High Court · 2025

1. Heard Shri Tripathi B. G. Bhai, learned counsel for the petitioner and Shri Ram Lakhan Deobanshi, who has filed an impleadment application and has been permitted to intervene in the matter and Shri Suresh Singh, who appears for the respondent Nos. 2 and 3.

2. Challenge in the writ petition is to an order dated 20.09.2024 passed by the respondents Nagar Palika Parishad, Fatehpur, respondent No. 2 and an order dated 24.09.2024 passed by the Executive Officer, Nagar Palika Parishad, Fatehpur, respondent No. 3.

3. By the order dated 20.09.2024 allotment of shop No. 9 in favour of the original allottee and its transfer in favour of the petitioner which transfer is stated to be illegal and contrary to law, has been cancelled and the shop has been directed to be auctioned after wide publicity.

4. The order dated 24.09.2024 passed by the Executive Officer is a consequential order which directs the petitioner to vacate the shop in question within 15 days failing which appropriate proceedings would be drawn against him.

5. The submission of learned counsel for the petitioner is that the order impugned has been passed on two grounds. Firstly, there was default in payment of rent and secondly, transfer of the shop in favour of the petitioner was illegal.

6. Insofar as the question of default in payment of rent is concerned, it has been submitted that the rent till 31st March, 2025 has already been deposited by the petitioner. This fact has not been disputed in the counter-affidavit by the respondents.

7. The second contention is that a report was placed before the Chairman and the order impugned has been passed and on the very same date without notice, information and without any opportunity of hearing having been provided to the petitioner.

8. The next contention raised is that the impugned order insofar as it states that the Municipality has no authority to transfer the allotment which was made in favour of one Ginni Lal Gupta to the petitioner is incorrect as there exists a specific provision, namely, Section 124 of the U.P. Municipalities Act, 1916 which empowers the Municipality to effect such a transfer. Additionally, it has been submitted that the requisite fee required for such transfer was also deposited by the petitioner.

9. Section 124 and its sub-sections reads as follows:- "124. Power of Municipality to transfer property.—(1) Subject to any restriction imposed by or under this Act, a Municipality may transfer by sale, mortgage, lease, gift, exchange or otherwise any property vested in the Municipality not being property held by it on any trust the terms of which are inconsistent with the right to so transfer. (2) Notwithstanding anything contained in sub-section (1), the Municipality may with the sanction of the State Government transfer to Government, any property vested in the Municipality but not so as to affect any trust or public rights to which the property is subject. (3) Provided that every transfer under sub-section (1), other than a lease for a term not exceeding one year, shall be made by instrument in writing sealed with the common seal of the municipality and otherwise complying with all conditions in respect of contracts imposed by or under this Act. (4) For safeguarding the interest of weaker section of the society in an urban area, the State Government may issue directions as it may think fit with respect to the acquired or vested land in a municipality."

10. On the basis of the above submission, counsel states that the orders impugned are liable to be quashed.

11. Learned counsel appearing for the respondent Nos. 2 and 3 has merely re-phrased the impugned orders.

12. Shri Ram Lakhan Deobanshi has filed an impleadment application on behalf of Ginni Lal Gupta, the original allottee. He has submitted that a lease deed had been executed in his favour and he had paid the premium and other dues. He was, at best, in default for three years insofar as the rent is concerned. On this ground it was open for the respondent Nos. 2 and 3 to have cancelled his allotment but this was not done. In fact, on a fraudulent application filed by the petitioner falsely claiming to be his brother and in collusion with the municipal authorities, the so-called transfer has been effected in favour of the petitioner as is recorded in the impugned order.

13. He has also submitted that the respondent in its counter- affidavit admitted that so called transfer in favour of the petitioner is illegal and contrary to law. He has vehemently argued that he is in no way related to the petitioner. It appears that an application was filed allegedly on his behalf stating that he was not residing in the municipality and therefore, wanted to transfer the shop in favour of his alleged brother, the petitioner.

14. It is also contended that collusion between the petitioner and authorities is further highlighted by the fact that this alleged transfer and acceptance of the arrears of rent payable by him (Ginni Lal Gupta) has been accepted and receipt has been issued in the name of the petitioner on the ground that this would be financially beneficial to the Municipality since whereabouts of Ginni Lal Gupta were unknown and the amount payable by him would not be available to the municipality till such time he re-appeared.

