# Ritesh Tewari and another v. State of U.P. and others

- **Citation:** (2009) 1 ILRA 142
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2009-01-20
- **Case number:** Civil Misc. Writ Petition No. 45169 of 2008
- **Bench:** Arun Tandon, Dilip Gupta
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/ritesh-tewari-and-another-v-state-of-u-p-and-others-41333
- **Pages:** 8

## Headnote

Sri Atul Mehra
Sri Sanjay Kumar Om
Smt. Archana Srivastava
Sri R.P. Dwivedi
S.C.

Urban Land (Ceiling & Regulation) Act,
1976-Section 5, 10 (1) and 10 (4)-Land
purchased from Registered Society who
got the land from erstwhile ownerpossessing surplus land-became finalsale of such plot already vested with
State Government illegal void-Rejection
of sanctioning the map-proper petitioner
can not be declared owner under writ
jurisdiction-no right to maintain his
possession-rejection order passed by
development Authority held/proper.

Held: Para 12 & 17
1 All] Ritesh Tiwari and another V. State of U.P. and others
143
Therefore, in both the circumstances we
have no hesitation to record that the
transfer which have been effected by the
recorded tenure holder in favour of
Mayur
Sahkari
Awas
Samiti
on
20.04.1982 is deemed to be null and void
by operation of law either under Section
5 (3) or under Section 10 (4) of the Act
of 1976.

We, therefore, uphold the contention
raised on behalf of the State Government
and hold that no relief can be granted to
the writ petitioners in view of the
transfer effected in their favour being
deemed to be null and void by operation
of law.

## Text

142 INDIAN LAW REPORTS ALLAHABAD SERIES [2009
offence under section 326 IPC even then
the charge has been committed a manifest
error by not framing the charge under
section 326 IPC.

5. In reply of the above contention, it
is submitted by learned A.G.A. And
learned
counsel
Sri
N.D.
Shukla
appearing on behalf of the opposite
parties that the trial court has not
committed any error by not framing the
charge under section 326 IPC because at
any stage of the trial the charge can be
altered, if such evidence is adduced.

6. Considering the submission made
by learned counsel for the applicant,
learned counsel for the applicant, learned
A.G.A. For State of U.P., learned counsel
appearing on behalf of accused persons
and from the perusal of the record it
appears that in the present case the trial
court has not framed the charge under
section 326 IPC, at this stage, it is not
proper to enter in to the controversy
regarding framing of the charge either
under section 324 IPC or 326 because it
may prejudice the mind of trial court
Judge, This issue may be properly
decided by the trial court when such
evidence is adduced because any court
may alter or add to any charge at anytime
before the judgement is pronounced as
provided by section 216 of Cr.P.C. 1973.
The trail court is a competent court to
appreciate the evidence adduced in the
court, at this stage no evidence is adduced
the material collected by the I.O. during
investigation is available on the record.
Therefore, it is not proper to this court to
interfere with the order dated 05.08.2008
by expressing any opinion regarding
framing of the charge, the prayer for
quashing the impugned order dated
05.08.2008 is refused. But it shall be open
to the applicant or the prosecution to
move an application before the trial court
for altering the charge or adding some
other charge at the stage of the trial when
such evidence is adduced as provided by
the provisions of 216 Cr.P.C.

With
this
observation,
this
application is finally disposed of.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 20.01.2009

BEFORE
THE HON'BLE ARUN TANDON, J.
THE HON'BLE DILIP GUPTA, J.

Civil Misc. Writ Petition No. 45169 of 2008

Ritesh Tewari and another ...Petitioners

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

Counsel for the Petitioners:
Sri V.K. Upadhya
Sri Madhav Jain

Counsel for the Respondents:
Sri Atul Mehra
Sri Sanjay Kumar Om
Smt. Archana Srivastava
Sri R.P. Dwivedi
S.C.

Urban Land (Ceiling & Regulation) Act,
1976-Section 5, 10 (1) and 10 (4)-Land
purchased from Registered Society who
got the land from erstwhile ownerpossessing surplus land-became finalsale of such plot already vested with
State Government illegal void-Rejection
of sanctioning the map-proper petitioner
can not be declared owner under writ
jurisdiction-no right to maintain his
possession-rejection order passed by
development Authority held/proper.

