Judgment:
G.P. Mathur, J.
1. This writ petition under Article 226 of the Constitution has been filed praying that a writ of mandamus be issued directing the Kanpur Development Authority to give possession of plot No. 32, block O, Govind Nagar Scheme I, to the petitioner in pursuance of deed of exchange executed on 25-2-1999.
2. The case of the petitioner is that prior to enforcement of U.P. Urban Planning and Development Act, 1973, the development of building sites in Kanpur was done by Kanpur Development Board, which had been constituted under U.P. Nagar Mahapalika Adhiniyam. The Kanpur Development Board acquired land, and after developing the same let out plots on long-term lease. The petitioner claims that plot No. 47-B, Block J. Govind Nagar, was allotted to him though the date of allotment is not mentioned, and according to the terms and conditions of the allotment, he deposited one-fourth of the cost of the plot forthwith and the remaining three fourth was to be paid in instalments. However, the physical possession of the said plot was not delivered to the petitioner and, as such, he did not deposit the balance three fourth amount. After the enforcement of U.P. Urban Planning and DevelopmentAct, 1973, a development authority known as Kanpur Development Authority (hereinafter referred to as the KDA) was constituted which became successor-in-interest of the Kanpur Development Board. The petitioner approached the KDA for delivery of possession of the plot, but it was revealed that the same had been illegally occupied by a third person who had also raised construction over the same. The KDA had also introduced a scheme for providing an alternate plot and in pursuance thereof the petitioner deposited the balance amount along with the interest and, therefore, a deed of exchange was executed on 25-2-1999, under which plot No. 32, Block O, Govind Nagar Scheme I, was allotted in his favour and the deed was registered on 23-3-1999, Even after registration of the deed, the possession of the plot was not delivered to him though he made several represenations in this regard. The principal relief claimed in the writ petition is that the respondent may be directed to deliver the possession of the plot allotted to the petitioner.
3. The respondents have contested the writ petition on the ground, inter alia, that plot No. 47B, block J. Govind Nagar, had never been allotted to the petitioner nor any lease deed of the said plotwas executed in his favour. The deed of exchange under which the lease deed of plot No. 32 block O, Govind Nagar Scheme I, was executed in favour of the petitioner on 25-2-1999, had been obtained by playing fraud and in collusion with the lower stall of the KDA. According to the respondents, the aforesaid deed of exchange is a void document as neither plot No. 47-B, block J. Govind Nagar had been allotted nor any lease deed of the said plot had been executed in favour of the petitioner.
4. The petitioner has filed a supplementary affidavit (sworn by Prem Shankar Sachan) on 10-11-2000, wherein a photostat copy of the proposal to amend the scheme relating to allotment of plots in pursuance of the Government Order dated 6-1-1993 has been filed and, according to the petitioner, the deed of exchange was executed in his favour on the basis of the aforesaid amended scheme. Item No. 20 of the said scheme relates to delivery of alternate plot/house. This provides that normally no alternate plot shall be given to any one if a plot allotted to an allottee comes under a dispute. This further provides that in case there is no fault on the part of the allottee and he has made complete payment or up-to-date payments of instalment and has got the agreement executed or registration has been done within the time period fixed, he may be given an alternate plot/ house, provided a plot/house is lying vacant and is available for alloment in the same scheme. This proposal provides for giving an alternate plot only where the plot allotted by Kanpur Development Authority comes under a dispute, and it further requires that the allottee should have made up-to-date payments and had got an agreement executed in his favour or the deed of transfer had been registered. The claim of the petitioner is founded upon the alleged allotment of plot No. 47-B, block J. Govind Nagar by Kanpur Development Board, sometime in the year 1953. The Kanpur Development Authority had been constituted under the U.P. Urban Planning and Development Act, 1973, and, obviously, it was not in existence in 1953. The scheme of giving an alternate plot relates to a situation where the original allotment itself had been made by Kanpur Development Authority and it does not relate to a case where the original allotment of plot was made by some other body. It may also be noticed here that in paragraph 3 of the writ petition it is averred that the Kanpur Development Board had been constituted under the U.P. Nagar Mahapalika Adhiniyam. The U.P. Nagar Mahapalaika Adhiniyam (U.P. Act 2 of 1959) came into force on 24-1-1959 and, as such, the Kanpur Development Board could not have been constituted under the aforesaid Act in the year 1953 when the petitioner claims to have been allotted plot No. 47-B, block J. Govind Nagar.