15. He has lastly submitted that by the impugned order not only has the allotment in favour of the petitioner been cancelled, even the initial allotment in favour of Ginni Lal Gupta, the intervener, has also been cancelled.

16. In rejoinder, Shri Tripathi B. G. Bhai has submitted that earlier in time Ginni Lal Gupta has filed Writ C No. 262 of 2025 (Ginni Lal Gupta and 02 others) which was dismissed vide order dated 08.01.2025, wherein nothing has been stated about the instant writ petition in the writ petition by Ginni Lal Gupta. He had concealed the filing etc., of the instant writ petition and therefore the petitioner is entitled to relief.

17. We have considered the submissions made by learned counsel for the parties and perused the record.

18. From the submissions made, it transpires that the claim of the petitioner in the instant petition is based upon an alleged allotment made in his favour based on reports made to the Executive Officer on 03.02.1998 and to the Chairman on 18.02.1999 and 19.02.99. On these reports, a fresh report was called by the Chairman along with citation of relevant rules. This note/report was dated 11.03.1999. A subsequent note/report was placed before him on 26.03.1999 which has been approved as proposed by an order dated 01.04.1999.

19. It is not in dispute that by this approval of 01.04.1999, a tenancy existing in favour of Ginni Lal Gupta tenancy has been transferred in favour of the petitioner on payment of transfer fee. This is also the categorical case of the petitioner.

20. Section 124 grants power to municipalities to transfer, by sale, mortgage, lease, gift, exchange or otherwise any property vested in the municipality.

21. In the context of this petition, sub-section (3) of Section 124 of Municipalities Act, 1916 would also be material. It provides that any transfer made under sub-section (1), other than a lease for a term period not exceeding one year, shall be made by an instrument in writing, sealed with the common seal of the Municipality and otherwise complying with all conditions imposed by or under this Act in respect of contract. The instrument is also required to be sealed by the common seal of the Municipality.

22. It is pertinent here to mention that power to transfer property in Section 124 of the Act, 1916 is available to a Municipality. However, in the light of the definition of a Municipality in clause (9) of Section 2 read with Section 9 of the Act, 1916, the Municipality comprises of (1) its President/Chairperson, (2) its elected members, apart from (3) ex-officio, (4) nominated members and (5) the Chairperson of the Committees, if any, established under Section 104, if they are not members under any of the foregoing clauses. Thus, under the Act, 1916, a decision of a Municipality would have to be taken in its meeting by a resolution. No power of transfer property vests, either with the Executive Officer or the Chairman/President of the Municipality.

23. The alleged transfer of the tenancy in favour of Ginni Lal Gupta has been transferred in favour of the petitioner under an order passed by the Chairman and, therefore, is not a decision of the Municipality. Besides, the order of transfer of the lease does not bear the seal of the Municipality as is the requirement under sub-section (1) of Section 124 of the Act, 1916. The said transfer is therefore of no consequence and does not confer any right upon the petitioner. The petitioner is, therefore, not entitled to any relief.

24. There is yet another reason for denying relief to the petitioner. There appears to be substance in the submission made by Shri Ram Lakhan Deobanshi that the so called transfer in favour of the petitioner was a result collusion between the Chairman, the Executive Officer and petitioner because an application is alleged to have been filed by Ginni Lal Gupta saying that he wishes to transfer the tenancy in favour of his brother, the petitioner, as he is not residing in the Municipality while the noting, which has been approved by the Chairman of the Municipality states that the whereabouts of Ginni Lal Gupta are unknown which two statements are clearly contradictory.

25. In any case, counsel for Ginni Lal Gupta has vehemently denied having filed any application for transferring his tenancy . He has also denied the allegation that the petitioner is his brother or is in any way related to him.

26. The alleged transfer is therefore not only without the sanction of law, it is also manifestly collusive besides being fraudulent. It is settled law that fraud vitiates all proceedings.

