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Isht Deo Gupta Versus State Of U.P. And 2 Others [2022]

By Shivendra Pratap Singh
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Isht Deo Gupta Versus State Of U.P. And 2 Others [MATTERS UNDER ARTICLE 227 No. – 7759 of 2021]

Judgment

1. 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. 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 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/सं०स०(जोन-3)/का०वि०प्रा०/2018-19 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 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 sub-Section (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 re-enter 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.

(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 re-entry, 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 Sub-sections (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 re-enter. 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 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 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).

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