ANAND KUMAR SHARMA Vs. STATE OF U.P.

JUDGEMENT

(1.) By this writ petition, the petitioner has prayed for quashing the order dated 18.12.2006, passed by the Collector, Lalitpur by which order, the application of the petitioner dated 25.7.2005 for grant of freehold right has been rejected on the ground that in view of the Government order dated 4.8.2006, the provisions for regularising the possession of unauthorised occupants have been withdrawn. Brief facts giving rise to the writ petition are; that the petitioner's father constructed a house on land No. 42, Tuwan Teela, Azadpura, in District Lalitpur being Nazul land No. 3579. State Government issued Government Order dated 1.12.1998 by which provision was made by the State Government for grant of freehold rights on Nazul land. The said right was also granted to unauthorised occupants, who were in possession of Nazul land. The scheme was subsequently modified by the Government Order dated 10.12.2002. A notice dated 30.6.2002 was issued to the petitioner by Nagar Palika Parishad asking him to submit an application for grant of freehold right of plot No. 3579 area 160.40 square meters which is in unauthorised occupation of the petitioner. The petitioner submitted an application dated 20.7.2005 for grant of freehold right for an area of 188.72 square meters alongwith deposit of an amount of Rs. 66052/- on the basis of self assessment. The said application remained pending. The State Government by Government Order dated 4.8.2006 amending the Government Order dated 1.12.1998 by cancelling paragraph 7 and Government Order dated 10.12.2002 by cancelling paragraph 5 which paragraphs provided for grant of freehold rights to unauthorised occupants. After issue of the Government Order dated 4.8.2006, the Collector rejected the application of the petitioner vide order dated 18.12.2006 informing that in view of the Government Order dated 4.8.2006, the unauthorised occupation cannot be regularised hence, the application dated 25.7.2005 submitted by the petitioner is rejected.

(2.) We have heard Sri B.N. Asthana, learned Senior Advocate assisted by Sri S.K. Purwar and Sri Arun Kumar Gupta for the petitioner and Sri C.B. Yadav, learned Additional Advocate General for the State.

(3.) Sri Asthana submitted that petitioner's application dated 25.7.2005 could not be rejected on the basis of Government Order dated 4.8.2006, which is a subsequent Government Order and shall have only prospective operation. It is submitted that the petitioner's application dated 25.7.2005 was in accordance with the policy of the State, which entitled grant of freehold right to unauthorised occupants also. The petitioner also deposited amount on the basis of self assessment hence, the application was required to be processed in accordance with the Government Order dated 1.12.1998 as well as the Government Order dated 10.12.2002. Had the respondents decided the application within reasonable time, the application would have been allowed. By keeping the application pending for sufficiently long time, the respondents cannot reject the application on the basis of the Government Order dated 4.8.2006. Learned Counsel for the petitioner has placed reliance on the Division Bench judgment of this Court in Dr. O.P. Gupta v. State of U.P. and others, 2009 7 ADJ 285 (DB). He submits that the said judgment fully covers the issues raised in the present writ petition. He submits that the Division Bench has held that cause which was otherwise acceptable on the date of the application could not be permitted to be negatived by any change in the policy unless the policy has been given retrospective effect. Reliance has also been placed on the judgment of the Apex Court in State Bank of India v. Jaspal Kaur, 2007 1 ESC 66 (SC).