# Isht Deo Gupta v. State of U.P. & Ors

- **Citation:** (2022) 3 ILRA 504
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2022-01-21
- **Case number:** Matters Under Article 227 No. 7759 of 2021
- **Bench:** J.J. Munir
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/isht-deo-gupta-v-state-of-u-p-ors-48210
- **Pages:** 7

## Headnote

Planning and Development Act, 1973:
Section 18(6) - Any order that doesn't fall
strictly within the terms of the statutory
provision creating a right of appeal is not
appealable. (Para 10)
Writ Petition Rejected. (E-10)

List of Cases cited:

## Text

504 INDIAN LAW REPORTS ALLAHABAD SERIES

12. In this view of the matter, it is
directed that the learned District Judge
shall pass appropriate orders bearing in
mind the totality of circumstances requiring
the
petitioner
to
comply
with
the
requirement of pre-deposit in such manner
as in the discretion of the Court may be
found appropriate. It is made clear that in
whatever way the condition of pre-deposit
of 75% is complied with, the condition to
the extent of deposit of 75% has to be
complied with. While passing the orders
regarding the manner in which the
condition of pre-deposit is to be complied
with, the learned District Judge shall take
into account, if there is any money paid
already under the award, which shall be
adjusted.

13. It is further directed that subject to
the petitioner complying with the terms of
the pre-deposit as directed by the District
Judge, the District Judge shall proceed with
and decide the application under Section 19
of the Act of 2006 within a period of six
months, after hearing both parties, in
accordance with law.

14. This petition is disposed of in
terms of the aforesaid orders.

15. Let a copy of this order be
communicated to the learned District
Judge, Kanpur Nagar by the Registrar
(Compliance).
----------
(2022)03ILR A504
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 21.01.2022

BEFORE

THE HON'BLE J.J. MUNIR, J.

Matters Under Article 227 No. 7759 of 2021
(CIVIL)

Isht Deo Gupta ...Petitioner
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Sri Awadesh Kumar Malviya, Sri Sanjeev Kumar
Sharma

Counsel for the Respondents:
C.S.C., Sri Shivam Yadav, Sri Sudhir Mehrotra

A. Interpretation of Statute - U.P. Urban
Planning and Development Act, 1973:
Section 18(6) - Any order that doesn't fall
strictly within the terms of the statutory
provision creating a right of appeal is not
appealable. (Para 10)
Writ Petition Rejected. (E-10)

List of Cases cited:

1. Tamil Nadu Control Board Vs Sterile
Industries (India) Ltd. & ors. (2019) SCC OnLine
SC 221
(Delivered by Hon'ble J.J. Munir, J.)

The Court is convened via video
conferencing.

2. This petition under Article 227 of
the Constitution is directed against an order
of Mr. J.K. Dwivedi, the learned Additional
District Judge, Court No. 16, Kanpur Nagar
dated 22.09.2021, dismissing Misc. Appeal
No. 54 of 2019 and affirming an
order/notice
issued
by
the
Assistant
Secretary, Kanpur Development Authority,
Kanpur Nagar cancelling the petitioner's
allotment of a plot of land, with a direction
for refund of the advance consideration
deposited towards execution of a lease of
the said plot.
3 All. Isht Deo Gupta Vs. State of U.P. & Ors.
505

3. The facts giving rise to this petition
are as follows :

One Rakesh Kumar Gupta was
allotted a house bearing House No. 6, H.I.G.,
Block W-1, Saket Nagar, Kanpur Nagar
under a self-financing scheme floated by the
Kanpur Development Authority, Kanpur
Nagar1 in accordance with the allotment
made
vide
Allotment
No.
26(डी)भू०/के०डी०ए० dated 07.10.1983. It is
claimed that Rakesh Gupta deposited the
entire consideration for execution of the lease
deed, being a sum of Rs. 1 lacs relating to the
said house, but the deed was not executed.
However, in consequence of the allotment
made, possession was delivered to Rakesh
Gupta over the house in dispute on
23.05.1984.
Rakesh
Gupta
resided
continuously in the house in dispute based on
the letter of allotment, together with delivery
of possession made to him by the Authority.
Rakesh Gupta was issueless. He executed a
unregistered Will dated 29.12.1995 in the
petitioner's favour, bequeathing him the
house in dispute. The petitioner is Rakesh
Gupta's nephew (brother's son). During his
lifetime, Rakesh Gupta was issued with a
notice by the Authority, asking him to
deposit a further sum of Rs. 1,98,170/-.
Rakesh Gupta challenged the said additional
demand by means of a writ petition before
this Court, being Civil Misc. Writ Petition
No. 245 of 1999, which was disposed of by
an order dated 06.01.1999, granting liberty
to the petitioner to represent his claim before
the Authority, who were put under a
direction to decide the petitioner's claim
within a period of two months of production
of a certified copy of that order. It is the
petitioner's case that Rakesh Gupta served
the
said
order
upon
the
Authority,
whereupon, he was issued a further notice,
requiring him to deposit an escalated sum of
Rs. 4,86,620/-.

