JUDGMENT A.K. Yog, J.
1. Through tins writ petition under Article 226, Constitition of India, 'State of Uttar Pradesh'-through Competent Authority (Petitioner No. 1) and Competent Authority Urban Land Ceiling, Varanasi (Petitioner No.2) seek to challenge judgment and order dated December 14, 1999 ( Annexure -1 to the writ petition) whereby Appellate Authority/District Judge Varanasi (Respondent No.2), allowed Ceiling Appeal No. 29 of 1999 ( Hari Ram versus Competent Authority, under Section 33, Urban Land (Ceiling and Regulation) Act, 1976 (called ' the Act') setting aside judgment and order dated 29.6.1981 passed by the Competent Authority declaring 52513 Sq, Meter land, owned by Hari Ram, (Petitioner No. 1), as surplus under Section 8(4) of the Act (Annexure 2 to the writ petition).
2. FACTUAL MATRIX OF THE CASE, as it emerges from the record of the Writ Petition, is given hereunder:
Hari Ram, (referred to as 'land holder'), who held 54013 Sq Metre land in urban agglomeration at Mauza Chhataripur- Bakshra. Hatia Pargana and Tahsil Shivpur District Varanasi, submitted statement under Section 6(1) of the Act, on 29.9.1976, before Competent Authorit), who issued (after survey), notice/Draft statement under Section 8(3) of the Act on 13.5.1981 holding 52513:30 Sq. tyleter as 'surplus land'. According to the Competent Authority notice was served. No objections were filed by the landowner, as he denied receipt of 'Notice'. Competent Authority proceeded exparte and vide order dated June 29, 1981, issued /draft statement' under Section' 8(4) of the Act, (annexure `2' to the petition). Notification under Section 10(1) of the Act was issued on 12.6.1982, (Annexure 3'to the petition).
3. Competent Authority, sixteen.and half years later, issued notification under Section 10(3) of the Act dated November 22, 1997 requiring Collectorl Tahsildar, Administrator, Nagar Mahapalika Varanasi and 'Secretary Varanasi Development Authority' to note that `surplus land' had vested in favour of State of Uttar Pradesh, and to make entry as such in Revenue Records, (Annexuie '4' to the writ petition).
4. Meanwhile Urban Land (Ceiling and Regulation) Repeal Act, 1999, Act No. 15 of 1999, called 'the `Repeal Act", came in existence, which was adopted in State of Uttar Pradesh on 18 th March 1999.
5. Ignoring enforcement of Repeal Act, Competent Authority, more than 18 months later, purportedly exercising powers under action 8(3) of the Act, issued letter/order dated June 10, 1999 requiring Collector to 'mutate' entry in favour of "Uttar Pradesh Government' in Revenue Records and to intimate compliance to him/Annexure `5' to the petition. It is reiterated in this letter that surplus land had 'vested' in Uttrar Pradesh Government under Section 10(3) of the Act.
6. Admittedly, notice wider Section 10(5) of the Act, was issued on June 19, 1999, and said to be served on Hari Ram on 25.6.1999 (Annexure `6' to the petition.
7. This notice required landowner to deliver possession of the "surplus land' to the Competent Authority within 30 days of receipt 11 said notice. In case of failure, it threatened action for taking physical possesion under Section 10(6) of the Act. This notice, issued after Repeal Act shows that till 25,06 1999 'physical possession" of surplus land in question was not taken by the petitioners and it remained with the landowner, who challenged said notice dated 25.6.1999 by filing Ceiling Appeal No. 29 of 1999, Hari Ram v. Competent Authority under Section 33 of the Act, Memorandum Appeal dated 15.07.1999 is Annexure 7 to the petition.
8. Appellate Authority, after perusing original record, it recorded a categorical finding that no notice under Section 8(3) the Act was served upon the landopwner, (i.e. Hari Ram), and by means of the impugned judgment and order dated December, 14, 1999,(Annexure 1 to the petition) allowed the Appeal.
9. Being aggrieved, the petitioners have filed the present writ petition under Article 226 Constitution of India.
10. Main relief claimed in the writ petition apart from general and consequential reliefs, is to issue a writ, order or direction in the nature of certiorari to quash the impugned judgment and order dated 14.12.1999.
11. This writ petition was presented in .the Court Registry on 31.10.2000. Report of the Stamp Reporter, shows that writ petition should have been normally presented within three months i.e. on or before 13.3.2000 and there was considerable delay of seven and half months in approaching this Court. The petitioners are thus found guilty of not approaching this Court promptly in absence of proper/satisfactory explanation. Explanation, for the delay in para 18 of the writ petition reads:
"18. That on 13.7.2000. the copy was applied for which was received on 27.7,2000 and thereafter necessary record was collected and an official was sent to Allahabad along with record of 6 ceiling cases in which the writ petitions were to be filed to contact the office of the Chief Standing Counsel, who came on 21 9.2000 and contacted the office. The expenses were deposited on 23.9.2000 in the office of the Chief Standing Counsel and file was allotted to the Standing Counsel for dictation of the writ petition. The same is being filed after preparation and reporting without any further delay The delay occurred is under the circumstances, stated abow, and may kindly be condoned."
The petitioners are thus guilty of laches. '
12. Inaction without sufficient cause or `apathy' reflecting casual approach, on the part of the petitioners in the matter is conspicuous. Petitioners cannot be said to be vigilant or prevented by sufficient cause. He who accuses should not be heard after the lapse of reasonable time unless he can explain satisfactorily the delay ("ACCUSATOR POST RAT1ONABILE TEMPYS NON EST AUDIE'MHJS NISI SE BENE DE OMISSIONE EXCUSAVERIT".
13. It is well-settled that 'laches' defeats remedy. Courts do not help those, who sleep. One must approach Court in reasonable time. Reference may be made to the case of The Ramjas Foundation and Ors. v. Union of India and Ors. (AIR 1993 SC 852- para 14) wherein Apex Court observed:-
"........Thus viewing the matter from any angle we are clearly of the view that the writ petition wax also liable to be dismissed on the ground of laches and delay on the part of the appellants..........
14. We, however, proceed to decide the petition finally on merits in spite of the delay in this case, for three reasons. One, the issue to be adjudicated in this case is legal in nature and arising in large number of pending cases in this Court. Two, the learned Standing Counsel has made elaborate arguments on merits and desired to decide the legal issue on merits and remove doubts about legal position in the matter. Three, the writ petition has not been admitted and notice has not been issued to Hari Ram, the contesting respondent no. 1, as yet.