Held: Para 12 & 17
1 All] Ritesh Tiwari and another V. State of U.P. and others
143
Therefore, in both the circumstances we
have no hesitation to record that the
transfer which have been effected by the
recorded tenure holder in favour of
Mayur
Sahkari
Awas
Samiti
on
20.04.1982 is deemed to be null and void
by operation of law either under Section
5 (3) or under Section 10 (4) of the Act
of 1976.

We, therefore, uphold the contention
raised on behalf of the State Government
and hold that no relief can be granted to
the writ petitioners in view of the
transfer effected in their favour being
deemed to be null and void by operation
of law.

(Delivered by Hon'ble Arun Tandon, J.)

1. This writ petition has been filed
by one Ritesh Tewari in his personal
capacity as well as in his capacity as
proprietor of M/s. Ganpati Builders for
the following reliefs:

"(i) to issue a suitable writ, order or
direction in the nature of mandamus
directing the respondents not to interfere
in the actual physical peaceful possession
and construction of the petitioners' multi
storied building known as 'Ganpati Green
Apartment' situated at Khasra Plot No.
258, Village Kakraitha, Tehsil Sadar,
District Agra.
(ii) to issue a suitable writ, order or
direction in the nature of certiorari and to
quash the directions contained in the
letters dated 30.06.2008 and 18.07.2008
(Annexures 19 & 20 to the writ petition.
(iii) to issue suitable writ, order or
direction
constituting
an
enquiry
committee to enquire into the role of and
to fix responsibility on the erring
respondents for the illegal and undue
harassment of the petitioners in respect of
the construction in question as also for the
publication of the press reports dated
26.08.2008 (Annexure 21 to the writ
petition)
damaging
irredeemably
the
business, reputation as well as goodwill of
the petitioners and to direct such authority
found responsible for the said illegal acts
to compensate the petitioners for the
aforesaid damage caused to their business,
reputation and goodwill."

2. The basic averments made in
support of the aforesaid reliefs in the writ
petition are that the petitioners have
purchased 3440.50 sq. yards i.e. 2876.64
sq. metres of land of Khasra Plot No. 258
from M/s. Savy Homes (P) Ltd. through a
registered sale deed dated 15.06 2006.
The petitioners have thus become sole and
exclusive owner of the said area of
Khasra Plot No. 258. They applied for
sanction of a plan to construct a multi
storied building on the land. The Agra
Development Authority vide letter dated
10.01.2007
raised
a
demand
of
Rs.23,19,956/- towards statutory charges
for sanctioning the building plan as well
as for compounding the construction
already raised. The amount is stated to
have been deposited by the petitioners on
10.01.2007.
The
Agra
Development
Authority vide letter dated 07.12.2007
made a further demand of Rs.25,10,466/-
towards compounding of the unauthorized
construction raised by the writ petitioners
within seven days along with certain
conditions
mentioned
therein.
The
petitioners is stated to have deposited the
said amount on 10.12.2007. At this stage
the petitioners were informed of the
orders dated 30.06.2008 and 18.07.2008
(Annexures 19 & 20 to the writ petition),
whereby the Sub Divisional Magistrate
had informed the Additional District
Magistrate (Admn.)/Competent Authority,
Urban Land Ceiling, Agra that the
144 INDIAN LAW REPORTS ALLAHABAD SERIES [2009
petitioners have raised constructions on a
portion of the land which is vested in the
State
Government
after
ceiling
proceedings were initiated under the
Urban Land (Ceiling & Regulation) Act,
1976 (herein after referred to as the Act of
1976) against the-recorded tenure holder.
Therefore, the map, if any, sanctioned by
the Agra Development Authority be
directed to be cancelled and appropriate
action
be
taken
for
restoring
the
possession to the State Government. On
the
said
report.
the
ADM
(Admn.)/Competent
Authority,
Urban
Land Ceiling Agra has called upon the
SDM to take appropriate action in respect
of
the
construction
raised
by
the
petitioners.

