Ram Dayal v. Kanpur Urban Area Development Board — 1956 DIGILAW 244 (ALL)

JUDGMENT G. Mehrotra, J. - This is a petition on behalf of 35 persons who are residents of Kanpur, Under Article 226 of the Constitution praying that a writ of Mandamus be issued directing the opposite parties not to take steps for dispossessing the applicants or acquiring their houses under the Tarwala Hata Scheme as notified on 24-1-1942. 2. The facts as set out in the petition are that in the city of Kanpur near the railway station Northern Railway there is a locality known as Tarwala Hata. In this locality there are a number of small houses. The houses, were originally owned by one single proprietor and they were let out to tenants but during the period of 1932-48 these houses were sold to tenants who were in occupation by deeds of transfer. On 19-3-1933, the then Improvement Trust of Kanpur published a notification u/s 40(3) of the UP Improvement Trust Act intimating that the Tarwala Hata general scheme has been submitted to the State Government for sanction. On 24-1-1942, a notification u/s 41(1) of the UP Improvement Trust Act VIII of 1919 was issued by the State Government, sanctioning the General improvement scheme as proposed by the Trust of Kanpur regarding this area knowvn as Tarwala Hata. Thereafter according to the Petitioners nothing was done in pursuance of the said scheme and it was given out by the Trust authorities that they had abandoned the scheme. This assertion, however, is not accepted by the opposite parties. Thereafter Act No. VI of 1945 known as Kanpur Urban Area Development Board Act was passed and under the said Act the Kanpur Development Board was established in the end of 1964. Notices u/s 9 of the Land Acquisition Act were served upon the applicants asking them to file their claim for compensation. The proceedings of acquisition started at the instance of the Development Board are now being challenged by the present petition. It is necessary to point out that after the sanction of the scheme in 1942 and before starting the acquisition proceedings the Improvement Trust, according to the Petitioner, claimed the land on which the houses were situate and gave notices to the owners of the houses to purchase the site from the Improvement Trust otherwise steps will be taken against them. The Petitioners further alleged that they are small proprietors and are residing in these houses carrying on business in this locality and the locality is a very neat and healthy one. They further added that if the small proprietors are deprived of their houses, it would be difficult for them to obtain residential quarters. The Petitioners have further asserted that the main intention of the Development Board is not to improve the area but to acquire these sites on cheap price and then resell them at higher price thereby making a huge profits in the transactions. Notices have been issued to the opposite parties by the Court to the Kanpur Urban Area Development Board, the State of Uttar Pradesh and the land Acquisition officer, Kanpur and a counter affidavit has been filed on behalf of the opposite parties. In the counter affidavit it is stated that the Kanpur Improvement Trust duly notified the Tarwala Hata Scheme No. 2 in the UP Gazette dated 5th, 12th and 19th March 1938. The scheme was submitted to the State Government for sanction in the year 1939. Thereafter the required notification u/s 40 of the Act was published in the Gazette. The scheme was sanctioned u/s 41(1) of the Act, and the sanction as required u/s 41(1) of the Act was notified in the Gazette dated 24-1-1942. It was then notified on behalf of the Governor that aforesaid scheme will come into force with effect from 1-4-1942. Then due to the war and the shortage of housing accommodation it was not possible for the Trust to construct quarters for the residents of this locality, who had to be rehoused nor was it possible for the Trust to arrange for an alternative accommodation for them. Consequently further operation of the scheme remained in abeyance. In September, 1945 the Kanpur Urban Area Development Board came into existence. Thereafter when the facilities of obtaining building materials became available the administrator of the Board in the year 1954 ordered that highest priority should be given to slum clearance schemes and accordingly steps were taken to complete the exception of the scheme and necessary proceedings for the acquisition were started. In paragraph No. 11 of the counter affidavit it has also been stated that the Land Acquisition Officer has already given this award for 33 houses out of the 54 which are involved in the said housing scheme. In paragraph No. 11 of the counter affidavit it has also been stated that the Land Acquisition Officer has already given this award for 33 houses out of the 54 which are involved in the said housing scheme. The purpose for which the scheme has been started is to clean the slum areas and for the general improvement and the sanitation of the locally. In paragraph No. 18 of the counter affidavit it is stated that the land on which houses stood were Nazul land and as such its management was entrusted to the Board on behalf of the State Government and in the exercise of the powers of management given to the Development Board, the Board gave option to the lessees to purchase the sights of the houses, if they so desired, otherwise steps will be taken in accordance with the terms of the contract. No assurance, however, was given to the lessees that the scheme had been abandoned. The opposite parties have also denied that they have any intention to sell out these plots on exorbitant rates thereby making huge profits. The fact that these persons are carrying on business in these houses, has also been denied and stated that these applicants will be able to get alternative accommodation. A rejoinder affidavit has been filed on behalf of the applicants in which it is emphatically asserted that there was no shortage of building materials or accommodation after 1942 which prevented the Board from earning into effect the scheme. It is reasserted in the rejoinder affidavit that the purpose for which the scheme is being executed is to acquire valuable sites with a view to sell them on higher prices and no arrangement has so far been made for providing suitable accommodation to the applicants. 