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Allahabad High Court · body

2003 DIGILAW 1023 (ALL)

Hari Shanker Rai v. Prescribed Authority/SDM

2003-04-30

RAKESH TIWARI

body2003
JUDGMENT : Rakesh Tiwari, J. Heard the learned Counsel for the parties and perused the records. 2. By means of this petition, the Petitioner has challenged the orders dated 28.2.1992, 30.1.1993 and 24.5.1993, passed by Respondent Nos. 1, 2 and 3 respectively. 3. The facts of the case are that the Petitioner purchased plot Nos. 63/10, 64/11 and 65/12 through sale deeds dated 12.12.1957, 17.12.1957 and 16.7.1957 respectively from one Tarkeshwar Pandey and others. It is alleged that the Petitioner came in possession over the alleged land through the sale deeds. A map was submitted to the Municipal Board, Ballia, for construction of a house, which was sanctioned by the Municipal Board, Ballia in January, 1959. The Petitioner made temporary construction on the disputed land and erected its boundary walls and thereafter started to live there. 4. After the execution of the sale deeds, one. Vijay Shankar, brother of Lal Mohan Sinha filed Suit No. 19 of 1958, which was contested by the Petitioner denying the claim of the Plaintiff. The said suit was dismissed in default. The contention of the Petitioner is that he was the employee in the consolidation department and after retirement he decided to build the construction, on the aforesaid land purchased by him in the year 1957. Lal Mohan Sinha, brother of Vijay Shankar had instituted another Suit No. 551 of 1990 along with an application for temporary injunction in the Court of Munsif East, Ballia in which an order for maintaining status quo was passed. 5. It is averred that the proceedings instituted by Lal Mohan Sinha against the Petitioner u/s 10 of the Uttar Pradesh Regulation of Building Operation Act, 1958, referred as U.P. Act No. XXXIV of 1958, were illegal, but he had managed to get a false report dated 31.12.1991 from the Junior Engineer, Ballia, for proceeding under U.P. Act No. XXXIV of 1958 regarding construction made by the Petitioner. Notice was issued to the Petitioner on 2.1.1992 fixing 28.2.1992 to show cause regarding construction made by the Petitioner. The notice was issued to the Petitioner at his home address to the police station Sikanderpur while Petitioner's village came within police station Pakari. It is contended that the Station Officer sent this notice to police station Pakari on 23.2.1992 and thereafter the said notice was sent to Petitioner's village on 6.3.1992 and received by him at Ballia on 7.3.1992. The notice was issued to the Petitioner at his home address to the police station Sikanderpur while Petitioner's village came within police station Pakari. It is contended that the Station Officer sent this notice to police station Pakari on 23.2.1992 and thereafter the said notice was sent to Petitioner's village on 6.3.1992 and received by him at Ballia on 7.3.1992. It is submitted that in the meantime, the Prescribed Authority passed an order dated 28.2.1992, without hearing the Petitioner. Aggrieved by the said order, the Petitioner filed an appeal u/s 15 (2) of U.P. Act No. XXXIV of 1958, which was dismissed on 30.1.1993 without giving an opportunity of hearing to the Petitioner. The revision filed by the Petitioner was also dismissed by an order dated 24.5.1993. 6. In the aforesaid backdrop it is argued by the learned Counsel for the Petitioner that the notice issued by the Prescribed Authority for demolition of boundary walls and the tin-shed is wholly illegal and the impugned orders have been passed by Respondent Nos. 1 and 2 without affording any opportunity of hearing to the Petitioner and are hit by the principles of natural justice. He has further submitted that the report relied upon by the appellate court and the revisional court, was prepared ex parte without any notice to the Petitioner and the map for boundary walls and house which has already been sanctioned by the Municipal Board, Ballia and as such the order for demolition of boundary walls and tin-shed without affording any opportunity of hearing to the Petitioner is illegal. Lastly it has been contended that in view of the subsequent letter/order of the U.P. Government, no sanction of map is required if the area of land is upto 100 sq. metres and if the area is between 100 and 300 sq. metres, then the map submitted by the person shall be automatically deemed to be sanctioned. The area of Petitioner's plot is 32 feet - 39 feet and as such there was no necessity to get the map sanctioned. Reliance has been placed by the learned Counsel for the Petitioner in support of his contention in Jai Ram Lal Srivastava v. State of U.P. 1982 (8) ALR 443. The area of Petitioner's plot is 32 feet - 39 feet and as such there was no necessity to get the map sanctioned. Reliance has been placed by the learned Counsel for the Petitioner in support of his contention in Jai Ram Lal Srivastava v. State of U.P. 1982 (8) ALR 443. In this case it has been dealing with the provisions of Sections 9, 10 and 12 of the U.P. Regulation of Building Operation Act, it was held that the proceedings for demolition should be taken only in respect of objectionable constructions or the constructions made in contravention of any Regulation under the Act. The demolition order should be made only after giving opportunity of being heard to the aggrieved party. It has further been held in the aforesaid case that the Act nowhere enables the authorities to investigate and determine any dispute between private parties with regard to the land over which the constructions stand or are to be sanctioned or permitted. Any application moved for permission for setting up of construction in a regulated area has to be dealt with u/s 7 of the Act. 7. Taking of note to Sub-section (2A) of Section 7 of the Act it was held that the Prescribed Authority can refuse permission for erection or re-erection of proposed building only on the grounds enumerated from (c) to (g). It nowhere lays down that any such application is to be rejected for the reason that such construction would result in encroachment upon the land belonging to some private person. 8. In the counter-affidavit filed on behalf of the State, it has been stated that the construction of the Petitioner was found to be new as was evident from the inspection report. 9. The Petitioner was absent on the date of hearing. It is submitted that the notice dated 2.1.1992 directed the Petitioner to demolish his unauthorised constructions within 20 days and communicate the compliance of the order to the Prescribed Authority. Since the constructions made by the Petitioner were found to be new in the spot inspection report, the demolition orders were passed in accordance with law. 10. The averments made in paragraphs 10 and 12 to the writ petition that the Prescribed Authority passed order dated 28.2.1992, without giving any opportunity of hearing to the Petitioner, have not been denied. Since the constructions made by the Petitioner were found to be new in the spot inspection report, the demolition orders were passed in accordance with law. 10. The averments made in paragraphs 10 and 12 to the writ petition that the Prescribed Authority passed order dated 28.2.1992, without giving any opportunity of hearing to the Petitioner, have not been denied. In reply it has only been stated that the Prescribed Authority applied its mind to the facts and the circumstances of the case and passed the order. The appellate authority and the revisional authority both have read the spot inspection report, but no notice was given to the Petitioner nor any report was prepared regarding disputed land after informing him. This fact has not been denied in the counter-affidavit. 11. Thus, I find that the orders passed by the courts below have been passed without affording opportunity of hearing and are squarely hit by the principles of natural justice. 12. For the reasons stated above, the writ petition succeeds and is allowed. The orders passed by Respondent Nos. 1, 2 and 3 dated 28.1.1993, 30.1.1993 and 24.5.1993 are hereby quashed and the matter is remanded back to the Prescribed Authority for fresh decision after giving full opportunity of hearing to the Petitioner and decide the same by a reasoned order within three months from the date of production of a certified copy of this order. The interim order dated 9.6.1993, passed by this Court is vacated. No order as to costs.