Tuesday, September 13, 2011

Nazul Lands ,freehold conversion in Uttar Pradesh


The letter in brackets following the words listed here below indicates the language it belongs to or it originates from: (A) = Arabic, (E) = English, (H) = Hindi, (P) = Persian.
1-                                                    Nazul Lands (P/E): Land vested with the public authority for developmental purpose as per the stipulations of the authority.
Baden Powell defined Nazul property as “Property escheated or lapsed to the State; commonly applied to any land or house property belonging to Government either as an escheat or as having belonged to former Governments.”
          The State Government may, by notification in the Gazette and upon such terms and conditions as may be agreed upon between that Government and the Authority, place at the disposal of the Authority all or any developed and undeveloped lands in the development area vested in the State (known as “Nazul lands”), for the purpose of development in accordance with the provisions of the Act.
       Once any such land has been placed at the disposal of the Authority, no development of any such land shall be undertaken or carried out except by or under the control and supervision of the Authority.
       After any such Nazul land has been developed by or under the control and supervision of the Authority, it will be dealt with by the Authority in accordance  with the directions given by the State Government in that behalf.
      If any nazul land placed at the disposal of the Authority is required at any time thereafter by the State Government, the Authority shall, by notification by the Gazette, replace it at the disposal of that Government upon such terms and conditions as may be agreed upon between that Government and the Authority.
conversion of 'nazul' (land given by municipal authorities to private persons)
2-                                                    Vikas Pradhikaran (H), Development Authority (E): Every big city (mostly of more than a million inhabitants � but again there are no strict norms) has a Development Authority which supervises various aspects of Urban Management including land, housing, services etc. They also oversee legal aspects pertaining to building bye-laws, Master Plan norms etc. and develop perspective plans for the future.
(E:\11 n 2\govt ,authorities plan on land)
      Uttar Pradesh Public Premises (Eviction of Unauthorised                Occupants) Act. 1972

3-                                                    Nagar Nigam (H), Nagar Palika (H), Nagar Parishad (H): Nagar Nigam refers to a Municipal Corporation and Nagar Palika or Nagar Parishad (nomenclature varies from state to state) refers to a Municipal Council. A corporation is higher than a council in the hierarchy of municipal administration. There are no strict norms for giving a municipality the status of a corporation or council � the decision is mostly political.
4-                                                    Notified Area (E): Any land area earmarked with the help of legal provisions for the purpose of future development, as stipulated in the Master Plan.
5-                                                    Patta (H): Title to land. Under the slum upgrading and resettlement schemes, land title is being given to the residents in the hope that they would make further investment to improve their own housing conditions and living standards. This is also a guarantee against future eviction.
6-                                                    Standard Rent (E): Worked out on the basis of the value of land and cost of construction when built, as per the provisions of the Rent Control Act with the objective of protecting the tenant from exorbitant rent and eviction.
7-                                                    Khasra (P): Refers to a plot of land which is numbered in the Master Plan of a city. Any developmental plan sketched on the basis of the Master Plan refers to a khasra number. If the khasras in a Master Plan are not properly numbered developmental plans gets hindered.
8-                                                    Power of Attorney (E): Supposedly a legal provision through which the right of occupancy, management, and transfer of a property is given by the owner to another person. The Law Ministry has doubts about the validity of such transfer deals ; nevertheless, a large number of properties, particularly in north Indian cities, are changing hands, using this provision.
9-                                                    Statutory town (E): A settlement having an urban local body viz. Municipality, Corporation, Town Area Committee, Notified Area Committee, Cantonment, Town Panchayat,...
http://www.unesco.org/most/p2basu.htm

Nazul-Government of U.P,Collector and Sub Registrar


Amit Kumar vs State Of Uttar Pradesh And Ors. on 21 May, 2003
(2003) 2 UPLBEC 1733
------------------ land in question measuring 160 acres
--------------Special Secretary, U.P. Government issued letter dated 19.1.2001 to the District Magistrates Varanasi for cancelling the free hold proceedings and accordingly, the District Magistrate Varanasi vide order dated 27.7.2001 has cancelled the same.
--------------subsequently by notice dated 21.3.2001, petitioner was informed that the land does not vest in the State of U.P., and hence the proceedings for cancellation of the deed dated 2.4.98 have been initiated and petitioner can file objection.
--------------The Defence Estate Officer, Allahabad requested the District Magistrate, Varanasi to instruct the Sub-Registrar to refuse registration of such transaction in order to safeguard the interest of the Government of India in the defence land. A true copy of the letter dated 17.11.1997 has been annexed as Annexure-CA-7 to the counter-affidavit.
------------ Granting the power of management does not, in our opinion, amounts to transfer of title to the land, which, in our opinion, continues to vest in Government of India. Thus, there is no force in this petition and it is dismissed.                           



