Rajendra Kumar Asthana & Anr. vs State Of U.P.Thru.Addl.Chief ...
2021 Latest Caselaw 6286 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 

Reserved On: 19.03.2021
 
Pronounced On: 16.06.2021
 

 
Court No. 3.03......
 

 
Case :- MISC. SINGLE No. - 29718 of 2018
 

 
Petitioner :- Rajendra Kumar Asthana & Anr.
 
Respondent :- State Of U.P.Thru.Addl.Chief Secy.Housing&Urban Planning&Ors
 
Counsel for Petitioner :- Sudeep Kumar,Gaurav Mehrotra,Santosh Kumar Tripathi
 
Counsel for Respondent :- C.S.C.,Ratnesh Chandra
 

 
Hon'ble Ved Prakash Vaish,J.

1. Heard Sri Sudeep Kumar, learned counsel for the petitioners, Sri Ratnesh Chandra, learned counsel for respondents no.3 to 7 and Sri Ravindra Pratap Singh, learned Additional Chief Standing Counsel for respondent nos.1 and 2.

2. By way of the present writ petition under Article 226 of the Constitution of India, the petitioners seek quashing of the order dated 29.06.2018 passed by the Respondent No.2, in Revision No.124/2017 titled "Rajendra Kumar Asthana & others Vs. Lucknow Development Authority, Lucknow & others" and also quashing of the consequential order dated 28.09.2018 passed by the Respondent no.4.

3. Briefly stating, the facts leading to filing of the present petition are that the petitioners owned their ancestral property bearing Municipal No.278/83 and 278/85, measuring around 4099.44 sqr. mtr. located at Mohalla Birhana, Aishbagh Road, Lucknow. An application for granting sanction for construction of Group Housing was moved by the Petitioners with respect to a major portion of the above plots, measuring around 4021.55 sq. mtrs. before the Respondent no.2, which was initially recorded in the name of Raj Bhadur Dr. Shyam Manohar Lal Asthana as under proprietor (Mathatdar) and from the very beginning his name is recorded in the Revenue Records in Intekhab khewat khatauni of Fasli year 1332 (corresponding year 1925 AD, Mauja Birhana, Pargana Tehsil and District Lucknow exhibiting the name of Rai Bhadur Dr. Shyam Manohar Lal Asthana as Mathadaar (under proprietor).

4. It is stated that the aforesaid land was also recorded in the Intikhab Khatauni of Fasli year 1347 (corresponding year 1940 AD), Mauja Birhana, Pargana Tehsil and District Lucknow under the ownership in the nature of Under Proprietor (Mathadars) of Late Rai Bhadur Dr. Shyam Manohar Lal Asthana etc. The said land/ plot of Khasra no.192 min. and Khasra no.201 min, situated at mauja Birhana, Pargana Tehsil and District Lucknow was under the proprietorship of late Shyam Manohar Lal thereafter, his son namely Shyam Kumar son of Shyam Manohar Lal was also certified from the Nakal Khewat Chausala of Fasli year 1366-1369 corresponding years 1952-1962, Mauja Brihana, Pargana Tehsil and District Lucknow.

5. It is further stated that Rai Bhadur Dr. Shyam Manohar Lal Asthana by means of Will dated 09.11.1942 bequeathed all his immovable assets including the above-mentioned plot upon his son and grandsons, Petitioner No.1 and Petitioner No.2, Rai Bahadur Dr. Shyam Manohar Lal Asthana died in the year 1943 and the father of Petitioner No.1 and 2 died in the year 1994 whereafter the plots devolved on the Petitioner No.1 and Petitioner No.2 and thus they became the joint owners of the same. In respect of Khasra Plot no.200 min and 201 min, Mauja Birhana, (settlement 1332 Fasli) bearing Municipal No.278/83, Aishbagh, Lucknow, the Lucknow Development Authority had issued a "No Objection Certificate" dated 22.04.1993 on the basis of report dated 21.10.1992 submitted by Respondent No.7, wherein the Nazool Officer, Lucknow Development Authority categorically mentioned that "the proposed map of the House/ plot bearing Municipal No.278/83, Aishbagh, Lucknow is for a land of under-proprietorship in nature. The department has no objection. The under-proprietor of nazool land has right to transfer of his land/ property. The aforesaid "No objection Certificate" dated 22.04.1993 issued by Lucknow Development Authority was never recalled or cancelled and the same is effective and binding upon the Lucknow Development Authority.

6. It is stated that even the Nazul Department of Lucknow Development Authority vide its letter dated 22.11.1996 also approved the house/ plot of the Petitioner No.1 is of the nature of Under-Proprietorship and admitted that the Under-proprietor of a land has got all rights as owner of the land. Vide a registered sale deed executed on 27.10.2007, the Petitioner No.1 and Petitioner No.2 out of their entire share of plots bearing Municipal No.278/83 and 278/85 located at Aishbagh, Mohalla Birhana, Lucknow transferred about 20.5 square meters of land and the constructions upon it, in favour of one Farhatulla, son of Syed Izzatuallah.

7. Further the Petitioner no.2 also executed a General Power of Attorney on 26.05.1993 in favour of Petitioner No.1 authorizing him to execute any or all of the acts enumerated in the General Power of Attorney. A registered Builders Agreement was entered on 30.12.2010 between Petitioners No.1 and 2 as First Party and Shri Farhatulla son of Syed Izzatullah as second party/ builder with Smt. Malti Devi Asthana and Ms. Pratima Asthana wife and daughter respectively of Late Shyam Kumar Asthana as Confirming/ Third Party with respect to property bearing Municipal No.278/83 and 278/85, situated at Aishbagh Road, Lucknow.

8. As per the terms and conditions of aforesaid Builder Agreement dated 30.12.2010, it was also agreed that the Petitioner No.2 shall get the building plan prepared through an Architect and that the Petitioners No.1 and 2 would sign all the relevant documents for the purpose of obtaining the grant of approval for sanction/ release of map for construction of Group Housing for the Lucknow Development Authority.

9. In the year 2010 with intention of constructing the Group Housing, the Petitioners applied for sanctioning of map for the Group Housing to be constructed on plot bearing Municipal No.278/83 and 278/85, situated at Mohalla Birhana, Aishbagh, Lucknow, admeasuring around 4021.55 sqr. mtr. with the Lucknow Development Authority as per Section 15(1) and 15(2) of the Uttar Pradesh Urban Planning and Development Act, 1973 (for short referred to as "1973, Act,") along-with the prescribed fee. The petitioners obtained no objection certificates from the Additional Superintendent of Police, Traffic, Lucknow and the Chief Fire Officer, Lucknow regarding the adequate facilities of parking and the fire safety for the proposed Group Housing.