15. Legal QUESTION to be answered in this case is "Whether deemed vesting of surplus land under Section 10(3) of the Act, followed by "mutation"- in Revenue Record in favour of 'Uttar Pradesh Governement' or `any other authority' authorized by it, without physical possessions contemplated under Section 10(5) or 10(6) of the Act, will deprive a landowner of the benefit of saving clause under Urban Land (Ceiling & Regulation) Repeal Act, 1999?'
16. Learned Standing Counsel, submits that land owner, Hari Ram/Respondent No.l in this case, can claim no advantage of sections 3 and 4 of the Repeal Act, which, in the State of U.P., came in force with effect from March 18, 1999, because of 'deemed vesting' under Section 10(3) of the Act followed by resultant mutation entry its favour in Revenue Records, in as much as the 'surplus land', by virtue of legal fiction stood settled with the State.
17. Reference is made to the `Parwana' dated 10.6.1999 and notification dated 19.6.1999, apparently issued under Section 10(5) of the Act, (Annexures' 5' and '6' to the writ petition respectively). Aforesaid `Parwana', and `Notification' which reflect steps towards taking of 'physical possession' of surplus land in question, admittedly came in to existence after enforcement of Repeal Act, i.e. 18.3.1999. According to the Competent Authority himself, order for taking possession through Parwana dated 10.6.1999 and Notification dated 19.6.1999 (referred to above), calling upon the 'Land - owner' to hand over possession of the surplus land or otherwise face and suffer coercive action of taking possession envisaged under Section 10(6) of the Act, were issued after coming into operation of the Repeal Act.
18. In the instant case there is no dispute that Hari Rani was never offered compensation in lieu of 'surplus land' under the Act.
19. To appreciate the legal controversy, it will be useful to refer to 'AIMS AND OBJECTS' -of both the Principal Act, 1976 and the Repeal Act 1999, The U.P. Urban Land Ceiling (Taking of Possession, Payment of Amount and Allied Matters) Directions 1983 (issued Under Section 35 of the Act, 1976) and the 'Guidelines' issued by Central Government Under Section 36 of the Act, 1976, which we quote for ready reference:
URBAN LAND (CEILING AND REGULATION) ACT, 1976 Statement of Aims and Objects "An Act to provide for the imposition of veiling on vacant land in urban agglomerations, for the acquisition of such land In excess of the ceiling limit to regulate the construction of buildings on such land and for matters connected therewith, with a view to preventing the concentration of urban land in the hands of a few persons and speculations and profiteering therein and with a view to bringing about an equitable distribution of land in urban agglomerations to sub serve the common good,"
"10.Acquisition of vacant land in excess of ceiling limit-(1) As soon as may be after the service of the statement wider Section 9 on the person concerned the competent authority shall cause a notification giving the particulars of the vacant land held by such person in excess of the ceiling limit and stating that
(i)such vacant land is to be acquired by the concerned State Government;
and
(ii)the claims of all persons interested in such vacant land may be made by them personally or by their agents giving particulars of the nature of their interest in such land;
to be published for the information of the general public in the Official gazette of the state concerned and in such other manner as , maybe prescribed.
(2)After considering the claims of the persons interested in the vacant land, made to the competent authority in pursuance of the notification published under Sub-section (1), the competent authority shall determine the nature and extent of such claims and pass such orders as it deems fit.
(3) At any time after the publication of the notification under Sub section (1) the competent authority may, by notification published in (he Official gazette of the state concerned, declare that the excess vacant and referred to in the notification published under Sub-section (1) shall, with effect from such date as may be specified in the declaration be deemed to have been acquired by the state government and upon the publication of such declaration, such land shall be deemed to have vested absolutely in the State Government free from all encumbrances with effect from the date so specified.
(4) During the period commencing on the date of publication of the notification under Sub section (1) "and ending with the date specified in the declaration made under Sub-section (3).
(1) no person shall transfer by way of sale, mortgage, gift, lease or otherwise any excess vacant land (including any part thereof) specified in the notification aforesaid and any such transfer made in contravention of this provision shall be deemed to be null and void; and
(ii) no person shall alter or cause to be attend the use of such excess vacant land.
(5) where any vacant land is vested in the stak government under Sub section(3). the competent authority may, by notice in writing order any person who may be in possession of it to surrender or deliver possession thereof to the state Government or to any person duly authorized by the state government in this behalf within thirty days of the service of the notice (6)lf aw person refuses or 'jails to comply with an order made under Sub-section (5). the competent authority may take possession of the vacant land or cause it to be given to the concerned state Government or to any person duly authorized by such State Government in this behalf and may for that purpose use such force as may he necessary.
EXPIANTION-..........
11. PAYMENT OF AMOUNT FOR VACANT LAND ACQUIRED: (1) Where any vacant land deeneed to have been acquired by any state Government under Sub-section (3) of Section 10, such State Government shall pay to the person or persons having any interest therein -
(a) in a case where there is any income from such vacant land, an amount equal to eight and one-third limes the net average annual income actually derived from such land during the period of five consecutive years immediately preceding (he date of publication of the notification issued under Sub section (1) of Section 10; or
(b) in a case where no income is derived from wch vacant land, an amount calculated at a rate not exceeding
35.POWER OF STATE GOVERNMENT TO ISSUE ORDERS AND DIRECTIONS TO THE COMPETENT AUTHORITY- The State Government may issue such orders and directions of a general character as it may consider necessary in respect of any matter relating to the powers and duties of the competent authority and thereupon the competent authority shall give effect to such orders and directions.
36.POWERS TO GIVE DIRECTIONS TO STATE GOVERNMENT: (1) The Central Government may give such directions to any State Government as may appear to the Central Government to be necessary for carrying into execution in the State any of the provisions of this Act or of any rule made here under.
(2) The Central Government may require any Slate Government to furnish such returns, statistics, accounts and other information, as may be deemed necessary. ' Guidelines - issued by Government of India, Ministry of Works & Housing vide Letter No. 1/218/76-U L C dated 19.10.1976 reads:
(1)Agricultural lands Question whether agricultural lands falling within the Master Plan in an Urban Agglomeration could be cultivated . It has been brought to notice that large tracts of agricultural land situated in the periphery of towns have been included in the Master plan, which thus become urban or urbanisable land and is subject to the ceiling necessitating the holder of such land to submit a statement to the Competent authority, in case he possesses vacant land in excess of the ceiling and that this would mean that agriculture will suffer. It. has, therefore, been suggested that land in question which may not be required immediately for urban development could be allowed jor cultivation till it is actually required for urban development. Another question (hat has been raised is whether under the provisions of Section 10(3) of the Act i.e. (he stage of acquisition of vacant land in excess of the ceiling limit, the competent authority may not postpone the actual date of taking over, thereby allowing the cultivation to go on till such date the land is actually required for urban development.