Bench: M Katju, R Tripathi
Allahabad High Court
2. It is alleged in Paragraph 3 of the petition that the petitioner's father was the lessee of Property No. S-17/317-B, Nadesar, Varanasi. In respect of which the Municipal Board, Varanasi executed a lease deed on 17.7.1957, vide Annexure-1 to the writ petition. This lease was granted in favour of the petitioner's father for a period of 30 years and hence it was to expire on 29th March, 1987. The petitioner's father gave an application to the Administrator Nagar Mahapalika, Varanasi (Now Nagar Nigam) on 24.3.87, vide Annexure-2 to the writ petition praying for extension of the lease period for a period of 99 years. However, it is alleged that no action was taken on this application.
3. By Notification dated 23.5.1992, issued by the State Government vide Annexure-3 to the writ petition, the Nazul Policy of the State Government was declared.
4-------------and deposited Rs. 16,000 and a free hold deed was executed in his favour on 2.5.98 vide Annexure-7 to the writ petition.------------- In Paragraph 22 of the petition it is stated that subsequently by notice dated 21.3.2001, petitioner was informed that the land does not vest in the State of U.P., and hence the proceedings for cancellation of the deed dated 2.4.98 have been initiated and petitioner can file objection.
5-. A counter-affidavit has been filed and we have perused the same. It is stated in Paragraph 6 of the same that only management of the plots measuring 160 acres including the land in question was entrusted to the Municipal Board, Benaras (now known as Nagar Nigam, Varanasi). The Commissioner, Benaras Division vide letter dated 11.5.1898 addressed to the Chairman, Municipal Board. Benaras informed that the area transferred will be considered intra-municipal Nazul of which the usufruct has been transferred to the Municipality. It was stated in that letter that 3/4 of the income of such Nazul land would go to the Municipality or District Board, and 1/4 income would go to the Provincial Revenue. As such it is alleged that no title had been transferred by the Union of India in favour of Nagar Nigam, Varanasi.------------------- The Defence Estate Officer, Allahabad sent a letter to the District Magistrate, Varanasi bringing to his notice that defence land in Nadesar area, Varanasi Cantonment is being sold and the sale transaction are being registered by the Sub-Registrar without making any reference to the Cantonment Board, Varani.si or Defence Estate Officer, Allahabad. He brought to the notice of the District Magistrate, Varanasi that no intimation about the same was received in his office. He requested the District Magistrate, Varanasi to instruct the Sub-Registrar to refuse registration of such transaction in order to safeguard the interest of the Government of India in the defence land. A true copy of the letter dated 17.11.1997 has been annexed as Annexure-CA-7 to the counter-affidavit.
6. The Government Executive Officer, Varanasi sent letter dated 28.2.1998 and letter dated 21.12.1998 to the Principal Director, Defence Estates, Head Quarters, Central Command, Lucknow bringing the entire facts to his notice that the aforesaid land which was given to the Nagar Nigam, Varanasi for management and the said authority was converting the aforesaid land into free hold. The Cantonment Executive Officer, Varanasi sought guidance from the Principal Director, Defence Estate as to whether the order of the U.P. Government was binding on the Cantonment Board. By another letter dated 21.12.1998 the Cantonment Executive Officer, Varanasi brought to the notice of the Principal Director, Defence Estates that the aforesaid land measuring 160 acres was given to the Municipal Board by the Government of India in the year 1896 for management on payment of certain compensation for the loss of revenue.