10. The Technical Committee of Lucknow Development Authority vide its meeting dated 28.12.2011 sanctioned the map of petitioners for construction of Group Housing on certain conditions, that the petitioners would obtain and furnish the required no objection certificate from Nazul Department, Lucknow Development Authority and other concerned departments and should make the payment of the Inspection fee to the tune of Rs.85,200/-, External Development fees to the tune of Rs.39,62,400/- and Internal Development Fees to be determined after inspection to be conducted by the Department of Chief Secretary. To fulfill the conditions/ requirements, the petitioners moved an application to the nazul department, Lucknow Development Authority for grant of "No Objection Certificate" in respect of land/ house bearing Municipal No.278/83 and 278/85 (Khasra No.192 min and Khasra No.201 min.), admeasuring 4021.55 sqr. mtr., Mohalla Birhana, Aishbagh, Lucknow. It was also informed to Nazul Department, Lucknow Development Authority, that previously also a No Objection Certificate dated 22.04.1993 was issued by the Lucknow Development authority for another portion of same land of Khasra No.200 min. and 201 min., Mohalla Birhana, Aishbagh, Lucknow.

11. It is further stated that on account of delay in granting No objection Certificate by the Nazul department, Lucknow Development Authority, further proceedings for release of sanctioned map for construction of proposed group housing was obstructed. On the request of petitioners, the Assistant Engineer, Zone-12, 13, Lucknow Development Authority wrote a reminder letter dated 10.02.2012 to the Officer in-charge, Nazul Department, Lucknow Development Authority, Lucknow requesting for making available report/certificate of No Objection to the "Manchitra Cell", Lucknow Development Authority, Lucknow, so that further action would be taken to sanction/release of map of Group Housing of the petitioners.

12. After approval of Respondent No.4, a "No Objection Certificate" was issued on 02.02.2016 by the Nazul Department, Lucknow Development Authority. However, a condition was imposed to the petitioners' Group Housing that no sale/transfer of the property would be made without prior approval from Competent Authority. It is further stated that under any provision of 1973 Act or otherwise, the Lucknow Development Authority has no right to impose such condition for taking approval from Competent Authority of Lucknow Development Authority prior to sale/transfer of house/flat of group housing to be constructed by the petitioners in accordance to sanctioned map.

13. It is stated that under proprietor (Mathatdar) of a land has every right to enjoy his property and also having transferable right over the aforesaid land having ownership under the category of "under proprietor (Mathatdar)". The petitioners No.1 and 2 are having transferable right over the plot/house in question which was also certified by the Lucknow Development Authority, itself vide "No Objection Certificate" dated 22.04.1993 and in the said "No Objection Certificate" the Nazul Officer, Lucknow Development Authority categorically mentioned that the under-proprietor of Nazul land has right to transfer his land/property. The aforesaid "No Objection Certificate" dated 22.04.1993 issued by Lucknow Development Authority was never recalled or cancelled by any court of law and the same is effective and binding upon the Lucknow Development Authority.

14. An "Under Proprietor" (Mathatdar) of a land has transferable rights. In this respect a Government Order dated 15.07.2013, issued by the Principal Secretary, Stamp and Registration Department, Government of Uttar Pradesh, clarified that there is no Under proprietor of a Nazul land and a person owning a land in the capacity of an under proprietor has the right to transfer it and that the property is heritable.

15. It is further stated that prior to sanction of a map for construction of any building, the purpose of obtaining no objection certificate from Nazul department of Lucknow Development Authority, is to ascertain whether the property is belonging to the concerned person or a property of State Government or any Development Authority, However, exceeding its jurisdiction/authority the Respondent No.4 imposed an unlawful condition for obtaining permission prior to sale/transfer of the house/flat of group housing of the Petitioners.

16. It is further stated that the petitioner paid the requisite fees and furnished required documents to the Respondents for sanctioning of the map. "Permit to build" as per the sanctioned plan of the Group Housing was issued by the Competent Authority (Bhawan), (under U.P. Urban and Planning Development Act, 1973) of Respondent No.3, according to which the construction of building is to be completed prior to 19.02.2021 or prior to expiry date of lease deed whichever is earlier.

17. The petitioners started the construction activity at the construction site which is now is stated to be completed. It is stated that a notice was published at the instance of Respondent No.3 in the "Hindustan" Daily Newspaper on 28.08.2016 to the effect that the Permit No.39506 i.e. permit to build dated 20.02.2016 which was issued by the Competent Authority of Respondent No.3 in favour of the Petitioners, has been cancelled. The petitioners also came to know that the permit to build has been cancelled on the recommendations of the Nazul Department of Lucknow Development Authority as there had been alleged concealment of fact regarding the transfer/sale of the property/apartments of Group housing by the Petitioners in violation of the condition mentioned in the No Objection Certificate dated 02.02.2016.

18. After an enquiry, the petitioners came to know that the Respondent No.2 has cancelled the approved maps ex-parte allegedly on the baseless reason that the petitioners have sold the property/flats without taking prior permission of the competent authority, which was in contravention of the conditions. The petitioners also came to know that "No Objection Certificate" dated 02.02.2016 issued by the Nazul Department of Respondent No.3 has also been recalled.

19. The petitioners immediately moved an application dated 28.08.2016 to the Respondent No.3 apprising that the Group Housing building was under construction according to the sanctioned map and petitioners have not sold any flat/apartment. The petitioners further clarified that any sale is to start after completion of building. The Petitioners also made it clear that the plot in question was purchased by the ancestors of the petitioners No.1 & 2 in the year 1919 and after partition in the year 1939, the previous building was constructed by the ancestors of petitioners No.1 & 2, which is presently registered as Municipal No.278/83-85, Mohalla Birhana, Aishbagh, Lucknow in the record of Nagar Nigam, Lucknow. Petitioners are having lawful ownership and possession over the property in capacity of legal heirs of their ancestors,

20. The Respondent No.4 instead of taking decision on the application filed by the petitioners in accordance to Section 15(9) of the 1973 Act directed the Tehsildar, Nazul Department, Lucknow Development Authority, to inspect the title related record and to take a final decision in this regard.

21. It is stated that on the basis of report submitted by Tehsildar, Nazul Department, Lucknow Development Authority that the house/plot bearing Municipal No.278/83 and 278/85, (Khasra Plot No.192 min. and 201 min.) is recorded in the revenue record under the category of under-proprietor (Mathatdar) and the petitioners are the lawful owners and having possession over the property in question and the 'No Objection Certificate dated 02.02.2016 was issued. In furtherance thereof the map of the Group Housing of the petitioners was sanctioned, hence there was no occasion to recall the 'No Objection Certificate dated 02.02.2016 and cancel the map of the Group Housing of the petitioners' ex-parte even without providing any opportunity of hearing to the petitioners.

22. The Petitioner No.1 by a representation dated 02.09.2016 apprised the Respondent No.4 that pursuant to the grant of building permit of Group Housing of the petitioner on 20.02.2016, the Petitioners have raised a substantial construction which was not complete and also apprised the Respondent No.4 that there had been no violation of the condition imposed vide No Objection Certificate dated 02.02.2016 that before transferring/selling the apartment/flats of Group Housing the Petitioner should obtain the approval/permission from the appropriate authority of Respondent No 3. Since no transfer was of the apartment/flats was made by the Petitioners, therefore, it was requested to Respondent No.4 to decide the matter judiciously.

23. Pursuant to the representation made by the Petitioner No.1, the Additional Secretary, Lucknow Development Authority, Lucknow issued a letter dated 08.09.2016. whereby the matter was fixed for hearing on 14.09.2016 and the petitioners apprised the Additional Secretary, Lucknow Development Authority of the matter alongwith the documentary evidence.