2. The matter was considered by the Central Coordination Committee at its second meeting held on the 17 th May. 1976. The Committwfelt that Section 10 of the Act gave sufficient flexibility to State Governments to allow the owner to continue to me the land for agriculture till it was required for urban development. It also felt that it would be better that the State Governments took over the excess vacant land and then leased it out to the same person or another person till it is actually required for urban development.
3. The views of the Central Coordination Committee have been considered by the Government of India who have accepted them. The Government of India consider that such excess vacant lands should be licensed to the holders or other persons till such time they are required for urban development on such terms and conditions as the State Governments may prescribed, the license being renewable on year to year basis. The State Governments are therefore, requested to take necessary action accordingly. " (Underlined by us to lay emphasis).
The Uttar Pradesh Urban Land Ceiling (Takins of Possession, Payment of Amount and Allied Matters) Directions, 1983 (Directions issued by the State Government under Section 35 of the Act, 1976) " In exercise of the powers under Section 35 of the Urban Land(Ceiling and Regulation)Act, 1976 (Act No.33 of 1976), the Governor is pleased to issue the following directions relating to the powers and duties of the Competent Authorities in respect of the matters connected with the mode of payment of amount referred to in Section 11 of the aforesaid Act to the person or persons entitled thereto;
3. Procedure for taking possession of vacant Land in excess of Ceiling Limit, (l) The Competent Authority will maintain a register in Form No. ULC-I for each case regarding which a notification under Sub-section (3) of Section 10 of the Act is published in the Gazette.
4. (2) An order in Form No.ULC-11 will be sent to each land holder as prescribed under Sub-section (5) of Section 10 of the Act and the date of issue and service of the order will be entered in Column 8 of Form No. ULC-I.
(3) On possession of the excess vacant land being taken in accordance with the provisions of Sub-section (5) or Sub section (6) of Section 10 of the Act, entries will be made in a register in Form ULC-I I I and also in Column 9 of the Form No. ULC-L The Competent Authority shall, in token of verification of the entries, put his signature in column II of form No. ULC/J and Column 10 of Form No. ULC-IIL.
Copy forwarded to the Collector.........with the request that action for immediate taking over of the possession of the above detailed surplus land and its proper maintenance may ,kindly be taken and intimation be given to the undersigned along with copy of certificate to verify.
Competent Authority
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--------------------
FORM NO.U.L.C.III Register for Land of which possession has been taken Under Section 10(5) or 10(6) (sec clause (3) of Direction 3)
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Serial Case No. Name of land Date of service of Date of taking over No. holder & address Notice UnderSection 10(5) possession Under Section 10(5) or Under Section 6 ----------------------------------------------------------------------- 1 2 3 4 5 ----------------------------------------------------------------------- Khasra no.of Area Zone/Category Rate Signature of competent The land acquired Authority. ---------------------------------------------------------------------- 6 7 8 9 10 ---------------------------------------------------------------------- NOTE(l) There directions are being issued with the concurrence of Vitta Vibbag vide their G.O. No.FA-I-2012/X-1983,dated December 13,1983." URBAN LAND (CEILING & REGULATION) REPEAL ACT 1999 "STATE TEMENT OF OBJECTS AND REASONS-
The Urban Land (Ceiling and regulation) Act, 1976 was passed when Proclamation of emergency was in operation with a laudable social objective in mind. The said Act was passed pursuant, to resolution passed by the State Legislatures under clause (1) of Article 232. Unfortunately public opinion is nearly unanimous that the Act has failed to achieve what was expected of it It has on the contrary pushed up land prices to unconscionable levels, practically brought the housing industry to a stop and provided copious opportunities for corruption. There is wide spread clamour for removing this most potent cloy on housing.
2.Parliament has no power to repeal or amend the Act unless resolutions are passed by two or more state legislatures as required under clause (2) of article 252.
3.The Legislatures of Haryana and Punjab have passed resolutions empowering Parliament to repel the act in those States. The Act, in the first instance will be repealed in those States and in the Union Territories a id subsequently If any State Legislature adopts this Act by resolution, then from the date of its adoption the Act will stand repealed in that State.
4.The proposed repeal, along with some other incentives and simplification of administrative procedures Is expected to revive the stagnant housing Industry and provide affordable living accommodation for those who are in a state of underserved want and are entitled to public assistance. The repeal will not however, affect land on which building activity has already commenced. For that limited purpose exemption granted under Section 20 of the Act will continue to be operative. Amounts paid out by the State government will become refundable.
5. The bill seeks to achieve the above purpose."
"3. SAVINGS: (1) The repeal of the Principal Act shall not affect"-
(a)........... ......
(b).........................
(c)............'.....................
(d).....................................
(2)where-
(a) any land is deemed to have vested in the State Government wider sub section(3)of Section 16 of. the Principal act but possession of which has not been taken over by the State Government or any person duly authorized by the State Government in this behalf or by the competent authority; and (b) any amount has been paid by the State Government with respect to such land, then, such land shall not restore, Unless the amount paid, if any, has been refunded to the State Government;"
'4.Abatennent of legal proceedings: All procedings relating to any order made or purported to be made under the Principal act pending immediately before the commencement of this act, before any court, tribunal or other authority shall abate;
provided that this section shall not apply to the procedings relating to Section 11, 12, 13 and 14 of the Principal Act in so far as such proceedings are relatable to the land, possession of which has been taken over by the State Government or any person duly authorized by the State government in this behalf by the Competent Authority." (Underlined by us to lay emphasis)
20. "Aims and objects' of the Principal Act, 1976discloses that this enactment was to 'acquire land' above ceiling limit' to regulate construction of buildings; to prevent concentration of urban land in the hands of a few; to check 'speculations'/ undesirable profiteering and 'to bring about equitable distribution of urban land in order "sub serve the common good'.