27. Accordingly and in view of what has been stated above, the writ petition fails and is dismissed. Order Date :- 18.3.2025 Aditya Tripathi ADITYA TRIPATHI High Court of Judicature at Allahabad

1. Heard Shri Tripathi B. G. Bhai, learned counsel for the petitioner and Shri Ram Lakhan Deobanshi, who has filed an impleadment application and has been permitted to intervene in the matter and Shri Suresh Singh, who appears for the respondent Nos. 2 and 3.

2. Challenge in the writ petition is to an order dated 20.09.2024 passed by the respondents Nagar Palika Parishad, Fatehpur, respondent No. 2 and an order dated 24.09.2024 passed by the Executive Officer, Nagar Palika Parishad, Fatehpur, respondent No. 3.

3. By the order dated 20.09.2024 allotment of shop No. 9 in favour of the original allottee and its transfer in favour of the petitioner which transfer is stated to be illegal and contrary to law, has been cancelled and the shop has been directed to be auctioned after wide publicity.

4. The order dated 24.09.2024 passed by the Executive Officer is a consequential order which directs the petitioner to vacate the shop in question within 15 days failing which appropriate proceedings would be drawn against him.

5. The submission of learned counsel for the petitioner is that the order impugned has been passed on two grounds. Firstly, there was default in payment of rent and secondly, transfer of the shop in favour of the petitioner was illegal.

6. Insofar as the question of default in payment of rent is concerned, it has been submitted that the rent till 31st March, 2025 has already been deposited by the petitioner. This fact has not been disputed in the counter-affidavit by the respondents.

7. The second contention is that a report was placed before the Chairman and the order impugned has been passed and on the very same date without notice, information and without any opportunity of hearing having been provided to the petitioner.

8. The next contention raised is that the impugned order insofar as it states that the Municipality has no authority to transfer the allotment which was made in favour of one Ginni Lal Gupta to the petitioner is incorrect as there exists a specific provision, namely, Section 124 of the U.P. Municipalities Act, 1916 which empowers the Municipality to effect such a transfer. Additionally, it has been submitted that the requisite fee required for such transfer was also deposited by the petitioner.

9. Section 124 and its sub-sections reads as follows:- "124. Power of Municipality to transfer property.—(1) Subject to any restriction imposed by or under this Act, a Municipality may transfer by sale, mortgage, lease, gift, exchange or otherwise any property vested in the Municipality not being property held by it on any trust the terms of which are inconsistent with the right to so transfer. (2) Notwithstanding anything contained in sub-section (1), the Municipality may with the sanction of the State Government transfer to Government, any property vested in the Municipality but not so as to affect any trust or public rights to which the property is subject. (3) Provided that every transfer under sub-section (1), other than a lease for a term not exceeding one year, shall be made by instrument in writing sealed with the common seal of the municipality and otherwise complying with all conditions in respect of contracts imposed by or under this Act. (4) For safeguarding the interest of weaker section of the society in an urban area, the State Government may issue directions as it may think fit with respect to the acquired or vested land in a municipality."

10. On the basis of the above submission, counsel states that the orders impugned are liable to be quashed.

11. Learned counsel appearing for the respondent Nos. 2 and 3 has merely re-phrased the impugned orders.

12. Shri Ram Lakhan Deobanshi has filed an impleadment application on behalf of Ginni Lal Gupta, the original allottee. He has submitted that a lease deed had been executed in his favour and he had paid the premium and other dues. He was, at best, in default for three years insofar as the rent is concerned. On this ground it was open for the respondent Nos. 2 and 3 to have cancelled his allotment but this was not done. In fact, on a fraudulent application filed by the petitioner falsely claiming to be his brother and in collusion with the municipal authorities, the so-called transfer has been effected in favour of the petitioner as is recorded in the impugned order.

13. He has also submitted that the respondent in its counter- affidavit admitted that so called transfer in favour of the petitioner is illegal and contrary to law. He has vehemently argued that he is in no way related to the petitioner. It appears that an application was filed allegedly on his behalf stating that he was not residing in the municipality and therefore, wanted to transfer the shop in favour of his alleged brother, the petitioner.

14. It is also contended that collusion between the petitioner and authorities is further highlighted by the fact that this alleged transfer and acceptance of the arrears of rent payable by him (Ginni Lal Gupta) has been accepted and receipt has been issued in the name of the petitioner on the ground that this would be financially beneficial to the Municipality since whereabouts of Ginni Lal Gupta were unknown and the amount payable by him would not be available to the municipality till such time he re-appeared.