3. Counsel for the petitioner with
reference to the record of the present writ
petition, submits that proceedings under
the Land Ceiling Act were initiated
against the recorded tenure holders under
the Act of 1976. On the basis of the
statement filed by the recorded tenure
holder an order dated 30.03.1981 in Case
No. 5274/4787/76-77 (State vs. Ramo)
was passed by the Competent Authority
declaring amongst other 9006 sq. yard of
land of Khasra Plot No. 258 as surplus.
The order was not challenged any further
by the recorded tenure holders.

4. The entire Khasra Plot No. 258
was transferred by way of sale by the
recorded tenure holder in favour of Mayur
Sahkari Awas Samiti vide registered sale
deed dated 20.04.1982. The purchaser
Mayur Sahkari Awas Samiti carved out
various plots of different sizes and
allotted the same to its members through
various sale deeds. Large number of such
members of Mayur Sahkari Awas Samiti
in turn executed a sale deed of their plots
in favour of M/s. Savy Homes (P) Ltd.
and M/s. Savy Homes (P) Ltd. in turn
have sold the above mentioned land in
favour of the writ petitioners vide
registered sale deed dated 15.06.2006.
Petitioners alleged that the proceedings
initiated against the recorded tenure
holder under the Act of 1976 were illegal
and without jurisdiction. The order dated
30.03.1981 was an ex parte order. In the
alternative they have contended that
actual physical possession of the surplus
land in terms of the order dated
30.03.1981 has not been taken and,
therefore, with the issuance of the Urban
Land (Ceiling & Regulation) Repeal Act,
1999 (herein after referred to as the
Repeal Act) the proceedings under the
Act of 1976 stand abated and the recorded
tenure holder and consequently the
subsequent purchasers become lawful
owners entitle to retain the possession of
the land transferred in their favour. It is,
therefore, submitted that the aforesaid two
orders be quashed and the other reliefs
qua restraining the respondents from
interfering in the actual possession and
the construction raised thereon be granted.

5. The writ petition is opposed by
Smt. Archana Srivastava learned Standing
Counsel and it is contended that from the
facts as they stand on record, admittedly
an order referable to Section 8 (4) of the
Act of 1976 was issued against the
recorded tenure holder declaring the land
in question as surplus on 30.03.1981, the
order has been permitted to become final
inasmuch as no appeal was filed against
the said order as provided under the Act
of 1976 nor the order was challenged
before any Court of law. Proceedings
under Section 10 (1) and 10 (3) were
taken in respect of the land in question.
Along with the counter affidavit details of
1 All] Ritesh Tiwari and another V. State of U.P. and others
145
notices dated 13.09.1993,18.09.1984 and
31.03.1993 under Section 10 (3) and 10
(5) of the Act have been referred to. Copy
of the notice under Section 10 (5) of 1976
Act has been brought on record which in
turn refer to the notification issued under
Section 10 (3) bearing no. 943/5274/4287
dated 31.07.1993 (Annexure CA-2 to the
present writ petition) as well as dated
16.10.1993. She, therefore, submits that in
the facts of the present case it is admitted
that the transfer by way of sale has been
effected subsequent to the order dated
30.03.1981 and such sale is null and void
in view of the provisions contained in
Section 5 and Section 10 of the Act of
1976. Petitioners therefore, have no legal
right to claim relief on the basis of such
void sale deed over the land by means of
the
present
writ
petition
nor
the
proceedings initiated under the Act of
1976 against the recorded tenure holder
can be permitted to be questioned by
them. She vehemently contends that in
cases the writ Court entertains the writ
petition and the reliefs prayed for are
granted, it will amount to recognition of
transfer by sale which stand declared null
and void by operation of law as per the
provision of the Act of 1976 on the date
of transfer. She, therefore, submits that
this writ Court may not interfere at the
behest of the petitioner who claims title
on the basis of null and void sale deed
over the land in question.