21. 'Aims and Objects' of Repeal Act, on the other hand, imequivocally declared that the Act, 1976 had utterly failed to achieve the solemn and cherished object of the Principal Act, therein Repeal Act was, therefore, brought to undo 'injustice and hardship' caused to land owners whose land was declared surplus but still continued to maintain physical possession over it. In other words, if the land declared surplus was not physically resumed (what to say of utilizing the same for which it was purportedly declared surplus), then notwithstanding that even if compensation was paid to owner, if he refunded the same, land should remain with 'landowner' and he should be allowed to be left with original landowner. The Legislature in its wisdom realized and provided that in case surplus land under the Act, 1976 was not utilized and owner continued in physical /de facto possession of it then he should not be deprived of his property, particularly when Section 11 of the Ceiling Act, 1976, contemplated maximum compensation as Rs. 2 lacs (irrespective of market value) for surplus, which may not be adequate and thus an encroachment upon 'Fundamental Rights under normal situation, guaranteed under the Constitution. The provisions of the Act and Repeal Act are thus to be construed in that light.
To interpret statutory provisions of the Act and Repeal Act, one can not ignore 'Aims and objects'. In the case of Illachi Devi (D)LRs and Ors. v. Jain Society, Protection of Orphans India and Ors. (JT 2003 (Suppl 1)428), the Apex Court has obserwd:-
"36............ A statute must be read in its entirety for the purpose of finding out the purport and object thereof. The Court, in the event of its coming to the conclusion that a literal meaning is possible to be rendered, would not embark upon the exercise of judicial interpretation thereof and nothing is to be added or taken from a statute unless it is held that the same would had to an absurdity or manifest injustice.................."
In S. Gooal Reddv v. State of A.P. (1996) 4 S.C.C.596 (para 12) the Apex Court observed:
"It is well known rule of interpretation of statutes that the text and the context of the entire Act must be looked into ' while interpreting any of the expressions used in a statute. The courts must look to the object, which the statute seeks to achieve while interpreting any of the provisions of the Act. A purposive approach for interpreting the Act is necessary....."
The Apex Court in of Colour-Chem Ltd. v. A.L. Alaspurkar and Ors. (1998) 3 S.C.C./192, concurring with the view taken by it in the case of Workmen v. Firestone Tyre and rubber Co. of India (P)Ud (1993) 1 SCC 813 observed:
".......It has been observed therein that if two constructions are reasonably possible to be placed on the section, it follows that the construction which furthers the policy and object of the Act and is more beneficial to the employee, has to be preferred. But it is further observed in the very said para that there is another canon of interpretation that a statute or for that matter even a particular section, has to be interpreted according to its plain words and without doing violence to the language used by the Legislature..........."
In the case of Goodyear India Ltd. and Ors..v. State of Haryana and Anr. (1990) 2 S.C.C.71 (paragraph 11), the Apex Court noted:
".......Hence, in a situation of this nature, it was just and proper to see what was the position before the Forty sixth amendment of the Constitution and find out what was the mischief that was sought to be remedied and then discover the true rationale for such a remedy........."
22. In the case of Durga Oil Company and Anr. v. State of U.P. and Ors., (1998) 6 SCC 299, Apex court has laid down the principle that "....the courts should adopt the principle of purposive interpretation as indicated in the 'decision of this Court in Forest Renge Officer v. P.Mohammad Ali................"
Supreme Court in the case of Bhavnasar University v. Palitana Susar Mill (P) Ltd. and Ors. (2003) 2 Supreme Court Cases lll(Paragraphs 23 to 26) laid down the guidelines of interpretation and observed:
23. It is the basic principle of construction of statute that the same should be read as a whole, then chapter by chapter, section by section and words by words. Recourse to construction or interpretation of statute is necessary when there is ambiguity, obscurity, or inconsistency therein and not otherwise. An effort must be made to give effect to all parts of the statute and unless absolutely necessary, no part thereof shall he rendered surplus age or redundant
24. True meaning of a provision of law has to be determined on the basis of what it provides by its clear language, with due regard to the scheme of law.
25.Scope of the legislation on the intention of the legislature cannot be enlarged when the language of the provision is plain and unambiguous. In other words statutory enactments must ordinarily be construed according to its plain meaning and no words shall be added, altered or modified unless it is plainly necessary to do so to prevent a provision from being unintelligible, absurd, unreasonable, unworkable or totally irreconcilable with the rest of the statute.
26.lt is also well settled that a beneficent provision of legislation must be liberally construed so as to fulfill the statutory purpose and not to frustrate it. "
23. Hon'ble Mr. G.P.Mathur, J. of the Apex Court, in the recent decision in the case of State of Himachal Pradesh v. Pawan Kumar (2005 A.I.R. S.C.2154 (pp 2160),recontruing the principle of 'interpretation of statute', observed:
".........In the well known treatise Principles of Statutory Interpretation, by Justice G.P. Singh, the learned author has enunciated the same principle that the words of the Statute are first understood in their natural, ordinary or popular sense and phrases and sentences are construed according to their grammatical meaning, unless that leads to some absurdity or unless there is something in the context or in the object of the Statute to suggest the contrary (See the Chapter The Rule of Literal Construction page 78 Ninth Ed.) . This Court has also followed this principle right from the beginning (AIR 1955 SC 376). In Jugal Kishore Saraf v. Raw Cotton Co. Ltd. AIR 1955 SC 376, S.R. Das.I. said:-
"The cardinal rule of construction of statutes is to read the statute literally that is , by giving to the words used by the legislature their ordinary, natural and grammatical meaning. If, however, such a reading leads to absurdity and the words are susceptible of another meaning the Court may adopt the same. Bui if no such alternative construction is possible, the Court must adopt the ordinary rule of literal interpretation."
24. We shall now endeavor to interpret aforequoted statutory provisions of the Act and the Repeal Act. '
25. In Section 10(3) of the Act, the expression used by the Legislature is that land declared surplus shall be deemed to have vested absolutely in the State Government........" Term 'vested' refers to de jure 'title' and 'interest' in the surplus land irrespective of actual possession.
26. Had the Legislature intended, that apart from de jure interest / title, 'vesting' is also to include - defacto possession on spot, it would have used different expression as it did in Section 53(c) of (The) Estate Duty Act, 1953, which reads:
"53(c)every person in whom any interest in the property so passing is vested in possession by alienation or ether derivative title......"
27. The purpose of vesting under Insolvency Act is that insolvents should not be in a position to deal with his properties for he has to be adjudged a bankrupt and that Court/Receiver should have complete dominion over the property in order to satisfy the debts of insolvent.(See para 27 ) A.I.R. 1962 Allahabad 256 (Kripa Nath v. Ganga Prasad and Ors.) .
28. In contradistinction to the above, in the case of'surplus land' 'being vested' in the State under Section 10(3) of the Act, the Act further provided steps for taking possession under Section 10(5) or 10(6) of the Act.
