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2008 DIGILAW 1927 (ALL)

PREM SINGH v. STATE OF UTTAR PRADESH

2008-09-11

ANJANI KUMAR, SUDHIR AGARWAL

body2008
JUDGMENT Hon’ble Sudhir Agarwal, J.—Heard Sri Vishnu Gupta for the petitioners and learned Standing Counsel for respondents No. 1, 4, 5 and 6 and Sri Pradeep Kumar for respondent No. 2. 2. All the petitioners are residents of village Chamrawali Bodaki, Tehsil Dadri, District Gautam Budh Nagar. The State Government included the village Bodaki (partially-Eastern part of railway line) within the jurisdiction of Greater New Okhla Industrial Development Authority (hereinafter referred to as the "GNOIDA") vide notification dated 14.6.2006. Now the State Government has proposed to include certain villages including the aforesaid within the jurisdiction of Bulandshahr Khurza Development Authority (hereinafter referred to as the "BKDA") by de-notifying it from the jurisdiction of GNOIDA and it is against this proposed action, the present writ petition has been filed under Article 226 of Constitution of India seeking a writ of mandamus restraining the respondents from de-notifying the villages mentioned in Annexure-6 to the writ petition and also not to dispossess or acquire petitioners Abadi land situated at plots No. 259 and 261 of village Chamrawali Bodaki, Tehsil Dadri, District Gautam Budh Nagar. 3. The contention of the petitioners is that BKDA is almost a defunct body having poor financial status and, therefore, placement of petitioners within its jurisdiction would cause irreparable loss to them and once petitioners have been included within the jurisdiction of GNOIDA, they cannot be de-notified and placed in the jurisdiction of a new authority i.e. BKDA. 4. The learned counsel for the petitioner besides oral submissions has also filed written arguments and placed reliance on Apex Courts decision in Ved Prakash and others v. Ministry of Industry, Lucknow and another, (2003) 9 SCC 542 and Devinder Singh and others v. State of Punjab and others, (2008) 1 SCC 728 contending that petitioners land cannot be acquired by respondents since the land of the petitioners is Abadi and, therefore, petitioners are entitled for issuance of a writ of mandamus restraining the respondents from acquiring their land. He also contended that once a notification has been issued placing the petitioners land and village within the jurisdiction of a particular authority the same cannot be de-notified and be placed within the jurisdiction of another authority. 5. In our view, the writ petition is misconceived and pre-mature at this stage. 6. He also contended that once a notification has been issued placing the petitioners land and village within the jurisdiction of a particular authority the same cannot be de-notified and be placed within the jurisdiction of another authority. 5. In our view, the writ petition is misconceived and pre-mature at this stage. 6. There is no action or inaction on the part of respondents which can be said to have caused any prejudice at this stage to maintain the present writ petition. Therefore, prima facie, we are of the view that the writ petition on the facts as pleaded therein as such is pre-mature. 7. So far as relief of the petitioner with respect to the proposed transfer of the area from GNOIDA to BKDA is concerned, it is well settled that the State Government can also cancel, modify, revoke etc. a notification issued by following the procedure in which it was earlier issued. 8. Section 21 of the U.P. General Clauses Act, 1904 provides that where, by any U.P. Act power to issue statutory instrument is conferred, then that power includes a power exercisable in the like manner and subject to like sanction and conditions, if any, to add to, amend, vary or rescind any instrument so issued. The word "statutory instrument" has been defined in Section 4 (42-B) as under : "statutory instrument shall mean any notification, order, scheme, rule or bye-law issued under any enactment and having the force of law." 9. Therefore, once a notification has been issued including certain area within jurisdiction of a particular statutory authority, it is always permissible for the State to modify such notification in the same manner provided there is no statutory prohibition therein. Learned counsel for the petitioner also could not show any provision whereunder the State Government is debarred or deprived of a power to transfer certain area(s) from one statutory authority to another statutory authority. Moreover, such a power, in effect, is in the nature of legislative power and, therefore, unless such power exercised by the State is shown to be violative of either the provisions of Constitution or statute whereunder the said power is exercised, it is not assailable. Consequence can always be challenged as and when petitioners feel aggrieved by the action affecting any of their rights including the challenge to the notification, if any, qua the rights of the petitioners. 10. Consequence can always be challenged as and when petitioners feel aggrieved by the action affecting any of their rights including the challenge to the notification, if any, qua the rights of the petitioners. 10. Now coming to the second part of the matter with respect to the alleged dispossession and acquisition, we do not find anything on record to show that presently the petitioners are facing any threat of dispossession at all. It is important to state here that even notification under Section 6 of the Land Acquisition Act has not been issued with regard to the petitioners land. Thus to us it appears that on this count also the petition is pre-mature. 11. Moreover, in the case in hand, it is not the case of the petitioners that notification under Section 6 of the Land Acquisition Act has been issued by respondents for acquisition of petitioners land at all. Therefore, in any case, the prayer seeking a writ of mandamus restraining the respondents from dispossessing the petitioners and acquire their land, in our view appears to be pre-mature and no cause of action in presenti exists for making such a prayer. 12. We make it clear that since no notification of alleged acquisition of land of the petitioners was under challenge in this writ petition, therefore, this order shall not be construed to have made any observation with respect to validity or otherwise of such acquisition, if any and whenever such occasion may arise, it is open to the petitioners to avail such remedy as available to them under law in respect to acquisition and compensation etc. 13. In the result, the writ petition has no merit and is, accordingly, dismissed. Interim order stands vacated. There shall be no order as to costs. ————