4.

Thereupon,
Rakesh
Gupta
instituted Original Suit No. 807 of 1999 in
the Court of the Civil Judge (Senior
Division), Kanpur Nagar, praying for a
permanent injunction against the Authority
forbearing
them
from
cancelling
his
allotment or dispossessing him. Pending
suit, Rakesh Gupta passed away on
10.01.2021.
The
petitioner
claiming
succession relating to the house in dispute,
to have opened out under the last will and
testament
of
Rakesh
Gupta
dated
29.12.1995 in his favour, applied for
substitution in the suit. He was substituted
as Plaintiff No. 1/1. The said suit was tried
and dismissed vide judgment and decree
dated 18.12.2018. The petitioner, who
claims to be in possession of the suit
property in the right inherited from Rakesh
Gupta submitted a representation dated
12.02.2019, pressing his claim to the
execution of an appropriate deed of
conveyance in terms of the allotment made
in favour of Rakesh Gupta. The Authority
vide their order dated 02.05.2019, rejected
the
petitioner's
application
dated
12.02.2019 on the ground that in the
lifetime of the late Rakesh Gupta, the
Authority had considered his representation
made in this behalf, in compliance with the
orders of this Court dated 06.01.1999
passed in Civil Misc. Writ Petition No. 245
of 1999 and the Vice Chairman vide his
order dated 19.04.1999 had permitted
Rakesh Gupta to deposit a sum of Rs.
4,60,044/- in the Authority's account up to
18.05.1999, but he had failed to do so. It
was further said in the order that
consequently, the Vice Chairman of the
Authority had cancelled the allotment made
in favour of Rakesh Gupta. It was also
stipulated that the petitioner may receive
the sum of money deposited towards
allotment/lease relating to the house in
dispute
by
Rakesh
Gupta,
upon
506 INDIAN LAW REPORTS ALLAHABAD SERIES
presentation of the original receipts. It is
the aforesaid order dated 02.05.2019 passed
by
the
Authority,
whereagainst
the
petitioner carried a miscellaneous appeal to
the District Judge of Kanpur Nagar, who
entertained and registered the same as
Misc. Appeal No. 54 of 2019.

5. The appeal aforesaid, upon
assignment, came up for determination
before the Additional District Judge, Court
No. 16, Kanpur Nagar. On 22.09.2021, the
appeal was heard and dismissed on merits.

6. Aggrieved by the order dated
22.09.2021
passed
by
the
learned
Additional District Judge, the petitioner has
instituted the present writ petition.

7. Heard Mr. Awadhesh Kumar
Malviya, learned Counsel for the petitioner,
Mr. Shivam Yadav, learned Counsel for
respondent nos. 2 and 3, Mr. Sudhir
Mehrotra,
learned
Special
Counsel
appearing on behalf of the High Court and
Mr. K.R. Singh, learned Chief Standing
Counsel for respondent no. 1.

8. By an order dated 20.01.2022, this
Court required the learned Additional
District Judge, Court No. 16, Kanpur Nagar
to indicate under what provision of the law,
he has entertained and decided Misc.
Appeal No. 54 of 2019, inasmuch as what
was under challenge before him was a mere
letter or an administrative communication
from the Secretary to the Authority,
addressed to the petitioner. It was indicated
in this Court's order dated 20.01.2022 that
learned Counsel for the petitioner was not
able to point out the provision of law under
which an appeal would lie to the District
Judge of the district from a virtual letter
issued by the Authority. This Court has
received a report from the learned District
Judge,
Kanpur
Nagar,
where
the
jurisdiction of the District Judge/Additional
District Judge to entertain and decide a
miscellaneous civil appeal has been traced
to the provisions of sub-Sections (6) and
(4) of Section 18 of the U.P. Urban
Planning and Development Act, 19732.
The relevant part of the report submitted by
the District Judge, Kanpur Nagar, also
dated 20.01.2022 reads to the following
effect :

