R.M.SAHAI, J. - (1.) Renewal of Nazul land leases of Civil Lines, Allahabad, sprawled over an area of approximately 662 acres, one of the poshest localities of the town, renowned for its quiet serenity, famous for its, till recently, sophisticated looking marketing centre, inhabited by Judges, Lawyers, doctors, educationists, journalists, businessmen and now by a neo-rich class as well with no ostensible means but affluent and powerful, least but no less important out-house dwellers with no right or title but vote bank, has been eluding solution for more than two decades now. If the first phase beginning from March, 1959, when government issued order laying down conditions for renewal of leases, came to an end in April, 1965 when government directed the District Magistrate to renew leases of those who complied with modified conditions was marked with representations and objections by lease-holders' Association to what appeared to them to be unreasonable restrictions on right of alienation and demand of exhorbitant rate of ground rent and premium then the second and third phases namely, from 1965 to 1976 and 1976 to 1981 were marked with spurt of legislations and government orders directed towards urban socialisation with its resultant effect on narrowing down of terms and conditions for renewal. With swift shift in socio and economic set up of the society, specially after 1965, the government changed its policy and the concessions granted in 1960 and 1965 were not only withdrawn by superseding those orders but fresh conditions reducing area and enhancing rent and premium, were laid down. Even in those cases where lessees had complied with terms and conditions and order had been passed, leases were not renewed thus furnishing foundation for invoking doctrine of promissory estoppel, developed by English and American Courts as rule of equity, given new dimensions by our Supreme Court by extending it against government and Corporations not only as a weapon of defence but as cause of action as well. But the, most pungent and venomous attack was on favour showered by government on few with power sack or money bag and renewal of their leases thus denying equality guaranteed by part III of the Constitution to other similarly situated. Creation of parallel hierarchy by defining family and reducing area, acting arbitrarily in implementation of government orders were vigorously pressed. Principle of offer made by government and its acceptance by lessees by complying with terms and conditions thus resulting in binding contract was also put forward. Failure to issue notices to individual, lessees refusal of renewal of leases resulting in special injury, binding nature of executive orders, fairness in government action, reasonable behaviour by public authorities who have no unfettered discretion were also advanced by various counsel who urged that government should be pinned down to its earlier promise and assurances as it was government which was guilty of unwarranted procrastination. Paradoxically what appeared to be unreasonable and exhorbitant in 1959 and 1960 delayed the matters for so long is now the demand, the relief sought in these petitions. How and why the policy of government underwent change; what effect it had on right of lease-holders; can the government be held to be bound by the promise extended by it in 1959 and 1960; is the government guilty of picking and choosing lessees without there being any intelligent differentia, and, therefore, it should be directed to renew leases of others as well, are the orders issued after 1976 had being contrary to law of the land; is renewal of lease of Nazul land a concession which cannot be enforced through Court etc.; can Mandamus be issued in 1986 directing the government to do what it ought to have done in 1959 or 1960 or even in 1965, could petitioners approach this court for issue of Mandamus in 1981; are issues which emerge out of orders passed by government from time to time and the submissions advanced by learned counsel for parties. Gist of Govt. Orders (i) 1959 to 1965 :-
(2.) Prior to adverting to rival submissions it is necessary to narrate, in brief, the background in which the government issued various orders declaring its policy in this regard. In 1958 Collector, Allahabad issued notices to various lessees whose leases were expiring in that year to surrender and leave the lease land and hand over vacant possession of the same to him as representative of State Government of Uttar Pradesh who were successors to the right and interest of the Secretary of State for India in Council. This must have caused flutter and number of eminent citizens of Allahabad, which had been once the nerve centre of freedom struggle, represented the hardship which was likely to arise to them from such harsh step. According to supplementary counter-affidavit filed on behalf of State on 4th February, 1986 the Government in consequence of representation to the Chief Minister reconsidered the matter in March, 1958 and ordered that case for renewal of leases may be taken individually and possession may be taken only if lessee surrendered or the lease stood