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CASE NO.: Appeal (civil)  632 of 2001

PETITIONER: Mukarram Ali Khan

RESPONDENT: State of U.P. & Ors

DATE OF JUDGMENT: 13/07/2007

BENCH: Dr. ARIJIT PASAYAT & LOKESHWAR SINGH PANTA

JUDGMENT: J U D G M E N T  

Dr. ARIJIT PASAYAT, J.

1.      Challenge in this appeal is the order passed by a learned  Single Judge of the Allahabad High Court in Civil Misc. Writ  Petition No. 6240 of 1987.  The appellant had challenged the  order dated 12.12.1986 (Annexure 4 to the writ petition)  passed by the appellate authority under the Urban Land  Ceiling Regulation Act, 1976 (in short the ’Act’) in U.L.C.(Misc.)  Appeal No. 241 of 1985 on the ground that the issues are  concluded by an earlier order passed in appeal against the  draft statement under Section 6 by the competent authority.   Though the said point was taken in the objection and  mentioned in the writ petition but it was not pointed out that  the appellate authority did not consider the same.  In the  absence of any such statement the High Court held that it  cannot be presumed that the point was urged and the  appellate authority had overlooked the same.  Therefore, the  High Court refused to interfere in the matter.   2.      Though many points were urged in support of the appeal,  the primary point urged was that possession has not been  taken pursuant to orders passed by the authorities under the  Act.  An affidavit has been filed indicating that the possession  of the land has not been taken and the land in question  continues to be in possession of the appellant and his sons.

3.      Learned counsel for the respondent-State and its  functionaries on the other hand contended that the point  regarding earlier adjudication was not urged before the High  Court and therefore the High Court has rightly decided that in  the absence of any specific plea a new plea cannot be taken  before it.

4.      It is to be noted that the Act has been replaced under the  Urban Land (Ceiling and Regulation) Act, 1999 (in short the  ’Repeal Act’). Admittedly the State of Uttar Pradesh has since  adopted the provisions of the Repeal Act by a resolution as  required under Article 252(2) of the Constitution of India,  1950 (in short the ’Constitution’). Repealing Act has since  come into force in the State of Uttar Pradesh with effect from  18.3.1999.

5.      Section 4 of the Repeal Act reads as follows:

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"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 1!, 12,  13 and 14 of the principal Act insofar as such  proceedings are relatable to the land,  possession of which has been taken over by  the State Government or any person duly  authorised by the State Government in this  behalf or by the competent authority."

6.      In view of the affidavit filed by the appellant to which no  objection has been filed, undisputed position is that the State  has not taken the possession over the surplus land. Therefore,  the proceedings have to be treated to have abated under  Section 4 of the Repeal Act.   

7.      That being so, the appeal deserves to be allowed which  we direct.