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2019 DIGILAW 1034 (ALL)

Nankau v. State Of U. P.

2019-04-22

PANKAJ MITHAL, PRAKASH PADIA

body2019
ORDER : 1. Heard Sri Mahipal Singh, learned counsel for the petitioner and learned Standing Counsel for the respondents. 2. The petitioner invoked the writ jurisdiction of this Court seeking direction upon the respondents to correct the revenue records in compliance of the order dated 31.5.2003 passed by the District Judge, Allahabad allowing ceiling appeal No.91 of 2003 filed under Section 33 of the Urban Land (Ceiling and Regulation) Act, 1976 (hereinafter referred to as the Act). 3. Apart from the above, no other relief has been claimed in the writ petition except for the routine prayer to pass any other order which may be deemed fit and proper in the facts and circumstances of the case. 4. Before we go into the facts leading to the filing of this petition or the dispute which was before the District Judge, it would be pertinent to mention that the above appeal was filed before the District Judge against the order of the Prescribed Authority dated 3.9.1981. It was filed on 29th May, 2003. The delay in filing the appeal was condoned on 30th May, 2003 and the appeal was finally allowed on 31st May, 2003. These facts are implicit from the appellate order passed by the District Judge and the order dated 9.8.2012 of this Court by which the writ petition was entertained wherein the submission of the Standing Counsel was recorded. 5. The aforesaid facts, as stated, are not even disputed at the Bar. Thus, the manner in which the appeal was filed and was allowed gives an impression that the above order has been obtained from the Court by manipulation and that the intention of the petitioner in approaching this Court is not very clean. 6. This Court in entertaining the writ petition in the year 2012 has allowed a month's time to the Standing Counsel to file counter affidavit. Thereafter, vide order dated 29.8.2018 a month's further time was granted to the Standing Counsel to file reply and it was made clear that no more time shall be allowed. Despite the stop order the respondents have not filed any reply to the petition. 7. It is in this situation that we have to examine if on the pleadings the petitioner is entitle for the direction as claimed by him. 8. Despite the stop order the respondents have not filed any reply to the petition. 7. It is in this situation that we have to examine if on the pleadings the petitioner is entitle for the direction as claimed by him. 8. The petitioner is seeking a direction to correct the revenue records on the basis of the order of the District Judge dated 31.5.2003 allowing the ceiling appeal of the petitioner. 9. First of all, this Court is not the implementing or executing authority of the order of the District Judge. If the petitioner is not satisfied in any manner and is of the opinion that the order of the District Judge is not being given effect to the proper and appropriate remedy available to him is to approach the District Judge instead of coming to this Court. Approaching this Court directly casts a doubt on the intention of the petitioner. 10. The pleadings in the writ petition reveals that an area of 15854.68 sq. meter was declared to be surplus in the hands of the father of the petitioner by the Prescribed Authority vide order dated 3.9.1981. The said order was never assailed by the father of the petitioner. 11. There is no dispute to the fact that the Act was repealed by the Urban Land (Ceiling and Regulation) Repeal Act, 1999 and the same was adopted by the Legislature of the State of U.P. under Article 252(2) of the Constitution and was enforced in the State w.e.f. 18.3.1999. Accordingly, the Act stood repealed viz-a-viz the State of U.P. w.e.f. 18.3.1999. 12. The Prescribed Authority had passed the order on 3.9.1981 and it had attained finality as It was not challenged till the repeal of the Act i.e. 18.3.1999. At the time of repeal of the above Act, no proceedings under the Act were pending, vis-a-vis the aforesaid land. 13. The appeal was filed under Section 33 of the Act when the Act itself had ceased to exist and as such was not maintainable. 14. At the time of repeal of the above Act, no proceedings under the Act were pending, vis-a-vis the aforesaid land. 13. The appeal was filed under Section 33 of the Act when the Act itself had ceased to exist and as such was not maintainable. 14. The writ petition contains no pleading that at the time of the repeal of the aforesaid Act any proceedings under the Act in relation to above land were pending either in the form of appeal regarding declaration of surplus land or with regard to taking possession, meaning thereby that all necessary formalities consequent to the land being declared surplus i.e. of vesting the land in the State and that of possession stood completed on or before the repeal of the Act or were never initiated. 15. The District Judge has allowed the appeal filed under Section 33 of the Act as the Act was repealed and the possession of the land was not taken over by the State with the direction to correct the revenue records accordingly. 16. The Repeal Act vide Section 4 provides for abatement of the legal proceedings. It reads as under: “4. Abatement of legal proceedings: All proceedings relating to any order made or purported to be made under the Principal Act pending immediately before the commencement of this Act, before any Court, tribunal or other authority shall abate: Provided that this section shall not apply to the proceedings relating to Sections 11, 12, 13 and 14 of the Principal Act in so far as such proceedings are relatable to the land, possession of which has been taken over by the State Government or any person duly authorized by the State Government in this behalf by the Competent Authority.” 17. A bare reading of Section 4 of the Repeal Act clarifies that it purports to abate proceedings relating to any order made under the Act pending immediately before the commencement of the Repeal Act. The above provision of the Repeal Act only purports to abate the proceedings and not the order, if any, passed under the Act, much-less that of the Prescribed Authority. 18. In the present case, in the absence of any pleadings that any proceedings under the Act were pending on the date of the enforcement of the Repeal Act nothing could have abated. 19. 18. In the present case, in the absence of any pleadings that any proceedings under the Act were pending on the date of the enforcement of the Repeal Act nothing could have abated. 19. In view of the above, with the enforcement of the Repeal Act, the order dated 3.9.1981 passed by the Prescribed Authority declaring the land to be surplus would have continued to stand and would not stand abated or nullified in any manner. It could not have been legally set aside in the appeal which was not maintainable that too on the above score. 20. The ratio of the decision of the Supreme Court in the case of Pt. Madan Swaroop Shrotiya Public Charitable Trust {Pt. Madan Swaroop Shrotiya Public Charitable Trust Vs. State of U.P. and others AIR 2000 SC 3415 } and like were rendered in different set of facts and circumstances where proceedings regarding possession under the Act were pending and the matter had travelled to the High Court on the dismissal of the appeal against the order declaring the land to be surplus. Thus, it was only in those cases where some kind of proceedings either by way of appeal or for possession under the Act were pending that it was held that as the proceedings were not complete they stand abated in view of Section 4 of the Repeal Act. 21. The ratio of the above decision would not apply in the case in hand where there is no allegation or pleading that any proceedings under the Act were pending at the time of commencement of the Repeal Act. 22. In the aforesaid facts and circumstances, the order of the District Judge dated 31.5.2003 allowing the Ceiling Appeal is nothing but an order which has been obtained in a clandestine manner may be by manipulation and, therefore, we do not deem it fit and proper to exercise our discretionary jurisdiction under Article 226 to enforce it by issuing any direction in the nature of writ of mandamus. 23. Accordingly, we dismiss the writ petition with no order as to costs.