Hon'ble Vivek Kumar Birla,J.
Heard learned counsel for the petitioner and Sri A.P. Srivastava for the respondent-Awas Evam Vikas Parishad.
The challenge raised in this writ petition is to the order dated 6.11.2013 which also recites the existence of the intimation dated 30.7.2013 refusing to accept the request of transfer of the land in question in favour of the petitioner.
The facts as brought on record were perused by us and we had called upon Sri Srivastava to produce the relevant material. He has produced the relevant file of the Department where the letter dated 30.7.2013 is contained that recites that the request of the petitioner cannot be accepted according to rules applicable on the request made by the petitioner.
Having perused the said letter we do not find mention of any particular rule in the letter dated 30.7.2013.
However, the order impugned in the present writ petition recites Regulation 46 (i) to be the reason of such refusal. The petitioner has filed the photostat copy of the Uttar Pradesh Awas Evam Vikas Pradeshan Vinyam, 1979. According to this the said rules of 1979 relate to residential plots only.
Sri Srivastava has invited the attention of the Court referring to the same rules as contained in a published book to contend that there appears to be some difference between the rules relied on by him which contains Rule 45 in relation to transfer.
Even assuming for the sake of arguments that the rules have been incorrectly captioned, the definition contained in the rules relied upon by Sri Srivastava namely Rule 3 (n) categorically defines that the word 'bhukhand' would mean a residential plot only.
It is thus clear that the rule mentioned in the impugned order and that which has been relied upon by Sri Srivastava, both relate to the year 1979 and to residential plots only, whereas the present dispute is in relation to a commercial plot.
Sri Srivastava has then invited the attention of the Court to the rules which have been promulgated in 1980 as amended in February, 1993. A copy of the said rules have been placed before the Court where we find that the same is in relation to commercial plots. Rule 16 (2) of the 1980 Rules is extracted hereinunder:-
"(2) O;kolkf;d Hkw[k.Mksa ds izns'kuxzghrk }kjk &
(v) vius i{k esa jftLVz~h djkus ds mijkUr nqdkus cukdj mUgsa vU; O;fDr;ksa dks vkokl vk;qDr dh fyf[kr vuqefr izkIr djds fodz; fd;k tk ldsxkA blds fy;s ifj"kn~ }kjk dksbZ vUrj.k 'kqYd ugha fy;k tk;sxk] fdUrq dzsrk dk uke ifj"kn~ vfHkys[kksa esa vafdr djuk gksxkA
(c) fcuk dksbZ fuek.kZ fd;s Hkw[k.M fdlh vU; O;fDr dks fodz; fd;s tkus dh n'kk esa rFkk mi;qZDr ¼5&v½ ds vuqlkj dz; dh xbZ nqdku ds dzsrkvksa }kjk fdlh vU; O;fDr dks fodz; fd;s tkus dh n'kk esa 2 izfr'kr vUrj.k 'kqYd ds vfrfjDr 40 izfr'kr ykHkka'k tek djuk gksxkA ykHkka'k dh x.kuk ifj"kn~ fu;ekuqlkj dh tk;sxhA"
From a perusal of the letter dated 30.7.2013 as well as the impugned order dated 6.11.2013, we do not find any reference to the 1980 rules at all. It is thus clear that the impugned order has proceeded on an incorrect application of law and so is the communication dated 30.7.2013 which has been referred to in the impugned order.
Consequently, the impugned order deserves to be set aside. The writ petition is allowed and the impugned order dated 6.11.2013 as well as the communication dated 30.7.2013 are quashed. The respondent no.4 is directed to proceed to examine the said rules and then pass appropriate orders in accordance with law after giving an opportunity of hearing to the petitioner within a period of three months' from the date of production of a certified copy of this order before him.
The records have been returned back to Sri Srivastava.
Order Date :- 2.4.2014 Lalit Shukla