AJAY KUMAR SAH v. COMMISSIONER UTTAR PRADESH AVAS EVAM VIKAS PARISHAD
1998-11-13
B.K.SHARMA, D.S.SINHA
body1998
DigiLaw.ai
D. S. SINHA, J. Heard Shri Sandeep Saxena, learned Counsel appearing for the petitioners and Shri Chandra Prakash, learned Counsel representing the respon dents, at length and in detail. 2. By means of this petition under Article 226 of the Constitution of India, The petitioners pray that notices under Sections 28 and 29 and Notification under Section 32 of the Uttar Pradesh Avas Evam Vikas Parishad Adhiniyam, 1965, hereinafter called the Adhiniyam, in respect of the Haldwani Bhomi Vikas and Grihsthan Yojana No. 3", be quashed. 3. Twin grounds in support of the challenge to the impugned notices and notification urged by learned Counsel of the petitioner are these? (a) Notice under Section 28 was not published as required by the Adhiniyam; and (b) The objections filed by the petitioners were not disposed of by the authority competent to do so in law. 4. Section 28 of the Adhiniyam provides that when any housing or im provement scheme has been framed, the Board shall prepare a notice specifying therein certain details and shall cause the said notice to be published weekly for three consecutive weeks in (i) the Gazette and (ii) two daily newspapers having cir culation in the area comprised in the scheme at least one of which shall be a Hindi newspaper; and send a copy of the notice to the local authority or authorities within whose jurisdiction the area com prised in the scheme lies. 5. Section 29 of the Adhiniyam con templates that within six weeks from the date on which any notice is first published under Section 28 in respect of any housing or improvement scheme the Board shall serve a notice in such form, on such per sons or classes of persons and in such man ner as may be prescribed, stating that the Board processes to acquire any specified land or building for the execution of the scheme or proposes to levy betterment fee. 6. Section 30 of the Adhiniyam entit les and local authority to whom a copy of the notice has been sent under clause (b) of sub-section (2) of Section 28 to file any objection against the scheme within sixty days from the receipt of the copy of the notice.
6. Section 30 of the Adhiniyam entit les and local authority to whom a copy of the notice has been sent under clause (b) of sub-section (2) of Section 28 to file any objection against the scheme within sixty days from the receipt of the copy of the notice. The said section also comers right upon any person to whom a notice under Section 29 has been served within prescribed time to make an objection in writing to the Board against the scheme or the proposed acquisition or levy. 7. Section 31 of the Adhiniyam obliges the Board to give an opport unity of being heard to the objectors before taking a final decision of abandonment, modifications or sanction of the scheme. 8. The sanction of housing or im provement scheme has to be notified in the Gazette as provided under Section 32 (1) of the Adhmiyam. The section also confers upon a person or a local authority which had filed objections under Section 30 a right to appeal to the State Govern ment against the decision of the Board sanctioning the housing or improvement scheme. 9. The first question that arises for consideration before the Court is whether notice of the "haldwani Bhoomi Vikas and Grihsthan Yojana" Scheme was published in the Gazette and two daily newspapers as provided in sub-section (2) of Section 28 oftheadhiniyam. In paragraph 3-A of the writ petition the petitioners assert that: "the notification under Section 28 of the Adhiniyam was not duly published in the official Gazette and two daily newspapers. " 10. A close scrutiny of the pleadings of the petitioners, extracted above, makes it abundantly clear that their complaint is not that there was no publication in the official Gazette and two daily newspapers. The complaint is that the said publication was not duly made. The objection that it was not duly made has not been explained in the writ petition. It was also not ex plained by the learned Counsel during the course of the arguments. 11. In paragraph 4 of the counter-af fidavit of Shri Ram Prakash Mishra, filed on behalf of the respondents, it is categori cally stated that the scheme "haldwani Bhoomi Vikas Evam Grihsthan Yojana" was published according to law. The details of the publications have also been given in the said paragraph.
