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CASE NO.: Appeal (civil)  4329 of 2003

PETITIONER: Moradabad Development Authority

RESPONDENT: Saurabh Jain and Ors

DATE OF JUDGMENT: 28/09/2007

BENCH: Dr. ARIJIT PASAYAT & LOKESHWAR SINGH PANTA

JUDGMENT: J U D G M E N T

CIVIL APPEAL NO. 4329 OF 2003 (With Contempt Petition No.239 of 2005)

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 petitioners  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

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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  took possession. The compensation was directed to be  determined by the District Judge, Moradabad.  

8.      In support of the appeal, learned counsel for the  appellant submitted that the High Court’s order suffers from  various infirmities.  

9.      The High Court failed to notice that after 20 years from  the date when the declaration of surplus land was made, the  petition under Section 34 of the Act was filed without  explaining as to what was the cause for inaction of two  decades.  Section 34 petition filed by the respondents 1, 2 and  3 was disposed of without notice to the appellant. Though the  appellant had the title over the land, the name of the appellant  was not included in the plaint as a party.  

10.     It is submitted that the proviso to Section 34 of the Act is  equally applicable and that has not been considered.  The  High Court also did not take note of a letter written by the  predecessor-in-interest of the respondents 1, 2 and 3 on  28.12.2000 for release of 3598 sq.mtrs. of unutilized vacant   land in their favour in lien of the entire claim and there was  agreement to pay the development charges and betterment  charges.  

11.     In terms of the State Government’s directions the  appellant authority at the most has to release 3605 sq.mtrs. of  land  on payment of development charges and construction of  cost  at prevalent market rate. The High Court was not  justified in ignoring this vital aspect.

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12.     The inaction nearly for two decades was not explained. A  statutory time limit is fixed for appeals. Only in case appeals  are not filed, the revisional jurisdiction can be resorted to.  That does not allow a party to move for relief without taking  any action for nearly two decades. The development charges  and construction charges are statutorily imposable under the  U.P. Urban Planning & Development Act, 1973 (in short the  ’Development Act’). At the request of the respondents 1, 2 and  3 the State Government did not take steps for acquiring the  land. There was a clear agreement to pay the development  charges and other charges on the condition that there was no  need for acquiring the land. Sections 17 and 34 of the  Development Act are not dependant on the proceedings under  the Act.  

13.     It is pointed out that there was no illegal use by the  appellant authority and, therefore, the question of  compensation does not arise.

14.     Learned counsel for the respondents 1, 2 and 3 on the  other hand submitted that without any authority of law use of  the land was deprived of them for nearly two decades. The  High Court, it was submitted, was justified giving the  directions and coming to the impugned conclusions.  

15.     It is clear that the High Court has not really considered  the true import of the concession made for payment of  development charges. As rightly contended by learned counsel  for the appellant there was no illegal use and, therefore, the  question of any compensation payable as directed by the High  Court does not arise.  

16.     Undisputedly also the revision before the State  Government was made nearly after two decades. In the instant  case the appellant was not heard by the revisional authority.  

17.     Section 33 of the Act relates to an appeal by a person  aggrieved by any order made by the competent authority  under the Act not being an order under Section 11 or an order  under sub-section (1) of Section 30. The appeal is to be filed  within 30 days from the date on which the order is  communicated to him. Under the proviso to Section 33 the  Appellate Authority may entertain the appeal after the expiry  of 30 days if it is satisfied that the appellant was prevented by  sufficient cause from filing the appeal in time.  Every order  passed by the Appellate Authority under the statute is final.     

18.     Section 34 deals with revision by the State Government.   Under the said provision, the State Government may on its  own motion call for and examine the record of any order  passed or proceeding taken under the provisions of the Act  and against which no appeal has been preferred under Section  12 or Section 30 or Section 33 for the purpose of satisfying  himself as to the legality or propriety of such order or as to the  regularity of such procedure and pas such order as it may  deem fit.  

19.     As a bare reading of the provision shows that it relates to  suo motu action on the part of the State Government.  In that  sense, a person aggrieved who had a remedy of appeal under  Section 33 has no statutory right to move in revision.   However, for the exercise of revisional power by the State  Government it is open to the State Government to examine a  petition and on the basis of material indicated therein to  decide whether any action in terms of Section 34 is called for.  

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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.  It is also  necessary to examine whether after a long lapse of time any  action is warranted.  In this exercise, filing of petition within a  reasonable time is inbuilt.  What would be reasonable time  would depend upon the facts of each case and no straight  jacket formula can be adopted or applied.       20.     There is another statutory requirement under Section 34.   The proviso to Section 34 mandates grant of reasonable  opportunity of being heard to any person who is likely to be  affected by the order.  These aspects have been highlighted in  Pune Municipal Corporation v. State of Maharashtra and Ors.  (2007 (5) SCC 211).      

21.     In view of the aforesaid, the impugned conclusions of the  High Court are not sustainable. Normally, we would have set  aside the order and remanded it to the High Court to decide  the matter afresh. But the learned counsel for respondents 1,  2 and 3 on instructions stated that they agree that 3570  sq.mtrs. of land  may be returned to the respondents 1, 2 and  3 and development charges and other charges, as payable in  law, shall be paid by the said respondents.  

22.     In view of the aforesaid statement of learned counsel for  the respondents 1, 2 and 3, we dispose of the appeal with the  following directions:  

(1)     The appellant authority shall release 3570 sq.mtrs  of unutilized vacant land on payment of  development charges and other charges payable  under the Development Act.  (2)     The respondents 1, 2 and 3 shall not be entitled for  any land beyond 3570 sq.mtrs relatable to the  present dispute.  

23.     The appeal is disposed of accordingly with no order as to  costs.  

Contempt Petition 239 of 2005

24.     In view of disposal of Civil Appeal No.4329 of 2003,  contempt petition is also disposed of.