Murlidhar Kasera and Others vs State of U.P. and Another

B. Dikshit, J.—This writ petition is directed against an order passed by State Government on 5.9.87 in exercise of power u/s 34 of the Urban Land (Ceiling and Regulation) Act, 1976 (in short ''Act'').

The Petitioners were served with a draft statement u/s 8(3) of the Act against which they filed objection claiming that they were not possessed of any land beyond ceiling limit. The Competent Authority after considering the objection by order dated 13.9.87 held that Petitioners did not possess land beyond ceiling limit. No appeal was preferred by State against the order passed by Competent Authority. After a lapse of about 8 years, the State Government issued a notice on 30.10.86 to Petitioners u/s 34 of the Act. The Petitioners filed an objection against it and then State Government by order dated 5.9.87 set aside the order of Competent Authority so far Petitioner No. 1, Murlidhar Kasera is concerned and declared 420.235 Sq. Meter of land possessed by him to be beyond his ceiling limit and directed taking over of possession of the same. Aggrieved by the said order of State Government, the Petitioners have preferred this writ petition.

The learned Counsel for Petitioners argued that although there is no limitation for invoking power u/s 34 of the Act but that power could be exercised only within a reasonable time from the date of passing of order by Competent Authority and as in this case there was undue delay in invoking power u/s 34 of the Act without any reasonable basis, therefore, the order of State Government is liable to be set aside. He relied on the case of Smt. Laxmi Devi Ghorpade v. State of U.P. 1993 (22) ALR 475 and that of Smt. Rani Devi Gupta v. State of U.P. 1995 (26) ALR 500, in support of said argument. The learned Counsel further argued that the power u/s 34 of the Act did not extend to reappreciate the evidence but it permitted only examination of records, by the State Government for the purpose of satisfying itself as to the legality or propriety of an order or as to the regularity of proceedings before the Competent Authority but in this case, the State Government has interfered in the order of Competent Authority by reappreciating evidence on record and recording its own findings of fact, it exceeded its power u/s 34 of the Act. The learned standing counsel in opposition submitted that the order has been passed by State Government well within the ambit of its power while examining the legality and propriety of the order of Competent Authority.

Section 34 of the Act is as follows:

Revision by State Government--The State Government may, on its own motion, call for and examine the records of any order passed or proceeding taken under the provisions of this Act and against which no appeal has been preferred u/s 12 or Section 30 or Section 33 for the purpose of satisfying itself as to the legality or propriety of such order or as to the regularity of such procedure and pass such order with respect thereto as it may think fit:

Provided that no such order shall be made except after giving the person affected a reasonable opportunity of being heard in the matter.

This power of State Government is in nature revisional power to interfere in the order of subordinate authority which can be exercised within a reasonable time after passing of order by a subordinate authority. If invoking of this power is not limited for being exercised within reasonable time from the time of passing of order by subordinate authority, then allowing it to be invoked after undue delay will make the exercise of power unreasonable and arbitrary. Reading said limitation in respect of exercise of power will save it from mischief of becoming unreasonable. Such a restriction that power u/s 34 be exercised within a reasonable time from passing of order by subordinate authority finds support from the law propounded in the case of Smt. Laxmi Devi Ghorpade v. State of U.P. (supra) and that of Smt. Rani Devi Gupta v. State of U.P. (supra). The learned standing counsel tried to argue that the Legislature had not provided any limitation for invoking the power and, therefore, no such restriction be read that by passage of 8 years in this case the exercise of power is bad. It is true that the Legislature has not provided any period for State Government for exercising power u/s 34 but the line of argument advanced is untenable. The absence of limitation, being provided by Legislature, does not mean that the power cannot become unreasonable if it is not exercised within a reasonable period. Those cases, apart where reasonable explanation for delay in exercise of power has been given, as I am of the opinion that undue delay in exercise of power will import arbitrariness, therefore, I am not inclined to accept the contention that in absence of limitation being provided by Legislature for fixing specific period for invoking the power, the power will not become unreasonable or bad In law due to delayed exercise. However, this does not mean that where there is a reasonable explanation for delay, it cannot be invoked. The exercise of power even after much delay can be justified u/s 34 provided there is some reasonable basis to allow such delayed exercise of power but not without a reasonable explanation where the recourse to power is being taken after long lapse of time.

So far this case is concerned, there is no explanation from the State Government as to why the power was invoked after a lapse of 8 years. As held earlier, if the State Government''s order is sustained, then it will be allowing interference in order of Competent Authority dropping the notice after expiry of 8 years without any reasonable basis as there is no explanation as to why such a delay occurred in exercising power in question. If without reasonable explanation, the order passed by State Government is sustained, then it will be sending wrong signal to other landowners who have faced or are facing proceedings under the Act. It will create an uncalled for apprehension in the mind of landowners, in case they succeed before Competent Authority, that the State Government may reopen matter u/s 34 despite its being final. The landowners who succeed before Competent Authority will live in uncertainties and, therefore, they will avoid putting up construction over land. It will even discourage construction even in these days of paucity of housing accommodation which will be against object to be achieved under Act.

The other argument of learned Counsel for Petitioner that the State Government has reappreciated evidence and recorded its own finding in excess of its power has also much force. The argument that power of State Government u/s 34 did not extend to reappreciating the evidence and interfering in finding of fact recorded by Competent Authority, which has been done in this case, has much force. Section 34 of the Act permits State Government to satisfy itself as to the legality or propriety of an order of Competent Authority or to the regularity of procedure before him. The power to reappreciate evidence is not covered under it and, therefore, the State Government exceeded its power in holding that the two brothers, namely, Murlidhar Kasera and Bhagwan Das Kasera, separated by interfering in finding of fact that they were Joint. The State Government while exercising power u/s 34 of the Act could not have interfered in finding of fact and substituted its own finding that the property in question is separately acquired property and not of joint Hindu family and to have held shares of Petitioner differently from that held by Competent Authority. The order of State Government is unsustainable on this ground also.

For aforesaid reasons, the writ petition succeeds and is allowed, order of State Government (Opposite Party No. 1) dated 5,9.87 is quashed and that of Competent Authority is restored. The Petitioner is entitled for costs from opposite party No. 1.