29. Meaning of the term 'Vesting/Vested', given in legal Dictionaries also relevant and noted hereunder:
Legal Glossary, published by Official Language (Legislative) Commission 1970 Edition at page 302:
"Vest: 1. To give to a person a legally fixed, immediate right of personal or furtttre enjoyment of (an estated); to grang, endow, clothe with a particular authority, right of property. 2. to become legally vested; (also see Section 22 T.P.Act.
`Vesting orden: An order under statutory authority whereby property is transferred to and vested, without conveyance in some person or persons; (also see Section 57(b), T.P, Act (See . OrderXXI rule 81 C.P.C Legal and Commercial Dictionary by Shambhudas Mitra (1973 Ed.) published by Calcutta Eastern Law House at page 577 "Vest, The word 'vested' prima facie means 'vested in interest, but by force of a context it may have a different meaning, such as 'vested in possession ' or 'indefeasible vested' or 'payable'. 'But to give the word a different meaning from its ordinary one a context is required. Re Stevens, Clark v. Stevens (1896) 40 Sol Jo 296.
The word vest has a variety of meanings. It may mean full ownership or only possession for a particular purpose or clothing the authority with power to deal with the property as agent of another person or authority. Fruit and Vegetable Merchants' Union v. Delhi Improvement Trust, AIR 1957 SCR III,"
Black's Law Dictionary (Sixth Edition) 1990 at page 1563:
"Vested. Fixed; accrued; settled; absolute; complete. Having the character or given the rights of absolute ownership; not contingent, not subject to be defeated by a condition precedent. Rights are "vested'' when rights to enjoyment, present or' prospective has become property of some particular person or persons as present interest; mere expectancy of future benefits or contingent interest in property founded on anticipated continuance of existing laws does not constitute "vested right" Vaughan v. Nadel: 228 Kan. 469, 618 p. 2d 778,783. See also Accrue, Vest and specific types of vested interests infra."
31. Webster's Third New International Dictionary, of the English Language unabridged, Volume III S to Z at page 2547 defines the word 'vest' as follows:
"Vest" \vest'.......To place or give into the possession or discretion of some person or authority (the regulation of the waterways........To give to a person a legally fixed immediate right of present or future enjoyment of (as an estate) (a deed that vests a title estate in the grantee and a remainder in his children), b . to grant endow, or- clothe with a particular authority right or property........to put (a person) in possession, of land by the feudal ceremony of investiture. . to become legally vested (normally title to real property vesrs in the holdci of a property executed deed) "
32. From the above dictionary meanings it is clear that expression 'vest /vested' may or may not include "transfer of possession'. It means that 'vested' includes physical possession or not' shall depend upon the over all reading of statutory provisions.
33. In the light of the above, the expression 'vesting' used in the Act 1976 and the Repeal Act has to be read with reference to and in the context they 'are used. A perusal of Section 10 of the Principal Act (particularly sections 10(3), 10(5) and 10(6) and Sections 3 and 3 of the Repeal Act provide that surplus land when 'deemed to have vested' does not refer to 'physical possession'. This becomes conspicuous on reading Section 10(5) and 10(6) of the Act, which alone talk of "actual physical possession'.
34. We find that the legal fiction with respect to 'vesting' in Section 10(3) of the Act does not include 'de facto possession' on spot.
35. Law requires legal fiction to be construed strictly and to construe a beneficial enactment liberally and in true spirit (as is evident from its Aims and objects) to sub serve the real intention of the Legislature.
36. Word 'deemed' used by the legislature under sections 10(3) of the Act provides for legal fiction. In our considered view, it refers only to legal right and interest, viz. title in the subject matter. Vesting by legal fiction does not by itself include or dejure 'possession'. Legislature has conspicuously avoided using the expression 'deemed possession' or 'vesting of possession' under Section 10(3) of the Act. Hence 'defacto physical possession' of surplus land in question, cannot be assumed or imported under `legal fiction', which is to be construed strictly in law.
37. Legal maxim "QUEI HAERET IN LITERA HAERET IN CORTICE" connotes that he who interprets literally, interprets superficially.
Section 10(1) of the Act contemplates a 'notification' in the official Gazette of the concerned State giving particulars of the vacant land held by a person in excess of ceiling limit. The words " such vacant land is to be acquired" used in the Notification shows the surplus land will be acquired later. Section 10(3) of the Act provides for another notification in the official Gazette to notify the date with effect from which ' such land shall be deemed to have been acquired and 'deemed to have absolutely vested' in the State Government Expression 'possession' is used for the first time in Section 10(5) and thereafter 10(6) of the Act. Notifications under section 10(1) and 10(3), are not relevant so far as the question of applicability of saving clause of Section 3 of the Repeal Act is concerned.
Section 10(5) of the Act provides that Competent Authority may by notice in writing order any person, who may be in possession of the land declared surplus, to surrender or deliver possession thereof to the State Government or to any person duly authorized in this behalf within 30 days of the service of notice Section 10(5) makes it clear and shows that 'vesting' is some thing different and distinct from 'possession'.
Section 10(6) of the Act takes care of a stage when a person, in possession of surplus land fails to surrender/deliver possession voluntarily on receipt of notice under Section 10(5) of the Act and, in that contingency authorizes/empowers competent authority to take physical/de facto possession of such vacant lands so declared surplus land.
Section 3 of the Repeal Act amply reflect the purpose and intention the Legislature, namely where a land owner remains in physical possession, then irrespective of its being 'declared surplus, and/or entry being made in favour of State in Revenue Records as a consequence of vesting and even if compensation is paid or received, in law, surplus land gets exempted and ought to remain with original land-owner. The relevant criterion is whether physical possession of the land declared surplus was ever taken by the State Government. If answer is in 'negative', the landowner must not suffer and have the benefit of Repeal Act because, due to- the inaction 7 failure on the part of State to take physical possession before coming into force the Repeal Act, in negation of 'Aim and object' and purpose of the Act.
Section 3(2) (a) and (b) of Repeal Act make clear that even receipt of compensation will not disentitle one to claim benefit of the Repeal Act if compensation is refunded, provided a person continues to be in physical of the land declared surplus.
