Swaran Singh v. State of U. P — 1988 DIGILAW 827 (ALL)

JUDGMENT K.C. Agarwal, J. - These petitions under Article 226 of the Constitution have been filed for Mandamus restraining Avas Evam Vikas Parishad (Land Acquisition) Lucknow and the Executive Engineer,/Officer, J.P. Avam Evam Vikas Parishad. Ghaziabad (hereinafter referred to as the Parisha(f) from dispossessing the petitioner from his plot No. 368 situated in village Prahlad Garbi, Ghaiiabad in consequence of the notification issued under S. 32(1) of the J.P. Avas Evam Vikas Parishad Adhiniyarn, 1965 (Act No. 1 of 1966) (hereinafter referred to as the 'Adhiniyam') for Mandamus directing the aforesaid respondents to exclude the plot in dispute from the Scheme in question. 2. A notice dated 17-6-1982 published in the gazette on 26-6-1952 was notified by the Avas Evam Vikas Parishad under S. 28 of the Act giving the boundaries of the area comprised in the Scheme known as Delhi Link Road and Hindon Cut Ke Madhya Bhoomi Vikas Grihasthan Yojna No. 3 Ghaziabad inviting objections to the same. 3. The Board caused the said, notice to be published in the daily news papers. one of which was in June, 1982 and the other in July, 1982. Objections were filed to the above scheme under S. 30 of the Act by me petitioner and several others. The petitioner, alleged in the objection that he had made residential constructions about eight years prior to the notification under S. 28 and further that as he was running transport business, the land could not be acquired for the housing purpose. The petitioners objection was considered and the Scheme was modified. 4. On 28th Feb. 1987, the Housing Commissioner published notification under S. 32(1) of the Adhiniyam, stating : "In pursuance of S. 32(1) of the U.P. Avas Evam Vikas Parishad Adhiniyam, 1965 (Uttar Pradesh, Act No. 1 of 1966), it is hereby notified that the Government of Uttar Pradesh has in exercise of the powers conferred by S. 31(2) of the said Adhiniyam has sanctioned the Scheme known as 'Delhi Road Evam Hindoncut Ke Madhya Bhoomi Vikas Evam Giihastan Yojna No. 3, Ghaziabad, which was first published under S. 28 of the said Adhiniyam on page 367 of Part VIII of the Uttar Pradesh Gazette dated June, 26, 1982." 5. So far as the petitioner, Swaran Singh, is concerned, his plot has been acquired in part. 6. So far as the petitioner, Swaran Singh, is concerned, his plot has been acquired in part. 6. The notice intimated that the map of the area, particulars of the Scheme and details of the land proposed to be acquired for the purpose aforesaid could be seen in the office of the Housing Commissioner, U.P. Avas Evam Vikash Parishad (Land Acquisition Section). 104 Mahatma Gandhi Marg, Lucknow. 7. Challenging the validity of the notice under S. 32(1) of the Adhiniyam, the present writ petition has been filed on the ground that as the plot proposed to be acquired for the purpose of Housing Scheme has been built up and was being used for residential (business?) purpose, Parishad could not acquire the same for the house purpose. The ground further was that the Parishad had illegally excluded sufficient land appurtenant to the same, therefore, the constructions left out could not be used for the purpose for which it is in occupation of the petitioner. 8. A counter affidavit has been filed on behalf of the Parishad disputing the petitioner's case. In para 3 of the counter affidavit; it has been alleged that the notice for acquiring land for the Scheme' Deli Road and Hindoncut Ke Madhya Bhoomi Vikas Evam Grishastan Yojna was published in the U.P. Gazette on 26-6-1982 and subsequently on 3rd July, 1982. It has been averred that the Scheme was prepared in accordance with the Adhiniyam and after consideration of the objections filed under S. 30, that the notification under S. 32 was made. 9. In Paras 7 and 8 of the counter affidavit, the Parishad has stated that the built up area which measured 14.50 X 12.10 meters existing in the land in dispute had been excluded and besides the said constructed area, appurtenant land has been left for beneficial enjoyment of the constructions in accordance with the Rules. 10. The copy of the Rules has been filed as Annexure C.A. 2. The relevant Rules are being quoted below : "Now, therefore, in exercise of the powers under S. 53 of the said Act, the Governor is pleased to exempt all the lands and buildings comprised in the Housing and Improvement Schemes of the said Board in respect of which the provisions of the said Adhiniyam have not been suspended in view of Cl. (a) of sub- sec. (a) of sub- sec. (1) S. 59 of the said Act, from all the provisions of the said Act and the rules and regulations made thereunder." 11. During the pendency of this writ petition, the petitioner filed a supplementary affidavit stating that as the Scheme in question was not covered by the exemption clause of S. 59, therefore, the acquisition of the land was proposed to be made for an invalidated and illegal scheme and consequently, the entire proceedings are liable to be quashed. In support the petitioner has filed a copy of the notice described as "BHOOMI KE GAIR KANOONI BIKRI KHARID AUR US PER ANADHIKRIT NIRMAN KE LIYE dated 16-12-1981 and has urged on its basis that since Ghaziabad was declared a Development Area on March 9, 1977, the provisions of the U.P. Urban Planning and Development Act, 1973 (hereinafter referred to as 'Development Act') was necessary. 12. Counsel urged that the adhiniyam stood repealed on the enforcement of the Development Act and, as such, the development scheme had to be in accordance with the Development Act and any thing done whether after declaration or before, would be null and void. 13. Development Act had been passed with a view to tackle resolutely the problems of town planning and urban development. It runs as under : "In order to bring about improvement in this situation, the State Government considered it advisable development that in such developing areas, - Development Authorities patterned on the Delhi Development Authority be established. As the State Government was of the view that the Urban Development and planning work in the State had already been delayed it was felt necessary to provide for early establishment of such Authorities." 