2013 Supreme(All) 2009

ALLAHABAD HIGH COURT
Ashok Bhushan, Manoj Kumar Gupta, JJ.
State of U.P. and Others -Appellant
Versus
Jagdish Chandra -Respondent
Civil Misc. Writ Petition No. 62283 of 2012
Decided On : 19-08-2013

Headnote:

Whether after the repeal of The Urban Land (Ceiling and Regulation) Act,1976 (hereinafter referred to as "Act,1976") by The Urban Land (Ceiling and Regulation) Repeal Act,1999 (hereinafter referred to as "Repeal Act,1999") an appeal challenging the order of the competent authority dated 31/3/1997, declaring surplus vacant land can be filed under Section 33 of the Act, 1976.

Fact of the Case:

Proceedings under the Act, 1976 were initiated by issuing a notice dated 27/12/1996 under Section 6(2) to the tenure holder Jagdish Chandra-respondent to the writ petition. The tenure holder did not submit any return of the land held by him. A draft statement was prepared and sent to the tenure holder along with the notice under Section 8(3) of the Act, 1976 dated 28/2/1997. No objection having been filed in response to the aforesaid notice, the competent authority passed an order dated 31/3/1997 under Section 8(4) of the Act, 1976 declaring 48.266-42 sq meteres land as surplus vacant land in the hands of the tenure holder. Notification under Section 10(1) of the Act, 1976 dated 26/6/1997, was issued to the tenure holder giving particulars of the land held by the tenure holder in excess of the ceiling limit. Notification under Section 10(3) of the Act, 1976 dated 25/3/1998 was issued declaring 48266.42 square metres of land shall be deemed to have been acquired by the State. Notice under Section 10(5) of the Act, 1976 dated 29/7/1998, was issued to the tenure holder asking him to hand over the possession of the land within 30 days, failing which proceedings under Section 10(6) of the Act, 1976 shall be undertaken. The possession of the land is claimed to have been taken on 10/2/1999 exercising power under Section 10(6) of the Act, 1976. The tenure holder having failed to deliver the possession of the land, the State Government transferred the land to the Kanpur Development Authority whose name came to be recorded in the revenue records in 1406-1411 Fasli. Thereafter the Act, 1976 was repealed by Repeal Act, 1999 which was published in the Gazettee w.e.f. 18/3/1999. The tenure holder filed an appeal under Section 33 of the Act, 1976 against the order dated 31/3/1997 of the competent authority after more than a decade in the year 2007. An application for condonation of delay was also filed. The District Judge condoned the delay in filing the appeal and heard the appeal on merits and allowed the same by judgment and order dated 13/8/2012. This writ petition has been filed by the State of U.P. challenging the order dated 13/8/2012, passed by the District Judge.

Finding of the Court:

The consequence and effect of the Repeal Act, 1999 shall not be controlled by Section 6 of the Act, 1897 rather the consequences have to be spelled out in accordance with the saving clause as contained in the Repeal Act, 1999. The Repeal Act, 1999 contains intention contrary to one which flow from consequences as contemplated in Section 6 of the Act, 1897. The Repeal Act, 1999 cannot be interpreted in a manner to save any right of appeal in a land holder under Section 33 of the 1976 Act after the Repeal Act, 1999 entitling him to file an appeal for challenging an order passed by the competent authority declaring the land ceiling surplus by the competent authority.

Issues: 1. Whether after the Repeal Act, 1999, the right to file an appeal under Section 33 of the Act, 1976 against an order passed by the competent authority under the Act, 1976 still survives and can be availed by a person whose land was declared surplus? 2. Whether the right of filing an appeal after the Repeal Act, 1999 is saved under Section 6 of the General Clauses Act, 1897? 3. Whether the Appellate Authority (District Judge) could have entertained and decided the appeal under Section 33 of the Act, 1976 against an order passed by the competent authority under the Act, 1976 subsequent to Repeal Act, 1999? 4. Whether the order passed by the appellate authority dated 13/8/2012 is without jurisdiction? 5. Whether in view of the findings of the appellate authority that no notice was served on the tenure holder under Section 8(3) of the Act, 1976 and there being no sufficient material to prove that actual physical possession was handed over to the State Government, this Court should interfere with the said finding in exercising its jurisdiction under Article 226 of the Constitution of India.?

Ratio Decidendi: The Repeal Act, 1999 contains a clear different intendment to one to the consequences as are envisaged by Section 6 of the Act, 1897.

Final Decision: The writ petition is allowed. The judgment and order of the learned District Judge dated 13th August, 2012 is set-aside. However, liberty is given to the respondent to submit a representation before the District Magistrate within one month from today which may be considered and decided by the District Magistrate as per the observations made above.