Anupam Bal Vikas Shiksha Samiti Vs. Iiird A.D.J. and ors. - Court Judgment

Excerpt:
- land acquisition act, 1894 [c.a. no. 1/1894]. section 4; [sushil harkauli, s.k. singh & krishna murari, jj] acquisition of land held, court cannot issue a writ of mandamus directing the state authorities to acquire a particular land. land acquisition is not purely ministerial act to be performed by executive no direction in nature of mandamus whether interim or final can be issued by court under article 226 necessarily to acquire particular land in public interest. land acquisition is not a purely ministerial act to be performed by the executive and therefore, no mandamus can be issued by the court in exercise of its power under article 226 of the constitution, whether suo motu or otherwise, whether in public interest litigation or otherwise directing acquisition of land under the provisions of land acquisition act, 1894. it would, however, be open to the court in exercise of that power to invite the attention of the executive to any public purpose and the need for land for meeting that public purpose and to require the executive to take a decision, even a reasoned decision, with regard to the same in accordance with the statutory provisions, perhaps even within a reasonable time frame. however, the power of the court under article 226 must necessarily stop at that. thereafter, if the decision taken by the executive is capable of challenge and, there exist appropriate legal grounds for such challenge, it may also be open to the court to quash the decision and to require reconsideration. but no direction in the nature of mandamus whether interim or final can be issued by the court under article 226 to the executive to necessarily acquire a particular area of a particular piece of land for a particular public purpose. section 4; compulsory acquisition of land powers of state government held, renewal of lease in favour of petitioners would not take away power of state government of compulsory acquisition of land. renewal of lease would at best be taken into consideration for determining quantum of compensation. anjani kumar, j.1. by means of present writ petition under article 226 of the constitution of india, the petitioner-landlord has challenged the order dated 25th august, 1986, passed by the revisional court, whereby the revisional court dismissed the revision filed by the petitioner against the order of the trial court. the trial court vide his order dated 4th january, 1985 has decreed the suit against the petitioner-plaintiff.2. in short, the case of the petitioner-plaintiff is that the petitioner is a society registered under the provision of societies registration act, i860, which runs an educational institution anupam bal vikas vidyalaya, sambhal, district moradabad, which is recognized institution by district basic education officer, mordabad since 27th november, 1982, the defendant of the suit is tenant in the aforesaid building in question, which was originally owned by smt. asharfi devi. smt. asharfi devi vide registered gift deed dated 20th june, 1981 donated the building in question to the plaintiff society and thereafter the petitioner-society became the owner-landlord of the aforesaid building in question in which the defendant in tenant. before the execution of the gift deed, smt. ashrafi devi had already filed a suit for ejectment of the defendant-tenant, which was pending in the court of judge small cause courts being o.s. no. of 1979 smt. asharfi devi v. mahesh kumar nigam. after the gift was executed, the present plaintiff got himself substituted and has become the owner and landlord of the building in question by virtue of gift deed dated 20th june. 1981. the plaint case now set up is that the provisions of u. p. act no. xiii of 1972 will have no application with regard to the building in question from the date of gift deed dated 20th june, 1981. it is further alleged that plaintiff has served a notice under section 106 of the transfer of property act, through its counsel dated 6th december, 1982 terminating the tenancy of the defendant-tenant.3. after service of notice upon the tenant, the defendant-tenant had sent money order for the rent, wherein the said money order was towards the arrears of rent demanded by the notice, which was refused by the landlord, as would be clear from the report of the post office dated 14th december, 1982. as a consequence of the refusal of the rent sent by the tenant, the defendant-tenant started depositing the rent in misc. case no. 4 of 1983 under section 30 (2) of the u. p. act no. xiii of 1972. in the aforesaid misc. case no. 4 of 1983, the defendant-tenant has denied the title of the plaintiff, but the same will have no effect as he has already admitted the ownership of smt. ashrafi devi in suit no. 1 of 1979.4. on the pleadings of the parties, the trial court framed three issues : (1) whether provisions of u. p. act no. xiii of 1972 do not apply to the building in question as the property vests in educational institution? ; (2) whether the defendant has defaulted in payment of rent? ; and (3) to what relief the plaintiff is entitled? on issue no. 1, the trial court after considering the evidence on record have held that since the institution is not a recognized institution, therefore it cannot be said to be exempted from the operation of the act no. xiii of 1972 and therefore it is held that the provisions of u. p. act no. xiii of 1972 are applicable to the building in question. both the other issues were decided against he plaintiff, thus the suit was dismissed by the trial court.5. aggrieved thereby, the plaintiff-petitioner preferred a revision before the revisional court under section 25 of the small cause courts act. the revisional court has held that the amended provision of section 2(1) (f) of the u. p. act no. xiii of 1972 is not applicable as the building has not been built by