Full Judgment Text
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CASE NO.:
Appeal (civil) 632 of 2001
PETITIONER:
Mukarram Ali Khan
RESPONDENT:
State of U.P. & Ors
DATE OF JUDGMENT: 13/07/2007
BENCH:
Dr. ARIJIT PASAYAT & LOKESHWAR SINGH PANTA
JUDGMENT:
J U D G M E N T
Dr. ARIJIT PASAYAT, J.
1. Challenge in this appeal is the order passed by a learned
Single Judge of the Allahabad High Court in Civil Misc. Writ
Petition No. 6240 of 1987. The appellant had challenged the
order dated 12.12.1986 (Annexure 4 to the writ petition)
passed by the appellate authority under the Urban Land
Ceiling Regulation Act, 1976 (in short the ’Act’) in U.L.C.(Misc.)
Appeal No. 241 of 1985 on the ground that the issues are
concluded by an earlier order passed in appeal against the
draft statement under Section 6 by the competent authority.
Though the said point was taken in the objection and
mentioned in the writ petition but it was not pointed out that
the appellate authority did not consider the same. In the
absence of any such statement the High Court held that it
cannot be presumed that the point was urged and the
appellate authority had overlooked the same. Therefore, the
High Court refused to interfere in the matter.
2. Though many points were urged in support of the appeal,
the primary point urged was that possession has not been
taken pursuant to orders passed by the authorities under the
Act. An affidavit has been filed indicating that the possession
of the land has not been taken and the land in question
continues to be in possession of the appellant and his sons.
3. Learned counsel for the respondent-State and its
functionaries on the other hand contended that the point
regarding earlier adjudication was not urged before the High
Court and therefore the High Court has rightly decided that in
the absence of any specific plea a new plea cannot be taken
before it.
4. It is to be noted that the Act has been replaced under the
Urban Land (Ceiling and Regulation) Act, 1999 (in short the
’Repeal Act’). Admittedly the State of Uttar Pradesh has since
adopted the provisions of the Repeal Act by a resolution as
required under Article 252(2) of the Constitution of India,
1950 (in short the ’Constitution’). Repealing Act has since
come into force in the State of Uttar Pradesh with effect from
18.3.1999.
5. Section 4 of the Repeal Act reads as follows:
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"4. Abatement of legal proceedings- All
proceedings relating to any order made or
purported to be made under the principal Act
pending immediately before the
commencement of this Act, before any court.
tribunal or other authority shall abate;
Provided that this section shall not apply
to the proceedings relating to Sections 1!, 12,
13 and 14 of the principal Act insofar as such
proceedings are relatable to the land,
possession of which has been taken over by
the State Government or any person duly
authorised by the State Government in this
behalf or by the competent authority."
6. In view of the affidavit filed by the appellant to which no
objection has been filed, undisputed position is that the State
has not taken the possession over the surplus land. Therefore,
the proceedings have to be treated to have abated under
Section 4 of the Repeal Act.
7. That being so, the appeal deserves to be allowed which
we direct.