11. In paragraph 4 of the counter-af fidavit of Shri Ram Prakash Mishra, filed on behalf of the respondents, it is categori cally stated that the scheme "haldwani Bhoomi Vikas Evam Grihsthan Yojana" was published according to law. The details of the publications have also been given in the said paragraph. According to the assertions made in the paragraph notification under Section 28 of the Ad hiniyam was published in the official Gazette of the State Government on 19th November, 1983, 26th November, 1983 and 3rd December, 1983, at weekly inter vals. It is further stated that the notice was also published in Hindi newspaper titled "uttar Ujala" and English newspaper titled "indian Express" on 12th November, 1983, 19th November, 1983 and 26th November, 1983 and on 19th November, 1983, 26th November, 1983 and 3rd December, 1983, respectively. Annexure-2 of the counter-affidavit indicates that Hindi newspaper "uttar Ujala" is publish ed from and circulated in the area of Haldwani. These facts have not been con troverted by the petitioners either specifi cally or by necessary implication in the rejoinder-affidavit filed on behalf of the petitioners. The reply to the averments made in paragraph 4 has been given in paragraph 4 of the rejoinder-affidavit. The Court has very carefully examined the averments contained in paragraph 4 of the rejoinder-affidavit and has not been able to find that the pleas in paragraph-4 of the counter- affidavit have been effectively traversed. In the circumstances, there is no escape from the conclusion that the requi site publication was duly made. Conse quently, the first ground urged on behalf of the petitioners fails. 12. The second ground urged on be half of the petitioners is that the objec tions filed by the petitioners were not dis posed of and decided by the competent authority. Elaborating the ground learned Counsel of the petitioners submits that Niyojan Samiti which disposed of the ob jections of the petitioners had no power. According to learned Counsel the power to dispose of the objections vests in the Board i. e. Uttar Pradesh Avas Evam Vikas Parishad, In the opinion of the Court, this ground also lacks merits. 13.
Elaborating the ground learned Counsel of the petitioners submits that Niyojan Samiti which disposed of the ob jections of the petitioners had no power. According to learned Counsel the power to dispose of the objections vests in the Board i. e. Uttar Pradesh Avas Evam Vikas Parishad, In the opinion of the Court, this ground also lacks merits. 13. Sub-section (1) of Section 12 of the Adhiniyam provides that the Board may, by general or special order, delegate, either unconditionally or subject to such conditions, including the condition of review by itself, as may be specified in the order, to any committee appointed by it or to the Housing Commissioner or any of ficer of the Board such of its powers and duties under the Adhiniyam, as it may deem necessary. 14. Section 94 of the Adhiniyam em powers the State Government to make rules for carrying out the purpose of the Adhiniyam generally or particularly. The purpose specified in its clause (g) of sub section (2) of Section 94 specially authorises the State Government to make rules in respect of the delegation of powers by the Board under sub-section (1) or by the Housing Commissioner under sub section (2) of Section 12 of the Adhiniyam. In exercise of powers conferred upon it under clause (g) of sub-section (2) of Sec tion 94 read with sub-sections (1) and (2) of section 12 of the Adhiniyam, the State Government have framed the rules known as Uttar Pradesh Avas Evam Vikas Parishad ("delegation of Powers by the Board and thetiousing Commissioner) Rules, 1968, hereinafter referred as Rules. Sub-rule (a) of Rule 3 of the Rules provides that the Board may delegate to any C9mmittee appointed by it or to the Housing Commissioner or any officer of the Board such of its powers and duties under the Adhiniyam, other than those specified in the Schedule, as may be deemed necessary. The delegation of power of the Board in respect of disposal of the objection conferred upon it under Section 31 is not specified in the Schedule. Therefore, it can be validly delegated by the Board to any committee appointed by it for the purpose. 15. It is not disputed that the Niyojan Samiti which disposed of the objection filed by the petitioners was a committee appointed by the Board.
Therefore, it can be validly delegated by the Board to any committee appointed by it for the purpose. 15. It is not disputed that the Niyojan Samiti which disposed of the objection filed by the petitioners was a committee appointed by the Board. Likewise there is no challenge to the effect that the Board had not delegated its power under Section 31 of the Adhiniyam. Therefore, it will not be inappropriate to conclude that the Niyojan Samiti, which disposed of the ob jection of the petitioners, was appointed by the Board for the purpose and requisite power in that regard nad been delegated to it. Thus, it has to be held that Niyojan Samiti was duly authorised to dispose of the objections of the petitioners and it did not lack jurisdiction to do so. Therefore, second ground taken in support of the writ petition also fails. 16. In the result, thepetition fails and is hereby dismissed. The interim order/or ders, including the order dated 31st Oc tober, 1985, shall stand vacated. There is no order as to costs. Petition dismissed. .