# Harijinder Singh v. State of U.P. and others

- **Citation:** (2012) 1 ILRA 110
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2012-01-20
- **Case number:** Civil Misc. Writ Petition No. 65428 of 2006
- **Bench:** Ashok Bhushan, Mrs. Sunita Agarwal
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/harijinder-singh-v-state-of-u-p-and-others-42135
- **Pages:** 15

## Headnote

Sri A.P. Srivastava
Sri Vivek Saran
Sri Ashish Kumar Singh
Sri Ajay Kumar Singh
Sri A.S. Rana
Sri M.K. Gupta
C.S.C.

Land
Acquisition
Act-Section-48-Land
Acquired for housing Scheme by Awas
Vikas
Parishad-compensation
determined-symbolic possession taken-
.reference proceeding for enhancement
going
on-adjoining
plot
exemptedrepresentation by petition rejected-heldnot proper-direction to consider and
decide
representation
for
exemption
within time bound consideration-till then
stay in terms of SLP to continue.

Held: Para 32 and 33

In view of the law as laid down by the
Apex Court as above, the respondents
are obliged to consider the claim of land
holders for exemption uniformly on a
1 All] Harijinder Singh V. State of U.P. and others
111
rational policy and the respondents
cannot
take
decision
regarding
exemption
of
land
from
acquisition
arbitrarily and discriminately.

In view of the fact that all relevant
materials including proceedings of the
Board have not been brought on the
record by the respondents, it is not
possible for this Court to examine such
decision and to decide the claim of the
petitioner, hence it is in the interest of
justice that the Board be directed to
consider the claim of the petitioner for
exemption of Plot No.368/1 from the
housing scheme.
Case law discussed:
2010 (3) SCC 621; A.I.R. 1975 SC 1767

## Text

_Characters 0–39,878 of 49,221. This is a partial read: ask again with offset=39878 for what follows._

110 INDIAN LAW REPORTS ALLAHABAD SERIES [2012
employees/incumbent on equal footing
without there being any discrimination.
Otherwise it will lead to dissatisfaction
amongst the employees and inspire the
litigation and it is none else except the State
Exchequer which will be burdened to meet
out litigation expense, apart the engagement
of its officers in contesting the litigation.
The
State
government
being
modle
employer is expected to act fairly without
any discrimination. Further it should not
promote the litigation
and drag its
employees in litigation unless it is very
necessary and the payment is going to be
made contrary to the rules, no chance
should be given to employee to knock the
door of Courts.

16. It is also notable that it is not the
stand of the state government that against
the order dated 22.11.2001 quashing the
order dated 16.3.1998 bifurcating the cadre,
the State government has taken legal
recourse by way of filing special appeal or
special leave to appeal meaning thereby the
said order has become final.

17. Taking note of that, the writ
petition succeeds and is allowed and writ of
mandamus
is
issued
directing
the
respondent no. 1 to ensure the payment of
salary to the petitioner in the scale of 9501500 with further revision of this scale in
view of the subsequent report of Pay
Commission. The entire exercise has to be
done within a period of four months from
the date of receipt of certified copy of the
order of this Court

18. Needless to say that the petitioner
shall be paid salary from the date of his
entitlement subject to his working in the
department.
---------

ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 20.01.2012

BEFORE
THE HON'BLE ASHOK BHUSHAN,J.
THE HON'BLE MRS. SUNITA AGARWAL,J.

Civil Misc. Writ Petition No. 65428 of 2006

Harijinder Singh

 ...Petitioner
Versus
State of U.P. and others ...Respondents

Counsel for the Petitioner:
Sri U.K. Purwar
Sri Pramod Kumar Srivastava
Sri Abhishek Misra
Sri Ravindra Kumar
Sri Manoj Saxena
Sri Vishnu Sahai
Sri B.Dayal

Counsel for the Respondents:
Sri A.P. Srivastava
Sri Vivek Saran
Sri Ashish Kumar Singh
Sri Ajay Kumar Singh
Sri A.S. Rana
Sri M.K. Gupta
C.S.C.

Land
Acquisition
Act-Section-48-Land
Acquired for housing Scheme by Awas
Vikas
Parishad-compensation
determined-symbolic possession taken-
.reference proceeding for enhancement
going
on-adjoining
plot
exemptedrepresentation by petition rejected-heldnot proper-direction to consider and
decide
representation
for
exemption
within time bound consideration-till then
stay in terms of SLP to continue.

Held: Para 32 and 33

In view of the law as laid down by the
Apex Court as above, the respondents
are obliged to consider the claim of land
holders for exemption uniformly on a
1 All] Harijinder Singh V. State of U.P. and others
111
rational policy and the respondents
cannot
take
decision
regarding
exemption
of
land
from
acquisition
arbitrarily and discriminately.