The
Kanpur
Development
Authority
vide
its
letter
No.
डी/223/सुं०स०(जोन-3)/का०णव०प्रा०/2018-19
dated 02.05.2019, informed Sri Isht Deo
Gupta
through
Sri
Rakesh
Gupta,
informing him about the cancellation of
allotment of the said property. It was
informed him that the representation of Sri
Rakesh
Gupta
was
disposed
of
on
19.04.1999 by the then Vice Chairman,
KDA in compliance of the order dated
06.01.1999 passed by Hon'ble High Court,
Allahabad in Petition No. 245/1999, Rs.
4,60,444/- were to be deposited by the
allottee by 18.05.1999 but he failed to
comply with the order, therefore, the
allotment was cancelled, against which
Misc. Civil Appeal No. 54 of 2020 Isht
Deo Gupta Vs. K.D.A. & others, was
presented before the District Judge, Kanpur
Nagar.

It appears that on the aforesaid set
of facts under the provisions contained in
Section 18(4) of U.P. Urban Planning and
Development Act, 1973, cause of action
arose to the appellant.

Perusal of the record also shows
that communication vide letter dated
02.05.2019
of
Kanpur
Development
Authority falls within the ambit of Section
18(4)
of
U.P.
Urban
Planning
and
3 All. Isht Deo Gupta Vs. State of U.P. & Ors.
507
Development Act, 1973. Further the
provisions of Section 18(6) of U.P. Urban
Planning and Development Act, 1973,
reads as thus-

"(6) Any person aggrieved by an
order under sub-section (4) may, within 30
days from the date of knowledge thereof,
prefer an appeal to the District Judge whose
decision shall be final."

9. The moot question before this
Court is whether an appeal under subSection (6) of Section 18 of the Act of 1973
was maintainable before the learned
District Judge and a fortiori could have
been heard and decided on merits by the
learned Additional District Judge, as done
by the order impugned. It would be
apposite to quote the provisions of Section
18 of the Act of 1973, in extenso :

18. Disposal of land by the Authority or the
local Authority concerned.(1) Subject to
any
directions
given
by
the
State
Government in this behalf, the Authority
or, as the case may be, the local Authority
concerned may dispose of

(a) any land acquired by the State
Government and transferred to it, without
undertaking
or
carrying
out
any
development thereon; or

(b)
any
such
land
after
undertaking
or
carrying
out
such
development as it thinks fit.

to such persons, in such manner
and subject to such terms and conditions as
it considers expedient for securing the
development of the development area
according to plan.

(2) Nothing in this Act shall be
construed as enabling the Authority or the
local Authority concerned to dispose of
land by way of gift, but subject thereto,
references in this Act, to the disposal of
land shall be construed as references to the
disposal thereof in any manner, whether by
way of sale, exchange or lease or by the
creation of any easement, right or privilege
or otherwise.

(3)
Notwithstanding
anything
contained in Sub-section (2), the Authority
or the local Authority concerned may,
create a mortgage or charge over such land
(including any building thereon) in favour
of the Life Insurance Corporation of India,
the Housing and Urban Development
Corporation, or a banking company as
defined in the Uttar Pradesh Public Moneys
(Recovery of Dues) Act, 1972 or any other
financial institution approved by general or
special order in this behalf by the State
Government.

(4) Where vacant land has been
disposed of under this section by way of
lease for making constructions within the
time with right of forfeiture of the lease and
re-entry upon failure to make constructions
within such time, and the lessee fails
without sufficient reason, to make the
constructions or a substantial portion
thereof, within the stipulated time or such
extended time as the lessor may grant, the
lessor may, subject to the provisions of
Sub-section (4-A) forfeit the lease and reenter upon the land:

Provided that no forfeiture and
re-entry shall be made unless the lessee has
been allowed reasonable opportunity to
show cause against the proposed action.
508 INDIAN LAW REPORTS ALLAHABAD SERIES

(4-A) Where a lessee fails to
make construction within the stipulated
time, and the extended time, if any, under
Sub-section (4) so that the total period from
the date of lease exceeds five years, a
charge at the rate of two per cent of the
prevailing market value of the concerned
land shall be realised every year from him
by the lessor and if from the date of
imposition of the said charge a further
period of five years elapses the lease shall
stand forfeited and the lessor shall re-enter
upon the land :)

[Provided that where the period
of five years has expired before the
commencement of the Uttar Pradesh Urban
Planning and Development (Amendment)
Act, 1997, or where the period of five years
expires
within
one
year
after
such
commencement,
the
charge
shall
be
realizable after a period of one year from
the date of such commencement.]

