Prem Shanker vs State Of U.P. Thru' Special Secy. & ...
2017 Latest Caselaw 3231 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

?A.F.R.
 
Court No. - 37
 

 
Case :- WRIT - C No. - 68149 of 2005
 

 
Petitioner :- Prem Shanker
 
Respondent :- State Of U.P. Thru' Special Secy. & Others
 
Counsel for Petitioner :- A.D. Saunders
 
Counsel for Respondent :- C.S.C.,N.C. Tripathi,Pankaj Mithal
 

 
Hon'ble Amreshwar Pratap Sahi,J.

Hon'ble Rajiv Lochan Mehrotra,J.

Heard Sri A.D. Saunders, learned counsel for the petitioner, learned Standing Counsel for the respondent No. 1 and Sri N.C. Tripathi, learned counsel for the respondent nos. 2 and 3. The original petitioner Prem Shanker, who has died during the pendency of the writ petition and is now substituted by his heirs preferred this writ petition praying for the relief of quashing the letters and orders issued by the respondent no. 3-Executive Engineer, Uttar Pradesh Awas Evam Vikas Parishad whereby certain amount had been demanded from the petitioner to be deposited in compliance of the Government Order dated 23rd January, 2003. A relief for quashing of the Government Order dated 10.09.2004 has also been prayed for. A mandamus has also been prayed to treat the plot nos. 399, 400 and 411 that were subject matter of acquisition by the Awas Vikas Parishad as exempted from the acquisition proceedings and further not to dispossess the petitioner from the said plots.

The background in which the aforesaid challenge has been raised is that the said three plots were acquired in 1984 for housing purposes by the respondent-Awas Evam Vikas Parishad in terms of notifications issued under Sections 28 and 32 of the Uttar Pradesh Awas Evam Vikas Parishad Adhiniyam, 1965. 

The petitioner with regard to the aforesaid three plots moved an application for exemption before the respondents upon a report as stated to have called for by the State Government whereafter an order was issued by the Government on 23rd January, 2003, copy of which is Annexure-2 to the writ petition whereby the said three plots were exempted from being utilized for the purpose as indicated in the acquisition, subject to the condition that the petitioner will have to deposit the development/betterment charges. Further conditions were issued as recited therein with regard to the utilization of the land.

The respondent-Awas Vikas Parishad in compliance of the aforesaid Government Order dated 23rd January, 2003 proceeded to issue a notice to the petitioner calling upon him to deposit certain amounts vide letter dated 21st May, 2003. A copy of this letter is Annexure-3 to the writ petition.

It may be stated at the very outset that the State Government is possessed of powers for modifying a scheme of acquisition under the Awas Vikas Parishad in terms of Section 49 of the 1965 Act. The aforesaid Section is extracted hereinunder :-

Power of State Government to call for the records of the Boards and to modify or annul any scheme ?

(1) Notwithstanding anything contained in the foregoing previsions of this Chapter, the State Government may at any time call for and examine the records of the Board relating to any housing or improvement scheme which is proposed to be or has been framed by the Board or which is being executed by it, and modify, annual or remit for reconsideration to the Board any such scheme or direct that the scheme be executed with such modifications as may be specified, or issue such other directions as it may deem fit:

Providing that if any modification involves acquisition, otherwise than by agreement, of any land or building not proposed to be acquired in the original scheme, or if owning to any modification any land not previously liable under the original scheme to payment of betterment fee becomes liable to such payment, the modification shall not be made without giving an opportunity to the persons so affected of making objections against the proposed modification.

(2) The State Government may stay the execution of any such scheme pending the passing of orders under sub-section(1).

(3) Any modification of a scheme under sub-section(1) shall be notified in the Gazette and shall have effect from the date of such notification, so, however, that any such modification shall be without prejudice to the validity of anything previously done under the original scheme.

According to the respondents, since the State Government had authorized the exemption subject to payment of betterment fee, the same was accordingly resolved by the Board and a letter dated 5th April, 2003 was issued to the Executive Engineer, whereafter the demand on 21st May, 2003 was raised from the petitioner.