In view of the fact that all relevant
materials including proceedings of the
Board have not been brought on the
record by the respondents, it is not
possible for this Court to examine such
decision and to decide the claim of the
petitioner, hence it is in the interest of
justice that the Board be directed to
consider the claim of the petitioner for
exemption of Plot No.368/1 from the
housing scheme.
Case law discussed:
2010 (3) SCC 621; A.I.R. 1975 SC 1767

(Delivered by Hon'ble Ashok Bhushan, J.)

1. Heard Sri Pramod Kumar
Srivastava,
learned
counsel
for
the
petitioner, Sri A.P. Srivastava, learned
counsel appearing for respondents No.2, 3
and 4, Sri M.K. Gupta, assisted by Sri
Ashish Kumar Singh for respondent No.5
and learned Standing Counsel.

2. Counter affidavit and two
supplementary counter affidavits have been
filed by the U.P. Avas Evam Vikas Parishad
to
which
rejoinder
affidavit
and
supplementary rejoinder affidavits have also
been filed by the petitioner. With the
consent of learned counsel for the parties,
the writ petition is being finally disposed of.

3. Brief facts of the case, as emerge
from pleadings of the parties, are; a
notification dated 26th June, 1982 under
Section 28 of the U.P. Avas Vikas Parishad
Adhiniyam, 1965 (hereinafter referred to as
the 1965 Act) was issued notifying various
plots which were proposed to be acquired
for a housing scheme including Plot
No.368/1 situate in village Prahlad Garhi,
district Ghaziabad. Objections against the
proposed acquisition were filed by various
tenure holders. The Niyojan Samiti of the
U.P.Avas Evam Vikas Parishad held its
meetings on 6th, 7th and 8th of April, 1993
and considered various objections. The
Niyojan
Samiti
recommended
for
exempting
portion
of
various
plots
including certain plots, which were in the
vicinity of Plot No.368/1, namely, Plot No.
373 area 0.02 acres, Plot No.374 area 0.03
acre, Plot No.375 area 0.02 acres and Plot
No.368 area 0.09 acre. A notice under
Section 32(1) of the 1965 Act was issued on
28th February, 1987. The award was
declared on 27th February, 1989 and
possession of certain plots were claimed to
be taken by the U.P. Avas Evam Vikas
Parishad (hereinafter referred to as the
Board) on 8th August, 1989. Plot No.368/1
was owned by petitioner's father after
whose death name of petitioner's mother has
been recorded in the revenue record.
Petitioner's father late Swarn Singh filed a
writ petition being Writ Petition No.17057
of 1987 challenging the acquisition of Plot
No.368/1 which writ petition was dismissed
by this Court vide judgment and order dated
8th September, 1988. In the years 1992,
1994 and 1995, the Board took decisions to
exempt plots belonging to Daya Nand and
others which was noted in the letter dated
10th February, 1995 issued by the Prabhari
Adhikari (Bhumi) of the Board. The
petitioner's father died in the year 1991.
Petitioner's mother made a reference for
enhancement of the compensation being
Land Acquisition Reference Case No.64 of
2000, which is said to be pending.
Petitioner's mother made an application on
16th February, 2005 addressed to the
Chairman of the Board praying that Plot
No.368/1 be exempted from acquisition. It
was stated in the application that the land of
agriculturists of adjoining area has already
been exempted by the Board. Copy of the
112 INDIAN LAW REPORTS ALLAHABAD SERIES [2012
letter dated 10th February, 1995 was
enclosed along with the application dated
16th February, 2005. The petitioner filed a
writ petition being Writ Petition No.71083
of 2005 which writ petition was disposed of
on 18th November, 2005 directing the
Chairman of the Board to decide the
representation dated 16th February, 2005 in
accordance with law within a period of four
months and for a period of four months
parties were directed to maintain status quo.
After the order of this Court dated 18th
November, 2005 a contempt petition being
Contempt Petition No.1867 of 2006 was
filed by the petitioner stating that in spite of
the judgment and order dated 18th
November, 2005, no decision has yet been
taken. The contempt petition was disposed
of on 4th May, 2006 directing the Chairman
to decide the claim and intimate the
petitioner the order so passed. The
Chairman of the Board by letter dated 26th
June, 2006 forwarded the decision dated
13th March, 2006 issued by the Housing
Commissioner by which order petitioner's
representation dated 16th February, 1995
was rejected. The petitioner filed this writ
petition in this Court on 28th November,
2006 praying for following relief:-

"It is, therefore most respectfully
prayed that this Hon'ble Court may
graciously be pleased to allow this writ
petition and to issue a writ, order or
direction:-

(a)- in the nature of certiorari
quashing the order dated 13.3.2006 and
26.6.2006 passed by the respondent no.3
and communicated by the respondent no.2
respectively [Annexure 8 to the writ
petition].