14. It is since not necessary for our purposes to describe the various provisions of this Act, we refrain from doing so. We need mention only two provisions which come up for our consideration for deciding the writ petition. These questions are :- (i) 53 - Exemption (ii) 59 - Repeal etc. and Savings. 15. We are not concerned in the instant case with the repeal. With what we are concerned is exemptions. We need mention only two provisions which come up for our consideration for deciding the writ petition. These questions are :- (i) 53 - Exemption (ii) 59 - Repeal etc. and Savings. 15. We are not concerned in the instant case with the repeal. With what we are concerned is exemptions. The latter portion of S.59 says : "Except in relation to those housing or improvement schemes which have either been notified under S. 32 of Uttar Pradesh Avas Evam Vikas Parishad Adhiniyam, 1965 before the declaration of the area comprised therein as development area or which having been notified under S. 28 of the said Adhiniyam before the said declarations are thereafter approved by the State Government for continuance under the said Adhiniyam or which are initiated after such declaration with the approval of the State Government hereinafter in this section referred to as Special Avas Parishad Schemes. 16. The portion quoted by us was brought by amendment by U.P. Act 47 of 1976. Earlier to this, it was different The (Sic) therefore, is whether the scheme in (sic) is exempt under the provision quoted (sic) If it is exempt despite the override (sic) the Scheme framed under (sic) could be implemented and given effect to. 17. Saving clause in an Act is for the purpose of saving the various provisions of the previous Act which is repealed by the latter Act. The objection of exemption provided in S. 59 is to exclude or to release the Scheme mentioned in this clause from the Development Act. The exemption under S. 59 is in respect of. (i) those housing or improvement schemes which had been notified under S. 32 of the Adhiniyam before the declaration of the area comprised therein as development area. (ii) which have been notified under S. 28 of the Adhiniyam before such declaration and thereafter approved by the State Government. 18. Under both of these clauses, the present case is not covered. The clause which may apply to the instant case is"or which are initiated after such declaration with the approval of the State Government, hereinafter in this section referred to as Special Avas Parishad Scheme". The State by means of a letter dated 24th Aug. 1982 informed the Housing Commissioner that (Matter in vernacular omitted - Ed.) 19. The aforesaid letter covers squarely the third exemption clause of S. 59 of the Act. The State by means of a letter dated 24th Aug. 1982 informed the Housing Commissioner that (Matter in vernacular omitted - Ed.) 19. The aforesaid letter covers squarely the third exemption clause of S. 59 of the Act. It is on account of this fact that the State Government notified the Housing'; Commissioner that it has to be treated or' referred to as Special Avas Parishad Scheme.11 The approval required was given by the State Government. 20. In the instant case, the petitioner has not filed the copy of the notification declaring the area in question as the "Development Aea". What he has filed is the copy of the notice o the public warning them from making transactions of the land situated in the "Delhi Road Evam Hindoncut (sic). 21. Counsel for the petitioner has placed reliance on a decision of a Division Bench in Brahma Prakash v. U.P. Avas Avam Vikas Parhishad, 1986 UPLBEC 185. He particularly referred to para 55 of this judgment for his submission. We would have followed this decision, had the controversy being the same as it was in this case. In our case, the Scheme had been approved by the State Government at the time when the notification under S. 28 was issued as it is clear from the letter of the State Government to the Housing Commissioner. 22. Sri N.L. Ganguly, learned counsel appearing for the Parishad, produced before us a copy of the notification No. 264 -- (Matter in vernacular omitted -- Ed.) and relied on the last para of the same for the submission that the notification issued by the Governor has since exemption (sic) of the land and building comprising in the housing scheme from the provisions of the Development Act. The Scheme in question could not be invalidated on that ground. For the submission made, counsel relied on a decision of the Division Bench reported in Dr. Ashok Gupta v. U.P. Avas Evam Vikas Parishad, Lucknow, 1988 UPLBEC 480. The Scheme in question could not be invalidated on that ground. For the submission made, counsel relied on a decision of the Division Bench reported in Dr. Ashok Gupta v. U.P. Avas Evam Vikas Parishad, Lucknow, 1988 UPLBEC 480. In this case, the learned Judges held : "It is not possible to read any such restriction in S. 53 of U.P. Urban Planning and Development Act that the State Government has no power to issue a notification under S. 53 of the U.P. Urban Planning and Development Act in a case where the approval of the State Government of continuing a housing scheme notified under S. 28 of the Adhiniyam has not been obtained Further, it begins with "non obstante clause which clearly suggests that it has an over- riding effect." 23. Sri S.N. Singh countered the (sic) notification under S. 28 is issued before declaration of the area as Development Area and as in the instant case, the notification under S. 53 was issued in 1983 whereas the notification under S. 28 was issued in June/July 1982, therefore, the Scheme would not be saved by this notification. 24. Be that as it may, we are not required to go into this controversy, as to our mind, the Scheme is completely and fully saved by exemption 3 quoted above. 25. On merits also, counsel urged that the petitioners had not been left with the land appurtenant, consequently, they could not use the built up portion. This has been controverted in the counter affidavit and i has been stated that appurtenant land has been set apart for the purpose of construction not acquired, setting aside of the ordinance in accordance with the rules which have been quoted above by us, to us it appears, we cannot quash the acquisition on this ground.. 26. In the result, the writ petition fails and is dismissed summarily. Interim stay is vacated. Certified copy may issue within two days.