- (1.) B. Diksnit, J. This writ petition is directed against an order passed by State Government on 5-9-87 in exercise of power under Section 34 of the Urban Land (Ceil ing and Regulation) Act, 1976 (in short 'act' ).
(2.) THE petitioners were served with a draft statement under Section 8 (3) of the Act against which they filed objection claim ing that they were not possessed of any land beyond ceiling limit. THE Competent Authority after considering the objection by order dated 13-9-87 held that petitioners did not possess land beyond ceiling limit. No appeal was preferred by State against the order passed by Competent Authority. After a lapse, of about 8 years the State Government issued a notice on 30-10-86 to petitioners under Section 34 of the Act. THE petitioners filed an objection against it an then State Government by order dated 5-9-87 set-aside the order of Competent Authority so far petitioner No. 1, Murlidhar Kasera is concerned and declared 420. 235 sq. meter of land possessed by N'm to be beyond his ceiling limit and directed taking over of possession of the same. Aggrieved by the said order of State Government the petitioners have preferred this writ petition. The learned Counsel for petitioners argued that although there is no limitation for invoking power under Section 34 of the Act but that power could be exercised only within a reasonable time from the date of passing of order by Competent Authority and as in this case there was undue delay in invoking power under Section 34 of the Act without any reasonable basis, therefore, the order of State Government is liable to be set aside. He relied on the case ofsmt. Laxmi Devi Ghorpade v. State of U. P. , 1993 (22) AIR 475 and that of Smt Rani Devi Gupta v. State of U. P. 1995 (26) AIR 500 : 1995 (2) JCLR 769 (All), Jn support of said argu ment. The learned Counsel further argued that the power under Section 34 of the Act did not extend to reappreciate the evidence but it permitted only examination of records by the State Government for the purpose of satisfying itself as to the legality or propriety of an order or as to the regularity of proceedings before the Competent Authority but in this case the State Govern ment has interfered in the order of Com petent Authority by re-appreciating evidence on record and recording its own findings of fact, it exceeded its power under Section 34 of the Act. The learned standing Counsel in opposition submitted that the order has been passed by State Government well within the ambit of its power while examining the legality and propriety of the order of Competent Authority. Section 34 of the Act is as follows: "34. Revision by State Government.- The State Government may, on its own motion, call for and examine the records of any order passed or proceeding taken under the provisions of this Act and against which no appeal has been preferred under Section 12 or Section 30 or Section 33 for the purpose of satisfying itself as to the legality or propriety of such order or as to the regularity of such procedure and pass such order with respect thereto as it may think fit: Provided that no such order shall be made except after giving the person affected a reasonable opportunity of being heard in the mat ter. " This power of State Government is in nature of revisional power to interfere in the order of subordinate authority which can be exercised within a reasonable time after passing of order by a subordinate authority. If invoking of this power is not limited for being exercised within reasonable time from the time of passing of order by subordinate authority then allow ing it to be invoked after undue delay will make the exercise of power unreasonable and arbitrary. Reading said limitation in respect of exercise of power will save it from mis-chief of becoming unreasonable. Such a restriction that power under Section 34 be exercised within a reasonable time from passing of order by subordinate authority finds support from the law propounded in the case of Smt. Laxmi Devi Ghorpade v. State of U. P, (supra) and that of Smt. Rani Devi Gupta v. State of U. P. , (supra ). The learned standing Counsel tried to argue that the legislature had not provided any limita tion for invoking the power and therefore no such restriction be read that by passage of 8 years in this case the exercise of power is bad. It is true that the legislature has not provided any period for State Government for exercising power under Section 34 but the line of argument advanced is untenable. The absence of limitation, being provided by legislature, does not mean that the power cannot become unreasonable if it is not ex ercised within a reasonable period. Those cases apart where reasonable explanation for delay in exercise of power has been given, as I am of the opinion that undue delay in exercise of power will import ar bitrariness, therefore, I am not inclined to accept the contention that in absence of limitation being provided by Legislature for fixing specific period for invoking the power, the power will not become un reasonable or bad in law due to delayed exercise. However, this does not mean that where there is a reasonable explanation for delay it cannot be invoked. The exercise of power even after much delay can be justified under Section 34 provided there is some reasonable basis to allow such delayed exer cise of power but not without a reasonable explanation where the recourse to power is being taken after long lapseof time. So far this case is concerned there is no explanation from the State Government as to why the power was invoked after a lapse of 8 years. As held earlier, if the State Government's order is sustained then it will be allowing interference in order of Com petent Authority dropping the notice after expiry of 8 years without any reasonable basis as there is no explanation as to why such a delay occurred in exercising power in question. If without reasonable explanation the order passed by State Government is sustained then it will be sending wrong sig nal to other land owners who have faced or are facing proceedings under the Act. It will create an uncalled for apprehension in the mind of land owners, in case they succeed before Competent Authority, that the State Government may re-open matter under Section 34 despite its being final. The land owners who succeed before Competent Authority will live in uncertainties and, therefore, they will avoid putting up con struction over land. It will even discourage construction even in these days of paucity of housing accommodation which will be against object to be achieved under Act.
(3.) THE other argument of learned Counsel for petitioner that the State Gcvernment has re-appreciated evidence and recorded its own finding in excess of its power has also much force. THE argument that power of State Government under Sec tion 34 did not extend to re-appreciating the evidence and interfering in finding of fact recorded by Competent Authority, which has been done in this case, has much force. Section 34 of the Act permits State Govern ment to satisfy itself as to the legality or propriety of an order of Competent Authority or to the regularity of procedure before him. THE power to re-appreciate evidence is not covered under it and, there fore, the State Government exceeded its power in holding that the two brothers namely, Murlidhar Kasera and Bhagwan Das Kasera, separated by interfering in find ing of fact that they were joint. THE State Government while exercising power under Section 34 of the Act could not have inter fered in finding of fact and substituted its own finding that the property in question is separately acquired property and not of jojni i-finu Family and to have held shares of pauiuner differently from that held by Competent Authority. THE order of State Government is unsustainable on this ground also. For aforesaid reasons the writ peti-t'on succeeds and is allowed, order of State i overnment (Opposite Party No. 1) dated 5-9-87 is quasbed and that of Competent Authority is restored. The petitioner is en titled for costs from opposite party No. 1. Petition allowed. .;