(b)- in the nature of mandamus
directing the respondents to exempt the Plot
No.368/I situated in village Prahlad Garhi,
District Ghaziabad on payment of such
charges as have been levied against
similarly situated persons.

(B-1) to declare the notice dated
26.6.1982 under Section 28 and notice
dated 19.2.1982 under Section 32 of the Act
as illegal and inoperative.

(B-2) a writ order or direction in the
nature of certiorari quash the auction sale
held in favour of respondent No.5."

4. The Board subsequent to filing of
the writ petition proceeded to hold auction
sale of the plots which were acquired which
auction was fixed for 15th December, 2007.
The petitioner filed a writ petition being
Writ Petition No.61270 of 2007 (Harijinder
Singh vs. State of U.P. and others)
challenging the advertisement published by
the Board for settlement of the land in
question by way of auction. The said writ
petition was dismissed on 12th December,
2007 by a Division Bench of this Court
noticing the fact that since petitioner's
earlier writ petition challenging the order
rejecting the application for exemption of
the land is still pending in which no interim
order has been granted, it is open for the
petitioner to seek interim protection as he
may be advised in the pending writ petition.
The petitioner filed Special Leave to Appeal
(Civil) No.24761 of 2007 against the
judgment and order dated 12th December,
2007 which was disposed of by the Apex
Court on 9th November, 2009. It is useful to
quote the order of the Apex Court dated 9th
November, 2009 which is as under:-

"According to the impugned judgment
petitioner herein had approached the
Allahabad High Court by filing writ petition
No.65428 of 2006 challenging the order of
1 All] Harijinder Singh V. State of U.P. and others
113
the
State
Government
rejecting
his
application for exemption of the land from
acquisition, which is pending.

We request the Division Bench of the
High Court to take up the pending writ
petition and decide the matter by 31st
December, 2009. We make it clear that the
High Court will decide the said writ petition
uninfluenced by the observations made in
the impugned judgment. We further clarify
that till the hearing and final disposal of the
said
writ
petition
No.
65428/06,
proceedings concerning sale confirmation
in the connected matter shall not proceed.

The special leave petition is disposed
of."

5. An impleadment application was
filed by the petitioner to implead respondent
No.5 in whose favour one of the
commercial plots was auctioned which
impleadment application was allowed by
this Court on 8th March, 2010. This writ
petition was placed before this Bench, the
Bench presided over by one of us (Justice
Ashok Bhushan) under nomination of
Hon'ble the Chief Justice dated 27th July,
2011 and thereafter the matter has been
heard and is being decided.

6. Learned counsel for the petitioner,
challenging the order dated 13th March,
2006 passed by the Housing Commissioner,
contended that this Court vide its judgment
and order dated 18th November, 2005
directed the Chairman of the Board to
decide
the
representation
but
the
representation has been rejected by the
Housing Commissioner which order is not
in accordance with the order of this Court
and is liable to be set-aside on this ground
alone. He further contended that over Plot
No.368/1 there was abadi of the petitioner
and although plots adjoining to Plot
No.368/1 have been exempted by the Board
but the petitioner's representation has been
rejected. It is submitted that Plot Nos. 373,
374, 375 and 368 were exempted, which
were adjoining plots, but petitioner's prayer
for exemption has been refused, which is
discriminatory, arbitrary and violative of
Article 14 of the Constitution of India. It is
submitted
that
petitioner
is
still
in
possession of Plot No.368/1 and the
possession was never taken from the
petitioner. The petitioner is running a
business of "Thinner" in the plot in question
and the petitioner is entitled for exemption
of the plot as similar relief has already been
granted to adjoining plot holders. The
petitioner has placed reliance on a judgment
of the Apex Court in the case of Hari Ram
and another vs. State of Haryana and
others reported in 2010(3) SCC 621. The
learned counsel for the petitioner further
submits that actual possession has not been
taken from the petitioners at any point of
time and the petitioner continues in
possession. It is further submitted that as per
the law laid down by the Apex Court in the
case of Balwant Narayan Bhagde vs. M.D.
Bhagwat and others reported in A.I.R.
1975 SC 1767, the actual physical
possession was required to be taken which
has never been taken and petitioner
continues in possession.

