Jan - High Court of Judicature at Allahabad

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114 INDIAN LAW REPORTS ALLAHABAD SERIES [2012small area on which abadi was existing, hasbeen exempted, hence the petitioner cannotclaim discrimination. It is submitted thatpetitioner's plot is situate on 100 feet wideroad and is a valuable plot for commercialutility of the Board, hence decision has beentaken not to exempt the petitioner's plotfrom the scheme. It is further submitted thatChairman under the 1965 Act has nojurisdiction or authority to decide suchrepresentations. Petitioner's mother hasalready filed a Land Acquisition ReferenceNo.64 of 2000 for enhancement ofcompensation and a notice dated 7thDecember, 2004 was served on thepetitioner's mother for demolition ofunauthorised constructions raised over theland of the Board which notice waschallenged by the petitioner's mother bymeans of a writ petition being Writ PetitionNo.3055 of 2005 which was dismissed on24th January, 2005 with the observation thatpetitioner of that writ petition may fileobjection against the show cause notice.The Housing Commissioner has consideredthe representation of the petitioner andpassed an order on 13th March, 2006 andthe land of the petitioner was not consideredfit for exemption. Referring to the report ofthe Niyojan Samiti dated 9th November,1993, it is stated that no exemption wasgranted to the petitioner's land. Theexemption of land was granted by theNiyojan Samiti in favour of other tenureholders i.e. adjoining neighbourers of thepetitioner. The writ petition filed by thepetitioner's father being Writ Petition No.17057 of 1987 having been dismissed on8th September, 1988, the acquisitionproceedings have become final.8. Sri M.K. Gupta, learned counselappearing for respondent No.5, submittedthat the land in question was earmarked forcommunity centre. The Board has fulljurisdiction and authority to auction theplots in favour of respondent No.5 whichincludes plot of the petitioner as well asother tenure holders. He further objected thelocus of the petitioner to file this writpetition. He submits that the land inquestion, according to petitioner's case, wasrecorded in the name of petitioner's mother,hence the petitioner has no locus tochallenge the order passed by the HousingCommissioner on the representationsubmitted by the petitioner's mother.9. Learned counsel for the petitioner,in rejoinder, reiterated his submissions. It isfurther contended that authority competenthaving not decided the representation, theorder dated 13th March, 2006 deserves tobe set-aside. It is submitted that the Board inits counter affidavit has not raised anyobjection regarding locus of the petitioner tofile the writ petition, hence it is not open forthe respondent No.5, who has not even filedany counter affidavit, to raise any objectionregarding locus that too at the time ofhearing. It is further submitted thatpetitioner's mother is an old lady who hasauthorised the petitioner to take all legalproceedings. Along with the briefarguments submitted on behalf of thepetitioner a xerox copy of the special powerof attorney dated 13th November, 2005 byMrs. Gurdev Kaur has been enclosed. It isfurther submitted by learned counsel for thepetitioner that earlier petition filed by thepetitioner being Writ Petition No.71083 of2005 having been disposed of by this Courtdirecting for deciding the representationdated 16th February, 2005, it is not open forthe respondents, at this stage, to raise anyobjection regarding locus of the petitioner.10. We have considered thesubmissions of learned counsel for theparties and have perused the record.
1 All] Harijinder Singh V. State of U.P. and others 11511. Before we proceed to consider therespective submissions of learned counselfor the parties, it is necessary to firstconsider the objection raised by learnedcounsel for respondent No.5 regarding locusof the petitioner to file this writ petition.12. In the writ petition although acounter affidavit and two supplementarycounter affidavits have been filed by theBoard but in none of the affidavits anyobjection regarding locus of the petitionerhas been taken, rather in the supplementarycounter affidavit dated 3rd September, 2011sworn by Sri S.K. Srivastava, ExecutiveEngineer of the Board it has beenmentioned in paragraph 4 that GobernSingh was the original owner of the landand after his death property came in thename of Swarn Singh. Paragraph 4 of thesupplementary counter affidavit dated 3rdSeptember, 2011 is as under:-"4. That it would not be out of place tomention here that Govern Singh wasoriginal owner of the land Khasra No.368and after his death the property came in thename of his son Swarn Singyh, and thepetitioner inherited the property after thedeath of Swarn Singh. The objection filedfor exemption of the land was dulyconsidered by the Niyojan Samiti and364.16 sq. mtrs land from Khasra No.368was already exempted."13. From the above stand taken by theBoard, it is clear that the Board never raisedany objection regarding locus of thepetitioner to file this writ petition, rather theright of the petitioner has been accepted inthe land. The Board having not raised anyobjection regarding locus of the petitioner,we do not deem it fit to entertain theobjection raised by respondent No.5 whoclaims to be subsequent auction purchaser.14. The petitioner although in the writpetition has prayed that notice dated 26thJune, 1982 issued under Section 28 of the1965 Act and notice issued under Section32 of the 1965 Act be declared illegal, voidand inoperative, the said prayer is liable tobe rejected in view of the fact thatpetitioner's father had earlier filed WritPetition No.17057 of 1987 challenging theacquisition proceedings which writ petitionwas dismissed by this Court on 8thSeptember, 1988. The said fact has beenstated by the petitioner himself in paragraph6 of the writ petition. Thus challenge to theacquisition raised by the petitioner's fatherhaving already been rejected, the prayer ofthe petitioner challenging the aforesaidnotices cannot be accepted.15. The first submission of learnedcounsel for the petitioner is that the orderimpugned dated 13th March, 2006 passedby the Housing Commissioner deserves tobe quashed on the ground that this Courthad directed the Chairman of the Board toconsider the representation by its judgmentand order dated 18th November, 2005 andthe Chairman having not decided the issue,the decision by the Housing Commissioneris meaningless.16. Sri A.P. Srivastava, learnedcounsel for the Board, in reply to the abovesubmission, contended that Chairman of theBoard has no authority or jurisdiction todecide any claim for exemption and theHousing Commissioner being an authorityto take decision regarding scheme hasrightly rejected the representation. SriSrivastava, however, could not explain as towhen this Court directed the Chairman ofthe Board to decide representation, howcome the Housing Commissioner decidedthe representation.
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Page 125 and 126: 1 All] Jai Ram V. D.D.C. and others
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Jan - High Court of Judicature at Allahabad

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