Allahabad High Court
Merino Exports Private Limited, A ... vs Additional Commissioner, Meerut ... on 31 March, 2005
Author: Sabhajeet Yadav
Bench: Sabhajeet Yadav
JUDGMENT Sabhajeet Yadav, J.
1. Since identical questions of facts and law are involved in both the writ petitions, therefore, it would be appropriate to dispose of both the writ petitions jointly by a single judgment.
2. The petitioners have filed the above noted writ petitions challenging the order dated 16.4.2003 passed by the Additional Commissioner, Meerut Division, Meerut, contained in Annexure-10 of the writ petition, dismissing the revision of the petitioners by affirming the order dated 27.12.2002 passed by the Uppar Parganadhikari, Hapur, District Ghaziabad, contained in Annexure-9 of the writ petition, whereby the applications of petitioner-company for issuing declaration under Section 143 of the Act were rejected.
3. Petitioner No. 1 of Writ Petition No. 32391 of 2003 is a limited company incorporated under the Companies Act, 1956 and petitioner No. 2 bhumidhar with transferable rights of Khasra No. 696 measuring 6-12-9 (1.681 hectares of village Achcheja, Pargana and Tehsil Hapur, District Ghaziabad. He is also Director and authorized signatory of the Company-petitioner No. 1 Petitioner No. 1 is sister concern of petitioner No. 3. Over the aforesaid plot petitioner No. 3 is having its go-down and workshop and the remaining area is covered by the staff quarter, road etc. The constructions are inexistence since 1990 and the aforesaid plot is shown as abadi in the Khasra of the village in question. Similarly petitioner No. 1 of writ petition No. 32389 of 2003 is also a limited company incorporated under the Companies Act, 1956 and is bhumidhar with transferable rights of Khasras No. 420 measuring 1-0-0, 421 measuring 3-6-9, 422 measuring 2-1-0, 423 measuring 1-0-0, 429 measuring 2-14-0 and 430 measuring 0-2-0 situated in village Accheja, pargana and Tehsil Hapur, District Gahaziabad. Petitioners' company is having its factory over the aforesaid plots since 1981 and as such the aforesaid plots have been shown as Abadi in the Khasras. The petitioners of both the writ petitioners filed applications before the Upper Parganadhikari. Hapur, District Ghaziabad for making a declaration under Section 143 of the U.P.Z.A. & L.R. Act, 1950 as Abadi land in respect of the land in question, as the said land is not being used for agriculture purposes. He directed the Tehsildar, Hapur to submit report. Accordingly, who got the site inspected by Naib Tehsildar, Hapur, who in turn submitted his report under Rule 135 of U.P.Z.A. & L.R. Rules, 1952 to the Tehsildar, Hapur confirming the existence of go-down, staff quarters and Pukka road over the said plots. It is further stated that though the Naib Tehsildar has found that the plots in question are no more being used for agriculture purposes, but in his report he recommended that the aforesaid plots come under the development area of Hapur Pilakuwa Development Authority (in short H.P.D.A.), therefore, no objection certificate may be obtained from the aforesaid authority. It appears that the Upper Parganadhikari, Hapur sought no objection certificate from the H.P.D.A. Thereupon it appears that the Secretary of H.P.D.A. wrote a letter on 11.8.2000 informing respondent No. 2 that the map submitted by the petitioner-company already stands rejected and the proceedings under Section 26 of the U.P. Urban Planning & Development Act, 1973 hereinafter referred to as Act, 1973 are pending against it and therefore, declaration under Section 143 of the U.P.Z.A. & L.R. Act may not be issued. Its is stated by the petitioner that although the recommendations made by the H.P.D.A. to respondent No. 2 are irrelevant and wholly without authority of law, but the petitioner-company by way of abundant caution has also brought on record the order of the State Government directing H.P.D.A. to regularize the constructions existing over the plots in question including various proceedings of Zila Udyog Bandhu, wherein a decision was taken for the said land to be continued to be used for industrial purposes. Petitioner-company filed a receipt of compounding fee dated 16.10.2002 issued by the H.P.D.A. in favour of the company contained as Annexure-7 of the writ petition. It is further stated by the petitioners that the proceedings initiated by H.P.D.A. against the company for alleged violation of the provisions of Act, 1973 were withdrawn in view of the sanction of its map and regularisation of the constructions. Photo copy of the certified copy of the order dated 8.1.2002 passed by the Chief Judicial Magistrate, Ghaziabad has been filed as Annexure-8 of the writ petition. After going through the record. Upper parganadhikari, Hapur had rejected the application filled by the petitioners vide impugned order dated 27.12.2002 contained in Annexure-9 of the writ petition. Feeling aggrieved against which the petitioners company of both the petitions have filed their revision which was also dismissed by the Additional Commissioner, Meerut Division, Merrut vide order dated 16.4.2003, contained in Annexure-10 of the writ petition. Feeling aggrieved against the orders dated 27.12.2002 and 16.4.2003, the petitioners have filed the above noted writ petitions before this Court.
