Indian Kanoon - http://indiankanoon.org/doc/506629/
Bench: B Chauhan, P Mithal
on 18 August, 2006
Justice Birendra Dikshit ... vs State Of U.P.
--------------. The petitioner No. 1 had entered into an agreement to sell dated 28.7.1981 with Shri Jagdish Narain Capoor for the purchase of part of the aforesaid nazul plot and the dwelling unit situate over it. On the basis of the said agreement, petitioner No. 1 with the consent of the lessees applied for freehold rights in respect of house No. 9, Stanley Road
5. The Collector, Allahabad Allahabad Stanley Road
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11. The Nazul Rules deal with the issue involved herein Rule 5 provides for change of entries in Nazul Register by the Collector on being satisfied that it was so necessary because of the successive transfer or assignment. Rule 5A deals with the procedure prescribed for mutation in the name of transferees in the records accordingly. The mutation is also to be made by the Collector. Sub-rule (4) of Rule 5A would not debar any person from establishing his right to the property in any civil or revenue Court having Jurisdiction Rules 7 to 12 deal with the management of the nazul land Rule 8 provides that the department managing nazul property is bound to forward to the Collector a certificate every year showing the area of nazul properties, the purpose for which it is used and reporting whether any encroachment had been made on any part of such properties. In case of encroachment upon the nazul land used for road purposes, the certificate is required to be forwarded in a prescribed Form wherein encroachments have to be noted specifically. Rule 9 thereof provides for preparing the list of encroachments by the department in respect of each nazul property and to issue certificates in this respect to the Collector. Rule 13 of the said Rules provides that in case of sale or lease of nazul land, it shall be carried out under the Collector's order and in case such land is in occupation of any department other than the revenue department, the nazul shall be transferred to the Collector for the purpose of lease or sale. Rule 74 provides that any administrative-body or local body shall ensure the compliance of the order passed by the Collector requiring the removal of encroachment upon or of unauthorized occupants of nazul. Vide the Criminal Laws (U. P. Amendment) Act, 1961, the provisions of Section 441 of the Indian Penal Code stood amended authorizing the local bodies to register a criminal case for removal of encroachments on nazul land after giving notice to the encroachers or trespassers.
12. Thus, it is evident that every nazul property is under the direct control of the Collector and by no stretch of Imagination, it can be held that the Collector had no jurisdiction to deal such properties or pass an order for removal of encroachment.
13. Thus, we do not see any ground to hold that the Collector had no jurisdiction to entertain the complaint or pass the impugned order.
20. In the instant case, no attempt had been made by the petitioners to adduce any evidence regarding subsistence of their tenancy in respect of any part of the remaining nazul land. Thus, the argument advanced in this respect cannot be entertained.
25. Therefore, Court has to examine the case with this angle also bearing in mind that cause of substantial justice cannot be defeated on mere technicalities.
26. It is also settled legal proposition that writ court should not quash the order if it revives a wrong and illegal order. (Vide Gadde Venkateswara Rao v. Government of Andhra Pradesh and Ors. : Maharaja Chintamani Saranath Shahdeo v. State of Bihar and Ors. : Mallikarjuna Mudhagal Nagappa and Ors. v. State of Karnalaka
29. Thus in view of the above, it is not necessary for the writ court to interfere in a case where a Just order has been passed by an authority having no competence to do so.
30. In view of the above, as the encroachment by the petitioners had been on the land which was outside the land in respect of which the freehold rights had been created in favour of petitioner No. 1 and formed part of the nazul land, the encroachment removed by the Collector, even if without jurisdiction, does not require any interference, whatsoever.
32. In view of the above, we do not find any farce in the petition, it is accordingly dismissed.
TAg- nazul, collector,nazul rules,encroachment ,Policy
New Hotel Policy of Uttar Pradesh- 2008
The Government of Uttar Pradesh has declared an effective hotel policy very recently. The salient features of the hotel policy are:-
- At the time of drafting of master plan, related regulated area and authorities by taking cooperation from Deptt. of Tourism will earmark the land for hotels and this land will be given for hotels. Where master plan has been finalised this action should be taken for vacant space. In authorities (development authority, industrial development authority, housing & development board) where master plan has not been finalised, with the help of Department of Tourism action to be taken to reserve suitable land for hotels keeping in mind the possibilities for tourism and whenever master plans are received then at that time also by taking help from Deptt. of Tourism the land will be reserved for hotels.