7. Learned counsel for the Board,
refuting the submissions of learned counsel
for the petitioner, contended that portion of
petitioner's plot measuring 364.16 square
meters has already been exempted by the
Niyojan Samiti, hence the petitioner's case
for exemption has already been considered
and partly allowed and there is no occasion
to consider the prayer of the petitioner any
further for exemption. It is submitted that in
adjoining plots to the petitioner's plot only
114 INDIAN LAW REPORTS ALLAHABAD SERIES [2012
small area on which abadi was existing, has
been exempted, hence the petitioner cannot
claim discrimination. It is submitted that
petitioner's plot is situate on 100 feet wide
road and is a valuable plot for commercial
utility of the Board, hence decision has been
taken not to exempt the petitioner's plot
from the scheme. It is further submitted that
Chairman under the 1965 Act has no
jurisdiction or authority to decide such
representations. Petitioner's mother has
already filed a Land Acquisition Reference
No.64 of 2000 for enhancement of
compensation and a notice dated 7th
December, 2004 was served on the
petitioner's mother for demolition of
unauthorised constructions raised over the
land of the Board which notice was
challenged by the petitioner's mother by
means of a writ petition being Writ Petition
No.3055 of 2005 which was dismissed on
24th January, 2005 with the observation that
petitioner of that writ petition may file
objection against the show cause notice.
The Housing Commissioner has considered
the representation of the petitioner and
passed an order on 13th March, 2006 and
the land of the petitioner was not considered
fit for exemption. Referring to the report of
the Niyojan Samiti dated 9th November,
1993, it is stated that no exemption was
granted to the petitioner's land. The
exemption of land was granted by the
Niyojan Samiti in favour of other tenure
holders i.e. adjoining neighbourers of the
petitioner. The writ petition filed by the
petitioner's father being Writ Petition No.
17057 of 1987 having been dismissed on
8th September, 1988, the acquisition
proceedings have become final.

8. Sri M.K. Gupta, learned counsel
appearing for respondent No.5, submitted
that the land in question was earmarked for
community centre. The Board has full
jurisdiction and authority to auction the
plots in favour of respondent No.5 which
includes plot of the petitioner as well as
other tenure holders. He further objected the
locus of the petitioner to file this writ
petition. He submits that the land in
question, according to petitioner's case, was
recorded in the name of petitioner's mother,
hence the petitioner has no locus to
challenge the order passed by the Housing
Commissioner
on
the
representation
submitted by the petitioner's mother.

9. Learned counsel for the petitioner,
in rejoinder, reiterated his submissions. It is
further contended that authority competent
having not decided the representation, the
order dated 13th March, 2006 deserves to
be set-aside. It is submitted that the Board in
its counter affidavit has not raised any
objection regarding locus of the petitioner to
file the writ petition, hence it is not open for
the respondent No.5, who has not even filed
any counter affidavit, to raise any objection
regarding locus that too at the time of
hearing. It is further submitted that
petitioner's mother is an old lady who has
authorised the petitioner to take all legal
proceedings.
Along
with
the
brief
arguments submitted on behalf of the
petitioner a xerox copy of the special power
of attorney dated 13th November, 2005 by
Mrs. Gurdev Kaur has been enclosed. It is
further submitted by learned counsel for the
petitioner that earlier petition filed by the
petitioner being Writ Petition No.71083 of
2005 having been disposed of by this Court
directing for deciding the representation
dated 16th February, 2005, it is not open for
the respondents, at this stage, to raise any
objection regarding locus of the petitioner.

10.

We
have
considered
the
submissions of learned counsel for the
parties and have perused the record.
1 All] Harijinder Singh V. State of U.P. and others
115

11. Before we proceed to consider the
respective submissions of learned counsel
for the parties, it is necessary to first
consider the objection raised by learned
counsel for respondent No.5 regarding locus
of the petitioner to file this writ petition.

12. In the writ petition although a
counter affidavit and two supplementary
counter affidavits have been filed by the
Board but in none of the affidavits any
objection regarding locus of the petitioner
has been taken, rather in the supplementary
counter affidavit dated 3rd September, 2011
sworn by Sri S.K. Srivastava, Executive
Engineer of the Board it has been
mentioned in paragraph 4 that Gobern
Singh was the original owner of the land
and after his death property came in the
name of Swarn Singh. Paragraph 4 of the
supplementary counter affidavit dated 3rd
September, 2011 is as under:-

"4. That it would not be out of place to
mention here that Govern Singh was
original owner of the land Khasra No.368
and after his death the property came in the
name of his son Swarn Singyh, and the
petitioner inherited the property after the
death of Swarn Singh. The objection filed
for exemption of the land was duly
considered by the Niyojan Samiti and
364.16 sq. mtrs land from Khasra No.368
was already exempted."

13. From the above stand taken by the
Board, it is clear that the Board never raised
any objection regarding locus of the
petitioner to file this writ petition, rather the
right of the petitioner has been accepted in
the land. The Board having not raised any
objection regarding locus of the petitioner,
we do not deem it fit to entertain the
objection raised by respondent No.5 who
claims to be subsequent auction purchaser.