4. On behalf of respondents No. 1, 2 and 3 counter affidavit has been filed by the Tehsildar (Judicial), Hapur, District Ghaziabad. In para 5 of the counter affidavit it has been mentioned that the land of village Accheja has been notified on 17.3.1998 under the provisions of Section 3 of the Act, 1973. Since the constructions were made on the plots in question in contravention of the provisions of Sections 14 and 15 of the Act, 1973 without obtaining permission from the Vice Chairman of H.P.D.A. therefore, the Secretary of H.P.D.A. wrote a letter to respondent No. 2 advising him not to declare the land in question as Abadi under Section 143 of the U.P.Z.A. & L.R. Act.
5. Heard Sri M.K. Gupta, learned counsel for the petitioners and Sri R.S. Parihar, learned Standing Counsel for the respondents.
6. The thrust of the submission of the learned counsel for the petitioners is that in order to make declaration under Section 143 of the U.P.Z.A. & L.R. Act, the only requirement was to examine the nature of the land as to whether a bhumidhar with transferable rights uses his holding or part thereof for a purpose not connected with agriculture, horticulture or animal husbandry, which includes pisciculture and poultry farming. The Assistant Collector in charge of the sub-division may, suo motu or on an application, after making such enquiry as maybe prescribed, may make a declaration to that effect. For that purpose necessary enquiry has to be made under Rule 135 of the U.P.Z.A & L.R. Rules, 1952. The enquiry shall be made on the spot and the Enquiry Officer shall alongwith his report also furnish information in the proforma given in the rule. If on the basis of report the authority concerned is satisfied that a bhumidhar with transferable rights uses his land for non-agricultural purposes, as indicated in the Act, a declaration should have been made to that effect. It is also submitted by Sri M.K. Gupta that merely because of the land in question falls within the notified area of H.P.D.A. as notified under Section 3 of the Act, 1973, there can be no legal hurdle or bar to make declaration under Section 143 of the U.P.Z.A. & L.R. Act. In order to emphasis his arguments, he submitted that since the provisions contained under both the Acts i.e. Section 143 of the U.P.Z.A. & L.R. Act and the provisions of Act, 1973, are operating in altogether different field and there appears no direct or indirect conflict between them, therefore, for the alleged violation of any or some provisions of Act, 1973, there can be no legal bar in the declaration of land in question as Abadi sought to be made under Section 143 of the U.P.Z.A. & L.R. Act. In case if the petitioners are found guilty of violating any provisions of Act, 1973 a different course under law has been evolved to deal with the aforesaid situation under the aforesaid Act itself. In support of his submissions he referred various provisions of Act, 1973 under which the violation of any provision of the aforesaid Act can be dealt with under the scheme of the aforesaid Act itself. Besides this, he has also asserted that the development authority has itself withdrawn the proceedings and regularised the constructions of the petitioners over the plots in question. Thus, the recommendation made earlier by the Secretary of the development authority have also lost its efficacy on accounts of the subsequent development in the matter. Therefore, in given facts and circumstances of the case the orders impugned in the writ petitions are not sustainable at all and the Assistant Collector in-charge of the sub-division is bound under law to issue declaration sought for by the petitioners. The submissions of the learned counsel for the petitioners have some force and prima facie appears convincing to me.