The above interpretation of Section 3 of the Repeal Act further finds support from Section 11 of the Act, which refers to 'deemed acquisition' under Section 10(3) of the Act. It has no reference to Section 10(5) or 10(6) of the Act. It shows that notional compensation (as against market value) becomes payable, as and when land is 'deemed vested' in the State Government even without resumption of or taking physical possession of surplus land. For claiming compensation or taking over of "physical possession' is not the condition precedent under the Act. Section 11(1) of the Act affirms the above position and explains the purpose of incorporation of Section 3(2) clauses (a) and (b) of Repeal Act. Section 3(2) (a) of Repeal Act - qualifies that 'surplus land' is deemed vested under Section 10(3) of Principal Act but possession of which has not been taken. It shows that condition precedent by taking of physical possession is not the 'deemed vesting' or mutatior in Revenue Records.
37. Merc "mutation' of entry in favour of State/ other persons in revenue records, is irrelevant/ inconsequential so far as the applicability of Section 3 of Repeal Act is concerned.
38. Similar conclusion is irresistible if we read Section 4 of the Repeal Act that again talks of possession of which has been taken over by the State. Answer to the question "when possession is taken over' can be found out from the entries made in due course- at relevant time in ULC forms I, II and III.
39. In striving to interpret statutory provisions in hand, this Court is supposed to adopt a pragmatic and realistic approach and which is not bereft of logic or opposed to sense of 'fair and good conscience' as otherwise it will be an insult to justice-oriented approach. If we accept the interpretation advanced by the learned Standing Counsel, even a person, who has received compensation but continued in physical possession of the surplus land, shall not be deprived of benefit of Repeal Act if there is no mutation in Revenue Records in favour of State. Entry by mutation in Intikhab Khatauni is a paper transaction - evidencing 'title' only. Section 3 and 4 of Repeal Act -do not talk of 'vesting' or "mutation', but only of'actual possession'.
40. There is another very significant aspect in this case. Admittedly notice under Section 10(3) of the Act was issued on 22.11.1997- Repeal Act, adopted in State of Uttar Pradesh on 18.3.1999 intervened. Notice/order for 'mutation' is dated 10.06.1999 (Annexure 5 to the writ petition, quoted above). It came in existence after about 3 months of coming into existence Repeal Act. The petitioners by no stretch of imagination had any authority or competence to pass or enforce such order. It also shows thai mutation in revenue records is illegal and void ab initio as the Act had already stood repealed. The State Government had no occasion to issue notices under Section 10(5) or 10(6) of the Act to direct mutation in revenue records or to take steps to resume possession of the surplus land, when 'the Principal Act' itself stood repealed on 18.3.1999.
41. It is clear that mere vesting of 'land declared surplus' under the Act, without resuming `de facto possession', is of no consequence and the landholder shall be entitled to the benefit of Repeal Act.
42. There is not even an iota of material to show that steps were taken by the petitioners to take physical/de facto possession of the surplus land on spot.
43. It is interesting to note that respondents have cared neither to disclose the relevant dates of the entries as such mentioned in their records, if any, nor annexed copies, nor otherwise placed relevant documents before Appellate Court or this Court namely U.L.C. Forms I, II and III to show that Competent Authority or the State Government or any one on its behalf ever initiated steps or succeeded to take physical possession in accordance with law.
44. We deem it appropriate deal with while considering question of applicability of Repeal Act, as to the consequence of possession of surplus land being taken unlawfully or in an illegal manner prior to enforcement of Repeal Act (i.e. 18.03.1999).
45. Firstly, an illegal act is not recognized in law and has to be ignored unless specifically required under statute to be reckoned with. Secondly, possession of surplus land, on notice given under Section 10(5) of the Act is to be surrendered by the landowner voluntarily in pursuance to said notice. If the landowner does not surrender possession in pursuance to the aforesaid notice, `the Act' contemplates taking possession by force and coercing the landowner under Section 10(6) of the Act. If possession is taken in an extraordinary manner (process not recognized in law) i.e. without resorting to the provisions contemplated under Section 10(5) or Section 10(6) of the Act, then possession will be irrelevant and of no consequence so tar as the applicability of the Repeal Act is concerned. The Repeal Act shall have no effect on the Principal Act if possession of surplus land was not taken as contemplated in the Principal Act. Repeal Act, clearly talks possession being taken under Section 10(5) or 10(6) of the Act. It is a statutory obligation on the Competent Authority or State to take possession as permitted in law. It is to be appreciated that in case possession is purported to be taken under Section 10(6) of the Act, still Court is required to examine whether "taking of such possession' is valid or inval dated on any of the considerations in law. If Court finds that one or more grounds exist which show that the process of possession, though claimed under Section 10(5) or 10(6) of the Act is unlawful or vitiated in law, then such possession will have no reorganization in law and it will have to be ignored and treated as of no legal consequence. The possession envisaged under Section 3 of the Repeal Act is both de facto and de jure only
46. We may also point out that neither in the Principal Act nor the rules framed hereunder, any mode of taking possession has been provided. In respect of one mode (referred to mode of taking possession under the Land Acquisition Act, 1894), this Court and the Apex Court have pointed out that taking of possession under the said Act can not be symbolical or on paper only and it is taking of actual possession at the spot. In the case of Balwant Narain Bhaede v. M.D. Bhazwat (1976) 1 SCC 700, Untwalia, J. observed:-
"............It is neither a possession on paper not a "symbolical" possession as generally understood in civil law. But the question is what is the mode of taking possession. The Act is silent on the point. Unless possession is taken by the written agreement of the party concerned the mode of taking possession obviouslv would before the authority to go upon the land and to do some act which would indicate that the authority has taken possession of the land. It may be in the form of (sic) declaration by beat of drum or otherwise or by hanging a written declaration on the spot that the authority has taken possession of the land. The presence of the owner or the occupant of the land to effectuate the taking of possession is not necessary. No further notice beyond that under Section 9(1) of the Act required. When possession has been taken the owner or the occupant of the land is disipossessed. Once possession has been taken the land vests in 'he Government "
47. In Balmokand Khatri Educational and Industrial Trust v. State of Punjab (1996) 4 SCC 2l2, it was said " It is difficult to take physical possession of the land under compulsory acquisition. The normal mode of taking possession is drafting the panchnama in the presence of panchas and taking possession and giving delivery to the, beneficiaries is the accepted mode of taking possession of the land. Subsequent thereto the retention of possession would tantamount only to illegal or unlawful possession. "Same view was reiterated in State of Tamil Nadu v. Mahalakshmi Ammal (1996) 7 SCC 269 and Tamil Nadu Housing Board v. A. Viswam (1996) 8 SCC 259.