5. A copy of the surrender-cum-fresh freehold deed executed in favour of the petitioner on 25-2-1999 has been filed as Annexure 4 to the writ petition. The very first sentence of this deed mentions that it is a deed of exchange. In the second paragraph it is mentioend that a lease deed of plot No. 47-B, block J, Scheme I, Govind Nagar for 999 years was executed in favour of the petitioner, Hari Shanker Misra, on 13-1-1953 and the said deed was registered in the office of the Sub Registrar, Kanpur, on 29-1-1953 at Sl. No. 11, Bhai No. 1, Jild 645/673, on page 73/93/113. According to the respondents after the surrender-cum-fresh free-hold deed had been executed and registered in favour of the petitioner, an enquiry was made on 19-5-1999 from the Addi. District Magistrate (Finance and Revenue) Kanpur Nagar, who is the head of registration department of the district regarding the deed relating to plot No. 47-B, block J, Govind Nagar Scheme I. The Addl. District Magistrate (Finance and Revenue) then wrote a letter dated 28-5-1999 to the Secretary of the KDA informing him that no such lease-deed, reference of which had been made in the surrender-cum-fresh free-hold deed dated 25-2-1999, had been registered in the office of the Sub-Registrar, Kanpur Nagar. Acopy of this letter has been filed as Annexure 1 to the counter-affidavit. This document knocks the bottom out of the petitioner's case that the lease of plot No. 47-B, block J, Govind Nagar Scheme 1, had been executed in his favour on 13-1-1953 and was registered on 29 -1-1953.
6. During the the course of hearing of the writpetition, SriD.B. Mukherji, learned counsel for the petitioner, challenged the correctness of the facts mentioned in the letter dated 28-5-1999 of the Addl. District Magistrate (Finance and Revenue) by which he had informed that no lease deed in favour of the petitioner was found to have been registered in the office of the Sub-Registrar on 29-1-1953. Learned counsel admitted that the petitioner is not in a position to produce the original lease-deed of plot No. 47-B, block J, Govind Nagar Scheme I. A detail order was passed on 15,-12-1999 directing the petitioner to file a certified copy of the lease-hold which he claims to have been executed in his favour with regard to plot No. 47-B, block J, Govind Nagar Scheme I within 3 weeks. The writ petition thereafter was listed on several dates, but every time the hearing was adjourned on the request of the learned counsel for the petitioner. An order was passed on 29-8-2000 for listing of the case on 28-9-2000 and for compliance of the order regarding filing of the certified copy of the lease-deed. It was also directed on the said date that no furher time would be granted for compliance of the order dated 15-12-1999 regarding filing of the certified copy of the leased deed. The petitioner did not comply with the said order and a supplementary affidavit has been filed on 10-11-2000 where a photostat copy of an unregistered lease deed has been filed. In paragraph 4 of this supplementary affidavit it is stated that the lease-deed of plot No. 47-B, block J, Govind Nagar, had not been registered but had only been executed. The photostat copy does not show that it had been executed on stamp paper and it appears to be a photostat copy of some pro forma of lease-deed wherein the name of the petitioner and the plot number appear to have been typed out.
7. Section 107 of the Transfer of Property Act (hereinafter referred to as the TP Act) provides that lease of an immovable property from year to year or for any term exceeding one year or reserving a yearly rent can be made only by a registered instrument. Section 49 of the Indian Registration Act provides that no document required by Section 17 of the said Act or by any provision of the T.P. Act to be registered shall affect any immovable property comprised therein or be received as evidence of any transaction affecting such property unless it has been registered. In view of this statutory provisions, there, can be no manner of doubt that the lease-deed of plot No. 47-B, block J, Govind Nagar Scheme I, which the petitioner claims to have been executed in his favour, could only be executed by means of a registered document and not otherwise. The letter dated 28-5-1999 of the Addl. District Magistrate (Finance and Revenue), Kanpur Nagar, clearly established that no such deed, as claimed by the petitioner was registered in his favour. The petitioner was also given opportunity by us to file a certified copy of the lease-deed in order to substantiate his claim but he has failed to produce the same and has now come out with a case that no such deed was registered. The petitioner has also not filed a copy of the letter of allotment on the basis of which he claims that the said plot was allotted to him by the Kanpur Development Board, and in paragraph 5 of the writ petition he has himself averred that the letter of allotment is not available with him. The irresistible conclusion, therefore, is that no lease deed of plot No 47-B, Block J, Govind Nagar was ever executed in favour of the petitioner. In such a situation, the petitioner could not have obtained a surrender-cum-fresh-free-hold deed for plot No 32, block O, Govind Nagar Scheme I, having an area of 356 sq. yards, and it shows that the said deed was registeied in his favour on account of collusion of lower staff of the KDA and by playing fraud.