14. The petitioner although in the writ
petition has prayed that notice dated 26th
June, 1982 issued under Section 28 of the
1965 Act and notice issued under Section
32 of the 1965 Act be declared illegal, void
and inoperative, the said prayer is liable to
be rejected in view of the fact that
petitioner's father had earlier filed Writ
Petition No.17057 of 1987 challenging the
acquisition proceedings which writ petition
was dismissed by this Court on 8th
September, 1988. The said fact has been
stated by the petitioner himself in paragraph
6 of the writ petition. Thus challenge to the
acquisition raised by the petitioner's father
having already been rejected, the prayer of
the petitioner challenging the aforesaid
notices cannot be accepted.

15. The first submission of learned
counsel for the petitioner is that the order
impugned dated 13th March, 2006 passed
by the Housing Commissioner deserves to
be quashed on the ground that this Court
had directed the Chairman of the Board to
consider the representation by its judgment
and order dated 18th November, 2005 and
the Chairman having not decided the issue,
the decision by the Housing Commissioner
is meaningless.

16. Sri A.P. Srivastava, learned
counsel for the Board, in reply to the above
submission, contended that Chairman of the
Board has no authority or jurisdiction to
decide any claim for exemption and the
Housing Commissioner being an authority
to take decision regarding scheme has
rightly rejected the representation. Sri
Srivastava, however, could not explain as to
when this Court directed the Chairman of
the Board to decide representation, how
come the Housing Commissioner decided
the representation.
116 INDIAN LAW REPORTS ALLAHABAD SERIES [2012

17. It is useful to look into the
direction
of
this
Court
dated
18th
November, 2005, which was to the
following effect:-

"Heard learned counsel for the parties.

In the facts and circumstances of the
case, the respondent no.2 is directed to
decide the representation dated 16.2.2005
(Annexure 5 to the writ petition) in
accordance with law within a period of 4
months from the date of filing of a certified
copy of this order.

For a period of 4 months from today,
parties shall maintain status-quo.

With these directions, the writ petition
is disposed of."

18. The provisions of the 1965 Act,
which are relevant in this context, are
necessary to be looked into. Under Section
3 of the 1965 Act, the State Government is
empowered to establish a Board by gazette
notification which is a body corporate.
Section 3(5) provides for constitution of the
Board. Section 3(5), as existed at the time
when this Court passed the order dated 18th
November, 2005, was as follows:-

"3. Constitution of the Board.- (1) .....

(2) .....

 .....

(5)The Board shall consist of an
Adhyaksha, who shall ordinarily be a nonofficial, appointed by the State Government,
and the following members:

(a)
six
non-official
members,
appointed by the State Government, of
whom one shall be the Mayor of a
Municipal Corporation and two shall be
members of the State Legislature, one from
each House thereof;

(b)
the
Secretary,
Finance
Department, Government of Uttar Pradesh,
ex-officio;

(c)the Secretary, Housing Department,
Government of Uttar Pradesh, ex-officio;

(d)the
Secretary,
Local
SelfGovernment Department, Government of
Uttar Pradesh, ex-officio, unless he has
been appointed as Secretary, Housing
Department;

(e) the Chief Engineer, Town and
Village
Planning
Department,
Uttar
Pradesh, ex-officio;

(f) the Chief Engineer, Local Self
Government
Engineering
Department,
Uttar Pradesh, ex-officio; and

(g) the Housing Commissioner, exofficio, unless he has been appointed as
Adhyaksha."

19. It is relevant to note that Section
3(5) of the 1965 Act was amended by U.P.
Act No.11 of 2007 and again by U.P. Act
No.7 of 2010. By U.P. Act No.11 of 2007,
the sub-section (5) of Section 3 was
substituted as follows:-

"3. Constitution of the Board.- (1) .....

(2) .....

.....

(5) The Board shall consist of ,-
1 All] Harijinder Singh V. State of U.P. and others
117

(a) the Principal Secretary/Secretary
to the Government of Uttar Pradesh in
Housing and Urban Planning Department -
Adhyaksha ex officio;

(b) three Upadhyakshas who shall be
the non-official members appointed by the
State Government;

(c) the Principal Secretary/Secretary
to the Government of Uttar Pradesh in the
Finance Department - ex officio member;

(d) The Principal Secretary/Secretary
to the Government of Uttar Pradesh in the
Urban Development Department - ex officio
member;

(e) the Principal Secretary/Secretary
to the Government of Uttar Pradesh in the
Bureau of Public Enterprises Department -
ex officio member;

(f) the Chief Town and Country
Planner Uttar Pradesh - ex officio member;

(g) the Director, Central Building
Research Institute, Roorkee - ex-officio
member;

(h) the Housing Commissioner, Uttar
Pradesh Awas Evam Vikas Parishad - ex
officio member;

(i) the Chief Engineer, Uttar Pradesh
Awas Evam Vikas Parishad - ex officio
member;

(j) the Finance Controller, Uttar
Pradesh Awas Evam Vikas Parishad - ex
officio member;

(k) the Chief Architect Planner, Uttar
Pradesh Awas Evam Vikas Parishad - ex
officio member."