15. He has lastly submitted that by the impugned order not only has the allotment in favour of the petitioner been cancelled, even the initial allotment in favour of Ginni Lal Gupta, the intervener, has also been cancelled.

16. In rejoinder, Shri Tripathi B. G. Bhai has submitted that earlier in time Ginni Lal Gupta has filed Writ C No. 262 of 2025 (Ginni Lal Gupta and 02 others) which was dismissed vide order dated 08.01.2025, wherein nothing has been stated about the instant writ petition in the writ petition by Ginni Lal Gupta. He had concealed the filing etc., of the instant writ petition and therefore the petitioner is entitled to relief.

17. We have considered the submissions made by learned counsel for the parties and perused the record.

18. From the submissions made, it transpires that the claim of the petitioner in the instant petition is based upon an alleged allotment made in his favour based on reports made to the Executive Officer on 03.02.1998 and to the Chairman on 18.02.1999 and 19.02.99. On these reports, a fresh report was called by the Chairman along with citation of relevant rules. This note/report was dated 11.03.1999. A subsequent note/report was placed before him on 26.03.1999 which has been approved as proposed by an order dated 01.04.1999.

19. It is not in dispute that by this approval of 01.04.1999, a tenancy existing in favour of Ginni Lal Gupta tenancy has been transferred in favour of the petitioner on payment of transfer fee. This is also the categorical case of the petitioner.

20. Section 124 grants power to municipalities to transfer, by sale, mortgage, lease, gift, exchange or otherwise any property vested in the municipality.

21. In the context of this petition, sub-section (3) of Section 124 of Municipalities Act, 1916 would also be material. It provides that any transfer made under sub-section (1), other than a lease for a term period not exceeding one year, shall be made by an instrument in writing, sealed with the common seal of the Municipality and otherwise complying with all conditions imposed by or under this Act in respect of contract. The instrument is also required to be sealed by the common seal of the Municipality.

22. It is pertinent here to mention that power to transfer property in Section 124 of the Act, 1916 is available to a Municipality. However, in the light of the definition of a Municipality in clause (9) of Section 2 read with Section 9 of the Act, 1916, the Municipality comprises of (1) its President/Chairperson, (2) its elected members, apart from (3) ex-officio, (4) nominated members and (5) the Chairperson of the Committees, if any, established under Section 104, if they are not members under any of the foregoing clauses. Thus, under the Act, 1916, a decision of a Municipality would have to be taken in its meeting by a resolution. No power of transfer property vests, either with the Executive Officer or the Chairman/President of the Municipality.

23. The alleged transfer of the tenancy in favour of Ginni Lal Gupta has been transferred in favour of the petitioner under an order passed by the Chairman and, therefore, is not a decision of the Municipality. Besides, the order of transfer of the lease does not bear the seal of the Municipality as is the requirement under sub-section (1) of Section 124 of the Act, 1916. The said transfer is therefore of no consequence and does not confer any right upon the petitioner. The petitioner is, therefore, not entitled to any relief.

24. There is yet another reason for denying relief to the petitioner. There appears to be substance in the submission made by Shri Ram Lakhan Deobanshi that the so called transfer in favour of the petitioner was a result collusion between the Chairman, the Executive Officer and petitioner because an application is alleged to have been filed by Ginni Lal Gupta saying that he wishes to transfer the tenancy in favour of his brother, the petitioner, as he is not residing in the Municipality while the noting, which has been approved by the Chairman of the Municipality states that the whereabouts of Ginni Lal Gupta are unknown which two statements are clearly contradictory.

25. In any case, counsel for Ginni Lal Gupta has vehemently denied having filed any application for transferring his tenancy . He has also denied the allegation that the petitioner is his brother or is in any way related to him.

26. The alleged transfer is therefore not only without the sanction of law, it is also manifestly collusive besides being fraudulent. It is settled law that fraud vitiates all proceedings.

27. Accordingly and in view of what has been stated above, the writ petition fails and is dismissed. Order Date :- 18.3.2025 Aditya Tripathi ADITYA TRIPATHI High Court of Judicature at Allahabad