STATE OF U P Vs. MANOJ KUMAR MUKHERJI

JUDGEMENT

(1.) IN these writ petitions, the State of Uttar Pradesh has questioned the correctness of the orders dated 28-2-1983 of the District Judge, Allahabad passed in two connected ceiling appeals.

(2.) THE facts of the case are that respondents nos. 1, 2 and predecessor-in-interest of respondent nos. 3 to 5 were served with a notice under section 8 (3) of the Urban Land (Ceiling and Regulation) Act (hereinafter referred to as the Act) showing 4104.61 square metres land of their bungalow no. 23, Thornhill Road, Allahabad as excess vacant land. THEy filed objection challenging the correctness of the statement prepared by Ceiling Authorities and claimed that on correct calculation there was no excess vacant land. THEy also served the Competent Authority with a notice under section 26 of the Act about their intention to transfer the vacant land. THE Competent Authority after considering the case of the parties declared 1445.86 square metres as excess vacant land by his order dated 30-5-1981. Earlier on 6-3-1981 he had declared that respondents were not entitled to give any notice under section 26 in view of the fact that the area of the bungalow was beyond the ceiling limits. Respondents filed two separate appeals against the aforesaid orders of the Competent Authority which were allowed by the District Judge on 28-2-1983 by two separate orders. Feeling aggrieved the petitioner has approached this Court for relief under Article 226 of the Constitution.

(3.) LEARNED counsel for the contesting respondents contended that even if provisions of section 4 (9) of the Act are applicable this Court should refuse to exercise its jurisdiction under Article 226 of the Constitution in view of the fact that from the own record of the petitioner it is established that there was no excess vacant land. According to him, the property in dispute consists of four dwelling units as would appear from the site plan supplied to the respondents by the Competent Authority but the excess vacant land has been calculated treating it to be consisting of only three dwelling units. Further, there exists four soak pits and septic tanks in the bungalow which have not been taken into consideration while preparing the ceiling statement. The contesting respondents are entitled to the benefit of these constructions under law and if that is done there will be no excess vacant land. On the other hand, the learned Standing Counsel without disputing the existence of fourth dwelling unit, four soak pits and septic tanks contended that the contesting respondents did not raise these points in their objection before the Competent Authority and as such cannot be permitted to contest the writ petition on these grounds. He further contended that the sanctioned plan for fourth dwelling unit filed by the respondents did not bear the seal of the sanctioning authority while the soak pits and septic tanks were not constructed in accordance with the sanctioned plan.