The petitioner instead of depositing the said amount proceeded to raise an objection with regard to the demand raised by the Awas Evam Vikas Parishad contending that the Government Order dated 21st March, 2003 that granted exemption does not stipulate any payments and other objections were also taken therein. The State Government, according to the petitioner, did not respond to the same and a copy of the said representation being Annexures No. 4 and 5 remained pending before the State Government.

The Executive Engineer-respondent no. 3 again sent a reminder to the petitioner on 20th February, 2004 for complying with the letters issued earlier for making the deposit of betterment fee and other charges. The petitioner represented the matter again before the Executive Engineer contending that such charges were not realizable for the reasons given in the said representation. The Executive Engineer again wrote a letter to the petitioner on 23rd March, 2004 stating that the demand raised having not yet been deposited, the same should be complied with at the earliest. The petitioner, as objected to earlier, raised his objections again which is Annexure-9 to the writ petition. The same was replied by the Executive Engineer on 17th May, 2004 stating therein that the demands raised are genuine and the petitioner should not enter into unnecessary communication any further and make the deposit. The petitioner instead of making the deposit, approached the Special Land Acquisition Officer, Moradabad by filing a representation.

The outcome of this entire exercise is that no deposit was made by the petitioner.

The respondent-Awas Evam Vikas Parishad in its counter affidavit has brought on record the impugned order of the State Government dated 10th September, 2004 whereby the Government has rescinded the earlier order dated 23rd January, 2003 granting exemption to the petitioner. Consequently, as a result of the issuance of this Government Order, the exemption granted to the petitioner on 23rd January, 2003 stood finally rescinded.

The petitioner has stated in paragraph no. 31 of the writ petition that no such order was ever communicated to the petitioner. The order dated 10th September, 2004 whereby the earlier Government Order has been rescinded was brought on record through the counter affidavit of the respondent nos. 2 and 3 which was served on the learned counsel for the petitioner on 21st December. 2006.

A narration of the aforesaid facts, therefore, indicates that the petitioner has been questioning the correctness of the consequential orders passed by the respondent-Avas Vikas Parishad as well as the Government Order dated 10th September, 2004. The Government Order dated 10th September, 2004 is also an order issued in exercise of the powers under Section 49 of the Act referred to hereinabove.

The challenge raised to the said Government Order is on the ground that the consequential demand raised is not commensurate to the Government Order dated 21st March, 2003.

We are unable to accept the aforesaid argument inasmuch as the charge of betterment fee is contemplated under Chapter IV of the Uttar Pradesh Awas Evam Vikas Parishad Adhiniyam, 1965. The Government Order dated 21st March, 2003 categorically imposed the said betterment fee and the said order was not subjected to any challenge. In the aforesaid circumstances, the petitioner was bound to pay the betterment fee, if not any other amount for which the objections were raised before the Awas Evam Vikas Parishad and its authorities. The petitioner did not comply with the aforesaid condition and voluntarily defaulted. In such circumstances, non-compliance of the condition imposed in the Government Order dated 21st March, 2003 has led to the passing of the order dated 10th September, 2004. In our considered opinion, no plausible reason has been given by the petitioner to raise a challenge to the said Government Order and the fact remains that the petitioner has not complied with the terms and conditions of the Government Order dated 21st March, 2003. The action taken by the respondent-State in withdrawing the earlier Government Order dated 21st March, 2003, therefore, does not suffer from any infirmity so as to warrant interference under Article 226 of the Constitution of India. The consequential orders passed by the Awas Evam Vikas Parishad, therefore are of no relevance as the Government Order though which exemption was granted, has been withdrawn and could not be successfully assailed by the petitioner.

Consequently, we do not find any merit in the argument advanced by learned counsel for the petitioner. The writ petition is, accordingly rejected.

Order Date :- 16.8.2017

Sumit S