7. For better appreciation of the question in controversy involved in this case, it is necessary to quote the provisions of Section 143 of the U.P.Z.A. & L.R. Act and Rule 135 of the U.P.Z.A. & L.R. Rules, 1952, as under:-
"Section 143. Use of holding for industrial or residential purposes--
(1) Where a (bhumidhar with transferable rights) uses his holding or part thereof for a purpose not connected with agriculture, horticulture or animal husbandry which includes pisciculture and poultry farming, the Assistant Collector in charge of the sub-division may, suo motu or on an application, after making such enquiry as may be prescribed, make a declaration to that effect.
(1-A) Where a declaration under sub-section (1) has to be made in respect of a part of the holding the Assistant Collector in charge of the sub-divisions may in the manner prescribed demarcate such part for the purposes of such declaration.
(2) Upon the grant of the declaration mentioned in sub-section (1) the provisions of this Chapter (other than this section) shall cease to apply to the (other than this section) shall cease to apply to the (bhumidhar with transferable rights) with respect to such land and he shall thereupon be governed in the matter of devolution of the land by personal law to which he is subject.
(3) Where as bhumidhar with transferable rights has been granted, before or after the commencement of the Uttar Pradesh Land Laws (Amendment) Act, 1978, any loan by the Uttar Pradesh Financial Corporation or by any other Corporation owned or controlled by the State Government, on the security of any land held by such bhumidhar, the provisions of this Chapter (other than this section) shall cease to apply to such bhumidhar with respect to such land and he shall thereupon be governed in the matter of devolution of the land by personal law to which he is subject).
Rule 135(1) (On an application made by a bhumidhar under Section 143 or on facts coming to his notice otherwise, the Assistant Collector in-charge of Sub-division may cause enquiry being made through the Tehsildar or any other officer not below the rank of a Supervisor-Kanoongo, for the purpose of satisfying himself that the bhumidhar's holding or a part thereof is really being used for a purpose not connected with agriculture, horticulture or animal husbandry which includes pisciculture and poultry framing. The enquiry shall be made on the spot and the enquiry officer shall, along with his report also furnish information in the proforma given below).
(2) Where the proceedings have been started by the Assistant Collector in-charge of the Sub-Division on his own motion he shall issue notice to the bhumidhar concerned. Otherwise also he shall give him an opportunity of being heard before coming to a decision in the matter.
(3) Where the entire holding of the bhumidhar has been put to use for a purpose not connected with agriculture, horticulture or animal husbandry which includes pisciculture and poultry framing the Assistant Collector in-charge of the sub-division may make a declaration to that effect.
(4) Where only part of the holding of the bhumidhar has been put to use for a purpose not connected with agriculture, horticulture or animal husbandry which includes pisciculture and poultry framing, the Assistant Collector in-charge of the sub-division shall made a declaration to that effect accordingly and get the said part demarcated on the basis of existing survey map and actual user of the land.
(5) The Assistant Collector Incharge of the sub-division shall get prepared and placed on record a map showing indifferent colurs the plots put to use for purposes connected with agriculture, horticulture or animal husbandry which includes pisciculture and poultry framing and for purposes not so connected. He shall also apportion the land revenue payable for each part of holding. The land revenue payable for each shall bear the same proportion to the total land revenue as the valuation of part bears to the total valuation of the holding calculated on the basis of rent rates applicable. An entry shall also be ordered to be made accordingly in the khatauni.