8. The surrender-cum-fresh-free-hold deed contains a clause that in case it is found that the purchaser had obtained the deed on the basis of incorrect facts or by playing fraud, then the said deed would be void and ineffective at the option of the KDA. It also mentions that in such a situation the decision of the KDA would be final, and it would also have the right to forfeit the amount deposited by the purchaser. The petitioner has failed to establish that any allotment order with regard to plot No. 47-B, block J, had been made in his favour and it is also established beyond any shadow of doubt that no lease deed with regard to the said plot had been registcrd in his favour. The very basis of the surrender-cum-fresh free-hold deed is the alleged execution and registration of the lease-deed of plot No. 47-B, block J, in favour of the petitioner and, as it is found that no such deed was ever executed in his favour and he is not the allottee or the owner of the said plot, there is no question of his surrendering the said plot in favour of the KDA and getting plot No. 32, block O, Govind Nagar Scheme I, in exchange in its place. The stand of the KDA is that the surrender-cum-fresh-free-hold deed had been obtained on wrong facts and by playing fraud and is a void document. In view of the specific clause to that effect in the deed, the said deed is void and can confer no right or the title upon the petitioner. The petitioner is, therefore, not entitled to get possession on the basis of the aforesaid deed.
9. Sri Ateeq Ahmad, learned counsel for the respondents has also relied upon Sections 118 and 119 of the T.P. Act and has urged that the Kanpur Development Authority is entitled to retain the possession of plot No. 32, block O, as it is established that the petitioner had no title over plot No. 47-B, block J, Section 118 lays down that when two persons mutually transfer the ownership of one thing for the ownership of another, neither thing or both things being money only, the transaction is called an 'exchange'. Section 119 provides that if any party to an exchange is by reason of any defect in title of the party deprived of the thing or by any part of the thing received by him in exchange, then unless a contrary intention appears from the terms of the exchange, such other party is liable to him for loss caused thereby or at the option of the person so deprived for the return of the thing transferred. This provision gave the right to the KDA to recover possession of plot No. 32 block O, from the petitioner in case he had got possession of the said plot. In view of the fact that the possession has not been delivered to the petitioner and the same is still with the KDA, the KDA is legally entitled to retain possession of the plot and not to deliver the same to the petitioner. We are supported in our view by a decision of Madras High Court in Chinnathambi Gounder v. Royal Gounder, AIR 1979 Madras 285, where it was held as follows :
'Where a party to an agreement for exchange of property lost possession of the property received in exchange due to defect in title of the other party, the former would be entitled to retain possession of the property he gave in exchange if he happened to be in possession thereof. .....
The right to get the return of the thing transferred under Section 119 will certainly take into its fold the right to retain the same if such property were to continue in the possession of a person who was deprived of his possession due to defect in the title of the party to the exchange. The right to claim the thing transferred is a larger right which will certainly embrace the right to continue to be in possession.'
10. In Seetaraswamy v. Narsingha Panda, AIR 1975 Orissa 73, a Division Bench held that there is no reason why the principle should not apply to a case where instead of a subsequent deprivation of the property transferred, there is no transfer at all and it impliedly followed from the section that when a party to an exchange has failed to obtain possession of the property which he was entitled to receive in exchange, then also he is entitled at his option for the return of the property transferred by him.
11. No direction can, therefore, be issued to the KDA to deliver possesion of plot No. 32, block O, to the petitioner merely on the ground that a surrender-cum-fresh free-hold deed has been executed in his favour for the said plot as the petitioner has been found to have no title over plot No. 47-B block J, which he purportely surrendered in favour of the KDA by way of exchange for the said plot.
12. For the reasons mentioned above, we find no merit in this writ petition which ishereby dismissed with costs of Rs. two thousand.