Nazul Land
'Nazul' means any land or building which, being the property of Government is not administered as a State property under the control of the Land Reforms Commissioner or the Forest or the irrigation Department, or is not under the control of the Military, Postal, Telegraph, Railway or other purely Central Government Department. It means properties i.e., land or buildings in or near towns or villages which have escheated or lapsed to the Government. In further, in absence of appropriate heir, the appropriate State or the Government of India in an appropriate case became the owner of the land. Article 296 of the Constitution of India speaks about the property accruing by escheat or lapse or as an bona vacantia for want of a rightful owner.(Harish Tandon vs State Of U.P. And Anr.2006 (3) AWC 2829)
Rate of Stamp Duty
(Harish Tandon vs State Of U.P. And Anr. 2006 (3) AWC 2829 Para 18 )
As per the Government Order No. 'K.S.V.-5-5808/11-99-500 (80)/98' of Kar Evam Sansthagat Vitta Anubhag-5 dated 11th January, 1999 issued by the Principal Secretary, U.P. Government, the stamp duty amount (registration charges) for registration of the freehold sale deed(s) is payable at the rate of 10% of the freehold charges. The U.P. Government till now has issued various Government Order(s) to continue the rebate of stamp duty amount (registration charges) for the registration of the freehold sale deed(s) without any break and the aforesaid provision for the registration of the freehold sale deed(s) at the rate of 10% of the freehold charges is applicable till date. Since the freehold sale deed(s) of the Nazul Site(s) executed by the District Maglstrate(s) and the Development Authorities particularly the District Magistrate, Allahabad and the Allahabad Development Authority, Allahabad have been/are presently being registered at stamp duty amount (registration charges) of 10% of the freehold charges in accordance with the aforesaid Government Order dated 11 th January, 1999 and its successive Government Order(s), the freehold sale deed(s) of the Nazul Site Nos. 32C, 139 and 139B, Civil Station, Allahabad should also be registered at the stamp duty amount (registration charges) of 10% of the freeholdcharges.
classification of deeds
1- Under the provisions of the Nazul manual, if any nazul land is transferred by way of sale or lease etc., execution of deed is required and stamp duty is chargeable as a conveyance as laid down in the Indian Stamp Act, 1899 (C.A.G Report year 2006-07Para 4.2.9.2)
http://www.cag.gov.in/html/cag_reports/up/rep_2007/rev_chap_4.pdf
2- Nazul land is land held by Government in public trust, in perpetuity, the possession of which can be transferred in the form of lease or by sale. The district magistrate of the respective district is the overall incharge of the management andadministration of nazul land. In Lucknow, the work of management is entrusted to the Lucknow Development Authority (LDA) and in other places to the nagar nigams/nagar palika parishads. Rule 67 of Nazul Manual, read with Rule 22, prohibits granting of lease in perpetuity of nazul land. In such cases, where lease was granted in perpetuity or period of lease was not mentioned, a maximum period of 90 years can be considered for lease. If any sale deed is executed, cost of land is to be recovered on the basis of market rate and stamp duty as a conveyance is chargeable..(C.A.G. Report 2005-2006 Para 5.5
http://www.cag.gov.in/html/cag_reports/up/rep_2006/rev_chap_5.pdf)
3- Under the provisions of the IS Act, stamp duty on an instrument depends upon the substance of the transaction recorded in the instrument and not on any title, description or nomenclature given to the instrument by the executant.(C.A.G. Report 2005-2006 Para 5.3
http://www.cag.gov.in/html/cag_reports/up/rep_2006/rev_chap_5.pdf)
disposal of nazul land
A-Under the provisions of the Nazul manual, nazul land can only be leased out.Under the provisions of rule 22 of Nazul manual, lease for nazul land shall not ordinarily be for a period shorter than 30 years in the first instance and shall, in all cases, provide for renewal after expiry of the first and subsequent terms upto a maximum period of 90 years. The granting of lease in perpetuity in respect of any nazul land on any term is prohibited. Rule 67 of Nazul Manual, read with Rule 22, prohibits granting of lease in perpetuity of nazul land. In such cases, where lease was granted in perpetuity or period of lease was not mentioned, a maximum period of 90 years can be considered for lease. Under the above provisions, the nazul land let out on lease for a stipulated period is required to be evacuated as and when the concerned lease terminates. On 1st December, 1998 a further Government order being No.
'2268/9-AA-4-98-704N/97' of Awas Anubhag-4 was issued by the Secretary, U.P.Government. As per such Government order, two categories of freehold charges were fixed as per the land use earmarked in the prevailing Master Plan, for'Residential' at the rate of 40% of the applicable Circle Rate of land(s) andfor 'Non-Residential' at the rate of 60% of the applicable Circle Rate of
land(s) and not as per the land usage mentioned in the lease deed or actual usage. The aforesaid Government Order dated 1st December. 1998 also states that a discount of 30% shall be given on the freehold amount where the Circle Rate of land(s) has been amended between 30th November, 1990 and 29th November, 1991 and further a discount of 20% on the freehold charges shall be allowed in case of
one time payment.With the introduction of the new Nazul Policy, 1998, nazul land can be disposed off by way of sale. If any sale deed is executed, cost of land is to be recovered on the basis of market rate and stamp duty as a conveyance on circle rate of 1991
B- Hon'ble Supreme Court in V. Karnal Durai v. District Collector
Tuticorin and Anr. . it has been held that if during the pendency of an application for grant of a mining lease the rules are amended, the application is to be decided as per the amended rules.