24. On 20.09.2016, the Additional Secretary, Lucknow Development Authority, Lucknow passed an order to the effect that since the building permit was cancelled on 27.08.2009 on the report/recommendations of the Nazul Department therefore the proceedings should be transferred and be conducted before the Nazul Department of Lucknow Development Authority. In the meanwhile, a show cause notice dated 30.08.2016 was issued by the prescribed authority, Lucknow Development Authority whereby the petitioners were required to explain the validity of construction after cancellation of building permit of Group Housing on 26.08.2016. In response thereto the petitioner No.1 moved an application to the prescribed authority Lucknow Development Authority apprising that for recall of order dated 26.08.2016, a representation is already moved to the Respondent No.4, so that the proceeding may be deferred till the decision of Respondent No.4. An affidavit dated 20.09.2016 was also filed by the petitioner No.1 before the prescribed authority, Lucknow Development Authority, stating on oath that the construction was stopped till the decision of Respondent No.4 in the matter.

25. Another representation dated 13.10.2016 was made by the Petitioner No.1 to the Respondent No.4 requesting that the claim of the Petitioners be considered and the order of cancellation passed by the Respondent No.4 be revoked. After repeated representation/reminders of the petitioners the Nazul Officer Lucknow Development Authority informed about the date fixed for hearing on 16.11.2016 before the Respondent No.4 and directed the petitioner's presence on that date. However, the matter was postponed for 22.12.2016.

26. On 22.12.2016, the matter was heard before the Respondent No.4, wherein the petitioners informed that they have not violated any terms & conditions imposed while granting the "No Objection Certificate dated 02.02.2016 and permit to build dated 20.02.2016. It is stated that though the hearing was conducted on 22.12.2016, but no decision was taken or communicated to the Petitioners.

27. That the Petitioners thereafter sent various representations to the Nazul Officer, Lucknow Development Authority praying that the decision taken in regards to the hearing conducted on 22.12.2016 be communicated, but no heed was paid upon the same.

28. Being aggrieved by the order dated 29.06.2018 passed by Respondent No.2 and the order dated 28.09.2018 passed by the Respondent No.4 the petitioners preferred the present petition.

29. Learned counsel for the petitioners assailed the impugned orders by contending that there is no power of review or recall conferred upon the Respondent No.2 under the 1973. Act, and a preliminary objection regarding the maintainability of review/recall application moved by the Lucknow Development Authority was raised by the Petitioners in writing before the Respondent No.2, who without deciding the issue of maintainability has passed the order dated 29.06.2018 remanding the matter to the Respondent No.4, without recalling the detailed Judgment and order dated 19.01.2018. While, remanding the matter to the Respondent No.4 not only has the detailed Judgment and order dated 19.01.2018 not been recalled but also the orders under challenge before the Respondent No.2 have also not been set aside.

30. Learned counsel for the Petitioners further contended that the theory of inherent power as recognised to be available with the Appellate Authority is a view which is clearly untenable. According to the learned counsel, the power to review must be found to be statutorily conferred expressly or by necessary implication. According to him in the absence of a statutory conferment of such power, Respondent No.2 cannot be recognised to have the power to review its earlier decision.

31. While placing reliance on the judgment reported as Mohinder Singh Gill Vs. Chief Election Commissioner and others (AIR 1978 SC 851) learned counsel for the petitioners contended that it is well settled that an order to be read as it is and the reasons cannot be supplemented at subsequent stage and the orders are not like old wine becoming better as they grow older.

32. It is contended that the under-proprietor who is having heritable and transferable rights over the land cannot be denied from enjoying their rights in all purposes including right to get construction as per permissible norms and right to transfer his property as per his own wishes. The ownership of land under category of under-proprietors (mathatdar/up-swami) recorded in revenue record situated within the territorial jurisdiction of Nagar Nigam/Nagar Palika is not a Nazul land, hence any Development Authority or Nagar Nigam or Nagar Palika cannot deny the right of a individual on a property falls under the category of under-proprietors (mathatdar/up-swami).

33. It is further contended that the petitioners have categorically informed the respondent No.4 that they have not violated any terms and conditions imposed on them while granting the "No Objection Certificate" dated 02.02.2016 and permit to build dated 20.02.2016, therefore, there was no occasion to recall the No Objection/permission to build. It is not even the case of the Respondents that the map of the Petitioners was sanctioned by the Respondent No.3 as a consequence of some misrepresentation or fraudulent statement/information furnished by the petitioner.

34. Challenging the action of the Respondents in cancelling the No objection/permit to build as illegal, arbitrary and without jurisdiction, learned counsel for the petitioners placed reliance on the judgment reported as V.K.Ashokan Vs. Assistant Excise Commissioner and others (2009) 14 SCC 85 and contended that it is well settled principle of law that a statutory authority must exercise its jurisdiction within the four corners of the Statute and any action which is not within the domain of the authority would be illegal and without jurisdiction.

35. It is further contended on behalf of the petitioners that 'intermediary' includes under-proprietor and an under-proprietor is defined in the Land Revenue Act, 1901 means an "Oudh' a person possessing a heritable and transferable rights in land and hence cannot be denied from enjoying their rights in all purposes including right to get construction as per permissible norms and right to transfer his property. It is further contended that the ownership of land under category of under-proprietor (mathadar/up-swami) recorded in revenue record situated within the territorial jurisdiction of Nagar Nigam/Nagar Palika is not a Nazul land, hence any development authority or nagar nigam or nagar palika cannot deny the right of a individual on a property falls under the category of under-proprietors (mathadars/up-swamy).

36. Learned counsel further contended that the land of the petitioners is recorded under the category of under-proprietor (mathadar) in the revenue records hence the respondents cannot deny the ownership of the petitioners and that the land of an under proprietor (mathadar) is not governed by the Nazul Manual and Nazul policy declared from time to time by the government orders. While placing reliance on the views expressed by the Chief Court of Awadh in the matter of "Bhairo Singh Vs. Lal Ambika Buksh Singh in First Appeal No.38 of 1938, it contended that an under proprietor (mathadar) means a person possessing a heritable and transferable right of property in land and the right to transfer his interest is a necessary incident of his legal status.

37. The learned counsel for the petitioners also drawn the attention of this Court to the instances in some other cases where the Lucknow Development Authority has categorically stated that a person owing a land in the capacity of an under proprietor has the full right to transfer it and that the property is heritable and the nazul department has no right to take back the ownership right of an under proprietor.

38. The petitioners also raised preliminary objection against the maintainability of application dated 02.04.2018 for recall of order dated 19.01.2018 filed by the respondent No.3 on the ground that under the provisions contained in 1973 Act, the revisional authority has no jurisdiction to entertain the application for recall and further the application for recall filed by the respondent No.3 was highly time barred. The objections raised by the petitioners kept pending for one and half month. However, the Respondent No.2 passed the impugned order dated 29.06.2018 whereby in most illegal and arbitrary manner and without taking any decision on the maintainability of application for recall filed by the respondent No 3, the matter was remanded to the respondent No 4 for expeditious disposal.

39. The petition is opposed by the respondents. Counter affidavits have been filed on behalf of respondent No.1 and respondents 3 to 7 denying the allegations made in the writ petition.