6. We have heard learned counsel
for the parties and have gone through the
records of the present writ petition.

7. Following facts emerge from the
record: Proceedings were initiated against
the recorded tenure holder of Khasra Plot
No. 258 under the Act of 1976 which
resulted in an order under Section 8 (4) of
the Act of 1976 dated 30.03.1981. The
recorded tenure holder was declared to be
in possession of surplus land which
amongst other included 5 bighas and 14
biswas of Plot No. 258. The order further
records that the notification under Section
10 (1) is being forwarded in terms of the
said Act of 1976 for publication in the
official gazette. It is at this stage of the
proceedings that the recorded tenure
holder is stated to have sold the entire
Khasra Plot No. 258 including the land
declared surplus in favour of Mayur
Sahkari Awas Samiti on 20.04.1982. The
writ petition as well as the counter
affidavit do not disclose the date of
publication of the notification under
Section 10 (1). On record of the counter
affidavit are notices in writing dated
31.03.1993, 24.09.1993 and 18.02.1994
issued under Section 10 (5) of the Act of
1976, photostat copy of the same are
enclosed as Annexure-2 to the counter
affidavit filed on behalf of the State
respondents through Kumar Chandra
Jawaliya, Tehsil Sadar, District Agra. The
aforesaid notices make specific mentions
of the particulars of the notification
published under Section 10 (3) as noticed
above. The date of the said notifications is
mentioned as 31.07.1993, 06.07.1993 and
13.03.1993 respectively.

8. From the aforesaid it is apparently
clear that the transfer of the land which
was subject matter of proceedings under
Section 8 (4) the Act of 1976 has been
effected by the recorded tenure holder
subsequent to an order being passed under
the Act of 1976. Since specific particulars
qua the number and the date on which
notification under Section 10 (1) had not
been stated yet with reference to the date
of that notification under Section 10 (3)
and notice under Section 10 (5) noticed
146 INDIAN LAW REPORTS ALLAHABAD SERIES [2009
above, it can be safely presumed that
notification under Section 10 (1) must
have preceded the aforesaid notification
under Section 10 (3) and notice under
Section 10 (5) inasmuch as all lawful acts
are deemed to have been done in
accordance with law by the authority
concerned unless established otherwise.
We can, therefore, safely record that
notification under Section 10 (1) had been
issued before taking steps in terms of
Section 10 (3) and 10 (5) of the Act. It is
worth mentioning that it is not the case of
the writ petitioners that prior to issuance
of notification under Section 10 (3) and
notice under Section 10 (5), the required
notification under Section 1 0 (1) had not
been issued.

9, In view of the aforesaid
conclusion, two situations may arise (a)
either notification under Section 10 (1)
was issued prior to the execution of sale
deed by the recorded tenure holder in
favour of Mayur Sahkari Awas Samiti i.e.
20.04.1982 (b) or the notification under
Section 10 (1) was issued subsequent to
the date of sale i.e. 20.04.1982. We are of
the considered opinion that in both the
circumstances the sale deed effected by
the recorded tenure holder in favour of
Mayur Sahkari Awas Samiti stands
declared null and void in view of the
provisions of Section 5 (3) in the first case
and in view of the Section 10 (4) of the
Act in the second case as would be clear
from the following. Section 5 of the Act
of 1976 reads as follows:

"5. Transfer of vacant land. (1) In
any State to which this Act applies in the
first instance, where any person who had
held vacant land in excess of the ceiling
limit at any time during the period
commencing on the appointed day and
ending with the commencement of this
Act. has transferred such land or part
thereof by way of sale, mortgage, gift,
lease or otherwise, the extent of the land
so transferred shall also be taken into
account in calculating the extent of vacant
land held by such person and the excess
vacant land in relation to such person
shall, for the purposes of this Chapter, be
selected out of the vacant land held by
him after such transfer and in case the
entire excess vacant land cannot be so
selected, the balance, or, where no vacant
land is held by him after the transfer, the
entire excess vacant land, shall be
selected out of the vacant land held by the
transferee:
Provided that where such person has
transferred his vacant land to more than
one person, the balance, or, as the case
may be, the entire excess vacant land
aforesaid, shall be selected out of the
vacant land held by each of the
transferees in the same proportion as the
area of the vacant land transferred to him
bears to be total area of the land
transferred to all the transferees.
(2) Where any excess vacant land is
selected out of the vacant land transferred
under sub-section (1), the transfer of the
excess vacant land so selected shall be
deemed to be null and void.
(3) In any State to which this Act applies
in the first instance and in any State which
adopts this Act under Clause (1) of
Article 252 of the Constitution, no person
holding vacant land in excess of the
ceiling limit immediately before the
commencement of this Act shall transfer
any such land or part thereof by why of
sale. mortgage. gift, lease or otherwise
until he has furnished a statement under
Section 6 and a notification regarding the
excess vacant land held by him has been
published under sub-section (1) of Section
1 All] Ritesh Tiwari and another V. State of U.P. and others
147
10; and any such transfer made in
contravention of this provision shall be
deemed to be null and void."