(6) The cost of the demarcation shall be realized from the bhumidhar connected as an arrear of land revenue unless it has been deposited during the course of the proceedings. For the services of the government servants deputed for carrying out the demarcation, the cost shall be calculated according to the time taken in the work at the rates laid down in paragraph 405 of the Revenue Court Manual. The cost so calculated shall Be deposited in the treasury under the head (LII-Miscellaneous 9-Collection of payments of services rendered.) "
8. From the perusal of the aforesaid provisions of law it is clear that where a bhumidhar with transferable rights uses his holding or part thereof for a purpose not connected with agriculture, horticulture or animal husbandry which includes pisciculture and poultry farming, the Assistant Collector in charge of the subdivision may, suo motu or on an application , after making such enquiry as may be prescribed, make a declaration to that effect. Sub-sections (2) and (3) of Section 143 of the Act deals with this consequences of such, declaration, which provides that upon the grant of the declaration mentioned in sub-section (1) the provisions of this Chapter (other than this section) shall cease to apply' to the bhumidhar with transferable rights with respect to such land and he shall thereupon M governed in the matter of devolution of the land by personal law to which he is subject. Thus it is clear that on account of declaration made under Section 143 of the Act, the consequences which would flow therefrom, are indicated in sub-sections (2) and (3) of Section 143 of the Act and nothing more. Since the proceedings under Section 143 of the U.P. Z.A. & L.R. Act are initiated either suo motu or on an application moved by a bhumidhar with transferable rights before the Assistant Collector in-charge of the sub-division therefore in order to make declaration under the aforesaid Act an enquiry is required to be conducted by the Assistant Collector in-charge of the sub-division as prescribed under the Rules, 1952. Rule 135 of the U.P.Z.A. & L.R. Rules, 1952 provides the procedure for holding such enquiry, wherein the Assistant Collector in-charge of the sub-division is empowered to make enquiry through the Tehsildar or any other officer hot below the rank of Supervisor Kanoongo for the purpose of satisfying himself that the bhumidhar's holding or a part thereof is realty being used for a purpose not connected with agriculture, horticulture or animal husbandry which includes pisciculture and poultry farming. The enquiry shall be made on the spot and the enquiry officer shall, along with his report shall also furnish information in the pro forma given in the rules itself. Clause (2) of the aforesaid Rules postulates that where the proceedings have been started by the Assistant Collector in-charge of the sub-division in his own motion he shall issue notice to the bhumidhar concerned. Otherwise also he shall give him an opportunity of being heard before coming to the decision in the matter. Clause (3) of the aforesaid Rules provides that where the entire holding of the bhumidhar has been put to use for a purpose not connected with agriculture, horticulture or animal husbandry which includes pisciculture and poultry farming , the Assistant Collector in-charge of the subdivision may make a declaration to that effect. Clause (4) of the aforesaid Rules deals with the matters relating to the part of the holding and demarcation of the area of the land of the bhumidhar on the basis of existing survey map and actual user of the land. Clause (5) of the aforesaid Rules provides further procedure and apportionment the land revenue payable for each part of the land. Clause (6) of the aforesaid Rulers deals with the costs for demarcation which is to be realised from the bhunmidhar as arrears of land revenue unless it has been deposited during the course of the proceedings. Thus from the joint reading of the provisions of Section 143 of the Act inasmuch as Rule 135 of the Rules particularly clause (1) and clause (3) of Rule 135 of the Rules, it is clear that where on the basis of the enquiry made under the aforesaid Rules, it is found that where the entire holding of the bhumidhar has been put to use for a purpose not connected with agriculture, horticulture or animal husbandry which includes pisciculture and poultry farming, the Assistant Collector in-charge of the sub division may make a declaration to that effect.
9. Now it is necessary to examine the provisions of U.P. Urban Planning and Development Act, 1973. A bare reading of relevant provisions of which indicates that the provisions of Act are applicable to the whole of Uttar Pradesh excluding contonment area and lands owned, requisitioned or taken on lease by the Central Government for purpose of defence, Section 3 of the aforesaid Act provides that the State Government is empowered to declare the area to be a development area, which is to be developed according to the plan by a notification in the gazette. Section 4 of the aforesaid Act provides for establishment of an authority to be called as Development Authority for any development area to be constituted by the notification in the gazette issued by the State Government. Chapter-III of the aforesaid Act comprising of Sections 8, 9, 10, 10 and 12 deals with the Master Plan And Zonal Development Plan. Section 14 of the Act deals with Development of Land in developed are, which inter alia, provides that no development of land shall be Undertaken or carried out or continued in that area by any person or body (including a department of Government) unless permission for such development has been obtained in writing from the Vice Chairman of the Development Authority in accordance with the provisions of the Act Sub-section (2) of Section 14 of the Act further provides that after coming into operation of the plans in any development area no development shall be undertaken or carried out or continued in that area unless such development is also in accordance with such plans. Section, 15 of the aforesaid Act provides that every person or body (other than any department of Government or any local authority) desiring to obtain the permission referred to in Section 14 shall make an application in; writing to the Vice Chairman such form and containing such particulars in respect