7. In Paragraph 14 of the counter-affidavit it is stated that the Principal Director, Defence Estate wrote a letter to the Cantonment Executive Officer, Varanasi that the land was transferred for the management of the Beneras Cantonment to the Nagar Mahapalika, Varanasi on annual payment of Rs. 1657/6 vide Annexure-CA-9 to the counter-affidavit. The Cantonment Board, Varanasi then resolved that permanent transfer of the land to the Municipal Corporation be offered on payment of market value to the Defence Ministry and on unwillingness to do so to pay the transfer value, vide Annexure-CA-10 to the counter-affidavit. The Cantonment Board, Varanasi communicated about the resolution to the Mukhya Nagar Adhikari, Varanasi vide letter dated 24.7.1999 Annexure-CA-11 to the counter-affidavit. In Paragraph 17 of the counter-affidavit it is stated that objection having been raised by the Cantonment Board, Varanasi and the Defence Estate Officer, Allahabad about the conversion of land to free hold, the matter was taken up with the State Government as a consequence of which the Mukhya Nagar Adhikari, Varanasi wrote a letter dated 3.1.2001 and another letter dated 9.1.2001 to the District Magistrate, Varanasi bringing the entire facts to the notice of the District Magistrate and requesting for cancellation of proceedings for conversion of land to free hold. True copies of the said letters are Annexure-CA-12 to the counter-affidavit.
8. In Paragraph 18 of the counter-affidavit it is stated that in the relevant Khatauni the land in question measuring 160 acres contains entry to the effect that the ownership of the land is of the Government of India vide Annexure-CA-13 to the counter-affidavit. Since the entire matter was brought to the notice of the State Government the Special Secretary, U.P. Government issued letter dated 19.1.2001 to the District Magistrates Varanasi for cancelling the free hold proceedings and accordingly, the District Magistrate Varanasi vide order dated 27.7.2001 has cancelled the same. It is alleged in Paragraph 20 of the counter-affidavit that the respondent 1 to 6 had no right at all to transfer the land or to convert the same into free hold since the ownership of the land vests in the Government of India, Defence Ministry. The Government of India is the owner of the land and hence the State Government or the District Magistrate, Varanasi has no right to sell the land or allow it to be converted into free hold. Only the management of the land was entrusted to the Municipal Board, Varanasi but the Municipal Board was no authorized to allow people to erect houses or to execute lease deed or to convert the land into free hold. The Nagar Nigam, Varanasi acted beyond its authority in passing the transfer orders or granting free hold rights. The lease deed dated 17.7.1957 confers no title or interest in favour of the petitioner.
10. A careful perusal of the report of the District Magistrate, Varanasi dated 22/24 May, 1971, Annexure-5 to the counter-affidavit shows that there was some litigation about the title to the said land between the Cantonment Board and Nagar Mahapalika, Varanasi and ultimately that dispute was decided by the order of the Commissioner, Varanasi by order dated 24.1.1957, by which he rejected the claim of the Nagar Mahapalika of title over the land. In the same order it has been held that no appeal was filed against the aforesaid order of the Commissioner and this proves the title of the Government of India over the said land.
11. Very relevant is the letter of the Mukhya Nagar Adhikari, Varanasi which is Annexure-CA-12 to the counter-affidavit, admitting that the property never belonged to the State Government and hence the entire proceedings treating it to be Nazul land were illegal and without jurisdiction. In this letter the entire matter has been discussed in great detail. In the Khatauni copy of which is Annexure-CA-13 to the counter-affidavit it is stated that the property belongs to the Union of India.
13. Granting the power of management does not, in our opinion, amounts to transfer of title to the land, which, in our opinion, continues to vest in Government of India. Thus, there is no force in this petition and it is dismissed.

