- (1.) A. B. Srivastava, J. By means of this writ petition the petitioner has sought quashing of a judgment and order dated 4-4- 1995 of the District Judge, Allahabad, whereby, while setting aside the order dated 29-12-1994 of the Competent Authority, Urban Land Ceiling, Al lahabad, He remanded the two cases out of which the appeals before him arose, for disposal afresh in accordance with law.
(2.) THE proceedings before the Competent Authority started on a return under action 6 (1) of the Urban Land (Ceiling and Regulation) Act, 1976 (hereinafter referred to as the Act') filed by the petitioner, Rajeev Dave and another return filed by his father R. K. Dave (since deceased and substituted by the petitioner ). THE properties subject-matter of these returns and proceedings were (i) 9/13 Elgin Road, (ii) 10/11 Chah Chand, (iii) 47, Shiv Kuti, (iv) 6/10 Colvin Road, (v) 46 Mahatma Gandhi Marg, all within the City of Allahabad. THE Competent Authority who first decided the matter by his order dated 28-3-1984, held 4707 Sq. metres area in excess of the ceiling limit. During the pendency of the appeal against the same, Sri R. K. Dave died and his legal representatives were imp leaded, hence the District Judge, remanded the case for decision afresh, taking into consideration the share of various heirs. The Competent Authority who heard the matter next, held that the petitioners title having extinguished on expiry of lease period in respect of 9/13, Elgin Road and 46, Mahatma Gandhi Marg, the same were to be excluded from consideration. House No. 10 and 11 Chah Chand was found totally built up. House No. 47, Shiv Kuti Mahadev was excluded from consideration because the same was shown in the Master Plan to be reserved for a green park. The only property thus considered was No. 6/10 Colvin Road, in which taking into consideration the built up area and the 1500 Sq. meters permis sible open area in the Allahabad Urban Agglomeration. He declared 1507 Sq. metres surplus. Aggrieved the petitioner filed appeal under Section 33 of the Act. The District Judge, disagreed with the conclusions of the Prescribed Authority, that Nos. 9/13, Elgin Road and, 46, Mahatma Gandhi Marg, were to be excluded from consideration simply be cause the lease had expired, and correctly so. As regards 10/11, Chah Chand there was no controversy that the entire area was built up. The District Judge then con sidered the built up and admissible open area in 6/10, Colvin Road, and came to hold the opinion that 2886. 62 Sq. metres is to be treated as vacant land. While remanding the case to the prescribed Authority, to re- calculate the built up and the permissible open area, in its totality, and then decide the 'vacant area', he also directed a thorough scrutiny to be made with regard to built up and vacant area in 47, Shiv Kuti.
(3.) ON behalf of the petitioner, Sri S. N. Verma, learned Senior Advocate, has sub mitted that while remanding the case the District Judge, had no jurisdiction to direct the Competent Authority to take into consideration the built up and open area of plot No. 47, Shiv Kuti, because neither the petitioner's appeal was directed in respect of the same nor the State had preferred any appeal. Further it is contended that the learned appellate court failed to consider various built up portions in 6/10 Colvin Road, such as a Tube-well and servants quarters etc. In any case it is contended while remanding the case, the learned District Judge should have avoided to express any categorical opinion and the case as a whole should have been remanded. As far as the first submission based on 47, Shiv Kuti, this Court does not find any substance, simply because there was no appeal, the appellate court was not precluded from making it open to consider the question of vacant area, on the basis of all the items of the property subject matter of the return under Section 6. In fact once the entire exercise was opened on the premise that property Nos. 9/13, Elgin Road, and 46 Mahatma Gandhi Marg, were the property of the petitioner, the logical corollary was that all the 5 items of the property became available in order to decide the built up, the admissible open, and the "vacant area'. Simply because No. 47, Shiv Kuti, was indicated in the Master Plan to reserve for green park, there was no divesting of the petitioner qua this proper ty, it admittedly having not been acquired for the purpose by the State, or any other authority. Consequently the impugned order of the District Judge could not be faulted on this ground.;