Misri Lal and Others vs State of U.P. and Others

Birendra Dikshit, J.—The Petitioners have raised griveance by this writ petition that despite the fact that House No. 106/262 (i) Jeenan Lal ka Ahata, Gandhinagar, Kanpur (hereinafter referred to as disputed (sic) of which they are owners in possession, has not have validly declared as Slum area'' u/s 3 of U.P. Slum Areas is (Improvement and Clearance) Act, 1962 (hereinafter referred to as the Act), the representatives of Kanpur Development Authority were compelling Petitioners and their tenants to deposit down payment under the ''Higher Purchase Scheme'' of said autherity and to get lease-deed executed in respect of said property without acquiring the same. The grievance arose as the Kanpur Development Authority was accepting down payment under ''Higher Purchase Scheme'', one such person being Ghasee''e from whom payment was received without acquiring disputed property. The Petitioners also drew attention of Respondent No. 3 Comp tent Authority but he simply gave assurance to the effect that Petitioners need not worry as their houses were not in any acquisition proceedings As the Competent Authority did not take any action inspite of repeated written and oral requests while Kanpur Development Authority and the persons from whom down payments were accepted by Kanpur Development Authority, were interfering in possession of the Petitioners over the said premises and they were also using force hence the present petition was tiled on apprehension that Petitioners will loose their property on account of high-handedness and malafide action of Kanpur Development Authority.

We have heard the learned Counsel for the Petitioners and the learned Counsel for the Respondents. Learned Counsel for the Petitioners has contended that the declaration u/s 3 of the Act in respect of the property in dispute dated 29-3 1984 was wholly invalid as no opportunity of being heard was given to the Petitioners before making such a declaration. The Petitioners have further contended that in any case even if declaration u/s 3 of the Act was a valid declaration then to since no Notification has been issued u/s 17 of the Act acquiring the land in dispute, the Petitioners continue to be the owners of the property in dispute and toe Respondent has no jurisdiction whatsoever to interfere with the possession of the property of the Petitioners or with his properietory rights in respect of the property in dispute.

In regard to the first submission, the Petitioners have specifically stated in the writ petition that they were nut provided any opportunity of hearing before issue of a declaration u/s 3 of the Act as a ''Slum Area''. In Writ Petition No. 5991 of 1984 Ruira Prasad Bajpai v. Commissioner Allahabad Division, Allahabad decided on 2-2-1984 a Division launch of this Court has held that an opportunity was necessary before issuing of a declaration u/s 3 of the Act. We agree with the view taken by the Division Bench of this Court. The first submission made by the learned Counsel for the Petitioner is well founded.

In regard to the second submission also, the submission made on behalf of the Petitioners is correct. Section 3 of the Act empowers Competent Authority constituted under the Act to declare a particular area to be ''Slum Area'' under prescribed condition On declaration of any area as ''Slum area'', the State Government has power to acquire any land or building in slum area in accordance with the procedure prescribed under Chapter V of the Act. The acquisition under Chapter V of the Act can be made under prescribed conditions and by following procedure laid dawn u/s 17 of the Act. Section 18 of the Act provides that where any land or building has been acquired under the Act, the State Government shall make it available to the Competent Authority for the purposes of executing any work of improvement or for carrying out order of demolition or for the purpose of re-development or re-habilitation of ''slum area'' or for any other purpose of the Act and thereupon the Competent Authority has been empowered to utilise the land or building so made available for the said purpose Section 19 of the Act, provides that every person whose land or building or any interest therein has been acquired, under the provisions of the Act, shall be entitled to, and be paid compensation by the State Government in accordance with the provisions of the Act in the manner prescribed. Section 20 of the Act provides, procedure for determination of compensation in respect of any land or building acquired under the Act. The scheme under the Act does not deprive the Petitioners of their proprietory right over disputed property by declaration u/s 3 of the Act. The only mode provided for depriving an owner of his proprietory rights is by acquisition of disputed property u/s 17 of the Act. A" Respondents did not take recourse to acquisition u/s 17 of the Act the title of the Petitioners continues over disputed property. The Respondents did not have any power, due to want of title over disputed propsrty, to compel Petitioners or their tenants to deposit down payments under the Higher Purchase Scheme with Kanpur Development Authority or for getting lease deed of disputed property executed. In the absence of any proceedings for acquisition, the Petitioners continue to be owner of disputed property and in view of Constitutional protection under Article 300A of the Constitution the Petitioner can not be deprived of disputed property save by authority of law and the Respondents can not interfere in their right of ownership and possession unless the disputed property is acquired by the Respondents.

For the reasons assigned above, the writ petition is allowed and the declaration u/s 3 of the Act dated 29-3-1984 in respect of house and land bearing Municipal No. 106/262 (i) Jeevan Lai Ka Ahata, Gandhi Nagar, Kanpur is quashed and the Respondents, their officers and staff and all other persons claiming under them are restrained from interfering in Petitioners ownership rights and possession over said property it is clarified that it is open to Respondents to take action, afresh in accordance with the Act and to declare disputed property as ''Slum area'' and to acquire the land and the building, if it is considered necessary. There will be no order as to costs.