Vidyawati Srivastava vs State of U.P.

Pankaj Mithal and Abhai Kumar, JJ.—Heard Sri Ravi Kant, Senior Counsel assisted by Sri Swapnil Kumar, learned counsel appearing for the petitioner now represented by her heirs and legal representatives, Sri Aditya Narayan Tiwari, learned Standing Counsel for State of U.P. and Sri Ashok Pandey, learned counsel who has appeared for the respondent no. 4.

The dispute in this petition relates to the renewal of lease in respect of Plot No.3, Coondoo''s Garden, Allenganj, Allahabad having an area of 1721 square yards, which was leased out to the petitioner for a period of 51 years 10 months vide lease deed dated 13th May, 1954.

The petitioner contends that the aforesaid lease deed provides for renewal of the lease and that the petitioner is entitled to its renewal despite its expiry or the policy of making the Nazul Land on lease to be free hold land.

The petitioner therefore seeks a direction upon the respondents to renew the lease in terms of renewal clause contained in lease deed while assailing the G.O. dated 1.12.1998, which provides for conversion of Nazul Land into free hold land.

Sri Ravi Kant, Senior Counsel in the very beginning submitted that he is not pressing the prayer for the quashing of the aforesaid G.O. dated 1.12.1998 and that his relief in the petition be confined to a direction for the renewal of the lease in terms of renewal clause contained in the lease deed.

The lease of the demised land was executed on 13th May, 1954 for a period of 51 years and 10 months w.e.f. 10th May, 1941.. The said lease period came to an end on 9th March, 1993.

There is no dispute to the fact that the aforesaid lease deed contains a renewal clause 3 (b), which reads as under:

"3 (b)- that if the lessee shall upon expiry of the term herein before reserved be desirous of taking a renewed lease of the demised land for a further time of 50 years then and in such case the lessor will where into required by the lessee, forthwith execute and deliver to the lessee upon his executing a counter-part a renewed lease of the said land for the further term of fifty years and subject to the same covenants and conditions herein contained."

The petitioner applied for renewal of the lease deed on 12th June, 1993 as stated in paragraphs 8 and 23 of the writ petition, which have not been denied by the respondents in their counter affidavit. It is also admitted that till date no specific order either renewing or refusing to renew the lease has been passed by the respondents.

The only stand taken by the respondents in defence is that the policy for renewal of lease was given up vide G.O. dated 3rd October, 1994 and instead the Government has provided for according free hold rights in the leased land vide G.O. dated 01.12.1998 which does not necessitate any renewal of the lease in favour of the petitioner.

The argument that the lease is not liable to be renewed in view of the Government Order dated 3rd October, 1994 is without substance.

The said Government Order states that under the Government Order dated 01.12.1998, a provision for further 30 years of lease was made in respect of the leases, whose period of 90 years have expired and there is no breach of the conditions of the lease and this provision of granting additional 30 years of lease has been stopped with immediate effect.

The aforesaid Government Order applies to specific leases, which were of 90 years & have expired and where there is no breach of the conditions of the lease. It does not refers to the other leases, which may be for a shorter period as in the present case, 51 years 10 months or where the lease itself provides for renewal of the lease for another term.

In other words, the renewal clause as contained in the lease deed has not done away with by the aforesaid Government Order.

Moreover, the aforesaid Government Order is prospective in nature and is not applicable to the renewal of lease in respect whereof application for renewal has been filed prior to the issuance of the Government Order as in the present case.

In so far as the Government Order dated 1st December, 1998 is concerned, it is in a totally different context. It is only in respect of granting free hold rights in the Nazul land, which had been leased out. It nowhere provides that henceforth the lease of Nazul land would not be extended or renewed or that only free hold rights in terms of the Government Order would be admissible to the lessees or the persons claiming through them.

In short, the aforesaid Government Order does not prohibits the renewal of the lease, if there is a condition for renewing the lease in the covenant itself. It permits an additional option to get the lease hold land converted into free hold subject to certain conditions but in no way takes away the right to get the lease renewed.

