit.
After grant of free hold rights on 16.1.2001, sale deed was executed in favour of Respondent No. 4 by the Prabhari Adhikari, Nazul, Agra, vide Annexure-12. The Respondent No. 4 is still in possession of land measuring area 367.62 Sq. yards and is the owner of the same. The Petitioners have no right to get the order in favour of Respondent No. 4 quashed.
In para 20, it is stated that Ghulam Habib died in 1964 and his son Ghulam Nasar migrated to Pakistan more than 20 years back. Anwar Hussain s/o Ghulam Habib had sold his share in the joint family property without any partition and Ghulam Hussain s/o Ghulam Habib died during the life-time of Ghulam Habib.
In para 49, it is stated that the order passed in favour of Respondent No. 4 allowing his application on 19.7.1999, granting freehold rights measuring an area of 367.62 Sq. yards of plot No. 1928 is in accordance with the Government policy of grant of freehold rights to the tenant.
A rejoinder-affidavit has also been filed and we have perused the same.
In para 8 of the same it is denied that no renewal application was filed by the heirs and successors of Ghulam Habib. In para 9 it is stated that the sons of Ghulam Habib named in para 5 of the writ petition submitted such an application on 11.11.1974 for renewal of the lease.
In para 16, it is stated that a wrong report has been submitted by the Tahsildar, Agra, in collusion with Respondent No. 4 regarding the possession of Respondent No. 4 over the land in question. It is further stated that there is no order dated 26.11.1999 passed by the District Magistrate. In para 21, it is sated that Respondent No. 4 is in possession of only that portion which is under his tenancy, and not the area in respect of which freehold rights has been granted.
In this case highly disputed questions of fact are involved and hence in our opinion writ jurisdiction is not appropriate for adjudication of these controversies. There is a dispute whether after the expiry of the lease in the year 1974 any application was made for renewal of the lease. There is also a dispute regarding the correctness of the report of the Tahsildar and about possession of the land.
The Respondent No. 4 has alleged that he was in possession over the land in dispute from the time of his ancestors and was the tenant. There is a dispute whether the application of Respondent No. 4 for conversion of 367.62 Sq. Metres of land into freehold land was for a much bigger area than the land under his tenancy.
In our opinion the aforesaid disputed questions of fact can best be adjudicated in a civil suit which the Petitioners may file, if so advised.
We are fortified in taking this view by the decision of the Supreme Court in State of Uttar Pradesh and Others Vs. Maharaja Dharmander Prasad Singh and Others, . In that decision the Supreme Court observed that the questions whether the purported cancellation of the lease and forfeiture were valid could not be decided in proceedings under Article 226 and they should be decided in a suit.
As regards Clause 10 of the Government order dated 1.12.1998 (Annexure-13 to the petition) we see no illegality in the same. It appears that a policy decision has been taken by the State Government for grant of freehold rights to the tenants governed by Rent Control Act of Nazul land if the lessee does not apply for such right within 3 months of a notice and we see no reason to interfere with the policy decision. It has been repeatedly held by the Supreme Court that the Court should not interfere with policy decisions, and should exercise self restraint in this connection.
InMs. Aruna Rai v. Union of India 2002 (7) SCC 368 and in Deo Kumar Ojha Vs. Board of Directors, U.P. State Warehousing Corporation and Others, : The Dental Council of India Vs. Subharti K.K.B. Charitable Trust and Another, , the Supreme Court has laid down that in matters of policy the Courts have only a limited role or jurisdiction and should intervene only if the policy is against some provision of the Constitution or the statute. That clearly is not the case here. In our opinion the policy laid down in Clause 10 does not violate any provision of the Constitution ; nor is it unreasonable or is otherwise bad in law.
In Union of India (UOI) and Another Vs. International Trading Co. and Another, , the Supreme Court, following its own decision inG. B. Mahajan v. Jalgaon Municipal Council AIR 1991 SC 1151, observed that Courts are kept out of the lush field of administrative policy except where the policy is inconsistent with the express or implied provision of a statute or where a decision is made in purported exercise of power is such that a repository of the power acting reasonably and in good faith could not have made it.
