P.P.Gupta - (1.) THIS appeal has been filed under Section 381 of the Nagar Mahapalika Act. A preliminary objection on behalf of the respondents regarding maintainability of the appeal has been raised.
(2.) LEARNED counsel for both the parties were heard at length and the record of the case was also perused. It has been brought to my notice that this present appeal is not maintainable in view of the provision of Section 381 (3) of the U. P. Nagar Mahapalika Adhiniyam, 1959, which reads as below ; "Notwithstanding anything contained in the foregoing provisions, no appeal shall lie under this section unless the appellant has deposited the money which he is liable to pay under the order from which the appeal is filed." It was admitted before me that the decretal amount, as per order of the Reference Court, was not deposited before filing of the appeal, In such circumstances, in my view, the appeal is not maintainable. A Division Bench of this Court, of which I was one of the members. In First Appeal No 921 of '988 State of U. P. v. Smt. Mithlesh 1991 ALJ 516, has also taken a similar view and has rejected the memo of appeal on account of non-compliance of Section 381 (3) of the aforesaid Adhiniyam. The Special Leave Petition No. 9004 of 1991 filed against this order was dismissed on 8-7-1991 by the Apex Court This decision has also subsequently been followed in First Appeal No. 214 of 1982 and First Appeal No. 115 of 1982.
(3.) THE appellant herein has also contended that the provisions of subsection (3) of Section 381 of the Nagar Mahapalika Adhiniyam, are not applicable to the instent appeal, in as much as, the provisions of Chapter XIV of the Nagar Mahapalika Adhiniyam, which contains the said provision also, stand suspended by the provisions of Section 59 (1) (a) of the U P. Urban Planning and Development Act, 1973 (for short as the 'Planning Act"), and therefore, the respondents cannot press into service sub-section (3) of Section 381 for dismissal of the instant appeal. This contention cannot be accepted for two reasons: Firstly, the acquisition of the land, involved in the instant appeal, was made under the provisions of the Land Acquisition Act, 1894, as modified by the provisions of the Nagar Mahapalika Adhiniyam. and therefore, the suspending simpliciter of Chapter XIV of the Adhiniyam. which took place after the completion of the acquisition, would not effect the right to the appeal under Section 381 under the said Chapter. Secondly, clause (a) of the Sub-section (1) of Section 59 itself saves all proceedings relating to the acquisition of land and interest in land for improvement schemes, pending immediately before suspension of Chapter XIV before any court, Tribunal or Authority, which are to be continued and concluded in accordance with the provisions of the Nagar Mahapalika Adhiniyam by creating a fiction that those provisions were not suspended.;