Judgment:
W.A.No.1244/2011 18/03/2013 Shri Naman Nagrath, learned Senior Advocate with Shri Mahendra Pateriya, learned counsel for the appellant.
Shri Sanjay Dwivedi, learned Government Advocate for Respondent Nos.1, 2 & 3.
Shri Mukhtar Ahmad, learned counsel for Respondent No.4.
Admit.
The matter shall be heard finally.
The main dispute in this writ appeal pertains to the fact as to whether possession of the land in question was taken over before the Urban Land (Ceiling and Regulation) Repeal Act, 1999 came into force.
Based on this fact, the question of abatement of the proceedings as contemplated under Section 4 of the Repeal Act has to be decided.
Even though in the order passed under appeal, the learned Single Judge has found that available on record are two different dates with regard to taking over of possession and it is further held that notice under Section 10(5) of the Urban Land (Ceiling and Regulation) Act, 1976 was not issued and by holding that possession is not taken over in accordance with requirement of law, the writ petition was allowed.
It is not pointed out that the land was taken over by the State Government on 22.4.1998 and, thereafter, on 25.8.1998, possession was handed over to the appellant/Housing Board.
It is, therefore, explained that two dates of possession have emerged due to this fact which have not been properly considered by the learned Single Judge.
It is further said that a panchnama with regard to taking over of the possession is available on record and without taking note of all these facts, the findings are recorded by the learned Single Judge.
It is also averred in the appeal that after the possession was taken over, more than 100 of houses have been constructed in the disputed area under a Scheme being implemented by the appellant Housing Board and, therefore, the writ petition should have been dismissed.
Having heard the rival contentions and on due appreciation of the same, we are of the considered view that the factual dispute with regard to taking over of the possession and construction of houses in the disputed land has to be enquired into and then only a decision can be taken with regard to abatement of the proceedings under Section 4 of the Repeal Act.
During the couRs.of hearing, learned counsel for the parties invited attentions to various judgments on the question of taking over of possession, however, in each and every case, the question has to be decided based on the actual fact with regard to taking over of the possession.
In this case, there being serious dispute with regard to taking over of the possession, it is a fit case where a detailed enquiry into the matter of taking over of possession should be ordered and, thereafter, and a decision taken.
Accordingly, it is directed that the appellate authority who was discharging the statutory functions under the Urban Land (Ceiling & Regulation) Act shall cause an enquiry into the manner of taking over of possession with regard to the land in question, he shall also conduct an enquiry with regard to the claim of the petitioner Board in the matter of construction of housing colony in the area in question.
The enquiry shall be conducted after notice to all concerned, hearing them, recording of evidence, if required and based on the material, that may be collected in the enquiry, a report be submitted to this Court.
The enquiry be conducted and a report submitted as ordered hereinabove with a period of three months from today.
Office to place the matter for further hearing along with the report that may be submitted by the competent authority.
List accordingly.
(S.A.Bobde) (Rajendra Menon) Judge Judge nd