Allora Sahkari Awas Samiti Ltd. v. Controlling Authority Dayalbagb, Regulated Area, Agra
1984-08-23
S.D.AGARWALA
body1984
DigiLaw.ai
JUDGMENT S. D. Agarwala, J. 1. This is a petition under Article 226 of the Constitution of India filed by Allora Sahkari Avas Samiti Ltd. This petition was filed on 20th June, 1984. Learned Standing Counsel appearing for respondents Nos. 1 and 4 were allowed a week's time to obtain instructions. Shri Swami Dayal also put in appearance on behalf of the respondents No. 2 and 3 and he was also granted a week's time for obtaining instructions. On 13th July, 1984 the counsel for the respondents were granted two weeks for filing counter affidavits and it was directed that the case be listed for admission on 3rd August, 1984. It was made clear in the order that the writ petition itself shall be disposed of finally on that date. THIS order was passed by Hon'ble V. K. Khanna, J. 2. After 13th July, 1984 this petition came up for admission before me. Counter and rejoinder affidavits have been exchanged. The counsel for the parties agreed that the petition itself be disposed of finally and consequently I had heard learned counsel for the petitioner as well as learned counsel for the respondents at length. Learned counsel for the respondents took a preliminary objection to the effect that the petitioner has an alternative remedy by way of a revision under Section 15-A of the U. P. (Regulation of Building Operations) Act, 1958, hereinafter referred to as the Act, and as such the present petition is not maintainable and should not be entertained by this Court. 3. The petitioner is a registered society. The petitioner submitted a lay out plan to the Prescribed Authority constituted under the Act for developing a residential colony in the city of Agra. In the petition the petitioner has sought a writ of certiorari for quashing the order dated 1-6-1984 passed by the controlling authority constituted under the Act. 4. By an order dated 9th of August, 1983 the Prescribed Authority approved the lay out plan submitted by the petitioner. Against the said order dated 9th of August, 1983, the respondents Nos. 2 and 3 filed an appeal before the controlling authority. The controlling authority passed an order dated 1-6-1984 allowing the appeal and cancelling the permission granted by the prescribed authority dated 9th of August, 1983.
Against the said order dated 9th of August, 1983, the respondents Nos. 2 and 3 filed an appeal before the controlling authority. The controlling authority passed an order dated 1-6-1984 allowing the appeal and cancelling the permission granted by the prescribed authority dated 9th of August, 1983. It may here be stated that in the impugned order the date of the order of the Prescribed Authority has been mentioned as 9th May, 1983. The respondents have clarified in their counter affidavits that it was by mistake that the date Sth May, 1983 was mentioned. In fact, it should have been 9th August, 1983. The original record was also produced before me and it is correct that the actual order by which the Prescribed Authority granted permission was 9th August, 1983. It is not disputed that the area in dispute has been declared to be a regulated area within the meaning of the Act. Section 6 of the Act provides that no person shall undertake or carry out the development of any site in any regulated area except in accordance with the regulations framed under the Act and with previous permission of the Prescribed Authority in writing. Section 7 of the Act provides that the application under Section 6 for permission has to be made in writing to the Prescribed Authority in such form and containing such information as may be prescribed. The further sub-clauses of this section provide the manner in which the authority has to consider the application for permission. Section 15 (2) of the Act further provides that if any person is aggrieved by an order under Section 7 refusing or granting permission, he has a right to file an appeal to the controlling authority within 30 days from the date of the order, and the order of the controlling authority shall be final and shall not be called in question in any Court. Section 15-A of the Act empowers the State Government at any time either of its own motion or on an application made to it in this behalf, call for the record of any case disposed of by the controlling authority for the purpose of satisfying itself as to the legality or propriety of any order passed under this Act and may pass such order in relation thereto as it may deem fit.
Section 15-A, therefore, entitles the person aggrieved by the order of controlling authority to file a revision before the State Government. 5. The impugned order has been passed by the controlling authority under Section 15 of the Act. Against the order dated 1-6-1984 consequently a revision lies before the State Government. There is a clear alternative remedy provided against the impugned order under the Act. The State Government can go into the question of legality or propriety of an order passed by the controlling authority. The power of the State Government consequently is very wide. It can examine the legality as well as propriety of any order passed by the controlling authority. In the circumstances, in my opinion, it is not only an alternative remedy but is also an efficacious remedy entitling an aggrieved person by an order of the controlling authority to file a revision before the State Government. 6. The Act gives to an aggrieved person a right of appeal and thereafter a right of revision. It lays down a complete procedure for granting and refusing permission. In the circumstances, in my opinion, the petitioner having an alternative remedy and they should approach the State Government first before coming to this Court. Learned counsel for the petitioner contended firstly that there is a distinction between sanctioning of the plan and obtaining permission to undertake to carry out the constructions approved under the sanctioned plan. He sought to draw this distinction to show that, in fact, the order of 9th August, 1983 was only an order sanctioning the plan and not an order under Section 7 of the Act and as such it cannot be said that he has a right to file a revision before the State Government. In my opinion, this contention of the learned counsel for the petitioner is misconceived. 7. Section 3 (2) of this Act clearly provides that the operation of Chapter XIII of the U. P. Nagar Mahapalika Adhiniyam, 1958, Sections 178, 179, 180, 180-A, 181, 182, 183, 184, 185, 186, 203, 204, 205, 206, 207, 208, 209, 210 and 222 shall remain suspended during the period when a particular area has been declared a regulated area within the meaning of sub-section (1) of SECTION 3 of the Act- The above mentioned provisions of the U. P. Nagar Mahapalika Adhiniyam relate to sanction of the plan.
Once a regulated area bas been declared under section 3, the only authority to sanction the plan or to permit the development of any site in any regulated area is the Prescribed Authority under the Act. In the instant case from the facts on record, it is clear that the petitioner himself applied to the Prescribed Authority for sanction of the plan which implied that he wanted permission for development of the site in the regulated area. It is this permission which was granted to the petitioner by an order dated 9th August, 1983 and the respondents filed an appeal under section 15 of the Act. It cannot, therefore, be said that the appeal against the order dated 9th August, 1983 was not maintainable before the controlling authority as the order sanctioning plan and granting permission to the petitioner was nothing else but an order passed under section 7 of the Act. 8. Learned counsel for the petitioner next contended that the respondents no. 2 and 3 are not aggrieved persons within the meaning of the Act and they have no locus standi to file an appeal before the controlling authority. This question can clearly be gone into by the State Government in its power of revision and hence I do not think it proper to make any observation which might affect any of the parties to this petition. In view of the above, since I am of the opinion, that there is a clear efficacious alternative remedy available to the petitioner, the petition is not maintainable and is dismissed on the ground that the petitioner has an alternative remedy by way of revision under section 15-A of the Act. The petition is accordingly dismissed. The parties are directed to bear their own costs. Petition dismissed.