- The land earmarked for industry in the master plan should be kept reserved for tourism/hotel for a period of 5 years after the date of advertising the scheme. If no hotel entrepreneur comes forward in the time span of 5 years then in that case the authority will be free to convert the use of this land.
- If the land use conversion of the authority's land is necessary to grant the earmarked plot to hotel industry then the work regarding conversion of land use to be done at a competent level under the rules & regulations of authority on case to case basis.
- In places where there is no development authority, there as per requirement the land of village committee/town area body should be resumed and transferred to Deptt. of Tourism. Deptt. of Tourism can establish a land bank of such lands received from village committee/town area bodies. Deptt. of Tourism will provide this land to tourism industry/hotel, as per requirement. But under the rules there will be a binding that if the land is not used for tourism industry within a period of 5 years then this land will be automatically transferred to the village committee.
- In above places where are no development authorities but municipal bodies are formed, there the District Magistrate may provide the land to entrepreneurs on fixed circle rate or lease.
- Since Tourism has been granted the status of industry in which hotels are also included hence plot should be earmarked and allotted similarly like industries on industrial rates. This policy will be implemented in each district of the state.
- Whenever development authorities form their plans under the purview of Deptt. of industry development then they should also earmark the necessary land for hotels at the appropriate places.
- Hundred percent rebate in luxury tax for next 5 years be given to new hotels from the starting date. Other rebates will be applicable as per industrial policy.
- The allotment of earmarked land for hotel industry will be done only to hotel entrepreneur.
- Hotel entrepreneurs will be provided land on industrial rates by all authorities (Housing Deptt. and Industrial Development Deptt., Noida, Greater Noida). It will be ensured that all hotel entrepreneurs are benefited by this provision, for this above mentioned all authorities will make necessary order/revision in their rules. So that it becomes possible that the land can be made available to hotel entrepreneur on industrial rate.
- Department of Tourism will derive the number of plots as per the city wise need based on star rating of hotel.
- To identify plot a committee will be formed under the Chairmanship of the commissioner.
- Applicant entrepreneurs/society will not get more than one plot in a city.
- At places where more than one authority/society have land, there only one concern department will be made nodal deptt. by the Deptt. of Tourism which will invite application on behalf of all concern department but the final decision regarding allotment/auction, will be taken by the concerned departments only.
- After identification of land for hotel, applications will be invited from hotel/tourism entrepreneurs to provide them land on industrial rates.
Eligibility terms will be fixed for application, which will be following:-
- Only those companies/societies will apply who are registered and connected with the hotel industry and have earlier experience in this regard.
- In hotel policy eligibility terms have also been fixed in which 5 star and other level project will be given to those hotel entrepreneurs who have an average turn over of Rs. 100 crore or above in the last 3 years, positive net worth and minimum 10 years experience in hotel profession.
- For 4-Star and other 4-Star level project the rule will be following:-
- Average turn over of Rs. 75 crore or above in the last 3 years, positive net worth and minimum 10 years experience in hotel profession. Like wise for 3-Star and other level project an average turn over of Rs. 50 crore on above in the last 3 years, positive net worth and minimum 5 years experience in hotel profession will be required.
- In authorities where there is provision of industrial plots there as per the present time policy the allotment of industrial plots in case of more than one applicant will be done on the basis of suitability can be ascertained on the basis of their experience, turn over and net worth basis. And keeping eligible applicant rating in descending order on the basis of hotel plots being made available in a city, based on their priority the plot be allotted. This rating 5 star (or above), 4- Star and 3- Star categories can be done separately.
- For each hotel the applicant company's ownership or under the management will have points as under:-
A- Experience in hotel profession will have maximum 50 points - 5-Star or above - 10 points per hotel
- 4-Star - 7 points per hotel.
- 3- Star hotel- 5 points per hotel
- If the hotel has a tie up/contract with an international chain or the applicant himself is of international chain then for each such hotel 3 additional points will be provided.
- B- For turn over maximum 25 points will be fixed.
- 1 point will be fixed per 10 crore turn over.
- C- For net worth maximum 25 points will be fixed.
- 1 point will be fixed per 4 crore net worth.
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