MOHAMMAD AMIR AHMAD KHAN Vs. NAGAR MAHAPALIKA
HIGH COURT OF ALLAHABAD
MOHAMMAD AMIR AHMAD KHAN
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Jagdish Sahai, J. -
(1.)THESE two writ petitions raise common questions of law and fact (and for?) that reason are being disposed of by this common judgment. The property to which Writ Petition No. 128 of 1962 relates is owned by Raja Mohammad Amir Ahmad Khan along with one Sri Mohd. Sadiq and is bounded as below. East: Khasra Nos. 160 and 161 (Houses) and Khasra No. 163 Pucca Lane of Municipal Board. West: Khasra Nos. 158, 161, 182 and 167 Gowyin Road: North: Mohalla Bazar Jhau Lal, Khasra No. 148, Circular Road of Municipal Board. South: Mohalla Bazar Jhau Lal, Khasra No. 154, Municipal lane and Khasra No. 158 Kothi Sri Masudu- Hasan, Advocate. This property is hereinafter described as 'property No. 1'. The property to which Writ Petition No. 129 of 1982 relates is owned by Sri Jamal Rasul Khan son of late Maharaja Sir Moharamad Ejaz Rasul Khan of Jahangirabad, and is described below: Kothi No. 2, Barrow Road. This property is hereafter 'called as 'property No. 2.'
(2.)THE scheme which is challenged in Writ Petition No. 128 of 1982 is "Circular Road Development and Housing Accommodation Scheme No. 95" (hereinafter described as Scheme No. 1). THE one challenged in Writ Petition No. 129 of 1962 has been described as "Street and Housing Accommodation. Scheme-- Kothi Maharaja Jahangirabad at No. 2, Barrow Road, Khas Bazar, Lucknow" and hereinafter called as Scheme No. 2. Scheme No. 1 purports to have been framed under Sections 30 and 31 of the U. P. Town Improvement Act (hereinafter referred to as the Improvement Act) while Scheme No. 2 has been framed under Sections 28 and 31 of that Act. In both the cases notices contemplated by Section 36 of the Improvement Aet have been prepared and the notices or proposed acquisition of land have also been issued to the petitioners in both the writ petitions. All this happened before the U. P. Nagar Mahapalika Adhraiyam 1959 (hereinafter referred to as the Act) was enforced. THE provisions of the Improvement Act have been repealed by virtue of the provisions of Section 581 of the Act and it is the admitted case of the parties that further proceedings in the cases would be governed by the provisions of the Act and not those of the Improvement Act.
In Writ Petition No. 128 of 1962 originally the following relief was claimed: "Wherefore, it is most respectfully prayed that this Hon'ble Court may be pleased to issue a writ of mandamus restraining opposite parties Nos. 1 to 3 from giving effect to the notification Annexure 3 and acquiring or taking possession of the petitioner's property under that notification. Any other writ or directions as may appear appropriate on the facts and circumstances of the case may be issued and this petition may be allowed with costs,"
By means of an application dated 15-12.1964 permission was sought to add the following relief: "That by a writ of certiorari the entire proceedings of the Nagar Mahapalika, in respect of the property covered by this writ petition be quashed."
(3.)THAT application was allowed and the relief has been amended. In Writ Petition No. 129 of 1962 the prayer is as follows:-- (a) THAT by a writ of certiorari the entire proceedings of the Nagar Mahapalika, Lucknow, from 31-1-1960 to 20.1.1962 be quashed. (b) THAT a writ of mandamus, prohibition or other appropriate writ or direction be issued restraining the Nagar Mahapalika, Lucknow, from executing the scheme known as ''Street and Housing Accommodation Scheme Kothi No. 2, Barrow Road, Khas Bazar, Lucknow" and acquiring the petitioner's property thereunder."
Mr. Nazir Uddin, who has appeared for the petitioners in both the cases has made the following three submissions before me:-- (1) That the provisions contained in paragraph 10 of Schedule II of the Act are ultra vires being violative of Article 31 (2) of the Constitution of India. (2) That the two schemes giving rise to these petitions could not have been legally framed by the improvement Trust, Lucknow, and cannot validly be continued by the Nagar Mahapalika, Lucknow, inasmuch as they do not pertain to an ''extended area". (3) That the two schemes not involving expenditure of Rs. 10 lacs or over did not require sanction of the State Government nor was any such sanction accorded by the State Government and for that reason they would not be covered by the provisions of Section 365 of the Act with the result that proceedings for acquisition of property to implement those schemes can only be taken by the State Government under the provisions of the Land Acquisition Act and the Nagar Mahapalika cannot resort to any provision in the Act for purposes of acquisition of properties to implement those schemes including property No. 1 and property No. 2.
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