of the development to which the application relates as may be prescribed by bye-laws. Every application under sub-section (1) shall be accompanied by such fee as may be prescribed by rules. Further provisions are made in the aforesaid section to grant permission or refuse such permission in writing and the order granting or refusing the permission has to be communicated to the applicant. Section 16 of the aforesaid Act deals with the regulations and limitation including restrictions of use of land and building in contravention of plans. Section 26 of the aforesaid Act provides provision for imposition of penalties where any person, who at his own instance or at the instance of any other person or anybody (including a department of Government) undertakes or carries out development of any land in contravention of the master plan or Zonal development plan or without the permission, approval or sanction referred to in Section 14 or in contravention of any condition subject to which such permission, approval or sanction has been granted, shall be punishable with fine which may extend to Rs. 50,000/-. Sub-section (2) of Section 26 of the aforesaid Act further provides similar provisions in respect of contravention of the provisions of Section 16 of the Act or any terms and conditions prescribed under the provisions of that; Section. Section 27 of the Act provides provisions for demolition of building made in contravention of the aforesaid provisions. Section 28 provides provisions for stoppage of construction undertaken in contravention of the, provisions of Act section 30 of the Act provides provisions for offences by companies. Section 32 of the Act provides the provision for composition of offences where any offence made punishable by or under this Act may either before or after the institution of proceedings be compounded by the Vice Chairman; (or any officer authorized by him in that behalf by general or special order), on such terms, including any term as regards payment of composition fee, as the Vice Chairman ( or such officer) may think fit. Clause (2) of the aforesaid Section provides that where an offence has been compounded, the offender, if in custody, shall be discharged and no farther proceedings shall taken against him in respect of the offence compounded.
10. From a perusal of various provisions of Act, 1973 and the provisions of Section 143 of U.P.Z.A. & L.R. Act it is clear that the field of operation of both the Acts are totally distinct and different altogether and there appears no over lapping upon each other. U.P.Z.A. & L.R. Act operates in a different fields; whereas Act, 1973 operates in altogether a different situations. The aims and objects off Act, 1973 are also altogether different and the provisions are made; thereunder to deal with different situation altogether. It is not in dispute that the U.P.Z.A. & L.R. Act, 1950 and Act, 1973 have been enacted by the State legislature. U.P.Z.A. & L.R. Act is earlier enactment as it has been enacted prior in time and Act, 1973 has been enacted in the year 1973 which is later in point of time. The provisions of Act, 1973 have neither intended to have over-riding effect upon the provisions of other Acts nor the provisions are intended to be made applicable in exclusion of the provisions of other Acts or statutes for simple reason that the provisions of the Act are aimed at to deal with those situation which are not inconflict of other existing statute, otherwise the Act, 1973 would have been framed and enacted differently by attaching non-obstante clause whereby the provisions of Act, 1973 would halve been given over-riding effect upon all other existing statute. For this simple reason also the provisions of Act, 1973 should not be understood and constructed in conflict of the provisions of other existing statutes. In this connection, it is necessary to make it clear that the expression "existing statute" used herein above should hot be understood in sense, of expression "existing law" used in the Constitution of India, rather it should be understood in the sense of the statute existing on the date of commencement of Act, 1973.
11. At this juncture it is necessary to point out that it is well known that a non-obstante clause is a legislative device which is usually employed to give overriding effect to certain provisions over some contrary provisions that may be found either in same enactment or some other enactment, that is to say to avoid the operation and effect to all contrary provisions as held by the Hon'ble Apex Court in Union of India and Anr. v. G.M. Kokil and Ors. A.I.R.1984 Supreme Court 1022. The observation made by the Hon'ble Supreme Court in para 10 of the decision is reproduced as under:-
"10. Section 70, so far as relevant, says the provisions of the Factories 4ct shall, notwithstanding anything contained in that Act apply to alt persons employed in and in connection with a factory". It is well known that a non obstante clause is a legislative device which is usually employed to give overriding effect to certain provisions over some contrary provisions that may be found either in the same enactment or some other enactment, that is to say, to avoid the operation and effect of all contrary provisions. Thus the non obstante clause in Section 70, namely, "notwithstanding anything in that Act" must mean notwithstanding anything to the contrary contained in that Act and as such it must refer to the exempting provisions which would be contrary to the general applicability of the Act. In either words, as all the relevant provisions of. the Act are made applicable to is factory notwithstanding anything to the contrary contained, in it, it must have the effect of excluding the operation of the exemption provisions. Just as because of the non obstante clause the Act is applicable even to employees in the factory who might not be workers' under Section 2(1), the same non obstante clause will keep away the applicability of exemption provisions qua all those working in the factory. The Labour Court, in our view, was, therefore, right in taking the view that because of the non obstante clause Section 64 read with Rule 100 itself would not apply to the respondents and they would be entitled to claim overtime wages under Section 59 of that Act read with Section 70 of the Bombay Shops and Establishments Act, 1948."