10. Section 5 (3) provides that any
transfer of land or part thereof effected by
a recorded tenure holder having land in
excess of the ceiling limit subsequent to
the commencement of Act of 1976 by way
of sale, mortgage or lease until he has
furnished a statement under Section 6,
and a notification under Section 10 (1)
has been published would be deemed to
be null and void. Therefore, if in the facts
of the present case notification under
Section 10 (1) had not been issued qua the
excess land held by the recorded tenure
holder on the date of transfer i.e.
20.04.1982 then such transfer of land
would be deemed to be null and void as
per Section 5 (3).

11. We may now consider the
alternative case i.e. if the notification
under Section 10 (1) had been issued prior
to the date of sale i.e. 20.04.1982.
Reference be had to Section 10 (4) which
reads as follows:

"10. Acquisition of vacant land in
excess of ceiling limit.--....
(4) During the period commencing
on the date of publication of the
notification under sub section (1) and
ending with the date specified in thee
declaration made under sub section (3) -
(i) no person shall transfer by way of
sale, mortgage, gift, lease or otherwise
any excess vacant land (including any part
thereof) specified in the notification
aforesaid and any such transfer made in
contravention of this provision shall be
deemed to be null and void; and
(ii) no person shall alter or cause to
be altered the use of such excess vacant
land."

A bare reading of the same would
establish that the transfer made by the
recorded tenure holder during the period
starting from to the date of publication of
notification under Section 10 (1) and
ending with the issuance of declaration
under Section 10 (3) is rendered null and
void. In the facts of the case declaration
under Section 10 (3) has taken place in
1993. Therefore, the date of sale would
fall between issuance of Section 10 (1)
notification
and
Section
10
(3)
notification rendering the sale null and
void in view of Section 10 (4).

12.

Therefore,
in
both
the
circumstances we have no hesitation to
record that the transfer which have been
effected by the recorded tenure holder in
favour of Mayur Sahkari Awas Samiti on
20.04.1982 is deemed to be null and void
by operation of law either under Section 5
(3) or under Section 10 (4) of the Act of
1976.

13. Since Mayur Sahkari Awas
Samiti cannot claim any title on the basis
of sale deed deemed to be null and void
by operation of law, all subsequent
purchaser of land of Khasra Plot No. 258
from Mayur Sahkari Awas Samiti cannot
derive any title i.e. the members of Mayur
Sahkari Awas Samiti, M/s. Savy Homes
(P) Ltd. as well as the petitioners on the
strength of such sale.

14. We therefore, hold that the
learned standing Counsel is legally
justified in contending that the Writ Court
may not recognise the title of the
petitioners in respect of the land, the
148 INDIAN LAW REPORTS ALLAHABAD SERIES [2009
transfer by sale whereof is deemed under
law to be null and void.

15. At this stage we may also deal
with the contention raised on behalf of the
writ petitioners that since the Act of 1976
has been repealed by means of Urban
Land (Cei1ing & Regulation) Repeal Act,
1999, the petitioners are entitled to the
relief prayed as actual possession of the
surplus land in question had not been
taken under Section 10 (6) by the State
Government. Suffice is to refer to Section
6 of the General Clauses Act, 1897 which
deals with the consequences which follow
from the repeal of a Central Act. For
ready reference Section 6 is being quoted
herein below:

"Effect of repeal.-- Where this Act,
or any [Central Act] or Regulation made
after the commencement of this Act,
repeals any enactment hitherto made or
hereafter to be made, then, unless a
different intention appears, the repeal
shall not-

(a) revive anything not in force or
existing at the time at which the repeal
takes effect; or
(b) affect the previous operation of
any enactment so repealed or anything
duly done or suffered thereunder; or
(c)
affect
any
right,
privilege,
obligation or liability acquired, accrued or
incurred under any enactment so repealed;
or
(d) affect any penalty, forfeiture or
punishment incurred in respect of any
offence committed against any enactment
so repealed; or
(e) affect any investigation, legal
proceeding or remedy in respect of any
such right, privilege, obligation, liability,
penalty, forfeiture or punishment as
aforesaid;
and
any
such
investigation,
legal
proceeding or remedy may be instituted,
continued or enforced, and any such
penalty, forfeiture or punishment may be
imposed as if the repealing Act or
Regulation had not been passed."