48. In Larsen & Tubro Ltd. v. State of Gujarat (1998) 4 SCC 387), a controversy about taking of possession of the acquired land by company arose. In the High Court, it was contended that no actual physical possession of the land had been taken. The revenue records showed the land to be in possession of the company Against this factual backdrop, Wadihwa,J. said:
".....Affidavit of the panchas filed in the High Court which contained statements contrary to what was recorded in the Panchnama and against the revenue entries are quite meaningless and in our opinion the High Court unnecessarily put undue reliance on the same. The High Court could not convert itself into a revenue Cour and hold that kin spite of the panchnama and the revenue records actual physical Possession of the acquired land had not been handed over to the acquiring body.. "
49. Thus, in Balwant Narain Bhagde (supra), possession was meant as 'possession on the spot' and not 'symbolical' one.
50. As part of second limb of argument, learned Standing Counsel, iepresenting the petitioners, referred to Para 13 of writ - petition (sworn on legal advice), which reads:
"13. That the learned district Judge failed to consider this aspect of the matter and committed an error in entertaining the appeal and deciding the same on the merit. The impugned judgment and order dated 14.12.1999 which was subsequent to the enforcement of the repealing Act and its adoption by the State of U.P. dated 18th March, I999, therefore, was wholly without jurisdiction. "
51. Before such plea is allowed to be raised, one has to ascertain whether this plea was raised before the Appellate Authority. We find that there is no reference of the Repeal Act in the Appellate Judgment. In the writ petition, there is no pleading as of fact, that such "plea" was 'raised' or "pressed' before the Appellate Authority. No affidavit application appears to have been filed before Appellate Authority raising grievance that point raised before it has not been dealt with by him. On the other hand, from perusal of paragraphs 6, 7, 8 and 9 of the writ petition (quoted above) it is clear that Hari Ram, owner of the land in question was never dispossessed on spot. In the case of U.P. Work Charge & Muster Roll IV Class Employees Union and Anr. v. State of U.P. and Ors. 1996 (I) Alld. Weekly Cases 385-para 5 (DB) Apex Court has observed:
"Second submission raised by the learned counsel for the appellants before us has not been dealt with by the learned Single Judge Grievance of the appelants is that this question was raised before the learned Judge in two writ petitions, which have given rise to Special Appeal Nos. 902 of 1994 and 231 of 1995, but it has not been decided. If a question raised by the party is not decided by the Court, it is open to it to apply for review of the judgment. Non-consideration of one of the pleas by a Court is a ground for review of the judgment. The appellants, as such, should ask for review of the judgment The appellants, as such, should have made an application for review of the judgment before the learned Judge, who has decided the writ petition. The fact that the Hon'ble Judge, who has decided the writ petition is not available now, can not defeat the right of review."
The above argument also has no merit.
52. We may quote Division Bench "identical' judgments of this Court in the case of Nand and Anr. v. State of U.P. and Ors. -2002 (46) ALR 551 and in Civil Misc. Writ Petition-No. 54722 of 1999, which read;
"This petition relates to the Urban Land (Ceiling and regulation) act, 1976 as repealed in 1999. In Pt.Madan Swaroop Shrotiya, Public Charitable. Trust v. State of U. P. and Ors. J.T. 2000 (3) SC 391 it has been held by the Supreme Court that if possession has been taken over by the State Government then the proceedings under the Act will not abate but if the possession has not been taken over the proceedings shall abate. We make it clear that the word possession means actual physical possession. Hence if actual physical possession has been taken over the proceedings shall not abate otherwise they will abate.
The petition is disposed of accordingly. "
(underlined to lay emphasis).
53. The Division Bench has given no reasons but we agree with its conclusion, for the reasons given above.
54. In the case of Chhabi Nath v. State of U.P. and Ors. Writ Petition No. 6354 of 2003 vide judgment and order dated March 17, 2005 this Division Bench has taken similar view and observed:-
" In view of the above even though there has been entry in favour of the State in revenue records without taking action to take possession under Section 10(5) and 10(6) (i. e. actual physical possession) the actual tenure holder can not be deprived of the benefit of the Repeal Act. "
55. In the case of Pandit Mdan Swroop Shrotia v. State of U.P. and Ors., the Supreme court clearly observed that since there is nothing on record to indicate that the state had taken possession over the\ surplus land, the present proceedings have to be abated and are hereby abated under Section 4 of the Urban Land (Ceiling and Regulation) Repeal Act, 1999. Present case in hand is in no way stands as a different footing and aforesaid decision is fully applicable.
56. At this juncture we shall also like to mention that applicability of the Repeal Act, which hinges upon the fact whether possession of vacant and was taken prior to the Repeal Act coming into force.
57. Petitioners before this Court have attempted to challenge the impugned judgment and order passed by the Appellate Authority on the ground that appeal itself was not maintainable, when the Repeal Act, came into force w.e.f. March 18, 1999.
58. The argument of the petitioners that the appeal filed before the District Judge after Repeal Act, w.e.f. 18.3.1999 was non est and not maintainable, due to the Act being repealed we may point out that State Government has approached this court under Article 226 of the constitution of India which is an extra-ordinary discretionary constitutional remedy and this Court, in exercise of its jurisdiction under Article 226 Constitution of India, is not bound to set aside an illegal order if by setting it aside, another illegal order is to revive. It is well settled that Court shall not allow its discretionary jurisdiction to be invoked if substantial justice has been done. Reference may be made to the following decision:-
l. In Rashmi Kumar (Smt) v. Mahesh Kumar Bhada (1997) 2 SCC 397) the Apex Court held:
"........High Court would be loath and circumspect to exercise its extraordinary power under Section 482 of the Code or under Article 226 of the Constitution. The Court would consider whether the exercise of the power would advance the cause of justice or it would tantamount to abuse of the process of the Court....... This cardinal principle should always be kept in mind before embarking upon the exercise of the inherent .powers vested in the court.... "
2.In State of Uttranchal v. Ajit Singh Bhola and Anr. (2004) 6 SCC 800 ) the Apex Court held that writ jurisdiction is not to be exercised to revive illegal order.
3.In the case of Ram Dhirai and Ors. v. Hoard of Revenue Allahabad and Ors. (1997 (2) A.W.C. 875, learned Single Judge of this Court observed :
14.In its decision in the case of Ashok Kumar Pandev and Ors. v. Basic Shiksha Adhikari, Mau and Ors., Special Appeal No. 127 of 1992, decided on 22.4.1992, a Division Bench of this Court had observed that powers in writ jurisdiction should not be exercised to set aside one illegal order to restore another illegal order reiterating the view of another Division Bench of this Court in its decision in the case of S.K.J.P.K. Inter College v. District Inspector of Schools, 1988 UPLBEC 739, pointing out that questioning of an order which amounted to putting premium upon and giving judicial imprimatur to another wrong, namely, conferment of a right upon certain persons who were not entitled to it can not be justified.