40. It is stated that the writ petition is not maintainable as the order dated 29.06.2018 had been acted upon and adhered to by the petitioners and the respondents and the petitioners appeared before the Vice Chairman, Lucknow Development Authority who passed the order dated 28.09.2018.

41. It is stated by the respondents that the petitioners have an equal alternative and efficacious remedy for challenging the order dated 28.09.2018 before the State Government under its revisional power as provided under Section 41 of U.P. Urban Planning & Development Act, 1973.

42. To rebut the allegation of the petitioners that on 29.06.2018 itself in some other matter the application for recall filed by the Lucknow Development Authority was rejected on the ground of no provision of recall, the respondents submitted that there was nothing in respect of fraud or statement of wrong facts hence the revisional authority may have rightly rejected the application for recall. However, in the case of the petitioners, it is submitted, that since the earlier orders were passed on the basis of wrong facts, therefore, the matter was remanded back to the Vice Chairman, Lucknow Development Authority.

43. It is stated by the respondents that the property in question is a Nazool property which is recorded in the revenue records of 1332 fasli (1925 A.D.) as Milkiyat Sarkar/Nazool and the petitioners have failed to indicate under what circumstances they became owners of a Nazool property de-hors the provisions of Nazool manual. It is further stated that no mathadar can become owner of nazool property even by virtue of U.P. Land Revenue Act, 1901 or U.P. Zamindari Abolition & Land Reforms Act, 1950.

44. It is stated that the petitioners have themselves admitted that they are only mathadars (under-proprietors) but they are mischievously showing the property to be under their proprietorship. It is further stated that unlike the Mathadars (under proprietors) in respect of properties governed by U.P. Land Revenue Act, 1901 or U.P. Zamindari Abolition & Land Reforms Act, 1950, the properties belonging to nazool remain nazool property and cannot be transferred except in accordance with the nazool manual and such proprietors do not have any right to transfer the property belonging to nazool. The NOC was granted by the Nazool department under some mistaken belief and by twisting facts by the petitioners.

45. It is submitted by the respondents that the petitioners being mathadars (under proprietors) have no right to transfer the nazool property and the sale deed dated 27.10.2017 being void has no sanctity in the eyes of law and cannot be relied upon by the petitioners for the purposes of proving their ownership in pursuance to Mathadari, much less enter into any builders agreement with any party.

46. The respondents have stated that even before making the application for sanction of map, the petitioners had already transferred the property in question and had created illegal right of third party through builders agreement dated 30.12.2010 and on such misrepresentation the NOC was granted on 02.02.2016.

47. It is contended on behalf of the respondents that the mathadars (under-proprietors) in respect of the land falling within the provisions of U.P. Land Revenue Act, 1901 or U.P. Zamindari Abolition & Land Reforms Act, 1950 are different than the Mathadars (under-proprietors) of nazool land and mathadars under nazool land have no right whatsoever.

48. It is contended by the respondents that the petitioners are not having any right to alienate the property since the time they are Mathadars and prior alienation of the property on 21.10.2007 would disentitle them from continuing as Mathadars or the possession. The respondents defended the passing of the order dated 14.06.2017 by contending that the petitioners could not have alienated any property belonging to nazool which they have done and prior to obtaining of NOC the petitioners have already sold the land and entered into the builders agreement thereby violating both the conditions.

49. It is submitted on behalf of the respondents that since the order dated 19.01.2018 was passed on mis-statement of facts which was also established before the revisional authority. It is contended that the order dated 28.09.2018 is a well reasoned order wherein it has been specifically indicated that the property is a nazool property and Mathadars have no right whatsoever over the same.

50. The petitioners have also filed rejoinder affidavit to the counter affidavit of respondents 3 to 7 denying the correctness of the averments made in the counter affidavit, It is stated that the order dated 29.06.2018 passed by respondent No.2 is the very basis and foundation of the consequential order dated 28.06.2018 passed by respondent No.4 and since the order dated 29.06.2018 is without jurisdiction and untenable in the eyes of law, the petitioners have assailed the same in the present writ petition. It is further stated that the order dated 29.06.2018 itself is bad and unsustainable in the eyes of law, thus the edifice in shape of consequential order dated 28.09.2018 of respondent No.4 is also untenable.

51. I have heard learned counsel for the parties at length and perused the material placed on record.

52. When the writ petition came up for hearing before this Court on 02.11.2018, the following order was passed:

"Submission of learned counsel for the petitioners is that by the order dated 19-01-2018, revision of the petitioners was decided on merits, after hearing all the parties concerned, by the state government in exercise of powers conferred under section 41 of the U.P. Urban Planning and Development Act,1973. Thereafter, without going through the provisions, a recall application was filed by the development authority, on which a cryptic order dated 29-06-2018 was passed and the matter was remanded back to the development authority. The order sans of any reason or discussion.

I have perused the said order. There are no reasons given in the said order.

Learned counsel for the petitioners further submits that in another similar matter on the same date i.e. 29-06-2018, the state government itself rejected similar recall application. The said order is filed as Annexure No. 43 to the writ petition. Prima-facie, it appears that the conduct and manner, in which the state government has proceeded, is arbitrary.

Let respondent nos. 1 & 2 file their counter affidavit within two weeks.

Rejoinder Affidavit, if any, may be filed within one week thereafter.

List this case in the week commencing 26-11-2018.

Counter Affidavit filed by the development authority and rejoinder affidavit filed thereto, are already on record.

Till the next date of listing, operation and implementation of the impugned order dated 29-06-2018 and all other consequential orders passed by the development authority shall remain stayed. The petitioners are permitted to complete the finishing work of the building at their own risk and costs, but, they shall not create any third party right."

53. The concept of arbitrary or unreasonable action amenable to writ jurisdiction is relevant only where the State acts under a statute, or in exercise of its executive/administrative power. Article 14 interdicts arbitrary treatment and discriminatory dealings. The State Government and any statutory authority being the instrumentality of State must act with prudence, and prudence implies caution as well as foresight and excludes hasty, reckless and arbitrary conduct. Present is a case of colourable exercise of power which was explicable only as an arbitrary conduct of the Authorities.

54. It is well settled that power of review is not an inherent power and a judicial or a quasi judicial authority can review its previous order on merit only if it is vested with such a power by a statute either expressly or by necessary implication. The Supreme Court in the case reported as "Naresh Kumar & Others Vs. Government (NCT OF DELHI)" (2019) 9 SCC 416 held as under:

"19. Applying these principles it is apparent that where a Court or quasi judicial authority having jurisdiction to adjudicate on merit proceeds to do so, its judgment or order can be reviewed on merit only if the court or the quas judicial authority is vested with power of review by express provision or by necessary implication. The procedural review belongs to a different category. In such a review, the court or quasi-judicial authority having jurisdiction to adjudicate proceeds to do so, but in doing so commits (sic ascertains whether it has committed) a procedural illegality which goes to the root of the matter and invalidates the proceeding itself, and consequently the order passed therein. Cases where a decision is rendered by the court or quasi-judicial authority without notice to the opposite party or under a mistaken impression that the notice had been served upon the opposite party, or where a matter is taken up for hearing and decision on a date other than the date fixed for its hearing, are some illustrative cases in which the power of procedural review may be invoked. In such a case the party seeking review or recall of the order does not have to substantiate the ground that the order passed suffers from an error apparent on the face of the record or any other ground which may justify a review. He has to establish that the procedure followed by the court or the quasi-judicial authority suffered from such illegality that it vitiated the proceeding and invalidated the order made therein, inasmuch the opposite party concerned was not heard for no fault of his, or that the matter was heard and decided on a date other than the one fixed for hearing of the matter which he could not attend for no fault of his. In such cases, therefore, the matter has to be re-heard in accordance with law without going into the merit of the order passed. The order passed is liable to be recalled and reviewed not because it is found to be erroneous, but because it was passed in a proceeding which was itself vitiated by an error of procedure or mistake which went to the root of the matter and invalidated the entire proceeding. In Grindlays Bank Ltd. vs. Central Government Industrial Tribunal, it was held that once it is established that the respondents were prevented from appearing at the hearing due to sufficient cause, it followed that the matter must be re-heard and decided again."