20. Again by U.P. Act No.7 of 2010
in sub-section (5) of Section 3 of the 1965
Act, following clauses were substituted:-

"(a) The Minister, Housing and Urban
Planning Department, Uttar Pradesh -
Adhyaksha-exofficio;

(a-1)
The
Principal
Secretary,
Secretary to the Government of Uttar
Pradesh in Housing and Urban Planning
Department- Karyakari Adhyaksha/Sadasya
ex-ffocio."

21. Section 15 of the 1965 Act
provides for functions of the Board. Clause
(a) to Clause (p) of Section 15(1)
specifically enumerate functions of the
Board. It is relevant to refer Clause (o),
which is to the following effect:-

"(o) to fulfil any other obligation
imposed by or under this Act or any other
law for the time being in force; and"

22. Section 18 of the 1965 Act
provides
for
types
of
housing
and
improvement schemes. Section 28 provides
for notice of housing and improvement
schemes. Section 30 provides for objections
against the scheme. Section 31 provides for
abandonment, modification or sanction of
scheme and Section 32 provides for
commencement of scheme. Section 33
provides for alteration of scheme after
commencement. Sections 31, 32 and 33 of
the 1965 Act, are quoted below:-

"31. Abandonment, modification or
sanction of scheme.- (1) After considering
the objections, if any, received in pursuance
of the foregoing provisions and after giving
an opportunity of being heard to the
objectors, the Board may, so for as may be,
within six months from the date of receipt of
118 INDIAN LAW REPORTS ALLAHABAD SERIES [2012
the last such objection, either abandon the
scheme, or, if the estimated cost of the
scheme does not exceed twenty lakhs of
rupees, sanction it with or without
modifications, and if the estimated cost of
the scheme exceeds twenty lakhs of rupees,
submit it to the State Government for
sanction with such modifications, if any, as
the Board may suggest.

(2) The State Government any sanction
with or without modifications, or refuse to
sanction, or return for reconsideration, any
scheme submitted to it under sub-section
(1).

(3)
If
a
scheme
returned
for
reconsideration under sub-section (2) is
modified by the Board it shall be
republished in accordance with Section 28-

(a) if the modification affects the
boundaries of the area comprised in the
scheme or involves acquisition of any land
or building not previously proposed to be
acquired; or

(b) if the modification is in the opinion
of the Board of sufficient importance to
require republication,

and
on
such
republication
the
procedure prescribed in Sections 29 and 30
shall, so for as may be applicable, be
followed as if the republication were an
original publication under Section 28.

32. Commencement of scheme.- (1)
Whenever
the
Board
or
the
State
Government
sanctions
a
housing
or
improvement scheme, it shall be notified in
the Gazette.

(2) The notification under sub-section
(1) in respect of any scheme shall be
conclusive evidence that the scheme has
been duly framed and sanctioned.

(3) Any person who, or a local
authority which had filed objections under
Section 30, aggrieved by the decision of the
Board
sanctioning
a
housing
or
improvement scheme may, within thirty
days from the date of the notification under
sub-section (1), appeal to the State
Government whose decisions thereon shall
be final.

(4) If the State Government cancels or
alter the scheme as a result of an appeal
filed under sub-section (3), the conciliation
or alteration shall be notified in the Gazette.

(5) The scheme shall come into force-

(a)
if
sanctioned
by
the
State
Government, on the date the notification
under sub-section (1);

(b) if sanctioned by the Board-

(i) where no appeal is preferred under
sub-section (3), on the expiry of thirty days
from the date of the notification under subsection (1), and

(ii) where an appeal is preferred and
the scheme is on appeal maintained with or
without alteration, on the date of the
decision of the appeals and where more
appeals than one are preferred, on the date
of the decision of the appeal last decided.