4.In paragraphs 43 and 44 of the Judgment in the case of Chandra Singh and Ors. v. State of Rajasthan and Anr. (2003) 6 SCC 545) Apex Court has reiterated:
"43.Issuance of a writ of certiorari is a discretionaiy remedy.(See Chamaklal Binani v. CIT (1971) 3 SCC 20). The High Court and consequently this Court while exercising their extraordinary jurisdiction under Article 226 or 32 of the Constitution of India may not strike down an illegal order although it would be lawful to do so. In a given case, the High Court or this Court may refuse to extend the benefit of a discretionary relief to the applicant, Furthermore, this Court expertise its discretionary jurisdiction under Art. 136 of the Constitution of India which need not be exercised in a case where the impugned judgment is found to be erroneous if by reason thereof substantial justice is being done (See SDS Shipping (P)Ltd. v. Jay Container Services Co.(P) Ltd.(2003)4 SCC 44). Such a relief can be denied, inter alia, when it would be opposed to public policy or in a case where quashing of an illegal order would revive another illegal one. This Court also in exercise of its jurisdiction under Art. 142 of the Constitution of India is until led to pass an order which will be complete justice to the parties.
44. We have been taken ihrough the annual confidential reports as against the appellants. Having gone through the same, we are of the opinion that it is not a fit case where this Court should exercise its discretionary jurisdiction in favour of the appellants. This Court in Brij Mohan Gupta case (203) 2 SCC 390) has also refused to exercise its discretionary jurisdiction in favour of the appellants although the order of the High Court was found liable to be set aside being not in accordance with law. "
59. Before we close our judgment, we would like to deal with another important aspect, which relevant in other large number of writ petitions filed in this Court. Particulars of the petitioners, as described in the memorandum are:
1.State of U.P. through (Competent Authority U.L.C. Varanasi.
2.Competent Authority, Urban Landl Ceiling, Varanasi. "
60. It is to be noted that State of U.P. can neither sue nor be sued through 'Competent Authority' appointed under the Act since he is a 'persona designate'.
61. State of Uttar Pradesh can not sue or be sued through 'Competent Authority, Urban Land Ceiling, Varanasi.
62. Reference may be made to Section 79 and relevant extract of Section 80 as well as Order XXVII Rule 1 C.P.C. (as amended in the State of U.P., which read:
"79.SUITS BY OR AGAINST GOVERNMENT:- In a suir by or against the Government, the authority to be named as plaintiff or defendant, as the case may be, shall be-
(a) in the case of a suit by or against the Central Government,(the Union of India ),and (b) (b) in the case of a suit by or against a State Government, the State).
80,NOTICE-(1) Save as otherwise provided in Sub section (2), no suit shall be instituted against the Government (including the Government of the State of Jammu and Kashmir) or against a public officer in respect of any act purporting to be done by such public officer in his official capacity, until the expiration of two months next after notice in writing has been delivered to or left at the office of-
(a).............
(b)..............
(bb).......... ...
(c) in the case of a suit against any other State Government, a Secretary to that Government or the Collector of the district;." ORDER XXVII SUITS BY OR AGAINST THE GOVERNMENT OR PUBLIC OFFICERS IN THEIR OFFICIAL CAPACITY
1. Suits by or against Government- In any suit by or against the Government, the plaint or written statement shall be signed by . such person as the Government may, by general or special order, appoint in this behalf, and shall be verified by any person whom; the Government may so appoint and who is acquainted with the facts of the case State Amendment-(Uttar Pradesh)- In the marginal heading of the Order, after the words "official capacity", insert the words "or Statutory Authorities etc."- U.P.Act No. 157 of 1976 w.e.f. 1.1.1977)
63. We are aware Code of Civil Procedure does not apply to writ proceedings as such but help can be taken for the general principles under lying in it.
64. Chapter XIII of Legal Remembrancer's Manual (particularly page 96, 1975 Ed.) deals with Writ Petitions. Para 13.14 deals with writ petitions on behalf of the Government. It contemplates that a District Officer/Head of Department when not satisfied with the orders of any Court, Tribunal, Board, Commission or other body and finding that no other remedy is open to get redress, may approach, the administrative department concerned to move the Legal Remembrancer for directing the State Counsel to file a writ petition against such an order. In turn the Administrative Department on receipt of papers shall refer the file with all papers and reformations as provided in para 13.03 (3) of L.R. Manual and the advisability of filing a writ petition. The Legal Remembrancer shall, if he agree with the opinion of the Head of Department that petition is to be filed, issue instructions and refer back the file to the Administrative Department for further correspondence with the State Counsel and to provide such assistance to him in regard to the conduct of the case as may be required from time to time. Expression "State" has been defined in para 1.02 of Legal Remembrancer's Manual to mean the State of Uttar Pradesh. Under Article 154 of the Constitution of India executive powers of State vests in the Governor who is supposed to exercise the same directly or through officers subordinate to him. This shows that State of U.P. has to sue or be sued through Secretary of the concerned Department. State of U.P. has not been impleaded through Secretary of the concerned Department. On that view of the matter, even the maintainability of the writ petition at the instance of the petitioners, becomes questionable. The Court expects that in future due care will be taken by the State of Uttar Pradesh and its officers to ensure that the petitions are filed in accordance with law.
65. Article 154 of the Constitution of India provides that executive power of the State shall be vested in the Governor and shall be exercised by him either directly or through officers subordinate to him in accordance with this ' Constitution. It is matter of common knowledge that State of U.P., for the purposes of filing writ petition under Article 226 of the Constitution of India should sue or be sued through Secretary of the concerned Department. In the matter of a suit under Section 80 Code of Civil Procedure, State is to he impleaded through Collector of the concerned district. Competent Authority or any other officer or Head of Department etc. serving in the State of Uttar Pradesh cannot be allowed to represent State of U.P. unless specifically authorized for that purpose. Original proceedings or writ petition in this Court if filed through officer / employees not duly authorized to represent 'State' shall lead to un-necessary litigation and in a given case, it may also create embarrassment for the State Government particularly when there is clash of interest of such an officer vis a vis State Government. In that view of the matter we find that the petition has not been filed by a duly authorized or competent officer or authority entitled to represent the State Government and that State of U.P. as such, has not presented this petition.
In the result, the writ petition fails and dismissed in liraine.
We make no order as to costs.