3. Mr. Khare learned Counsel for the Petitioners has urged three points before me. Firstly he has contended that the Kanpur Improvement Trust which got the scheme sanctioned in the year 1942 by the State Government came to an end in the year 1945 by the passing of the Kanpur Urban Area Development Board Act and thereafter the Improvement Trust ceased to exist. The scheme sanctioned in the year 1942 came to an end and unless fresh proceedings were started under the new Act, it is not open to the Board to carry into effect the old scheme sanctioned in the year 1942. The scheme sanctioned in the year 1942 came to an end and unless fresh proceedings were started under the new Act, it is not open to the Board to carry into effect the old scheme sanctioned in the year 1942. Reliance has been placed on behalf of the State on Section 4 of the Kanpur Urban Area Development Board Act, 1945, which provides as follows: With effect from the date this Act comes into force-- (a) the Trust shall be deemed to have been dissolved, and the trustees shall vacate their office, and (b) all properties, funds, and dues which are vested in or realizable by the Trust and its Chairman respectively shall vest in and be realizable by the Board and its President, respectively, and (c) all liabilities enforceable against the Trust shall be enforceable only against the Board, and (d) for the purpose of completing the execution of any scheme sanctioned under the Uttar Pradesh Town Improvement Act, 1919, the functions of the Kanpur Improvement Trust and the Chairman of the said Trust shall be discharged by the Kanpur Development Board and the President of the Board respectively, and (e) the management of all land classed Special Nazul shall be transferred to the Board. 4. Particular emphasis has been laid on Clause (d) of Section 4 and it has been contended by the State Counsel that for the purpose of completing the scheme sanctioned under the UP Town Improvement Act, 1919, the President of the Board will have the same power as the Chairman of the Trust. Thus Sub-section gives power to the Development Board to carry out the scheme already sanctioned under the Town Improvement Act. By the repeal of the Town Improvement Act the Trust stood dissolved but the scheme did not come to an end and power has been given under this section to the new Board to carry into effect the scheme already sanctioned. By the repeal of the Town Improvement Act the Trust stood dissolved but the scheme did not come to an end and power has been given under this section to the new Board to carry into effect the scheme already sanctioned. The Petitioners have urged that Clause (d) does not apply to the present case, the words used in Clause (d) are for the purpose of completing the execution of any scheme; the use of the words "completing the execution of any scheme" necessarily implies that the execution must have started before the Trust was dissolved and the Board came into existence; it does not contemplate a power in the Board to start the execution itself after the Trust has ceased to exist but only gives power to continue the execution and finish the execution which has already started before coming into force of this Act. In my opinion, there is no substance in this contention of the Petitioners. Under the Town Improvement Act there is no specific provision under which it can be pointed out that at a particular stage the execution of the scheme can he said to have started. It is not like a decree of a Civil Court where a specific stage for the starting of the execution proceedings is laid down in the CPC itself. As soon as a scheme is sanctioned it is capable of being executed and different steps are to be taken by the Improvement Trust to bring into effect the scheme and to finalise it. Certain powers are given under the Act to the Trust in order to effect the execution of the scheme and what Section 4 Sub-section (d) really was intended for is that after any scheme had been sanctioned when the Trust was in existence, it will be open to the Board to effect completion of that scheme. Any steps taken now by the Development Board is nothing but a step towards the completion of the execution of the scheme. The Board has started proceedings for the acquisition of the land under the Land Acquisition Act and these proceedings are nothing but steps towards the completion of the execution of the scheme sanctioned in the year 1942. Apart from it there is no limitation prescribed in the Act for the enforcement of the scheme. 5. The Board has started proceedings for the acquisition of the land under the Land Acquisition Act and these proceedings are nothing but steps towards the completion of the execution of the scheme sanctioned in the year 1942. Apart from it there is no limitation prescribed in the Act for the enforcement of the scheme. 