33.
Alteration
of
scheme
after
commencement.- (1) At any time after a
housing or improvement scheme has come
into force and before it has been fully
executed, the Board may for reasons to be
recorded alter or cancel it:
1 All] Harijinder Singh V. State of U.P. and others
119

Provided that-

(a) if any alteration is likely to
increase the estimated cost of executing a
scheme by more than ten percent or if any
altered scheme is estimated to cost more
than twenty lakhs of rupees, the alteration
shall not be made without the previous
sanction of the Government;

(b) before making any alteration which
involves acquisition, otherwise than by
agreement, of building not proposed to be
acquired in the original scheme, or owing
to which any land not previously liable
under the scheme to payment of betterment
fee becomes liable to such payment, the
Board shall serve a notice, in such form, on
such persons or classes of persons and in
such manner, as may be prescribed, of
classes of persons and in such manner, as
may be prescribed, of the proposed
alteration, and consider the objections, if
any, received in pursuance of the notice
within thirty days from the service of the
notice or within such further time as the
Board may, for sufficient cause, allow, and
give an opportunity of being heard to the
objectors;

(c) no scheme estimated to cost over
twenty lakhs of rupees shall be altered or
cancelled without the previous sanction of
the State Government.

(2) any alteration or cancellation of a
scheme under sub-section(1) shall be
notified in the Gazatte and have effect from
the date of such notification, so however,
that any such modification shall be without
prejudice to the validity of anything
previously done under the original scheme."

23. Section 49 of the 1965 Act
empowers the State Government to call for
the records of the Board and to modify or
annul any scheme. Section 55 provides for
power to acquire land. Under Section 55
any land or any interest therein required by
the Board for any of the purposes of the
Act, may be acquired under the provisions
of the Land Acquisition Act, 1984 as
amended in its application to Uttar Pradesh,
which for this purpose shall be subject to
the modifications specified in the Schedule
of the 1965 Act.

24. From the scheme of the 1965 Act,
as noticed above, it is clear that after the
scheme has commenced, it can be altered by
the Board subject to conditions mentioned
therein. The State Government has been
specifically conferred with the power to call
for and examine the records of the Board
relating to any housing or improvement
scheme which is proposed to be or has been
framed by the Board or which is being
executed by it and modify, annul or remit
for reconsideration to the Board. Thus after
the commencement of the scheme, it is only
the Board and the State Government which
have been statutorily empowered to amend
or modify any scheme.

25. In the present case the notification
under Section 32 has already been issued on
28th February, 1987 from which date the
scheme
has
commenced.
Thus
the
representation dated 16th February, 2005
submitted for exemption of Plot No.368/1
could have only been considered by the
Board. This Court on 18th November, 2008
directed the Chairman of the Board to
consider the representation dated 16th
February, 2005. The order has to mean that
the Chairman was to take appropriate steps
for consideration and the appropriate steps
for consideration of the scheme can be no
other
than
placing
the
matter
for
consideration of the Board as per Section 33
120 INDIAN LAW REPORTS ALLAHABAD SERIES [2012
of the 1965 Act. It is true that Chairman
himself could not have taken any decision
regarding exemption of the land since no
such power is vested in the Chairman under
the scheme of the1965 Act. It is useful to
note that direction issued by this Court to
the respondent No.2, who was the
Chairman, was to the following effect:-

"The respondent No.2 is directed to
decide representation dated 16th February,
2005 (Annexure-5 to the writ petition) in
accordance with law...."

26. The aforesaid order has to mean
that Chairman was to take steps that the
representation be decided in accordance
with law. The decision on the representation
in accordance with law has to be decision
on the representation by the Board.

27. In the present case, the order
impugned has been passed by the Housing
Commissioner, who under the scheme of
the 1965 Act, has no jurisdiction to exempt
any land from the scheme after its
commencement under Section 32. Although
there is provision for delegation of power
under Section 12 of the 1965 Act by the
Board but there is nothing on the record to
come to a conclusion that Housing
Commissioner was delegated the power by
the Board to exempt any land from its
scheme which has already commenced. We
are thus fully satisfied that Housing
Commissioner had no jurisdiction to decide
the representation for exemption of Plot
No.368/1 and the order rejecting the
representation deserves to be set-aside on
this ground alone.