(5) Upon such forfeiture and reentry, the premium paid by the lessee for
such land shall be refunded without any
interest, after deducting-

(a) the amount, if any, due to the
lessor under that lease, and

(b) a sum equivalent to 5 per cent
of
the
premium,
for
administrative
expenses.

(6) Any person aggrieved by an
order under Sub-section (4) may, within 30
days from the date of knowledge thereof,
prefer an appeal to the District Judge whose
decision shall be final.

(7) The land so re-entered upon
after forfeiture of lease may be disposed of
in accordance with the provisions of Subsections (1) and (2).

10. A perusal of sub-Section (4) of
Section 18 indicates that what is postulated
by the aforesaid provision is a concluded
lease of vacant land - a conveyance
executed by the Authority in favour of a
person
for
the
purpose
of
raising
constructions
thereon.
It
is
further
envisaged by sub-Section (4) that the lease
should carry a covenant about time within
which a lessee would raise constructions as
stipulated. A further covenant has to be
there that in the event of lessee's failure to
raise construction within the stipulated time
or a substantial portion thereof within that
time, the lessor, that is to say, the
Authority, would forfeit the lease and reenter. It is from an order passed by the
Authority forfeiting a lease of open land
and deciding to re-enter in exercise of
powers of sub-Section (4) of Section 18 on
account of the lessee's failure to raise
constructions within the covenanted time
that an appeal is provided to the District
Judge under sub-Section (6) of Section 18.
It is salutary principle of law that an appeal
is a creature of Statute. There is no inherent
right of appeal. An appeal lies from an
order whenever the Statute provides it. It
lies to the forum to which the Statute
provides and by the person whom the
Statute envisages. Any order that doesn't
fall strictly within the terms of the statutory
provision, creating a right of appeal is not
appealable. An order that is somehow akin
to the order from which the Statute
provides an appeal is not appealable.

11. About the principle that appeal is
a creature of statute and no appeal lies, if,
by the terms of the statute, it is not
envisaged against the kind of order that is
sought to be appealed, reference may be
3 All. Isht Deo Gupta Vs. State of U.P. & Ors.
509
made to the decision of the Supreme Court
in Tamil Nadu Pollution Control Board
v. Sterlite Industries (India) Limited and
others3 where it has been held :

31. In Arcot Textile Mills Ltd. v.
Regl. Provident Fund Commr. [Arcot
Textile Mills Ltd. v. Regl. Provident Fund
Commr., (2013) 16 SCC 1 : (2014) 3 SCC
(L&S) 358], appeals lay to the Tribunal
constituted under the Employees' Provident
Funds and Miscellaneous Provisions Act,
1952, under Section 7-I of the Act.
Whereas appeals lay against orders passed
under Section 7-A of the Act, which
provided for determination of monies due
from employers, no appeal lay against
orders made under Section 7-Q of the said
Act, which spoke of interest payable by the
employer. This Court held: (SCC p. 10,
para 20)

"20. On a scrutiny of Section 7-I,
we notice that the language is clear and
unambiguous and it does not provide for an
appeal against the determination made
under Section 7-Q. It is well settled in law
that right of appeal is a creature of statute,
for the right of appeal inheres in no one
and, therefore, for maintainability of an
appeal there must be authority of law. This
being the position a provision providing for
appeal should neither be construed too
strictly nor too liberally, for if given either
of these extreme interpretations, it is bound
to adversely affect the legislative object as
well as hamper the proceedings before the
appropriate forum. Needless to say, a right
of appeal cannot be assumed to exist unless
expressly provided for by the statute and a
remedy of appeal must be legitimately
traceable to the statutory provisions. If the
express words employed in a provision do
not provide an appeal from a particular
order, the court is bound to follow the
express words. To put it otherwise, an
appeal for its maintainability must have the
clear authority of law and that explains why
the right of appeal is described as a creature
of statute. (See Ganga Bai v. Vijay Kumar
[Ganga Baiv. Vijay Kumar, (1974) 2 SCC
393], Gujarat Agro Industries Co. Ltd. v.
Municipal
Corpn.
of
the
City
of
Ahmedabad [Gujarat Agro Industries Co.
Ltd. v. Municipal Corpn. of the City of
Ahmedabad, (1999) 4 SCC 468 : 1994 SCC
(L&S) 993], State of Haryana v. Maruti
Udyog Ltd. [State of Haryana v. Maruti
Udyog Ltd., (2000) 7 SCC 348], Super
Cassettes Industries Ltd. v. State of U.P.
[Super Cassettes Industries Ltd. v. State of
U.P., (2009) 10 SCC 531 : (2009) 4 SCC
(Civ) 280], Raj Kumar Shivhare v.
Directorate of Enforcement [Raj Kumar
Shivhare v. Directorate of Enforcement,
(2010) 4 SCC 772 : (2010) 3 SCC (Civ)
712], Competition Commission of India v.
SAIL [Competition Commission of India v.
SAIL, (2010) 10 SCC 744].)"