the society, as is clear from the plaint allegation that erstwhile owner smt. asharfi devi has gifted it to the institution. the revisional court therefore after considering the amended provision has held that the gift has been made in favour of the aforesaid society and the plaintiff society is a registered society, therefore the building in question vests in the society and not in the institution and thus held that the provision of u. p. act no. xiii of 1972 are applicable to the building in question. on the question of default, it maintained the finding recorded by the trial court. thus, the revision filed by the plaintiff-petitioner was dismissed by the revisional court.6. learned counsel appearing on behalf of the petitioner-plaintiff has placed reliance on the amended provision of the u. p. urban buildings (regulation of letting, rent and eviction) (amendment) ordinance, 1994, which came into force on 26th september, 1994, wherein the provision of section 2 of the u. p. act no. xiii of 1972 has been amended again. the amendment incorporated by the aforesaid ordinance, which has subsequently become act, is reproduced below ;'2. amendment of section 2 of u. p. act no. 13 of 1972.--in section 2 of the uttar pradesh urban buildings (regulation of letting, rent and eviction) act, 1972, hereinafter referred to as the principal act,-- (a) in sub-section (1),-- (i) in clause (a), after the words 'a public sector corporation', the words 'or a cantonment board' shall be inserted ;(ii) in clause (b), the words 'the whole of the income from which is utilized for the purpose of such institution' shall be omitted ;(iii) after clause (b), the following clauses shall be inserted, namely :'(bb) any building belonging to or vested in a public charitable or public religious institution ;(bbb) any building belonging to or vested in a waqf including a waqf-alal-aulad (iv) after clause (f), the following clause be inserted, namely :'(g) any building, whose monthly rent exceedstwo thousand rupees ;(h) any building of which a mission of a foreign country or any international agency is the tenant ;' ; (b) sub-section (3) shall be omitted.'7. learned counsel appearing on behalf of the defendant-tenant has relied upon a decision of this court in awadh behari lal saxena v. janki prasad anglo sanskrit educational association, khurja and ors., 1982 arc 538, particularly paragraph 6, which is reproduced below :'6. from the aforesaid clause it is apparent that the building to be exempted from the operation of the act must be built and held by the society and should be intended solely for its own occupation. the only exception is in respect of the officers and servants of the society either on payment of rent or free of rent or as a guest house for the occupation of the persons having dealings with it in ordinary course of business.'8. learned counsel for the defendant-tenant thereafter tried to take assistance from the provisions of clause (v) of sub-section (1) of section 2 of the act, which reads as under :'any building belonging to or vested in a recognized educational institution, the whole of the income from which is utilized for the purpose of such institution.'9. the recognized educational institution has been defined under clause (q) of section 3. the 'recognized educational institution' means any institution recognized under the intermediate education act, 1921 or the u. p. basic education act, 1972 or recognized or affiliated under the u.p. state universities act, 1973.10. it is not disputed in the present case that the plaintiff society is not recognized under any of the aforesaid enactments, therefore the institution alleged to be recognized do no own the building in question, therefore, even this clause will not help the plaintiff-petitioner. it is then submitted by the learned counsel for the petitioner-plaintiff that u. p. act no. xiii of 1972, as stated above, has undergone the change and is further amended by the aforesaid ordinance, which was replaced by u. p. act no. 75 of 1995 by which the amended clause covers the case of the exemption in favour of the plaintiff. he further relied upon a decision in syed ahmed ali and ors. v. shafiq ahmad, 1997 (1) arc 17. he again relief upon a decision of apex court in wishwhat kumar v. madan lal sharma and anr., jt 2004 (4) sc 435, for the proposition of protection of a tenant under rent control act not a vested right in amendment taking away provision is always retrospective and only clause proceedings shall not be re-assessed and therefore he submitted that when the amendment of the u. p. act no. xiii of 1972 came in the year 1995, the benefit, if any, conferred upon the tenant would be no more available, as the same has been withdrawn.11. leaned counsel appearing on behalf of the petitioner-plaintiff submits that the amendment covers the proceedings which were pending and will take in its sweep such proceedings which were pending on the date of amendment and only such proceedings which are closed, will not be affected by the amendment. in this view of the matter, since the suit filed by the plaintiff has already been culminated into the dismissal of the revision and it is only this writ petition, which was filed in the year 1986 was pending in the year 1995. it is stated that the writ petition cannot be said to be continuation of the original proceedings, as the writ petition under article 226 of the constitution of india is a proceeding under the constitutional provision and not the original proceedings, therefore the decisions relied upon by learned counsel for the petitioner-plaintiff in wishwant kumar's case (supra) and syed ahmed ali and others (supra) will not apply.12. in view of above discussion, in my opinion, this writ petition has no force and deserves to be dismissed and is accordingly dismissed. the interim order, if any, stands vacated. however, the parties shall bear their own costs.