55. A reading of the aforesaid observations of the Supreme Court shows that the courts or tribunals do not have the power to review, on merits, their own orders unless the same is expressly or by necessary implication provided in the statute but can recall and review an order if there has been some procedural illegality which goes to the root of the matter and invalidates the proceedings itself and consequently the order passed therein or if the order has been obtained by practicing fraud on the court. Further, every court has an inherent power to correct any clerical or arithmetical errors in its order.

56. By order dated 29.06.2018, which is impugned in the present petition, the Respondent No.2 exercising its power under Section 41 (3) of the Uttar Pradesh Urban Planning and Development Act, 1973, on an application for recall/review moved by the Lucknow Development Authority, remitted the matter to the Vice Chairman, Lucknow Development Authority. The petitioner contended that the matter was remitted without recalling the detailed judgment and order dated 19.01.2018 passed by the Respondent No.2 in Revision No.124/2017 exercising its power of Revision conferred under Section 41(3) of 1973 Act, whereby the matter was finally settled after the proper adjudication by the Respondent No.2, after giving requisite opportunity of hearing to the Lucknow Development Authority and after considering the response filed by it before the Respondent No.2 The case of the Petitioners is that since the power of recall of review/recall has not been vested under the 1973 Act, upon the Respondent No.2 as such any such application seeking recall of the judgment and order dated 19.01.2018 passed by the Respondent No.2 in Revision No. 124/2017 was not maintainable and in absence of the any power vested by the relevant statue for recall/review upon the Respondent No.2, the impugned order dated 29.06.2018 is nullity being an order passed without jurisdiction hence the same is liable to the quashed.

57. It has been pointed out by the learned counsel for the petitioners that on one hand the Respondent No 2 passed the impugned order dated 29.06.2018, recalling the judgment and order dated 19.01.2018 and on the other hand, on the same day i.e. on 29.06.2018 in another matter, i.e. Revision No.184/2017 (Jai Singh & Vijay Singh Vs. Lucknow Development Authority), while dealing with the application for recall in the said matter, the application had been rejected being not maintainable on the ground that there is no provision under the 1973 Act to entertain the application for recall. I have gone through the said order at Annexure-43. It is strange and shocking to see the stand of the Respondent No.2 that in two almost similar cases, different view was taken. If there is no provision under the Act to recall in one matter how can the order was passed in another matter for recalling the order. The action of the Respondents thus no doubt is arbitrary.

58. Attention of this Court is also drawn to a matter of Khasra plot No.83, 84, 85 and 89, admeasuring 4229 sqr. mtr. Mahanagar Raheem Nagar, Lucknow belonging to Sri Deepak Singh, Sri Alok Singh and others having ownership in shape of under proprietary They filed a suit for declaration of ownership over the under-proprietary land before the Civil Judge (Senior Division) Malihabad, Lucknow being Suit No 621 of 2008. In that case the Lucknow Development Authority filed a Written Statement on 28.01.2009, wherein paragraphs 19 and 20 it has been categorically stated that a person owning a land in the capacity of an under-proprietor has the full right to transfer it and that the property is heritable. It has also been stated that Nazul department has no right to take back the ownership right of an under-proprietor. Paragraphs 19 and 20 of Written Statement reads as under:

^^19& ;g fd oknhx.k nhid flag o vkyksd flag vkfn us mijksDr Hkwfe dks ekrgrnkj ds mRrjkf/kdkjh ls [kjhnk gSA vkSj ekrgrnkjh Hkwfe ij ekrgrnkj dks iw.kZ vf/kdkj izkIr gksrk gS fd og mDr Hkwfe dks ctfj;s fodz; i= csp ldsA

20& ;g fd utwy foHkkx dks ekrgrnkjh Hkwfe ds lEcU/k esa Hkwfe vf/kdkj dks okil ysus dk dksbZ vf/kdkj ugh curk gSA ;g ckr vkSj gS] fd mDr Hkwfe utwy dh Hkwfe gS blhfy;s fn0 06-12-06 dks i= la0&[email protected],0,[email protected],p0,[email protected] }kjk utwy vf/kdkjh Mk0 jke fcykl ;kno us fnukad 05-02-2007 dks vkifRr jfgr i= fn;k x;k FkkA^^

The aforesaid suit was ultimately decreed in favour of Shri Deepak Singh and others.

59. The Petitioners have assailed the order dated 28.09.2018 passed by the Respondent No.4, whereby the Respondent in consequence of the impugned order dated 29.06.2018 has taken a decision vide a cryptic order holding that the earlier office memorandum dated 16.06.2017 made no interference.

60. The order impugned in the petition is confined only in the last paragraph and prior to the same are narration of the facts thus the order is cryptic and without any reason having passed sans application of mind, without considering the scope conferred under Sub-Section 9 of the Section 15 of the 1973. Act, which gives a very limited power upon development authority for cancelling a map which has already been sanctioned. Sub Section 9 of Section 15 of the 1973 Act is reproduced hereunder:

"(9) If at any time after the permission has been granted under the Sub-section (3), the Vice-Chairman is satisfied that such permission was granted in consequence of any material mis-representation made or any fraudulent statement or information furnished, he may cancel such permission, for reasons to be recorded in writing and any work done thereunder shall be deemed to have been done without such permission:

Provided that a permission shall not be cancelled without affording to the person or body concerned a reasonable opportunity of being heard. "

61. In the instant matter though the Respondents No.3 to 7 have alleged that the judgment and order dated 19.01.2018 was passed on "wrong facts" however, what those alleged "wrong facts" are, has not been described by the Respondents in their counter affidavits. The Respondents, while making these assertions in the counter affidavits have failed to clarify as to when ample and adequate opportunity was given to the Lucknow Development Authority before the Respondent No.2 prior to passing the judgment and order dated 19.01.2018 and a perusal of the record shows that not only the Lucknow Development Authority filed its written response the Revision preferred by the Petitioners but also the officials of the Respondent No.3 Authority filed its written response the Revision preferred by the Petitioners. Also the officials of the Respondent No.3 Authority remained present on almost every date of hearing before Respondent No.2 i.e. the Revisional Authority, when the alleged "wrong facts" were not pointed out before the Respondent No.2 at the aforesaid instances.

