S.D. Agarwala, J. - (1.) THIS is a petition under Article 226 of the Constitution of India.
(2.) THE facts giving rise to the petition are as follows: Plot No. 8, Nasibpur Bakhtiara, Allahabad is a Nazul property. The Governor of the United Provinces on 15th August, 1941 granted a lease in favour of Begum Mehdi Hasan in respect of the said plot. Initially the lease was for a term of 30 years from 21 -8 -1940. It was a stipulated in the lease deed that the lessor at the request of the lessee at the end of the said term of 30 years and so on from time to time at the end of such successive term of years, that may be granted, execute to the lessee a new lease of the said premises by way of renewal for the term of thirty years provided always that such renewed terms of years as may be granted shall not, with the original terms of years, exceed in the aggregate the period of ninety years. In paragraph 6 of the supplementary counter affidavit filed on behalf of the State of U.P. it has been averred that Smt. Begum Mehdi Hasan assigned her lease hold right to Sri Ahmad Jaffar Faruqui and Sri Sayeed Jaffar Faruqur who also subsequently transferred their rights to Smt. Mumtaj Jehan Khan w/o Sri Faiyaz Bahadur Khan on 17 6 -1954. Right to hold a portion of said plot measuring 3087 square yards was again transferred by Smt. Mumtaj Jehan Khan in favour of her son Sri Namir Faiyaz Khan vide sale deed dated 10 -12 -1969 and later on during 1981 names of her other sons Sri Nasir Faiyaz Khan and Nadir Faiyaz Khan and Nazir Faiyaz Khan to whom gift was made were also recorded alongwith their mother. In the year 1987 the lease was renewed by the Commissioner, Allahabad in favour of the above named Smt. Mumtaz Jehan Khan, Sri Namir Faiyaz Khan and Sri Nazir Faiyaz Khan for a further period of 30 years with effect from 21 -8 -1970. It has been further stated that the Petitioners, Harminder Pal Singh and Smt. Jagjit Kaur Gulati are transferees of the joint lessees. In paragraph 7 of the supplementary counter affidavit it is admitted that the purchasers viz Petitioners are joint lease holders alongwith Sri Nazir Faiyaz Khan and have stepped into the shoes of Begum Mehdi Hasan, the original lessee subject to the same lights and restrictions and the several Covenants and stipulations as expressed in the original lease and also in the renewed lease. In view of the above it is clear that the Petitioners are co -lessees of portions of the aforesaid plot No 8 Nasibpur Bakhritara, Allahabad. On 10th March, 1989 Petitioners submitted a plan for the construction of multi stored residential complex to the Allahabad Development Authority in the prescribed form accompanied by a fee of Rs. 250/ -. On 20th May, 1989 the plan which was submitted by the Petitioner was sanctioned by the Vice Chairman of the Allahabad Development Authority and this fact was communicated to the Petitioners by letter of the Allahabad Development Authority dated 24th May, 1989. By means of the said letter the Petitioners were directed to deposit the entire amount towards permit fee and development charges The Petitioners were asked to deposit Rs. 250/ - as permit fee, Rs. 1,30,680.25 p. towards internal development fee and Rs. 32,276.32 p. towards the external development fee In the said letter it was further clarified that in rase internal development is carried out by the Petitioners themselves then only Petitioners may deposit 1/4th of the amount of Rs. 1,30,680.25 p. which comes to Rs. 32,670.06 p or in lieu of deposit of the amount bank guarantee may be furnished as security. In pursuance of the letter dated 24th May, 1989 Petitioners deposited a sum of Rs. 33.276 32 p. on 29th May, 1989 and also furnished a bank guarantee for Rs 32,670 06 p. drawn in favour of Vice Chairman, Allahabad Development Authority from the State Bank of Bikaner and Jaipur. The Petitioners on 29th May, 1989 wrote a letter to the Allahabad Development Authority asking it to issue sanctioned plan as no counter signatures of the District Magistrate was required and full powers are vested with the Vice Chairman Allahabad Development Authority. Since the sanctioned plan was sent to the District Magistrate, Allahabad for counter signatures and there was delay on the port of the District Magistrate in counter signing the sanctioned plan the Petitioners filed the present writ petition in this Court for a writ, order or direction in the nature of mandamus directing the Vice Chairman, Allahabad Development Authority to immediately release the sanctioned plan dated 20th May, 1989 in favour of the Petitioners. This petition has been contested on behalf of the District Magistrate, Allahabad as well as by the Vice -Chairman, Allahabad Development Authority, Allahabad. We have heard the learned Counsel for the Petitioners, learned Counsel for the Vice Chairman, Allahabad Development Authority and the learned Standing Counsel for the District Magistrate, Allahabad.
(3.) IT is not disputed that the Petitioners had filed a plan on 10 -3 -1989 for the construction of multi storied residential complex. It is also not disputed that this plan was sanctioned by the Vice Chairman of the Allahabad Development Authority. The Petitioners were informed of the sanction by letter dated 24th May, 1989. In the last paragraph of this letter dated 24th May, 1989 it was written that plan shall be released after the counter signatures have been obtained by the District Magistrate, Allahabad. The District Magistrate did not counter sign the sanctioned plan and while the matter was pending before him another Government Order dated 10th November, 1989 was issued. The case set up on behalf of the District Magistrate is that in accordance with the Government Order dated 10th November, 1989 before allowing the residential construction on the pattern of group housing scheme premium and rent should be realised on commercial rate from the lessee. His further case is that in case residential purpose is changed then the Petitioners have to pay a sum of Rs 14,47,200/ - towards premium and annual rent of Rs. 24,120/ - is to be paid by the Petitioners On a reading of the counter affidavit filed on behalf of the District Magistrate Allahabad it is clear that the only objection to the counter signature of the sanctioned plan is the payment of premium and the rent mentioned above in view of the Government Order dated 10th November, 1989. In the circumstances, two main questions arise for the decision in this petition viz. whether counter signature of the District Magistrate are required in terms of the lease after sanction of the plan by the Allahabad Development Authority and the second question is as to whether the Government Order dated 10th November, 1989 would be applicable to the case of the Petitioners when their plan was already sanctioned on 20th May, 1989.;