The controversy regarding renewal of lease of Nazul land came up for consideration before a Division Bench of this Court in the case of Purushottam Dass Tandon and others v. State of U.P., Lucknow and others, 1986 UPLBEC 565 and it was observed that the government policy is to renew the lease of all existing and sitting lessees, if they have deposited at least one instalment after receipt of intimation by the Collector. The government holds the Nazul property in trust for the welfare of the people and not as an absolute owner like a private person, therefore, its action in dealing with Nazul property is to be tested on the anvil of people good. Any subsequent change of government policy would not stand in way of any person in whose favour any right has been created. Accordingly, the bunch of writ petitions was allowed and as a general mandamus was issued in the following terms.

"35. In the result these petitions succeed and are allowed. A direction is issued to opposite parties to

(i) Grant fresh leases to all those who had deposited the premium or at least one instalment on terms and conditions mentioned in 1959 Order read with 1960 Order.

(ii) To issue notices to all those lessees to whom no notice was issued and determine their premium etc. on terms and conditions mentioned in 1 59-60 Orders expeditiously.

(iii) To determine premium etc. of others to whom notices were issued but it could not be finalized for one reason or other at any early date.

(iv) Determine rate of premises etc. for premium which are used as residential-cum-commercial purpose in light of 1965 Order.

(v) Determine rate of premium used for commercial purposes in light of various Orders issued till 1965.

(vi) Lessees shall after grant of fresh leases file the necessary forms etc. within one month before the Prescribed Authority under Urban Ceiling Act, 1976 (Act 33 of 1976) if it had already not been filed who shall proceed to decide the same as expeditiously as possible."

The aforesaid judgment and order of this Court has been upheld by the Supreme Court as S.L.P. preferred against it has been dismissed on 14th January, 1987 UPLBEC 142, State of U.P. and others v. Purshottam Das Tandon and others.

In State of U.P. and Others v. Lalji Tandon (Dead) through Lrs, (2004) 1 SCC, in connection with the matter of renewal of lease of the land of Allahabad itself held that renewal of lease cannot be denied by the Government if there is a covenant in the lease to that effect. It was observed that right to a new lease, consequent upon option of renewal having been successfully exercised, would depend upon the wordings covenant for renewal contained in the principal lease and the intention of the parties are determinable from the same and the surroundings circumstances.

It went on to reiterate that where there is a clause for renewal of the lease, it would be construed as giving right to renewal for the same period as the period of the original lease and the option for renewal of the lease is exerciseable not by the lessee alone but by his representative-in-interest as well. The covenant for renewal runs with the land.

In view of the above decisions and the renewal clause contained in the lease deed, it is sufficiently clear that the respondents cannot deny consideration of the right to get the lease renewed to the petitioner in respect of demised premises.

It is not the case of the respondents that any intimation on expiry of lease was ever given to the petitioner or that she failed take appropriate steps thereof as necessary for the renewal of lease.

It may be pertinent to mention here that instances have been cited by the petitioner, which have not been denied that in a similar set of circumstances, the respondents have renewed the lease of other lessees despite the issuance of the Government Orders dated 03.10.1994 and 01.12.1998. Therefore, any action of the respondents in not considering the option of the petitioner for the renewal of the lease, more particularly, when the lease deed contains covenant for its renewal, would be arbitrary and discriminatory.

Accordingly, in view of over all facts and circumstances of the case, we issue a writ in the nature of mandamus commanding the respondent no.1 to consider the request of the petitioner as per her application dated 12th June, 1993 referred to paragraphs no.8 and 23 of the writ petition or any other application made in this regard in writing in accordance with Clause 3(b) of the lease deed dated 13th May, 1954 in the light of the law as laid down in the aforesaid two decisions of the High Court and the Supreme Court as expeditiously as possible preferably within a period of three months from the date of production of certified copy of this order along with an appropriate comprehensive representation.

The writ petition is allowed as aforesaid.