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Allahbad High Court
J.SAHAI
Mohammad Amir Ahmad Khan - Appellant
Versus
Nagar Mahapalika, Lucknow - Respondent
Decided On : 12/24/1964
IMPROVEMENT ACT - SCHEME - VALIDITY - ACQUISITION OF LAND - PROCEDURE - NAGAR MAHAPALIKA ACT - SECTION 365 - APPLICABILITY - SCHEME BELOW RS. 10,00,000/- - ACQUISITION OF PROPERTY - PROCEDURE.
Fact of the Case:
Two writ petitions were filed challenging the validity of two schemes framed under the U.P. Town Improvement Act, 1919 (Improvement Act) and the U.P. Nagar Mahapalika Adhiniyam 1959 (Act). The petitioners contended that the schemes were invalid as they did not pertain to an "extended area" and that the Nagar Mahapalika could not acquire their properties without resorting to the provisions of the Land Acquisition Act.
Finding of the Court:
The Court held that the schemes were validly framed and that the Nagar Mahapalika had the authority to acquire the petitioners' properties. The Court found that the provisions of Section 365 of the Act, which allowed the Nagar Mahapalika to acquire land for improvement schemes, were applicable to both schemes, even though they were below Rs. 10,00,000/- in value. The Court also held that the Nagar Mahapalika could not acquire the petitioners' properties without issuing fresh notices in accordance with the amended provisions of Section 365.
Issues: 1. Whether the schemes were validly framed. 2. Whether the Nagar Mahapalika could acquire the petitioners' properties without resorting to the provisions of the Land Acquisition Act.
Ratio Decidendi: 1. The Court held that the schemes were validly framed because they were within the scope of the Improvement Act and the Act. The Court found that the schemes were not required to pertain to an "extended area" and that the Nagar Mahapalika had the authority to frame schemes for the entire city of Lucknow. 2. The Court held that the Nagar Mahapalika could acquire the petitioners' properties without resorting to the provisions of the Land Acquisition Act because the provisions of Section 365 of the Act were applicable to both schemes. The Court found that Section 365 allowed the Nagar Mahapalika to acquire land for improvement schemes, regardless of their value.
Final Decision: The Court allowed the writ petition challenging Scheme No. 1 and quashed the proceedings relating thereto. The Court also quashed the notices issued for the acquisition of property No. 2 under Scheme No. 2, but did not quash the scheme itself. The Court held that the Nagar Mahapalika could implement Scheme No. 2 and acquire property No. 2 by issuing fresh notices in accordance with the amended provisions of Section 365.
JAGDISH SAHAI, J. - These two writ petitions raise common questions of law and fact (and for ?) that reason are being disposed of by this common judgment. The property to which Writ Petition No. 128 of 1962 relates is owned by Raja Mohammad Amir Ahmad Khan along with one Sri Mohd. Sadiq and is bounded as below.
East : Khasra Nos. 160 and 161 (Houses) and Khasra No. 163 Pacca Lane of Municipal Board.
West : Khasra Nos. 158, 161, 162 and 167 Gowyin Road :
North : Mohalla Bazar Jhau Lal, Khasra No. 148, Circular Road of Municipal Board. South : Mohalla Bazar Jhau Lal, Khasra No. 154, Municipal lane and Khasra No. 158 Kothi Sri Masu-du-Hasan, Advocate. This property is hereinafter described as 'property No. 1'. The property to which Writ Petition No. 129 of 1961 relates is owned by Sri Jamal Rasul Khan son of late Maharaja Sir Mohammad Ejaz Rasul Khan of Jahangirabad, and is described below :
Kothi No. 2, Barrow Road.
This property is hereafter called as 'property No. 2.'
2. The scheme which is challenged in Writ Petition No. 128 of 1962 is "Circular Road Development and Housing Accommodation Scheme No. 95" (hereinafter described as Scheme No. 1). The one challenged in Writ Petition No. 129 of 1962 has been described as "Street and Housing Accommodation Scheme Kothi Maharaja Jahangirabad at No. 2, Barrow Road, Khas Bazar, Lucknow", and hereinafter called as Scheme No.
2. Scheme No. 1 purports to have been framed under Sections 30 and 31 of the U.P. Town Improvement Act (hereinafter referred to as the Improvement Act) while Scheme No. 2 has been framed under Sections 28 and 31 of that Act. In both the cases notices contemplated by Section 36' of the Improvement Act have been prepared and the notices of proposed acquisition of land have also been issued to the petitioners in both the writ petitions. All this happened before the U.P. Nagar Mahapalika Adhiniyam 1959 (hereinafter referred to as the Act) was enforced. The provisions of the Improvement Act have been repealed by virtue of the provisions of Section 581 of the Act and it is the admitted case of the parties that further proceedings in the cases would be governed by the provisions of the Act and not those of the Improvement Act.
3. In Writ Petition No. 128 of 1962 originally the following relief was claimed :
"Wherefore, it is most respectfully prayed that this Hon'ble Court may be pleased to issue a writ of mandamus restraining opposite parties Nos. 1 to 3 from giving effect to the notification Annexure 3 and acquiring or taking possession of the petitioner's property under that notification. Any other writ or directions as may appear appropriate on the facts and circumstances of the case may be issued and this petition may be allowed with costs."
By means of an application dated 15-12-1964 permission was sought to add the following relief :
"That by a writ of certiorari the entire proceedings of the Nagar Mahapalika, in respect of the property covered by this writ petition be quashed."
That application was allowed and the relief has been amended. In Writ Petition No. 129 of 1962 the prayer is as follows : -
(a) That by a writ of certiorari the entire proceedings of the Nagar Mahapalika, Lucknow, from 31-1-1960 to 20-1-1962 be quashed.
(b) That a writ of mandamus, prohibition or other appropriate writ or direction be issued restraining the Nagar Mahapalika, Lucknow, from executing the scheme known as "Street and Housing Accommodation Scheme Kothi No. 2, Barrow Road, Khas Bazar, Lucknow" and acquiring the petitioner's property thereunder."
4. Mr. Nazir Uddin, who has appeared for the petitioners in both the cases has made the following three submissions before me : -
(1) That the provisions contained in paragraph 10 of Schedule II of the Act are ultra vires being violative of Article 31(2) of the Constitution of India.
(2) That the two schemes giving rise to these petitions could not have been legally framed by the Improvement Trust, Lucknow, and cannot validly be continued by the
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