28. The submission, which has been
pressed by the learned counsel for the
petitioner is that although the land of tenure
holders adjoining to the petitioner's land
have been exempted from acquisition but
petitioner's land has not been exempted,
which is discriminatory and arbitrary. In
this context it is necessary to refer to the
materials brought on the record and the
pleadings made on behalf of the Board. In
the order of the Housing Commissioner
dated 13th March, 2006 reference to the
proceedings of the Board dated 19th
November, 1994, 10th February, 1995 and
17th June, 2005 have been made in which
proceedings decisions regarding exemption
of land were taken but the said proceedings
have not been brought on the record. In the
supplementary affidavit dated 26th July,
2010 filed by the petitioner reference has
been made to the letter dated 26th
November, 1997 issued by the Executive
Engineer of the Board addressed to Daya
Nand and Soraj and others of village
Prahlad Garhi. In the said letter it has been
mentioned that land of Plots No.360, 361,
366, 364, 365, 369, 370, 373, 374, 375, 376,
380, 381, 383, 384 and 386M, total area 13
bigha, 13 biswa and 5 biswansi have been
exempted by resolution dated 1.10.1992.
Reply to the supplementary affidavit has
been filed by filing supplementary counter
affidavit sworn by Nagesh Chandra,
Executive Engineer of the Board dated 26th
September, 2010 in which issuance of the
letter dated 26th November, 1997 and
exemption of the land as mentioned therein
has not been denied. It has been stated that
plots shown in yellow colour in the map
submitted by the petitioner had been
exempted by the Niyojan Samiti itself on
hearing of the objections of the land holders
and since the petitioner's land was
considered important for the Board, the
same was not exempted. It has further been
stated that possession of the land was taken
by possession memo which was filed along
with the supplementary counter affidavit.
The plots, which were exempted from the
1 All] Harijinder Singh V. State of U.P. and others
121
acquisition as was contained in the letter
dated 26th November, 1997 were all
adjoining plots to the petitioner's plot and
although it is pleaded in the supplementary
counter affidavit that exemption was
granted by the Niyojan Samiti itself but a
perusal of the plot numbers as mentioned in
the letter dated 26th November, 1997 and
perusal of the plot numbers as mentioned in
the proceedings of the Niyojan Samiti,
which held its meeting on 6th, 7th and 8th
of April, 1983, indicate that certain plots,
which are mentioned in the letter dated 26th
November, 1997, were not mentioned in the
proceedings of the Niyojan Samiti and
further the area of the plots, which were
exempted in the proceedings of the Niyojan
Samiti, copy of which has been brought on
the record along with the supplementary
counter affidavit of the Board dated 13th
September, 2011, defers from the area
mentioned
in
the
letter
dated
26th
November, 1997. Further Plot Nos.366,
364, 369 and 370 were not mentioned in the
report of the Niyojan Samiti although the
same were mentioned in letter dated 26th
November, 1997 and area of the aforesaid
plots also defers. For example, in Plot
No.360 only an area of 0.03 acre was
exempted by the Niyojan Samiti whereas in
the aforesaid letter the area mentioned is 10
biswa, which is much more than the area
mentioned in the report of the Niyojan
Samiti. One of the dates of the proceedings
of the Board has been mentioned as 1st
October, 1992 in the letter dated 26th
November, 1997 which proceedings have
also not been brought on the record.

29. From the pleadings and the
materials brought on the record, it is clear
that after the commencement of the scheme
under Board's resolution certain other plots
were exempted which were in the vicinity
of the petitioner's plot. In the counter
affidavits and the supplementary counter
affidavits relevant details and proceedings
regarding exemption of the land subsequent
to commencement of the scheme have not
been brought on the record nor relevant
facts have been clearly pleaded. The
petitioner in paragraph 11 of the writ
petition referring to the order dated 10th
February, 1995 has specifically pleaded that
in the year 1995 the respondents have
exempted the adjoining plots of similarly
situated persons, namely, Daya Nand and
others
from
acquisition.
The
said
submissions have been replied in the
counter affidavit filed by the Board in
paragraph 17 in which only this much has
been stated that exemption was granted by
the Niyojan Samiti. There is no categorical
statement in the counter affidavit and the
supplementary counter affidavits that no
exemption
was
granted
after
commencement of the scheme whereas the
materials brought on the record clearly
indicate that Board also has taken decision
for exemption of land subsequent to
commencement of the scheme.

30. In view of the above facts, it is
necessary
that
petitioner's
case
for
exemption of Plot No.368/1 be considered
by the Board afresh and the Board after
considering the petitioner's claim may take
appropriate decision.

31. The judgment in Hari Ram's case
(supra) relied by the learned counsel for the
petitioner supports the submission of the
petitioner
that
the
State
Government/competent authority cannot
discriminatingly exempt land of certain
tenure holders and refuse exemption to
others. It is useful to quote paragraph 24 of
the said judgment which is to the following
effect:-
122 INDIAN LAW REPORTS ALLAHABAD SERIES [2012

"24. As a matter of fact, lands of more
than 40 landowners out of the same
acquisition proceedings have been released
by the State Government under Section 48
of the Act. Some of the release orders have
been passed in respect of landowners who
had
not
challenged
the
acquisition
proceedings and some of them had
challenged the acquisition proceedings
before the High Court and whose cases
were not recommended by Joint Inspection
Committee for withdrawal from acquisition
and whose writ petitions were dismissed.
Some of these landowners had only vacant
plots of land and there was no construction
at all. In most of these cases, the award has
been passed and, thereafter, the State
Government
has
withdrawn
from
acquisition. It is not the case of the
respondents
that
withdrawal
from
acquisition in favour of such landowners
has been in violation of any statutory
provision or contrary to law.