Sunday, September 11, 2011

Sale deed of nazul in Uttar Pradesh ,Nazul Rules and Collector


Sale deed of  nazul in Uttar Pradesh ,Nazul Rules and  Collector
Indian Kanoon - http://indiankanoon.org/doc/506629/
                                                          
Allahabad High Court
Bench: B Chauhan, P Mithal
on 18 August, 2006
Justice Birendra Dikshit ... vs State Of U.P. And Ors 2006 (4) AWC 3618


--------------. The petitioner No. 1 had entered into an agreement to sell dated 28.7.1981 with Shri Jagdish Narain Capoor for the purchase of part of the aforesaid nazul plot and the dwelling unit situate over it. On the basis of the said agreement, petitioner No. 1 with the consent of the lessees applied for freehold rights in respect of house No. 9, Stanley Road with an area of 911 sq. mtrs. forming part of the aforesaid nazul plot in accordance with the terms and conditions of the freehold policy issued vide G.O. dated 1.12.1998.
5. The Collector, Allahabad granted permission of freehold rights as claimed by the petitioner No. 1 and a sale deed dated 19.10.2000 was executed in respect of only 852.20 sq. mtrs. of land. The said sale deed which has duly been executed by the Collector, Allahabad, on behalf of his Excellency, the Governor of Uttar Pradesh clearly provides the area in respect whereof freehold rights have been granted in favour of the petitioner No. 1 and the boundaries thereof providing for 15 feet wide common passage on three sides of the house, i.e.. West, North and South on Stanley Road (Kastoorba Gandhi Marg on the East).
----------------------
11. The Nazul Rules deal with the issue involved herein Rule 5 provides for change of entries in Nazul Register by the Collector on being satisfied that it was so necessary because of the successive transfer or assignment. Rule 5A deals with the procedure prescribed for mutation in the name of transferees in the records accordingly. The mutation is also to be made by the Collector. Sub-rule (4) of Rule 5A would not debar any person from establishing his right to the property in any civil or revenue Court having Jurisdiction Rules 7 to 12 deal with the management of the nazul land Rule 8 provides that the department managing nazul property is bound to forward to the Collector a certificate every year showing the area of nazul properties, the purpose for which it is used and reporting whether any encroachment had been made on any part of such properties. In case of encroachment upon the nazul land used for road purposes, the certificate is required to be forwarded in a prescribed Form wherein encroachments have to be noted specifically. Rule 9 thereof provides for preparing the list of encroachments by the department in respect of each nazul property and to issue certificates in this respect to the Collector. Rule 13 of the said Rules provides that in case of sale or lease of nazul land, it shall be carried out under the Collector's order and in case such land is in occupation of any department other than the revenue department, the nazul shall be transferred to the Collector for the purpose of lease or sale. Rule 74 provides that any administrative-body or local body shall ensure the compliance of the order passed by the Collector requiring the removal of encroachment upon or of unauthorized occupants of nazul. Vide the Criminal Laws (U. P. Amendment) Act, 1961, the provisions of Section 441 of the Indian Penal Code stood amended authorizing the local bodies to register a criminal case for removal of encroachments on nazul land after giving notice to the encroachers or trespassers.
12. Thus, it is evident that every nazul property is under the direct control of the Collector and by no stretch of Imagination, it can be held that the Collector had no jurisdiction to deal such properties or pass an order for removal of encroachment.
13. Thus, we do not see any ground to hold that the Collector had no jurisdiction to entertain the complaint or pass the impugned order.
20. In the instant case, no attempt had been made by the petitioners to adduce any evidence regarding subsistence of their tenancy in respect of any part of the remaining nazul land. Thus, the argument advanced in this respect cannot be entertained.
25. Therefore, Court has to examine the case with this angle also bearing in mind that cause of substantial justice cannot be defeated on mere technicalities.
26. It is also settled legal proposition that writ court should not quash the order if it revives a wrong and illegal order. (Vide Gadde Venkateswara Rao v. Government of Andhra Pradesh and Ors. : Maharaja Chintamani Saranath Shahdeo v. State of Bihar and Ors. : Mallikarjuna Mudhagal Nagappa and Ors. v. State of Karnalaka and Ors. and Chandra Singh (supra)).
29. Thus in view of the above, it is not necessary for the writ court to interfere in a case where a Just order has been passed by an authority having no competence to do so.
30. In view of the above, as the encroachment by the petitioners had been on the land which was outside the land in respect of which the freehold rights had been created in favour of petitioner No. 1 and formed part of the nazul land, the encroachment removed by the Collector, even if without jurisdiction, does not require any interference, whatsoever.
32. In view of the above, we do not find any farce in the petition, it is accordingly dismissed.
TAg- nazul, collector,nazul rules,encroachment ,Policy
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New Hotel Policy of Uttar Pradesh- 2008
The Government of Uttar Pradesh has declared an effective hotel policy very recently. The salient features of the hotel policy are:-