12. A non obstante clause is usually used in a provision to indicate that the provision should prevail despite anything to the contrary in the provision mentioned in such non obstante clause . In case there is an inconsistency or a departure between the non-obstante clause and another provision one of the aspect of such clause is to indicate that it is non-obstante clause which would prevail over other clause. (Legislation and interpretation by late Sri Jagdish Swarup IV Edition Chapter-X page 367.)
13. Since sufficient provisions have been made under Act, 1973 to deal with the various situations of the contravention of the provisions of the Act in the Act itself, therefore, the provisions of other Acts including U.P.Z.A. & L.R. Act Should be 'construed independently without any conflict and violence to the provisions of Act, 1973. Thus, merely because the area in question has been notified under H.P.D.A. wherein the holdings of the petitioners are situated, the provisions of Act, 1973 in my considered view , will not affect any way the operation of provisions of Section 143 of the U.P.Z.A. & L.R. Act. The provisions of both the Acts will operate in their respective field and apply simultaneously in respect of land in question without any violence to the provisions of each other. Accordingly, the declaration sought to be made thereunder under Section 143 of the U.P.Z.A. & L.R. Act shall not be affected on account of operation of provisions of Act, 1973 and its applicability over the land in question. Therefore, I have no hesitation to hold that the applications moved by the petitioners for making declaration of their holdings as Abadi land under Section 143 of the U.P.Z.A. & L.R. Act are liable to, be considered independently under the provisions of U.P.Z.A. & L.R. Act and Rules made thereunder irrespective of the applicability of the provisions of Act 1973; as there appears no conflict between the provisions of the aforesaid two Acts.
14. Now in the light of the discussions made herein before, it is necessary to examine the validity of the impugned order dated 27.12.2002 passed by the Upper Parganadhikari , Hapur , District Ghaziabad and the order dated 16.4.2003 passed by the Additional Commissioner, Meerut Division, Meerut in the revision filed by the petitioners. From the perusal of the order dated 27.12.2002 passed by the Upper Purganadhikari, Hapur , it is clear that on the basis of materials available on the record i.e. enquiry report submitted by the Tehsildar as well as the extract of Khatauni and Khasra submitted by the petitioners, he has recorded finding that over the land in question, there exists go-down, staff quarter, road etc. over the holdings of the petitioners, but it is also observed that since the Secretary of H.P.D.A. wrote a letter on 11.8.2000, whereby he has informed that the permission for sanction of the map submitted by the petitioners has already been rejected and communicated to the petitioners on 1.12.99 and the action under Section 26(1) and 2(2) of Act, 1973 is pending consideration before the Chief Judicial Magistrate, Ghaziabad Therefore, the declaration sought by the petitioners under Section 143 of the U.P.Z.A. & L.R. Act would be against the law. Accordingly the applications moved by the petitioners under Section 143 of the Act were rejected.