terminated in absence of any request from lessee for grant of fresh lease. Fresh representations were made resulting in what may be termed as beginning of first phase from 23rd April, 1959 when Secretary to the Government informed the District Magistrate, Allahabad that he was directed to say, 'that Government have carefully considered the question of renewal of leases of Nazul lands in Civil Lines, Allahabad which have either expired already but have not been renewed so far, or which are due to expire within the next 5 or 6 years. In consideration of the numerous representations which were made to them from time to time from the existing lease-holders, and their long association with the City, Government have decided, as a special case, to grant fresh lease to them on the terms and conditions given below, provided that they put in applications for renewal of leases at once or within a reasonable time of the expiry of the lease, to be indicated by you, but not exceeding three months from the date of this order, or the expiry of the lease, as the case may be'. It mentioned in detail the terms and conditions on which the leases were to be renewed. On receipt of it the District Magistrate issued a press note on 21st May, 1959 which led to formation of Allahabad Lease-holders Association, Allahabad which while thanking the government for its decision to renew leases voiced its feeling on exhorbitant demand in view of the general economic condition of lease-holders. It was pointed out that proposed levy of premium at the slab rate system for each acre in possession of lease-holders for residential purposes was unparalleled. While conceding retention of big compound was against socialistic pattern of society it was suggested that authorities may be directed to devise practical ways and means for the same but there should be no levy at all on the land which was necessarily appurtenant to any building. Request was made for inspection of sites by Town Planner before any area was declared as surplus. As conditions of majority of lessees was economically not better, it was claimed that rate of premium be reduced, and payment may be realised in instalments. Construction of Community latrines was opposed since there was no sewer line. Ground rent was suggested to be enhanced by not more than 50 per cent. Request was made for treating Trusts, Registered Societies, Religious and Educational and other institutions differently than others. Some house-owners also met the then Prime Minister Late Pt. Jawahar Lal Nehru, who appears to have come to Allahabad in November, or December, 1959 who sent a letter on 25th December, 1959 copy of which has been filed as Annexure '17' to Supplementary Affidavit, to the then Minister in U.P. Government indicating him that although he had nothing to do with it yet the terms of renewal did appear to be severe. Needless to say that it had immediate impact and the government while retaining G.O. of 1959 issued another order on 7th July, 1960 as a special concession, by which it reduced the rate of premium on first three acres by Rs. 2,000/- in each slab. It also permitted payment in five instalments. and reduced the ground rent to Rs. 100/- per acre. Insistence on construction of Community latrines was given up till sewer line was laid. Lessees were granted three months time to get leases renewed. But instead of complying with it the lease-holders Association with fond of wresting something more made another representation in August, 1960. Nothing came out of it. In 1961 the Association sent another representation to the Chief Minister-highlighting its grievances against delay and claiming renewal of leases on terms and conditions indicated therein. With every representation the lease-holders association became more exacting in its demand. On 21st March, 1963 the government issued third Order declaring the rates of premium for commercial sites. On 3rd December, 1965 the government after considering representations made to government by the association issued a fresh order indicating the terms and conditions for renewal of leases for residential and commercial purposes, to avoid hardship to the lessees. In respect of the former it was stated that rates of premium and annual rent shall be as fixed by the order dated 7th July, 1960. The payment was also to be made in five equal yearly instalments but special cases could be examined by the commissioner, Allahabad Division, Allahabad for making necessary recommendation to government for enhancing the number of instalments. Various clauses of its are important, which shall be referred as and when necessary. With this ended the first phase with emphasis on renewal of leases of existing leases on payment of at least one instalment, within one month of the receipt of intimation by the lessee from the Collector, or within three months of the date of the expiry of the lease whichever is earlier; And the deposit was to be deemed to be proper step on the part of the lessee to get a fresh lease executed by the lessor. The order further provided for renewal of leases of existing lessees if they deposited first instalment, 'within one month of the date of receipt of intimation by him from Collector, Allahabad.' The order of 1965, therefore, made a distinction between those whose leases had expired and others by describing them as sitting and existing lessees. Gist of Govt. Orders (ii) 1966 to 1981 :