In Premium Granites and Another Vs. State of Tamil Nadu and Others, , the Supreme Court observed:
It is not the domain of the Court to embark upon the unchartered ocean of public policy in an exercise to consider as to whether a particular public is wise or a better public policy can be evolved. Such exercise must be left to the discretion of the executive and legislative authorities as the case may be. The Court is called upon to consider the validity of a public policy only when a challenge is made that such policy decision infringes fundamental rights guaranteed by the Constitution of India or any other statutory right.
In Tata Cellular Vs. Union of India, , the Supreme Court has held that judicial review of an administrative decision is not directed against the decision itself but against the decision making process. The Court also observed that the modern trend points to judicial restraint in administrative decisions, and the Court cannot sit it appeal over the decision of an administrator as it does not have expertise in the matter.
We see no reason to interfere with the policy decision laid down in Clause 10 of the Government order dated 1.12.1998 as in our opinion it does not violate and legal principle. In our opinion the Court should exercise judicial restraint in interfering with such matters which are decided by administrators.
It may be mentioned that certain matters are by their very nature such as had better be left to the experts in the field instead of Courts themselves seeking to substitute their own views and perceptions in the matter. The present in clearly an instance where a policy decision has been taken by the administration and it is no appropriate for this Court to interfere in the matter.
In the words of Chief Justice Neely:
I have very few illusions about my own limitations as a Judge. I am not an accountant, electrical engineer, financier, banker, stockbroker or system management analyst. It is the height of folly to expect Judges intelligently to review a 5,000 page record addressing the intricacies of a public utility operation. It is not the function of a Judge to act as a super board, or with the zeal of a pedantic school master substituting its judgment for that of the administrator.
Before parting with this case we would like to briefly comment on the subject of judicial review of administrative decisions. We feel justified in making these comments because the times which this country is passing through requires clarification of the role of the judiciary vis-a-vis the Legislature and the executive.
Under our Constitution, the judiciary, the Legislature and the executive have their own spheres of operation. It is important that these organs do not entrench on each others proper spheres and confine themselves to their own, otherwise there will always be danger of a reaction. The judiciary must therefore, exercise self-restraint and eschew the temptation to act as a super Legislature or a court of appeal sitting over the decisions of the administrators or the laws validly made by the Legislature. By exercising restraint it will enhance its own respect and prestige. Of course if an administrative decision clearly violates some provision of the Constitution or a statute or is arbitrary or violates the Wednesbury principle, the Court can strike it down, but ordinarily administrative matters should be left to the administrative authorities as they are the experts in this field. A Judge cannot act on the belief that he knows better than the administrator on a question of policy, because he can never be justifiably certain that he is right. Judicial humility should therefore, prevail over judicial activism in this respect.
Judicial restraint is consistent with and complementary to the balance of power among the three organs of the State. It accomplishes this in two ways. First judicial restraint not only recognizes the equality of the other two branches with the judiciary, but also fosters that equality by minimizing interbranch interference by the judiciary. In this analysis, judicial restraint may also be called judicial respect ; that is, respect by the judiciary for the other co-equal branches. In contrast, judicial activism''s unpredictable results make the judiciary a moving target and thus, decreases the ability to maintain equality with the co-branches. Restraint stabilizes the judiciary so that it may better function in a system of interbranch equality.
Second, judicial restraint tends to protect the independence of the judiciary. When courts become engaged in policy matters or social legislation, almost inevitably voters, legislators, and other elected officials will conclude that the activities of Judges should be closely monitored. If, Judges act like legislators, it follows that Judges should be elected like legislators. This is counterproductive. The touchstone of an independent judiciary has been its removal from the political process. Even if this removal has sometimes been less than complete, it is an ideal worthy of support and one that has had valuable effects.
Celebrated Judges like Justice Holmes, Justice Brandeis, and Justice Frankfurter constantly pleaded for judicial restraint. Justice Frankfurter has pointed out that great Judges have constantly admonished their brethren of the need for discipline in observing their limitations (see Frankfurter''s ''Some Reflections on the Reading of Statutes'')
Hence, we are not inclined to interfere with the policy decision taken in Clause 10 of the Government Order dated 1.12.1998 by which freehold rights are to be granted to tenants.
Thus, there is no force in this petition and it is dismissed. The Registrar General of this Court will communicate this judgment to the Principal Secretary, Urban Planning and Development, U.P. and L.R. forthwith.