  • At the time of drafting of master plan, related regulated area and authorities by taking cooperation from Deptt. of Tourism will earmark the land for hotels and this land will be given for hotels. Where master plan has been finalised this action should be taken for vacant space. In authorities (development authority, industrial development authority, housing & development board) where master plan has not been finalised, with the help of Department of Tourism action to be taken to reserve suitable land for hotels keeping in mind the possibilities for tourism and whenever master plans are received then at that time also by taking help from Deptt. of Tourism the land will be reserved for hotels.
  • The land earmarked for industry in the master plan should be kept reserved for tourism/hotel for a period of 5 years after the date of advertising the scheme. If no hotel entrepreneur comes forward in the time span of 5 years then in that case the authority will be free to convert the use of this land.
  • If the land use conversion of the authority's land is necessary to grant the earmarked plot to hotel industry then the work regarding conversion of land use to be done at a competent level under the rules & regulations of authority on case to case basis.
  • In places where there is no development authority, there as per requirement the land of village committee/town area body should be resumed and transferred to Deptt. of Tourism. Deptt. of Tourism can establish a land bank of such lands received from village committee/town area bodies. Deptt. of Tourism will provide this land to tourism industry/hotel, as per requirement. But under the rules there will be a binding that if the land is not used for tourism industry within a period of 5 years then this land will be automatically transferred to the village committee.
  • In above places where are no development authorities but municipal bodies are formed, there the District Magistrate may provide the land to entrepreneurs on fixed circle rate or lease.
  • Since Tourism has been granted the status of industry in which hotels are also included hence plot should be earmarked and allotted similarly like industries on industrial rates. This policy will be implemented in each district of the state.
  • Whenever development authorities form their plans under the purview of Deptt. of industry development then they should also earmark the necessary land for hotels at the appropriate places.
  • Hundred percent rebate in luxury tax for next 5 years be given to new hotels from the starting date. Other rebates will be applicable as per industrial policy.
  • The allotment of earmarked land for hotel industry will be done only to hotel entrepreneur.
  • Hotel entrepreneurs will be provided land on industrial rates by all authorities (Housing Deptt. and Industrial Development Deptt., Noida, Greater Noida). It will be ensured that all hotel entrepreneurs are benefited by this provision, for this above mentioned all authorities will make necessary order/revision in their rules. So that it becomes possible that the land can be made available to hotel entrepreneur on industrial rate.
  • Department of Tourism will derive the number of plots as per the city wise need based on star rating of hotel.
  • To identify plot a committee will be formed under the Chairmanship of the commissioner.
  • Applicant entrepreneurs/society will not get more than one plot in a city.
  • At places where more than one authority/society have land, there only one concern department will be made nodal deptt. by the Deptt. of Tourism which will invite application on behalf of all concern department but the final decision regarding allotment/auction, will be taken by the concerned departments only.
  • After identification of land for hotel, applications will be invited from hotel/tourism entrepreneurs to provide them land on industrial rates.
Eligibility terms will be fixed for application, which will be following:-
  • Only those companies/societies will apply who are registered and connected with the hotel industry and have earlier experience in this regard.
  • In hotel policy eligibility terms have also been fixed in which 5 star and other level project will be given to those hotel entrepreneurs who have an average turn over of Rs. 100 crore or above in the last 3 years, positive net worth and minimum 10 years experience in hotel profession.
  • For 4-Star and other 4-Star level project the rule will be following:-
  • Average turn over of Rs. 75 crore or above in the last 3 years, positive net worth and minimum 10 years experience in hotel profession. Like wise for 3-Star and other level project an average turn over of Rs. 50 crore on above in the last 3 years, positive net worth and minimum 5 years experience in hotel profession will be required.
  • In authorities where there is provision of industrial plots there as per the present time policy the allotment of industrial plots in case of more than one applicant will be done on the basis of suitability can be ascertained on the basis of their experience, turn over and net worth basis. And keeping eligible applicant rating in descending order on the basis of hotel plots being made available in a city, based on their priority the plot be allotted. This rating 5 star (or above), 4- Star and 3- Star categories can be done separately.
  • For each hotel the applicant company's ownership or under the management will have points as under:-

    A- Experience in hotel profession will have maximum 50 points
    • 5-Star or above - 10 points per hotel
    • 4-Star - 7 points per hotel.
    • 3- Star hotel- 5 points per hotel
    • If the hotel has a tie up/contract with an international chain or the applicant himself is of international chain then for each such hotel 3 additional points will be provided.
  • B- For turn over maximum 25 points will be fixed.
    • 1 point will be fixed per 10 crore turn over.
  • C- For net worth maximum 25 points will be fixed.
    • 1 point will be fixed per 4 crore net worth.