Court No.
- 39
Case :- WRIT - C No. - 9635 of 2024
Petitioner :- Hemant Gupta And 2 Others
Respondent :- State Of Up And 3 Others
Counsel for Petitioner :- Tarun Agrawal
Counsel for Respondent :- C.S.C.
Hon'ble Saumitra Dayal Singh,J.
Hon'ble Surendra Singh-I,J.
1. Heard Sri A.M. Singhvi, learned Senior Advocate (through V.C.) assisted by Sri
Tarun Agarwal, learned counsel for the petitioners and Sri Kunal Ravi Singh,
learned Chief Standing Counsel for the State-respondents.
2. Challenge has been raised to Ordinance No. 5 of 2024. Mainly, five points have
been pressed this stage. First, it has been submitted, no urgency existed or is made
out for promulgation of the impugned Ordinance. The satisfaction as to urgency is
non-existant. Plain reading of the Ordinance indicates, the same has been
promulgated barely a few days from the end of last session of the Legislative
Assembly. There is no indication of any urgency that may have existed with the
Executive to take the urgent legislative step of introducing the Ordinance. Second,
relying on Clause 3(1) and 3(3) of the impugned Ordinance, it has been strenuously
urged, the very purpose of the promulgation of the Ordinance is to nullify the effect
of judicial pronouncements, already made. In that, decrees and orders providing for
free-hold rights as also all pending applications claiming such rights under the pre-
existing Government Policy, have been wiped out. Since, the Ordinance does not
intend or attempt to cure any defect noticed, but to override the law declared by the
Court, the action taken is wholly impermissible. Third, it has been submitted, no
segregation has been made to identify different status of applicants/lessees before
nullifying the rights claimed by all applicants. The action thus taken is described as
plainly and wholly arbitrary. Fourth, it has been submitted, in not less than two Co-
ordinate bench decisions of this Court in Dr. Ashok Tahiliani Vs. State of U.P. and
others 2019 (9) ADJ 176 and Amarnath Bhargava Vs. State of U.P. and others
2019 (8) ADJ 442, positive Mandamus has been issued to the State-respondents to
decide all pending applications. Instead of giving effect to those directions and in
absence of any stay order operating against those decisions, the pending
applications have now been declared abated. Fifth, it has been submitted (though
briefly at this stage), that repeal of the Government Grants Act, 1895 would not
wash away the rights under the Transfer of Property Act. Sixth, hostile
discrimination is stated to have been practiced as has led to arbitrary results,
inasmuch as exactly similarly situated persons residing in the same locality have
been treated differently. Relying on the contents of the paragraph 94 of the writ
petition, it has been asserted, nearby plots have been converted to free-hold in the
year 2019-2020, whereas the petitioner's application has been kept pending since
1999.
3. Further, submissions have been advanced for the purposes of grant of interim
relief. While, we may have been required to consider the same, at the same time,
Sri Kunal Ravi Singh has made a statement on the basis of the written instructions
received by him that at present, the State Government does not intend to take any
coercive measures either to evict the petitioners or to demolish any construction
that may have been constructed on the 'Nazul Land' in question. As to the
communication dated 5.3.2024 issued by the District Magistrate, Prayagraj, it has
been clarified, the said communication has been issued only to carry out routine
exercise to update the record pertaining to 'Nazul Property'. However, the survey
proposed is not intended to result in eviction or demolition of the present
petitioners.
4. The letter issued by the Additional District Magistrate (Nazul), Prayagraj dated
21.3.2024 reads as below:
"महहदय,
ककपयय उपयररक ववषयक अपनन कयययरलय कन पत वदनयनक 19.03.2024 कय सनदरर गहण करनन कय कष
करर। उक कन समबनध मर अवगत करयनय हह वक उ०प० नजजल समपतत (लहक पयहजनयरर पबनध एवव
उपयहग) अधययदनश 2024 कन कम मर तजलय पशयसन पययगरयज दयरय अदतन पशगत नजजल रजखणड
कन समबनध मर कहई धवसततकरण अरवय coercive action हनतर कहई वनदरश जयरत नहह वकयय गयय हह।
अधययदनश कन पयववधयनन एवव शयसन सन पयप वनदरशन कन अनरसयर हत अगनतर कययर वयहत कक जयएगत।"
5. Matter requires consideration.
6. Since, the validity of the Ordinance is in issue, let notice be issued to the learned
Advocate General.
7. All respondents are represented. They pray for and are granted four weeks' time
to file counter affidavit. The petitioner shall have two weeks thereafter to file
rejoinder affidavit.
8. List thereafter.
9. In view of the stand taken by the State, it is provided, no coercive measures may
be adopted against the petitioners, except with leave of the Court.
Order Date :- 21.3.2024
CS/-
(Surendra Singh-I, J.) (S. D. Singh, J.)
Digitally signed by :-
CHANDAN SINGH
High Court of Judicature at Allahabad