62. An instrumentality of the State like the Respondent no.3 Authority is supposed to be candid and fair in its pleadings. Any litigant including any instrumentality of the State is supposed to be not only fair but also to state all facts upfront and not to make bald or evasive assertions on oath. The Respondents have not given categorical reply to the specific assertion of the Petitioners regarding the limited power under Section 15 (9) of the 1973, Act, for cancellation of the map already sanctioned.

63. The objection raised by the Respondents that the relief seeking quashing of impugned order dated 29.06.2018 has lost efficacy as the same has been acted upon by Respondent No.4 and also by the petitioners, has no legs to stand for more than one reason. Firstly, it is well settled that a jurisdiction which has not been vested upon an authority by a statute, cannot be vested or conferred even by the consent of parties Secondly, it has already been categorically mentioned in the paragraph 150 of the Writ Petition that though under the pressure exerted by few officials of Lucknow Development Authority, an application dated 20.08.2018 was written by the representative of the petitioners to the respondent No.4 requesting that the appropriate decision be taken after hearing in the matter. However, the fact remains that the representative of the petitioners during the course of argument categorically stated that the respondent No.4 has no authority of law to adjudicate the matter pertaining to Section 41 (3) of 1973, Act.

64. When the Respondent No.4 was aware that the application dated 02.07.2018 and 30.07.2018 moved by the Petitioners were pending before the Respondent No.1 seeking recall of without jurisdiction order dated 29.06.2018, as such propriety demanded the Respondent No.4 ought to have deferred by the matter till disposal of the said two applications dated 02.07.2018 and 30.07.2018 by the State Government.

65. It is well settled by the Constitution Bench of the Hon'ble Supreme Court of India that an order to be read as it is and the reasons cannot be supplemented at subsequent stage. This view has been expressed by Hon'ble Supreme Court of India in the Constitution bench judgment, reported in Mohinder Singh Gill's case (supra).

66. The order dated 29.06.2018 passed by the Respondent No.2 and consequential order dated 28.09.2018 by the Respondent No.4 have not been passed on the plea that there had been some violation of the sanctioned plan. In case of any violation of sanctioned plan the appropriate proceeding under Section 27 of 1973 Act is to be initiated in which the concerned developer gets ample opportunity to put forth his case and to establish as to whether at all there is any violation. The same is an independent proceeding which has got no relation with cancellation of map, power whereof is conferred under Section 15 (9) of 1973 Act.

67. The attempt of the Respondents to create distinction between mathatdars (under proprietor) under the Uttar Pradesh Zamindari Abolition and land Reforms Act, 1950 and Mathadars (under proprietor) of Nazul Property is not supported by any statutory provision. Sub-Section 15 of Section 4 of the U.P. Land Revenue Act, 1901 defines "under-proprietor" i.e. Mathatdaar as follows:

"4.(15) Under-proprietor' means in Oudh a person possessing a heritable and transferable rights in land who is, or but for a judicial decision or contract would be, liable to pay rent therefor;"

From a perusal of the aforesaid provisions, it is evident that the term 'intermediary' includes "under-proprietor' and an under-proprietor is defined in the Land Revenue Act, 1901 means in Oudh' a person possessing a heritable and transferable rights in land.

68. The under-proprietor who is having heritable and transferable rights over the land cannot be denied from enjoying their rights in all purposes including right to get construction as per permitted norms and right to transfer the property.

69. Under Section-1 of Chapter-1 of the Nazul Manual the "Nazul" is defined as under:

-Definition of Nazul: For the purpose of these rules, "Nazul" means any land or building which being the property of Government is not administered as a State property under the control of the Land Reforms Commissioner or the Forest or the Irrigation Department, or is not under the control of the Military. Postal, Telegraph, Railway or other purely Central Government Department.

The Tarai and Bhabar estate in the Naini Tal District, the Garhwal Bhabar estates in the Garhwal District and the Kausani Soldiers Settlement in the Almora and Garhwal districts are also not nazul for the purpose of these rules.

These rules are, however, applicable to territories of late Tehri Garhwal, Rampur and Banaras States merged with this State."

70. A perusal of definition of 'Nazul', it is clear that any land or building which is the Government property but not administered as a State property under the control of Land Reforms Commissioner or the Forest or the Irrigation Department, or is not under the control of the Military, Postal, Telegraph, Railway or other purely Central Government Department called Nazul land. The land of petitioners is recorded under the category of under proprietor (Mathatdar) in the revenue records.

71. The Privy Council in the case of Lal Sripat Singh v. Lal Basant Singh reported as 1918-8-LW328, held that so long as the under-proprietor retains that status he remains clothed with those rights, and he cannot be divested of those rights unless and until he loses that status.

72. Further, High Court of Oudh in the case of 'Bhairo Singh vs. Lal Ambika Baksh Singh' decided on 05.03.1942 reiterated the view expressed by the Privy Council in the matter of Lal Sripat Singh (supra) and held that an under proprietor (EGR) means a person possessing heritable and transferable right of property in land and the right to transfer his interest is a necessary incident of his legal status.

73. The Respondent No.2 while passing detailed Judgment and order dated 19.01.2018, in exercise of powers conferred under Section 41 (3) of the 1973 Act in the Revision filed by the petitioners, has considered and dealt with the issue regarding mathatdars (under-proprictor) in details and given categorical finding thereafter. The relevant portion of the judgment and order dated 19.01.2018 passed by the Respondent No.2 is reproduced hereunder

"6- ekrgrnkj (under prorietor) 'kCn ;w0ih0 Hkw&jktLo vf/kfu;e] 1901 dh /kkjk 4 ¼15½ }kjk ifjHkkf"kr gS] ds vuqlkj&

^^vnuk ekfyd ¼ekrgrnkj½ dk rkRi;Z vo/k es ml O;fDr ls gS ftldks Hkwfe es nk;;ksX; o vUrj.kh; vf/kdkj izkIr gS vkSj tks fdlh U;kf;d QSlys ;k lafonk ds vHkko es mlds fy;s yxku nsus dk ftEesnkj gksxkA

mDr ifjHkk"kk ls ;g fu"d"kZ fudyrk gS fd tehankj dk ;g oxZ dsoy vo/k izkUr es gh FkkA tehankjh lEink (estate) es mldk LoRo LFkk;h] oa'kkuqxkeh vkSj ladzkE; FkkA tc rd dksbZ U;kf;d fu.kZ; ;k lafonk vU;Fkk u gks] og Hkw&Lokeh dks ekyxqtkjh dh /kujkf'k ds cjkcj yxku nsrk FkkA

7- fookfnr Hkwfe ij xzqi gkmflax dk uD'kk ikl djus ds fy;s y[kuÅ fodkl izkf/kdj.k }kjk eq[;r% fuEu fcUnqvksa dk vk/kkj fy;k x;k gS%&