In para 21, this Court further
went on to hold that in case an order under
Section 7-A speaks of delay in payment as
well as interest, a composite order passed
would be amenable to appeal under Section
7-I, as interest is only parasitic on the
principal sum due under Section 7-A.
However, if an independent order is passed
under Section 7-Q for interest alone, the
same was held to be not appealable.

12. Here, this Court finds that the
petitioner, assuming that he is a legatee
under Rakesh Gupta's Will and entitled to
the property in dispute, was not the lessee
of a vacant land disposed of by the
Authority
in
his
favour
through
a
concluded lease, where the covenant was to
construct within a specified period of time.
It is a case where there was a mere
510 INDIAN LAW REPORTS ALLAHABAD SERIES
allotment with delivery of possession made
in favour of Rakesh Gupta, entitling him to
seek execution of a lease upon payment of
the due sale consideration. Whatever be the
merits of the parties' case, there was never a
lease about open land in existence executed
by the Authority carrying a stipulation
about time within which the lessee must
construct. Rakesh Gupta was never a
lessee. He was a mere allottee. Sub-Section
(4) of Section 18 does not envisage action
by way of cancellation of allotment,
entitling the allottee to the execution of a
lease. It speaks about forfeiture of a
concluded lease with a decision to re-enter
by the Authority for the lessee's failure to
construct or substantially construct within
the covenanted time. Therefore, an order of
the kind passed against Rakesh Gupta,
cancelling his allotment is not an order
even remotely made under sub-Section (4)
of Section 18. Quite apart, the order dated
02.05.2019 issued by the Authority is not
even an order cancelling Rakesh Gupta's
allotment. It is just a communication of the
fact to the petitioner that at some point of
time in the past, Rakesh Gupta's allotment
had been cancelled by the Authority on
account of non-payment of the specified
consideration agreed upon by parties. Also,
for another reason, the order of the
Authority would not be one that falls within
the terms sub-Section (4) of Section 18. It
is so because what was allotted to Rakesh
Gupta was a constructed house and not
open land to construct upon.

13. Thus, in the opinion of this Court,
no appeal under sub-Section (6) of Section
18 of the Act of 1973 lay to the District
Judge from the order dated 02.05.2019
passed by the Authority. It is, therefore,
held that Misc. Appeal No. 54 of 2019
ought not to have been entertained by the
District Judge or decided on merits by the
Additional District Judge, as it was neither
competent nor maintainable. It is made
clear that this Court has not expressed its
opinion about the rights of the petitioner,
either way, and if some remedy is open to
the petitioner under the law against the
action of the Authority, he is free to pursue
it.

14. No other point was pressed.

15. In the result, this petition fails and
stands dismissed.

16. Costs easy.

17. Let this order be communicated to
the Additional District Judge, Court No. 6,
Kanpur Nagar through the learned District
Judge, Kanpur Nagar and to the learned
District Judge, Kanpur Nagar by the
Registrar (Compliance).
----------
(2022)03ILR A510
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 27.01.2022

BEFORE

THE HON'BLE SURYA PRAKASH
KESARWANI, J.
THE HON'BLE JAYANT BANERJI, J.

Special Appeal Defective No. 20 of 2022

Krishna Mohan Tiwari ...Petitioner
Versus
District Inspector of Schools, Allahabad &
Anr. ...Respondents

Counsel for the Petitioner:
Sri Siddharth Khare, Sri Ashok Khare (Sr.
Adv.)

Counsel for the Respondents:
C.S.C.