5. The next point which was urged by the Petitioners counsel was that from the conduct of the Board it is manifestly clear that the Board had abandoned the scheme. The scheme was sanctioned in the year l942. In the year 1945, the Development Board came into existence. The next question which has to be considered in this connection will be how far the conduct of the Development Board itself after the year 1945 can justify an inference that the Development Board had abandoned the scheme. The only power to abandon a scheme is given under the Town Improvement Act of 1919 u/s 40 which provides that after the expiry of the periods respectively prescribed in Clause (a) of Sub-section (2) of Section 36 in Section 37 and in Clause (b) of Sub-section (2) in Section 36 in respect of any scheme, the Board shall forthwith consider any objection of representation, received thereunder and may, after hearing all such persons making any such objection or representation as may desire to be heard, either abandon the scheme or sanction the scheme with such modifications, if any, as it may consider necessary. This section gives powers to the Board to abandon a scheme before sending it for sanction. Similar provision is to be found in Section 57 of the Kanpur Urban Area Development Act. There is no express power therefore, given under any of these two Acts either to the Improvement Trust or to the Development Board' to abandon any scheme after it has been submitted to the State Government for sanction and has been sanctioned. It may be that the Development Board may for some reasons not carry out a particular scheme but there is no provision giving power to the Board to abandon any scheme. No law has been shown which disentitles the Board to carry into effect the scheme after a specified period. There is no limitation prescribed in the Act for carrying out a particular scheme. No law has been shown which disentitles the Board to carry into effect the scheme after a specified period. There is no limitation prescribed in the Act for carrying out a particular scheme. The only conduct attributed to the Trust is that the Trust did not bring into effect the scheme for three years of their existence after the sanction of the scheme but, to my mind, it does not necessarily imply that they had given out to those tenants that they were not going to bring into effect the scheme any more. The conduct attributed to the Development Board apart from the delay in executing the scheme is that they gave notices to the tenants to purchase the sires and the tenants did purchase the sites. This action of the Development Board legitimately gave an impression to the tenants that the Board had abandoned the scheme. As has been pointed out in the counter affidavit, the Development Board was authorised to manage the Nazul land. The owners of the houses had only right in the buildings and not on the sites and as the management of the sites vested in the Board, it was open to the Board to give an option to the tenants to purchase the sites. There is, therefore, no force in this contention too. 6. It was then contended by the Petitioners that u/s 42 of the Act there is an obligation on the Trust to proceed with the execution of the scheme forthwith, and the consequence of the failure to execute the scheme soon after the sanction of the scheme is that the entire proceedings are illegal. In my judgment there is nothing in Section 42 from which it can be argued that if the scheme is not executed forthwith, no steps can be taken to execute in afterwards. Even if any corresponding obligation to carry into effect the scheme forthwith can be inferred from Section 42, in suitable cases it may be open to the inhabitants to ask for a writ of Mandamus directing the Board to carry out the obligation but it cannot be argued that the failure to execute the scheme forthwith renders the subsequent proceedings ultra vires. Section 4(d) of the Kanpur Urban Area Development Act itself indicates that the Development Board can execute the scheme sanctioned during the period of existence of the Town Improvement Trust and any scheme though sanctioned during the period of the existence of the Trust will not lapse if the execution is carried out by the Board. 7. Lastly it was urged that the intention of the Board is not to effect any real improvement of the locality but to sell the plots on higher prices thereby making huge profits. It was urged in this connection that u/s 25 the general improvement scheme can be sanctioned by the State only when it appears to the Trust-- (a) that any buildings in any area which are used or are intended or likely to be used as dwelling places are unfit for human habitation, or (b) that danger to the health of the inhabitants of buildings in any area, or in any neighbouring buildings is caused by-- (i) the narrowness, closeness or bad arrangement and condition of streets or buildings or groups of buildings in such area, or (ii) the want of light, air ventilation proper convenience in such area, or (iii) any other sanitary defects in such area, the Trust may pass a resolution to the effect that such an area is an in sanitary area, and that a scheme ought to be framed in respect of such area, and may then proceed to frame such a scheme. 8. After such a resolution has been passed objections are invited and thereafter it is sent to the State Government for sanction. It is not open to the applicants after the scheme had been sanctioned, to urge that the conditions under which the Board is authorised to pass a resolution that a scheme should be framed did not exist in the present case. The language of Section 25 also suggests that the question whether such a condition exists or not lies within the exclusive jurisdiction of the Trust to determine. The opening words of Section 25 are "whenever it appears to the Trust" and not "whenever it is found by the Trust". It is not a matter which can be gone into by this Court at this stage. The opening words of Section 25 are "whenever it appears to the Trust" and not "whenever it is found by the Trust". It is not a matter which can be gone into by this Court at this stage. As regards the complaint of the Petitioners that the Development Board intends to sell the plots at higher prices without making any suitable arrangements for alternative accommodation for the inhabitants, on the materials before me it is not possible to conclusively determine this fact. It has been asserted by the opposite parties that they intend to sell these plots as far as possible on the cost price and that it will be open to the Petitioners to purchase those plots. 9. There is, therefore, no force in this writ petition and it is rejected. But in the circumstances of the case I make no orders as to costs.