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2004 DIGILAW 146 (JHR)

Birla Institute Of Technology v. State Of Jharkhand

2004-02-10

AMARESHWAR SAHAY, P.K.BALASUBRAMANYAN

body2004
ORDER 1. Heard learned counsel on both sides. 2. These appeals came up for admission and on consent are taken up for final disposal together. 3. The petitioners in W.P. (C) No. 2958 of 2003 and W.P (C) No. 3325 of 2003 respectively are the appellants in these appeals. They filed statements under Section 6 of the Urban Land (Ceiling and Regulation) Act, 1976. On the scheme of the Act, the statements filed under Section 6 have to be inquired into by the competent authority by preparing a draft statement in terms of Section 8 of the Act. Thereafter, considering the objections, if any, a final statement in terms of Section 9 had to be prepared by the competent authority. By passing such an order, the authority determines the land held in excess of the ceiling area by a statement given and becomes entitled to take possession of such excess land in terms of the Act. A person aggrieved by the final statement prepared under Section 9 of the Act, has a right of appeal, either under Section 12 of the Act before the Urban Land Tribunal of under Section 33 of the Act, depending on the nature of the order passed by the competent authority. In case of an order under Section 12 of the Act, the person aggrieved has a right of second appeal to the High Court under Section 13 of the Act Under Section 34 of the Act, there is a further right of revision to the Government in cases where no appeal had been preferred either under Section 12 or under Section 33 of the Act. Section 34 confers a suo moto power of revision on the State Government against the order of the competent authority in a case where no appeal had been filed. 4. The writ petitioners approached this Court with the writ petitions when notices were issued to them by the State Government purporting to withdraw the statements filed by them before the competent authority for consideration by the Government itself. Ostensibly the reason given for such withdrawal was the long pendency of a large number of statements filed under Section 6, before the various competent authorities. Ostensibly the reason given for such withdrawal was the long pendency of a large number of statements filed under Section 6, before the various competent authorities. The petitioners challenged these notices on the ground that the State Government was only a revisional authority conferred with the power under Section 34 of Act having jurisdiction to consider the revision suo moto or otherwise against any final statement prepared by the competent authority and that power did not extend to the exercise original jurisdiction to prepare a draft statement or a final statement after hearing objections of the statement giver. Even otherwise, it was submitted that the power of revision was confined to see to the legality and propriety of any order passed by the competent authority or to rectify a defect or to ensure the regularity of procedure to be adopted by the competent authority. On behalf of the State it was contended by the learned Government counsel that when there exists a power of suo moto revision in the State Government to consider the legality and propriety of any order passed by the competent authority or to scrutinize the regularity of the procedure adopted and to pass any order that it may deem fit, it had also the implied power to withdraw the original proceeding from the competent authority and try it. We are not in a position to agree with this submission. The power of revision, either on motion by a part or suo moto, has always been understood to be confined to considering the legality or regularity of an order made by the original authority or the appellate authority depending on the scheme of the Act and it cannot be understood as conferring an original power on the revisional authority itself to determine the ceiling area of a statements giver under the Act and to prepare a final statement. We are not shown any authority for this position that the power of revision would include the power to pass an original order after withdrawing the original proceeding itself. 5. We think that acceptance of the existence of such a power would defeat the safeguards provided to the statement giver under the Act which contemplates an inquiry into the statement filed by him, the preparation of a draft statement, the opportunity to object, and the preparation of the a final statement by the competent authority. 5. We think that acceptance of the existence of such a power would defeat the safeguards provided to the statement giver under the Act which contemplates an inquiry into the statement filed by him, the preparation of a draft statement, the opportunity to object, and the preparation of the a final statement by the competent authority. Then follow the right to file an appeal under Section 12 to the Urban Tribunal and a further second appeal to the High Court under Section 13 of the Act or an appeal under Section 33 of the Act to the appellate authority under the Act. Accepting the argument put forward on behalf of the State, would mean that the entire scheme of determination of the ceiling area would get defeated. 6. The learned Single Judge took the view that since there was a power to call for any record from the original authority and to scrutinize the orders passed or the proceedings made it included or implied a power to call for the statements filed by the statement giver and to deal it as an original authority. With respect, we are not in a position to agree with this view. It would be an understanding of the revisional power in such a manner, that it, would defeat the very scheme of determination of the excess area under the Act as contemplated by the statute. We may note that the State Government does not even have an appellate power so that the theory of the Appellate Court having the power to do anything the trial Court can do cannot also be invoked. 7. In this situation, we find that the notices issued by the Government to the petitioners withdrawing the statement filed " by them for adjudication lacks Jurisdiction. The said notices are liable to, be quashed. 8. We, therefore, allow these appeals and set aside the decision of the learned Single Judge, we allow the writ petitions and quash the notices issued by the State Government withdrawing the statements filed by the writ petitioners to the Government for determination of the ceiling area and the preparation of a final statement. 8. We, therefore, allow these appeals and set aside the decision of the learned Single Judge, we allow the writ petitions and quash the notices issued by the State Government withdrawing the statements filed by the writ petitioners to the Government for determination of the ceiling area and the preparation of a final statement. In the circumstances, and in the light of the reason given by the Government to support its action, we direct all the competent authorities under the Act to proceed expeditiously with the statements filed under Section 6 of the Urban Ceiling Act and to dispose of them in accordance with law after following the procedure prescribed by the Act in that behalf.