(i) fuxjkuhdrkZ }kjk ekrgrnkjh [email protected][k.M la[;k&[email protected] o [email protected] ¼[kljk la[;k&192 Hkkx o [kljk la[;k&201 Hkkx½ eksgYyk fcjgkuk] ,s'kckx jksM] y[kuÅ ds va'k Hkkx 20-5 oxZ eh0 dk fodz; dj fn;k x;k FkkA fodz; izfrcU/k fnukad 01-02-2016 dks vukifRr izek.k i= tkjh djrs le; yxk;k x;k Fkk] tcfd mDr fodz;&foys[k fnukad 21-10-2007 dks fd;k x;k gSA vr% iqujh{k.kdrkZ dh fnukad 10-02-2012 dks Lohd`r Hkou ekufp= ls izHkkfor Hkwfe ls brj Hkw&Hkkx ds fodz; ls dfFkr izfrcU/k dk dksbZ mYya?ku ugha gqvk gSA vr% ;g fcUnq xzkg~; ugha gS] rn~uqlkj fu.khZr fd;k tkrk gSA

(ii) THE LAND TENURES (REGULATION OF TRANSFERS) ACT, 1952 ds iSjk&1 ¼2½ es mfYyf[kr gS fd ..It extends to the area in which the U.P. Zamindari Abolition and Land Reforms Act, 1950, is in force under sub-section (3) of its Section 1

In this Act, unless there is anything repugnant in the subject or context-

a) "appointed date" means the Twenty-First Day of May, 1952.

b) "intermediary" as respects any land means a proprietor, an under-proprietor, a sub-proprietor, a thekedar and a permanent lessess in Avadh and a permanent- tenure holder.

c) "Lease" includes a rent- free grant or a grant at a favourable rate of rent and

d) words and expressions not defined in this Act and defined in the U.P. Tenancy Act, 1939, shall have the meaning assigned to them in that act.

3. Notwithstanding anything contained in any law or contract to the contrary-

(1) a lease of land by an intermediary either granted or registered on or after the appointment date shall be and is hereby declared null and void from the date of execution and the lessee shall for the purpose of Section 180 of the U.P. Tenancy Act, 1939, and Section 209 of the U.P. Zamindari Abolition and Land Reforms Act, 1950, be deemed to be a person in possession of the land otherwise than in accordance with the provisions of the law for the time being in force;

(2) a transaction between an intermediary and a tenant conferring on the tenant right to transfer by sale his holding or any part thereof either made or entered into or registered on or after the appointer date, shall be and is hereby declared null and void from the date of execution.

mDr izfrcU/k e/;orhZ (intermediatry) }kjk Hkwfe ds yht ds lEca/k es iz[;kfir fd;s x;s gSaA Act, 1952 ds iSjk 1 ¼2½ es mfYyf[kr gS fd .it extends to the area in which the U.P.ZA, LR ACT. 1950 is inforce under subsection 3 of section 1.

mi;ZqDr ls Li"V gS fd ,DV 1952 ds izkfo/kku Zamindari Abolition and Land Reforms Act, 1950 }kjk vkPNkfnr Hkwfe ij izHkkoh gS] tcfd iz'uxr Hkwfe uxjh; {ks= dh gSA vr% mDr izkfo/kku ekrgrnkjh Hkwfe ij izHkkoh ugh gS] rn~uqlkj fu.khZr fd;k tkrk gSA

(iii) y[kuÅ fodkl izkf/kdj.k }kjk iz'uxr Hkwfe dks utwy ekudj ml ij dkfct ekrgrnkjksa ds fy;s fdlh izdkj ds LoRo ds vf/kdkj dks ugh ekuk x;k gSA

utwy eSuwvy ds v/;k;&I /kkjk&1 es utwy dh ifjHkk"kk fuEufyf[kr nh gS%&

utwy dh ifjHkk"kk bl fu;ekoyh ds iz;kstukFkZ utwy ls rkRi;Z ,slh Hkwfe ;k Hkou ls gS tks ljdkj dh lEifRr gksrs gq;s Hkh ftldk izcU/k jkT; lEifRr dh HkkWfr Hkwfe O;oLFkk vk;qDr ;k ou ;k flapkbZ foHkkx ds fu;a=.k ds v/khu ugh fd;k tkrk gS ;k tks lsuk] Mkd] nwjlapkj] jsyos ;k vU; fo'kq) dsUnzh; ljdkj ds foHkkx ds fu;a=.k ds v/khu ugh gSA

uSuhrky ftys es rjkbZ rFkk Hkkoj {ks= dh Hkwfe x<+oky ftys es x<+oky Hkkou dh Hkwfe rFkk vYeksM+k vkSj x<+oky ftyks es dkSlkuh 'kksYtlZ lsVyesaV dh Hkwfe Hkh bl fu;ekoyh ds iz;kstukFkZ utwy ugh gSA ;g fu;ekoyh HkwriwoZ Vsgjh&x<+oky] jkeiqj rFkk cukjl jkT; ftudk bl jkT; es foy; gks pqdk gS] ds {ks=ksa ij ykxw gksrh gSA

m0iz0 'kklu ds i= la[;k&[email protected]&2013 fnukad 12-07-2012 ls Li"V gS fd utwy :[email protected] ds vuqlkj utwy Hkwfe dk dksbZ ekrgrnkj ugh gksrk gSA mi;ZqDr ls Li"V gS fd iz'uxr Hkwfe utwy Hkwfe ls vkPNkfnr ugh gSA vr% y[kuÅ fodkl izkf/kdj.k }kjk iz'uxr Hkwfe dks utwy ekuuk xzkg~; ugh gSA rn~uqlkj fu.khZr fd;k tkrk gSA

(iv) THE OUDH RENT ACT,1986 ds izLrj&3 ¼8½ es O;oLFkk gS fd ."under-proprietary right" means any person possessing a heritable and transferrable right of property in land for which he is liable or but for contract or decree would be liable to pay rent;

(v) U.P. LAND REVENUE ACT, 1901 ds izLrj&4 ¼15½ ds vuqlkj vnuk [email protected] (UNDER-PROPRIETOR) dk rkRi;Z vo/k es ml O;fDr ls gS ftls Hkwfe dk nk;;ksX; vkSj vUrj.kh; vf/kdkj izkIr gS vkSj tks] fdlh U;kf;d QSlys ;k lafonk ds vHkko esa mlds fy;s yxku nsus dk ftEesnkj gksrkA

(vi) mRrj izns'k tehankjh mUewyu ,oa Hkwfe lq/kkj vf/kfu;e] 1950 dh /kkjk&3 ¼12½ ds vuqlkj ^^e/;orhZ ls fdlh vkLFkku ds lEca/k es] mDr vkLFkku ;k mlds fdlh Hkkx ds Lokeh] ekrgrnkj] mi&Lokeh] Bsdsnkj] vo/k ds LFkk;h iV~Vsnkj vkSj nokeh dk'rdkj vfHkizsr gSA

mi;qZDr foospuk ls Li"V gS fd fuxjkuhdrkZ dk iwoZ Lohd`r ekufp= y[kuÅ fodkl izkf/kdj.k ds Lrj ls fcuk fdlh ;qfDr;qDr vk/kkj ds fujLr fd;k x;k gSA

vkns'k

mik/;{k] y[kuÅ fodkl izkf/kdj.k }kjk iznRr vuqeksnu fnuakd 01-02-2016 ds dze es rglhynkj utwy] y[kuÅ fodkl izkf/kdj.k ds vkns'k fnukad 02-02-2016 es mfYyf[kr izfrcU/k dks rFkk mik/;{k] y[kuÅ fodkl izkf/kdj.k ds vkns'k fnukad 14-06-2017 rFkk fofgr izkf/kdkjh] y[kuÅ fodkl izkf/kdj.k ds vkns'k fnukad 22-06-2017 ,rn~}kjk fujLr fd;s tkrs gSa rFkk l{ke vf/kdkjh ¼Hkou½ y[kuÅ fodkl izkf/kdj.k }kjk fuxZr ijfeV la[;k&39506 ¼xqzi gkmflax½ fnukad 20-02-2016 dks cgky fd;k tkrk gSA pwafd ekrgrnkjh ls lEcaf/kr Lohd`fr dk l{ke Lrj vLi"V gSA vr% Hkfo"; es ekrgrnkjh ls lEcaf/kr vU; izdj.kkss es 'kklu ls vuqefr izkIr fd;k tkuk vfuok;Z gksxkA i=koyh ckn dk;Zokgh nkf[ky&nQ~rj gksA "

