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2007 Supreme(SC) 1261
2007(7) Supreme 634
Supreme Court of india
(From Allahabad High Court)
Dr. Arijit Pasayat & Lokeshwar Singh Panta, JJ.
Moradabad Development Authority — Petitioner
versus
Saurabh Jain and Ors. — Respondent
Appeal (civil) 4329 of 2003
(With Contempt Petition No. 239 of 2005)
Decided on : 28-09-2007
important point
A person aggrieved who had a remedy of appeal under Section 33 has no statutory right to move in revision.
Headnote:(a)U.P. Urban Land (Ceiling and Regulation) Act, 1976 – Section 34 – There being no illegal use of the land by the authorities, question of any compensation did not arise – Impugned judgment set aside.(Para 15)
(b)U.P. Urban Planning & Development Act, 1973 – Section 34 – The provision relates to suo motu action on the part of the State Government – Therefore a person aggrieved who had a remedy of appeal under Section 33 has no statutory right to move in revision – If the State Government decides to act on the basis of petition filed by any person, it has to examine as to why the person has not availed the remedy of filing an appeal as also if the delay is explained. (Para 19)
(c)U.P. Urban Planning & Development Act, 1973 – Section 34 – Section 34 mandates grant of reasonable opportunity of being heard to any person who is likely to be affected by the order – In view of no such opportunity having been given to the respondents, impugned order not sustainable.(Para 20)
(2007) 5 SCC 211 – Relied upon.
Facts of the case:
Proceedings under the Urban Land (Ceiling and Regulation) Act, 1976 were initiated and in the connected proceedings the land in question was declared to be surplus land by the competent authority, Moradabad by order dated 29.8.1977. A Revision was filed against the said order and the State Government in exercise of power under Section 34 of the Act by order dated 9.7.1998 held that the land in dispute was agricultural land and was thus outside the purview of the Act. Hence, land was directed to be released in favour of the land holders. The matter was referred to the State Government. Restoration of possession was demanded since the appellant authority had taken possession of the land in dispute and had developed a residential colony. The State Government had detailed deliberation with the appellant authority which informed that it had developed a residential colony called Ram Ganga Vihar Colony and had allotted the flats and houses to the allottees. The appellant authority sent proposal for acquisition of the land but it was not acceptable to the Government. However, the appellant authority proposed to return 3605 sq.mts. of land which had not still been transferred. By order dated 23.11.2001 the State Government directed the appellant authority to return the land in question. However, it directed that the development charges and cost of construction over the area were to be charged from the writ petitioners. But the State Government did not give any direction regarding the balance 4511 sq. mtrs. out of the total land.
The High Court had held that submissions of respondents 1, 2 and 3 regarding the consent for the development charges were not believable. It was held that demand for development charges was illegal, arbitrary and unjustified.
Findings of the Court:
In view of the unexplained delay, and providing no opportunity to respondents, impugned order not sustainable.
Result : Appeals disposed of.
judgment
Dr. ARIJIT PASAYAT, J. —
1.Challenge in this appeal is to the judgment of a Division Bench of the Allahabad High Court allowing the Writ Petition (CMWP No. 30433/2002) filed by respondents 1, 2 and 3.
2.Challenge in the writ petition was to the order passed by the State Government dated 23.11.2001 Annexure-6 to the writ petition and orders dated 11.12.2001 and 15.4.2002 Annexures 7 and 8 respectively passed by the appellant-Moradabad Development Authority. The writ petitioners had also prayed for a mandamus to direct the respondents in the writ petition to forthwith return to the writ petitioner s possession of the land measuring 8116.65 sq. mtrs. of plot No. 454 situated in village Harthala Mustahkam Tehsil, District Moradabad.
3.Background facts as highlighted in the writ petition were that the proceedings under the Urban Land (Ceiling and Regulation) Act, 1976 (in short the ‘Act’) were initiated and in the connected proceedings the land in question was declared to be surplus land by the competent authority, Moradabad by order dated 29.8.1977. A Revision was filed against the said order and the State Government in exercise of power under Section 34 of the Act by order dated 9.7.1998 held that the land in dispute was agricultural land and was thus outside the purview of the Act. Hence, land was directed to be released in favour of the land holders. The matter was referred to the State Government. Restoration of possession was demanded since the appellant authority had taken possession of the land in dispute and had developed a residential colony. The State Government had detailed deliberation with the appellant authority which informed that it had developed a residential colony called Ram Ganga Vihar Colony and had allotted the flats and houses to the allottees. The appellant authority sent proposal for acquisition of the land but it was not acceptable to the Government. However, the appellant authority proposed to return 3605 sq.mts. of land which had not still been transferred. By order dated 23.11.2001 the State Government directed the appellant authority to return the land in question. However, it directed that the development charges and cost of construction over the area were to be charged from the writ petitioners. But the State Government did not give any direction regarding the balance 4511 sq. mtrs. out of the total land.
4.Appellant authority on the basis of the aforesaid order of the Government demanded Rs.62,24,534/- as development charges and cost of construction in respect of the area measuring 2312-82 sq. mtrs.
5.Stand in the writ petition was that in view of the order of the State Government dated 9.7.1998, the decision of the appellant authority could not claim any lawful title. The appellant authority it was contended was duty bound to restore the possession of the land to the respondents, and since it did not do so the respondents were suffering huge losses.
6.Stand of the appellant in the writ petition was that possession of the land was delivered to it in June 1989 and at that time it was surplus land under the Act. In the intervening period residential colony was developed and many flats and houses have been allotted and transferred to various persons.
7.The High Court had held that submissions of respondents 1, 2 and 3 regarding the consent for the development charges were not believable. There was no specific reference to this aspect in the counter affidavit filed. If it was really so, it should have found place in the counter affidavit. It was held that demand for development charges was illegal, arbitrary and unjustified. Accordingly, the writ petition was allowed. The State Government and the appellant authority were directed to give possession of the land measuring 4511 sq. mtrs. in the vicinity of the land in dispute or to pay compensation at full market value. In addition, respondents in the writ petition were directed to pay compensation for illegal use of the land since the date they too
