State of Uttarakhand vs Harish Chandra Joshi

B.S. Verma, J.—Heard learned Counsel for the parties and perused the record.

By means this writ petition, the Petitioner-State of Uttarakhand has sought writ in the nature of certiorari quashing the impugned order dated 18.11.2008 (Annexure No. 7) passed by District Judge, Dehradun in U.L.C. Misc. Case No. 337/07, whereby the delay condonation application of the Respondent was allowed and delay in filing the appeal was condoned. It is further prayed to quash the order dated 20.11.2008 passed by District Judge, Dehradun in U.L.C. Appeal No. 188 of 2008, whereby the learned District Judge allowed the appeal of the Respondent and set aside the order of the competent authority.

Before further discussion, it is pertinent to mention here that the order impugned dated 18.11.2008 was not challenged by the Petitioner prior to decision of the appeal.

Brief facts, giving rise to this petition, are that the Respondent filed statement of his properties u/s 6(1) of the Urban Land (Ceiling and Regulation) Act 1976 (for short, the Act) before the Competent Authority, who after conducting survey issued show cause notice to the Respondent as to why 1331.06 sq.mt. land possessed by him be not declared surplus vacant land. The Respondent filed objections. After considering the objections, the competent authority declared 1331.06 sq.mt. land as surplus vide order dated 20.1.1987. The Petitioner alleged that the possession was taken over pursuant to the notice. Feeling aggrieved, the Respondent preferred an appeal before District Judge, Dehradun, who after hearing learned Counsel for the parties and following the judgment of the Apex Court in the case of "Smt. A.M. Begum v. State of Utter Pradesh, 1993 Volume II S.V.L.R. (C) Page 44, allowed the appeal and held that the Respondent is not possessed of any excess vacant land. While deciding the appeal, the learned District Judge also placed reliance on the judgment of Apex Court in the case of "Union of India (UOI) etc. v. Valluri Basavaiah Chowdhary and Ors. Etc., AIR 1979 Supreme Court 1415 in which it was held that the provisions of Urban Land (Ceiling and Regulation) Act, 1976, provide imposition of ceiling on vacant land and not on agricultural land. Here in the present case, the land in question was agricultural as per the report available on the file of the Competent Authority and it could not have been declared surplus under the provisions of Urban Land (Ceiling and Regulation) Act, 1976.

A counter affidavit has been filed by the Respondent wherein it is specifically stated that the land in dispute is in possession of the Respondent. The possession was never handed over to the Petitioner.

It is further stated in the counter affidavit that a case was also initiated against the brother of Respondent, namely, Rajendra Prasad Joshi, who was the joint tenure holder of the land in question with the Respondent to the extent of 1/3rd share. Vide order dated 7.4.1994, learned District Judge allowed the appeal of brother of the Respondent and set aside the order of the competent authority. Aggrieved by the said order dated 7.4.1994, the Petitioner/State filed a writ petition as Writ Petition No. 661 of 2001 (M/S) (Annexure No. CA-3) before this Court. The same was also dismissed by this Court on 20.3.2006.

This fact is not disputed that Rajendra Prasad Joshi is brother of the Respondent. This fact has also been mentioned by the learned District Judge in his order impugned. No recall application or SLP has been preferred against the order dated 20.3.2006 passed by this Court in favour of brother of the Respondent.

In the order impugned, learned District Judge has rightly held that on the basis of the report of revenue officers the land was agricultural at the time when the Act came into force and was not vacant land, however, the Act was applicable to the vacant land.

For the reasons recorded above, I find no merit in this petition and the same is hereby dismissed.