16. From a reading of Section 6 of
the General Clauses Act, 1897, it would ,
be apparently clear that the Repeal Act
will not revive anything not in force or
existing at the time at which the repeal
takes effect nor will it effect the previous
operation of the enactment or anything
suffered thereunder. It logically follows
that if the transfer of the surplus land by
the recorded tenure holder is deemed null
and void by operation of law as was
existing on the date of transfer then the
Repeal Act will not infuse life in the said
non est deed and nor will it effect the
operation of the enactment in so far as it
declares the said sale deed to be null and
void. Consequently we arrive at a
conclusion that the petitioner has no legal
title over the land nor he can be permitted
to question the order dated 30.03.1981
passed under the Act of 1976 against the
recorded tenure holder after more than 25
years of the said order more so when he
cannot represent the recorded tenure
holder on the basis of a void sale deed.

17. We, therefore, uphold the
contention raised on behalf of the State
Government and hold that no relief can be
granted to the writ petitioners in view of
the transfer effected in their favour being
deemed to be null and void by operation
of law.

18. Writ petition lacks merit and is
accordingly dismissed.
1 All] Anil Sharma V. Rajan Pathak and others
149
19. After the judgement was
delivered in the open Court today, an oral
request was made on behalf of the writpetitioner for a certificate being granted in
terms of Article 134-A of the Constitution
of India that the case involves substantial
question of law of general importance and
needs to be decided by the Hon'ble
Supreme Court.

In
our
opinion,
no
substantial
question of law of public interest arises in
the present case and, therefore, the
certificate prayed for is refused.
Petition dismissed.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 04.11.2008

BEFORE
THE HON'BLE TARUN AGARWALA, J.

Civil Misc. Writ Petition No. 54505 of 2008

Anil Sharma

...Petitioner
Versus
Rajan Pathak and others ...Respondents

Counsel for the Petitioner:
Sri Shashi Nandan
Sri D.K. Tripathi

Counsel for the Respondents:
Sri Ashok Kumar Gupta
Sri Rahul Sahai
S.C.

Code of Civil Procedure-section 115 read
with order 40-Appointment of receiverTrail Court directed both parties to
suggest the name of two person-revision
against that order-held-not maintainable
after appointment of receiver-can be
challenged in Appeal.
Case law discussed:
AIR 1986 Allahabad 355

(Delivered by Hon'ble Tarun Agarwala, J.)

1. An application was filed by the
respondent No.1 for appointment of a
receiver under Order 40 of the C.P.C.
This application was allowed by an order
dated 26.04.2008. The Civil Judge, while
allowing the application, directed the
parties to submit two names for the
purpose of appointing a receiver. The
petitioner, being aggrieved by the said
order, filed a revision under Section 115
of the C.P.C. The said revision was
dismissed as not maintainable. The
petitioner, being aggrieved, has filed the
present writ petition.

2. Heard Sri Shashi Nandan, the
learned Senior Counsel assisted by Sri
D.K. Tripathi, the learned counsel for the
petitioner and Sri Rahul Sahai, the learned
counsel appearing for respondent No.1.

3. The learned senior counsel
submitted that at the present moment, a
receiver has not been appointed and only
an application of the opposite party was
allowed. Consequently, till such time, as a
receiver was not appointed, no appeal
under Section 43 Rule l(s) of the C.P.C.
could be filed. In support of his
submission, the learned counsel for the
petitioner placed reliance upon a division
bench decision of this Court in Ram
Babu Verma vs. Om Prakash Verma
and others, AIR 1986 Allahabad 355,
wherein it was held that till such time as
an order, appointing a particular person,
as a receiver was not made by a court, no
appeal under Order 43 Rule 1 (s) was '
maintainable. The Court held that against
an order recording a finding that it was
just and convenient to appoint a receiver
and creating an office of a receiver was