C-Honourable H.C Allahabad in S.N. Lal vs State Of U.P. And Ors. 2007 (2) AWC 1491 held as below
Para 7-----------further the free hold deed executed in favour of the respondent No. 5 was subject to the final decision in the case of Satya Narain Kapoor v. State of U.P. and Ors. hence it is humbly submitted that the deponent has bona fide followed the order passed by this Hon'ble Court.
Para 19--------- The officer has acted arbitrarily. He adopted an uncalled for procedure-which reflects upon his integrity. His approach to the case has compelled the petitioner to go through the litigation agony, loss of time, and money apart from harassment.
Para20-------We mould the relief and set aside the order titled 'Minutes of Proceedings' dated 20.12.2004 and declare that sale deed dated 21.12.2004 (between respondent Nos. 3 and 5) shall remain in abeyance/inoperative till final decision on the question of grant of the freehold in favour of the petitioner; and in case it is decided in the petitioner's favour, the respondent No. 5 shall be entitled to the refund of stamp duty on said sale deed in her favour.
Para 23. Writ petition stands partly allowed to the extent indicated above with cost-which we quantify at Rs. 25,000 to be paid by respondent No. 1 with liberty to realise it from the officer concerned.
D- All G.O of Nazul Land was introduced during the pendency of the proceedings and sub judice as Honourable Allahabad H.C held in Harish Tandon vs State Of U.P. And Anr. on 30/3/2006 ( 2006 (3) AWC 2829 D.B)
para 32 . Save and except Government order of the year 1995 no Government order is static. All the Government orders were time to time reviewed irrespective of the facturn that one of such reviewed Government order of the year 1998 was or still is subjudice before the Supreme Court or before the High Court.
Para 42. . The Government orders as reviewed time to time in the year 1998, which is under challenge, and the Government order of the year 2002, which was introduced during the pendency of the proceeding, appear to be prospective in nature.
Pendente lite
principle of pendente lite nihil innoventur (pending a litigation nothing new should be introduced) as in Section 52 of the Transfer of Property Act, 1882.
( the matters pending at the Supreme Court.)
State of Uttar Pradesh itself was the appellant at the Supreme Court :-
A- 15-10-1997 High Court in Civil Misc. Writ Petition No. 32605 of 1991, Satya Narain Kapoor v. State of U.P. and Ors.. The High Court held therein, apart from other points, 'nazul' land cannot be converted to freehold land. On the Special Leave Petitions of the State of U. P., the Supreme Court passed ad interim orders on different dates. In effect, the orders of the Supreme Court desire that status quo be maintained.
B- 1-12-98 Government Orders as a policy, on general land transfers of lease lands, published in a booklet inviting applications for conversion into freehold. In the booklet, the State have made the following clause.
"In this connection, I have been directed to say that the steps be taken under the aforesaid amendment and modification being made applicable with immediate effect, and the policy should be given wide circulation and publication so that the concerned parties may understand its implied provisions and receive its benefits.
All proceedings for freehold will be subject to the orders being passed by the Hon'ble Supreme Court in S.L.P. No. 1557-59/98 filed by the State of U.P. against the decision of the Hon'ble High Court, dated 15-10-1997 in Writ Petition No. 32605/91, Satya Narain Kapoor v. State Government and Ors.
This order is being issued with the concurrence of the Finance Department under its D.O. No. E-6-2286/Ten-98 Dated 28-11-1998."
C- (Harish Tandon vs State Of U.P. And Anr. 2006 (3) AWC 2829 Para 2)
Originally the writ petition was filed by the petitioner on 27th January, 1999 praying inter alia for quashing the Government order dated 1st December, 1998, suitable order for conversion of land after disposal of S.L.P. No. 1157-59 of 1998 filed by the State before the Supreme Court, and orders as regards valuation, stamp duty, etc
D -26-10-2004 the Supreme Court set aside the judgment and order of the High Court by its judgment and order dated 26th October, 2004 and remanded the matter to the High Court for consideration afresh.
E - 21-03-2007 writ of Satya Narain Kapoor vs State Of U.P. And Ors. accordingly dismissed. Interim order, if any, stands vacated
F - Utilisation of leased land for the purpose other than that set forth Under the provisions of Rule 20 of the Nazul manual, every lease or sale of nazul land at concessional rates under Rule 18 or 19 of the rules shall be subject to the condition that if the land leased or sold is not utilised within a period to be fixed by the State Government or for the purpose for which it was given, the State Government has the power to cancel the lease or sale and
resume possession thereof. C.A.G Report year 2006-07Para 4.2.9.1)
http://www.cag.gov.in/html/cag_reports/up/rep_2007/rev_chap_4.pdf
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