(3.) On 16th February, 1966 U.P. Awas Vikas Parishad Adhiniyam was enacted for providing house sites and construction of building. On 4th November, 1968 the government order dated 3rd December, 1965 was modified and it was directed that leases of joint lessees should be renewed as far as possible for one acre only. Sub-division was permitted only where sub-divided plot was not less than 800 sq. yards. Concession in payment of lease money and ground rent was allowed on same terms and conditions as in G.O. of 1965. Time was extended for payment of first instalment for those who had not received any intimation from Collector by a further period of one month from the date of intimation by the Collector. Clause (c) of the Order is very material as it was decided by government that in all those cases in which offers for grant of fresh leases were made in accordance with existing government orders on the subject and as a result of acceptance thereof by the sitting lessees contract for grant of fresh lease had been legally completed fresh leases were to be sanctioned according to term offered by Competent Authority. And then in March, 1970 an Order was issued by the Government banning grant of renewal of leases all over the State, because the State Legislature was contemplating to bring out legislation on Urban Ceiling. This ban was lifted on 12th January, 1972 but leases hence forth were to be sanctioned by the State Government only. The Commissioner and Collector could make recommendations only. Its clause (i), however, provided that in all those cases where government had sanctioned grant of leases but it could not be executed or registered because of ban imposed in 1970 steps may be taken immediately for its execution. And clause (ii) of the order provided that all those cases in which Collector or Commissioner had approved renewal but it could not be executed because of 1970 order should be sent to government immediately for acceptance. On 9th May, 1972 Urban Building Ceiling Bill was introduced. On 11th July, 1972 Uttar Pradesh Ceiling of Property (Temporary Restriction on Transfer), Ordinance, 1972 (U.P. Ordinance No. XV of 1972) was promulgated in pursuance of Article 39-B of the Constitution of India which continued to be extended from time to time till Urban Land Ceiling Act, 1976 was enacted to prevent concentration of Urban Property and discourage construction of luxurious houses. On 19th December, 1972 the Nazul rules were amended providing for maximum area permissible for renewal of leases of 2000 sq. yards plus land on which building was constructed. Remaining area was to be surrendered to housing board and the lessees were prohibited from sub-dividing or transferring any land. On 10th December, 1976 the Government issued an order superseding all previous orders in respect of renewal of leases of Civil Lines, Allahabad in view of Urban Ceiling Act and laid down fresh terms and conditions for renewal of leases. Various restrictions were put. Lessees were required to submit proforma to Urban Ceiling Authority. Each case For renewal was to be examined by government. Collector was required to get the bungalows surveyed with help of Development Board. Leases were to be renewed for 1500 sq. metres land in view of Sections 2 and 4 and Section 4(2) of Urban Ceiling Act. And while doing so all the residents in one house were to be treated as one unit. The rate of premium was fixed at Re. 1/- per sq. feet for residential and Rs. 3/- per sq. feet for commercial purposes. Ground rent was fixed at 0.25 paisa per sq. feet. This led to representation by the lease-holders' Association to the Minister for Local Self Government requesting for reduction in rate of premium and of ground rent which led the issuance of a fresh government Order on 17th September, 1979. It superseded all previous orders and provided for submission of details about extent and type of construction, utilisation of vacant land etc. Against this order representations were made on 19th November, 1979, 4th December, 1979, 11th July, 1980 and 1st October, 1980 culminating in government order dated 19th April, 1981 which superseded all previous Orders and provided for renewal of leases on fresh and new terms. It provided that leaseholders and their heirs shall be treated as one Unit. They shall file before 30th June, 1981 details about land, its constructed area, its user, time when it was taken on lease etc. List of residents including out-houses dwellers was to be prepared by District Magistrate. Heirs of deceased lease-holders were to be treated as one unit. Area for which renewal could be made was reduced to building with 500 sq. metre of land appurtenant and 500 sq. metre open land or 1500 sq. metre whichever was more. Area of building for commercial purpose was fixed at 2000 sq. metres. Premium was fixed at 50 paisa per sq. metre. Category of petitioners :-;