Rajeev Dave vs District Judge and Others

A.B. Srivastava, J.—By means of this writ petition the Petitioner has sought quashing of a judgment and order dated 4.4.1995 of the District Judge, Allahabad, whereby, while setting aside the order dated 29.12.1994 of the Competent Authority, Urban Land Ceiling, Allahabad, he remanded the two cases out of which the appeals before him arose, for disposal afresh in accordance with law.

The proceeding before the Competent Authority started on a return u/s 6(1) of the Urban Land (Ceiling and Regulation) Act, 1976 (hereinafter referred to as the ''Act'') filed by the Petitioner, Rajeev Dave and another return filed by his father R. K. Dave (since deceased and substituted by the Petitioner). The properties subject-matter of these returns and proceedings were (i) 9/13, Elgin Road, (ii) 10/11, Chah Chand, (iii) 47, Shiv Kuti, (iv) 6/10, Colvin Road, (v) 46, Mahatama Gandhi Marg, all within the City of Allahabad. The Competent Authority who first decided the matter by his order dated 28.3.1984, held 4707 sq. meters area in excess of the ceiling limit. During the pendency of the appeal against the same, Sri R. K. Dave died and his legal representatives were impleaded, hence the District Judge, remanded the case for decision afresh, taking into consideration the share of various heirs.

The Competent Authority who heard the matter-next, held that the Petitioners'' title having extinguished on expiry of lease period in respect of 9/13, Elgin Road and 46, Mahatma Gandhi Marg, the same were to be excluded from consideration. House Nos. 10 and 11 Chah Chand was found totally built up. House No. 47, Shiv Kuti Mahadev was excluded from consideration because the same was shown in the Master Plan to be reserved for a green park. The only property thus considered was No. 6/10, Colvin Road, in which taking into consideration the built-up area and the 1500 sq. meters permissible open area in the Allahabad Urban Agglomeration, he declared 1507 sq. meters surplus. Aggrieved the Petitioner filed appeal u/s 33 of the Act.

The District Judge, disagreed with the conclusions of the Competent Authority, that Nos. 9/13, Elgin Road and 46, Mahatma Gandhi Marg, were to be excluded from consideration simply because the lease had expired, and correctly so. As regards 10/11, Chah Chand, there was no controversy that the entire area was built-up. The District Judge then considered the built-up and admissible open area in 6/10, Colvin Road, and came to hold the opinion that 2886-62 sq. meters is to be treated as vacant land. While remanding the case to the Competent Authority, to re-calculate the built-up and the permissible open area, in its totality, and then decide the ''vacant area'', he also directed a thorough scrutiny to be made with regard to built-up and vacant area in 47, Shiv Kuti.

On behalf of the Petitioner, Sri S. N. Verma, learned Senior Advocate, has submitted that while remanding the case, the District Judge had no jurisdiction to direct the Competent Authority to take into consideration the built-up and open area of plot No. 47, Shiv Kuti, because neither the Petitioner''s appeal was directed in respect of the same nor the State had preferred any appeal. Further, it is contended that the learned appellate court failed to consider various built-up portions in 6/10. Colvin Road, such as a Tube-well and servants quarters, etc. In any case, it is contended while remanding the case, the learned District Judge should have avoided to express any categorical opinion and the case as a whole should have been remanded.

As far as the first submission based on 47, Shiv Kuti, this Court does not find any substance, simply because there was no appeal, the appellate court was not precluded from making it open to consider the question of vacant area, on the basis of all the items of the property subject-matter of the return u/s 6. In fact once the entire exercise was opened on the premise that property Nos. 9/13, Elgin Road, and 46, Mahatma Gandhi Marg, were the property of the Petitioner, the logical corollary was that all the 5 items of the property became available in order to decide the built-up, the admissible open, and the ''vacant area''. Simply because No. 47, Shiv Kuti, was indicated in the Master Plan to be reserved for green park, there was no divesting of the Petitioner qua this property, it admittedly having not been acquired for the purpose by the State, or any other authority. Consequently, the Impugned order of the District Judge could not be faulted on this ground.

Now as to the calculations rendered and the opinion expressed by the District Judge, with regard to 6/10, Colvin Road, of course, it would be found in the context of what has been found above necesitating and justifying the remand of the case, that any calculation by the appellate court in isolation, based solely on tills item of property, would be unrealistic and unsustainable. The only legal and proper course for the appellate court was to remand the matter as a whole, enunciating the legal principles, and leaving the factual matters to be considered and determined by the Competent Authority, in the context of entire subject-matter as a whole, and not by taking up one individual items of property. Consequently, to this extent, the orders of the appellate authority deserve to be quashed, and the remand, and pursuant exercise of determination by the Competent Authority, made applicable to the entire property which is subject-matter of the proceedings under the Act. For all the abovestated reasons, therefore, this writ petition has to be allowed in part.

The writ petition succeeds in part. While upholding the impugned order of the remand, the declaration of the ''vacant area'' by the District Judge in respect of 6/10, Colvin Road, Allahabad is set aside and the Competent Authority is directed to decide the matter in its entirety on merits and in accordance with law.

The matter being old, the Competent Authority is directed to dispose of the same expeditiously avoiding any unnecessary adjournment.

No order as to cost.