74. The issue of cancellation of the map already sanctioned under section 15(3) of 1973, Act, by the Vice Chairman of the Development Authority on any ground other than the two grounds mentioned in the Sub Section 9 of Section 15 of the said Act, came up before a Co-ordinate Division Bench of this Court in Writ Petition No. 6787 (M/B) of 2008 titled as 'Radhey Shyam Agarwal and another Vs. Rae Bareli Development Authority and others' decided on 08.12.2011. The Division Bench in the said matter after scrutinizing the relevant statutory provision and relying upon an earlier Division Bench Judgment of this Court in Jagdish Prasad Dubey and others Vs. Allahabad Vikas Pradhikaran In Re: (1992) 1 UPLBEC 694, has been pleased to hold that the permission granted under Section 15 (3) of the 1973, Act, can be cancelled only on the grounds given under Section 15(9) of the 1973, Act. The relevant extract of the aforesaid judgment and order dated 08.12.2011 is reproduced hereunder:

"Further reverting to the question whether respondent could review the order granting permission and approving the map. Here also simple rules of interpretation are to be applied in order to ascertain the intendment of law givers in not providing any provision for appeal against the order granting permission to raise the construction or approval of the map and not in providing any power of review. It is an important step in my opinion to know that the Act does not mean and if it becomes clear at there is something which it does not mean, then that of suggests or suppose to be what it does mean. It appears that the Legislature in enacting sub-section (5) of Section 15 of the Act was conscious that in case permission has been granted for raising construction or the map submitted by the Petitioner has been approved, in that even the same cannot be reviewed or cancelled except where material facts have been suppressed The object of the Act was to provide for the development of the certain areas of U.P. according to plans and for matters ancillary thereto. Therefore, once the plan has been approved there was no necessity to scrutinize the same, except on the allegations of fraud and misrepresentation.

Here there was no misrepresentation on the part of the petitioner nor they have played any fraud. From the reasons given in the impugned order, it is clear that the reasons given by the respondents are not valid reasons.

We are thus of the considered opinion that once the layout plan was duly approved on 05.12.1988 which was recorded by the Vice Chairman. Again in the month of January, 2007, endorsing 'sanctioned/swikrit' if the layout plan, there was neither any reason nor occasion to the Vice Chairman to cancel the layout plan on the ground mentioned in the impugned order.

It is pertinent to mention here that the permission is to be granted under Section 15 of the Act which can be cancelled only on the ground given under Section 15(9) of the Act. Section 14 of the Act of the Act is thus the substantive provision under which the permission is to be obtained and Section 15 of the Act is the procedure under which the permission is to be granted/sanctioned. Section 14 of the Act in itself cannot be read in isolation while considering the case of sanction or cancellation of the layout plan. Sub- Clause 1 of the Section 14 of the Act itself shows that after the declaration of any area as Development Area under Section 3. no development of land shall be undertaken or carried out or contained in that area by any person or body [including a department of Government) unless permission for such development has been obtained in writing from the Vice Chairman in accordance with the provision of the Act. Thus, permission can be granted under Section 15 (3), which is procedural in nature of the Act and there is no other provision under which such permission can be granted. Section 14 which is substantive in nature deals with the development of the land in the 'Developed Area' and there is no other provision except Section 15 (3) of the Act under which such permission can be granted. Sub-Clause 3 of the Section 14 of the Act deals with the development of the land by the State Government or Central Government

In view of above, the impugned order dated 17.04.2008 passed by the Vice Chairman, Rae Bareli Development Authority, Rae Bareli as contained in Annexure No 1 to the Writ Petition is in utter violation of law which is liable to quashed.

Accordingly, the Writ Petition is allowed. The impugned order dated 17.04.2008 passed by the Vice Chairman, Rae Bareli Development Authority. Rae Bareli is quashed"

75. Learned counsel for the petitioners alleging malice has pointed out that the Respondent No.2 was due to superannuate on 30.06.2018 and one day prior to his superannuation, he has passed the order on 29.06.2018 with undue haste in a cryptic manner. It is well settled that executive power in absence of any statutory provision cannot be exercised. Such exercise of power must be bonafide. An executive order passed for unauthorized purpose would amount to malice in law. This view has been expressed by the Hon'ble Supreme Court of India in a catena of pronouncements including a matter reported in (2007) 6 SCC 220 titled as Tejshree Ghag and others Vs. Prakash Pareshere patil and others.

76. The Petitioners immediately on 02.07.2018 moved an application seeking the recall of the order dated 29.06.2018 on the ground that there is no provision for review/recall in the 1973, Act. Another application was also moved on 30.07.2018 by the Petitioners. However, the Respondent No.4 ie. the Vice Chairman, Lucknow Development Authority, passed an order dated 28.09.2018 whereby without giving any finding on merits and ignoring the findings recorded in the detailed Judgment and order dated 19.01.2018 by the Respondent No.2. has held that the earlier order dated 16.06.2017 passed by the Respondent No.3 cancelling the sanctioned plan of the Petitioners needs no interference.

77. In the case of U.P. Steels Limited Vs. State of Uttar Pradesh arising out of proceedings emanating from the Act, it was held that no power of review can be recognised to inhere in authorities under the Act. True, when there is no specific statutory provision for reviewing an order by an authority contemplated under the Act. the authority has no power to review its order. Thus, in the absence of a specific provision conferring power of review upon the authorities under the Act, it cannot be recognised as an inherent power.

78. The Hon'ble Supreme Court in the case of 'Dr (Smt.) Kuntesh Gupta Vs. Management of Hindu Kanya Mahavidyalaya, Sitapur (U.P.) and Ors' (1987) 4 SCC 525 observed that "It is now well established that a quasi-judicial authority cannot review its own order, unless the power of review is expressly conferred on it by the statute under which it derives its jurisdiction". A similar view was taken in the case of 'Kalabharati Advertising Vs. Hemant Vimalnath Narichania and Ors' reported as (2010) 9 SCC 437.

79. In light of the aforesaid discussion, the writ petition succeeds and the same is hereby allowed and the impugned orders dated 29.06.2018 and 28.09.2018 are set aside.

80. No order as to costs.

81. Pending application(s), if any, stands disposed of.

(Ved Prakash Vaish)

Judge

Order Date :- 16.06.2021

Shanu/-