Amitava Lala, J. - (1.) ONE Sri D.F. Gandhi, the Special Power of Attorney holder of all the three petitioners herein has filed this writ petition on 29th January, 2008 claiming inter alia: (i) Issue a writ, order or direction in the nature of mandamus directing the Respondents to grant free hold rights to the Petitioners on Nazul Plot No. 141, Civil Station, Allahabad, against their application, filed on 12.8.1997, within a reasonable specified period. (ii) Issue any other suitable writ, order or direction, as this Hon'ble Court may deem fit and proper under the facts and circumstances of the case.
(2.) ACCORDING to the petitioners, on 8th June, 1925 Nazul Plot No. 141, Civil Station, Allahabad was leased out to one Khusro Shapoor Ji Gandhi for a period of 50 years, to expire on 7th June, 1975. After death of original lessee, his widow Smt. Dina K. Gandhi succeeded his rights on the said Nazul Plot and she made an application for renewal of the lease on 13th May, 1974. After death of Smt. Dina K. Gandhi on 6th March, 1978, her son and grand sons, the petitioners herein, succeeded the said plot on the basis of Will executed by her, which was duly probated. The petitioners appointed Sri D.F. Gandhi as their Attorney to do necessary pairvi for renewal of the lease and ultimately they filed Civil Misc. Writ Petition No. 32950 of 1994, which was disposed of by an order dated 25th May, 1998 passed by the High Court directing that the petitioner's lease shall be renewed within a month in accordance with law, where after the District Magistrate Allahabad rejected the said application for renewal of the lease on 15th November, 2002. Thereafter the petitioners filed another writ petition, being Civil Misc. Writ Petition No. 20379 of 2003, which was also disposed of by an order dated 24th August, 2005 holding that the said order dated 25th May, 1998 has become final and if such order has not been complied with, the appropriate remedy for the petitioners is to file an application for contempt of Court. Ultimately, Civil Misc. Contempt Petition No. 3246 of 2006 was filed by the petitioners in which notice was issued by an order dated 23rd May, 2007 against which as well as aforesaid two orders, dated 25th May, 1998 and 24th August, 2005, SLP No. 18393 -18395 of 2007 was filed before Supreme Court, which has been dismissed by an order dated 20th March, 2009. But the fact remains that petitioner's lease with regard to said Nazul plot has not been renewed till date. However, during pendency of the first writ petition being Civil Misc. Writ Petition No. 32950 of 1994, petitioners made an application dated 12th August, 1997 for grant of free hold rights in their favour on said Nazul Plot No. 141 under Government Orders dated 3rd October, 1994, 17th February 1996 and 28th February, 1997. Thereafter petitioners nominated three persons namely Dr. A.K. Bansal, Sri Kailash Jaiswal and Sri S.K. Garg for grant of free hold rights in their favour and made an other application in the year 2003 under the nomination policy allegedly without knowledge of the fact that by the Government Order dated 10th December, 2002 the nomination policy was brought to an end, therefore, the aforesaid application for grant of free hold rights by nomination being against the policy decision was rejected on 5th May, 2005. Prior to rejection of the said application, the petitioners executed an agreement for sale on 15th February, 2005 to transfer said Nazul Plot No. 141 in favour of said three persons namely Dr. A.K. Bansal, Sri Kailash Jaiswal and Sri S.K. Garg with a pre -condition that the sale -deed shall be executed by the petitioners only after the free hold rights are granted to them.
(3.) AGAINST this background, State has contended before this Court that when Sri D.K. Gandhi, the power of attorney holder had executed aforesaid registered agreement for sale in favour of three persons in respect of entire property in question with the recital that entire sale consideration of Rs. 1.35 Crores has been paid by the vendees before April, 2004 and also executed a Kabjanama/possession -deed on 17th March, 2005 containing complete description of the Nazul Plot No. 141 and constructions thereon from which it appears that the possession of entire property was being handed over to the vendees and the petitioners relinquished their possession, no right, title or interest of the petitioners over the property in question, subsists. It has further contended that the application for grant of free hold right dated 13th August, 2004 made by one of the vendees namely Sri Kailash Jaiswal for himself and two others, namely Dr. A.K. Bansal and Sri Surendra Kumar Garg was duly considered and rejected by the Collector vide order dated 5th May, 2005 but the same was not challenged before any forum. After such rejection, an other application was filed on 26th June, 2006 by said Sri Kailash Jaiswal was made to the State Government which was transmitted to the office of A.D.M. (Additional District Magistrate) Nazul, Allahabad and the State respondents had come to know for the first time that the claim set up by the vendees of the petitioners for free hold in respect of the plot in question was made on 12th August, 1997. Neither the application was pursued by them nor the same was accompanied with relevant materials except a treasury challan of Rs. 100/ - and therefore, the same was incomplete in nature. In any event the writ petition herein is in the nature of proxy petition since the agreement for sale is not only registered but exchange of entire sale consideration has been completed, therefore, leaving aside the recital that the sale deed will be executed by the petitioners only after free hold rights are granted to them, the sale is complete in compliance of Section 54 of the Transfer of Property Act.;