15. In this connection it is to be pointed out firstly that the proceeding under Section 26(1) and 26(2) of Act, 1973 has nothing to do with the proceedings under the provisions of Section 143 of the U.P.Z.A. & L.R. Act and the declaration sought thereunder could have been legitimately made on the basis of materials available on the record irrespective of the pendency of the proceedings under Section 26(1) and 26(2) of Act, 1973(. Secondly, even if it is assumed for the sake of arguments that pendency of the proceeding under the provisions of Act, 1973 would have adversely influenced the mind of the Assistant Collector in-charge of the sub-division on that count also. Since the petitioners have submitted copy of compounding tee receipts issued by the H.P.D.A. in favour of the petitioner-company and the proceedings initiated, against the petitioners in respect of the alleged violation of the provisions of Act 1973 were withdrawn in view of the sanction of its map and regularisation of constructions, but due to inadvertence the same could not be filed before respondents No. 1 and 2. Therefore, oh account of the aforesaid facts also the earlier report of the Secretary of Development Authority dated 11.8.2000 in respect of the plots in question has lost its efficacy and cannot be of any legal consequence. From the perusal of Annexure-7 of the writ petition, which is photo copy of the receipt of compounding fee deposited by the petitioners, it is clear that the petitioners have deposited the compounding fee to the Development Authority and from perusal of Annexure-8 of the Writ petition, it is clear that vide order dated 8.1.2002 Chief Judicial Magistrate, Ghaziabad has dismissed the complaint and dropped the proceedings pending before him against the petitioners on account of fact that the Development Authority has informed the court that the offence alleged against the petitioners have already been compounded and the maps of the petitioner have been sanctioned by the Development Authority and the complaint' against them has been withdrawn by the Development Authority itself and the aforesaid complaint has been dismissed as withdrawn against the petitioners. The petitioners have made specific assertions in this regard in paras 12, 13 and 14 of the writ petition. In reply thereto, in the counter affidavit filed by the State Government only this much is stated that the aforesaid averments cannot be replied for want of knowledge. The concerned Development Authority was necessary party, but the same has not been impleaded as necessary party. In my opinion the aforesaid assertion are completely misconceived in given facts and circumstances of the case for simple reason that the concerned Development Authority was not necessary party in the proceedings as neither any allegation has been made nor any relief was sought against it. The respondents were under legal obligation to make specific reply of the aforesaid averments made in the writ petition but since they have failed to do so, therefore, the Court is bound to draw adverse inference against respondents in this Regard and facts stated in the aforesaid paragraphs of writ petition are treated to be not specifically denied or controverted by respondents. Therefore, the same may be treated to have been admitted by the respondents. Accordingly, same may be treated to be correct also. Thus, in view of the aforesaid facts. I am of the considered opinion that since the declaration sought by the petitioners under Section 143 of the U.P.Z.A. & L.R. Act has been rejected by the Upper Parganadhikari, Hapur only on account of the fact that the Development Authority has informed about contravention of certain provisions of the Act, 1973 by the petitioners. Therefore, on account of compounding of offence and withdrawal of the proceedings pending before the Chief Judicial Magistrate, Ghaziabad against the petitioners, the aforesaid ground of rejection: of application of the petitioners has also lost its efficacy and the application of the petitioners moved under Section 143 of the U.P.Z.A. & L.R. Act deserves to be allowed by the Assistant Collector in-charge of the sub-division. The orders passed by the Uppar Parganadhikari, Hapur are not sustainable and with same reasons impugned orders passed by the Additional Commissioner, Meerut Division, Meerut on revision of the petitioners are also not sustainable and are liable to be quashed by this Court. Accordingly, the same are hereby quashed.
16. Thus, the Assistant Collector in-charge of the sub-division is directed to consider the applications of the petitioners for making declaration under Section 143 of the U.P.Z.A. & L.R. Act and grant declaration on the basis of the enquiry report submitted by the Enquiry Officer under Rule 135 of the U.P.Z.A. & L.R. Rules referred earlier without being influenced by the earlier proceedings under Section 26(1) and 26(2) of Act, 1973. Since I have already taken the view that the alleged violation of the provisions of Act, 1973 has nothing to do with the declaration sought under Section 143 of the U.P.Z.A. & L.R. Act and the enquiry report under Rule 135 of the Rules in respect of actual use of the lama on spot is only essential for making such declaration in given facts and circumstances. Therefore, no further enquiry is required to be made for making declaration sought to be made under Section 143 of the U.P.Z.A. & L.R. Act Since sufficient materials are already available on the record, as indicated herein above. Therefore, I have, no hesitation to hold that on the basis of the aforesaid materials available on the record the Assistant Collector in-charge of the sub-division is required to make declaration under Section 143 of the U.P.Z.A. & L.R. Act. The statement of the Enquiry Officer in respect of use of land in question is only relevant material for the purpose of proceedings in question and the same is already on record as indicated earlier. Therefore, only that part of enquiry report may be taken into consideration while making such declaration Accordingly the Assistant Collector in-charge of the sub-division is directed to issue declaration under Section 143 of the U.P.Z.A. & L.R. Act in respect of the land in question within a period of six weeks from the date of production of a certified copy of this order passed by this Court before him.
17. In view of the observations and directions made herein before, both the writ petitions succeed and are allowed. There shall be no order as to costs.