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2009 DIGILAW 3690 (ALL)

RAJEEV KUMAR SHARMA v. STATE OF U. P.

2009-12-09

DILIP GUPTA

body2009
JUDGMENT Hon’ble Dilip Gupta, J.—The petitioner has sought the quashing of the orders dated 3rd May, 2007 and 12th August, 2009 passed by the Commissioner, Agra Region Agra as Chairman of the Mathura Vrindavan Development Authority (hereinafter referred to as the ‘ Development Authority’). 2. The records of the writ petition indicate that the Development Authority framed Mahavidya Colony Phase-II. Plot No. 60-B in the said colony was purchased by Sri Indra Deo Pandey and thereafter with the permission of the Development Authority, it was sold to the petitioner by the registered sale deed dated 15th June, 2006. It is stated in the petition that Plot Nos. 59, 60, 60-A, 60-B and 60-C are adjacent plots. Plot No. 59 belongs to Hari Mohan Garg. Plot No. 60 belongs to respondent No. 4 Jitendra Kumara Katara. Plot No. 60-A belongs to respondent No. 5 Vishwanath Bhardwaj, and Plot No. 60-C belongs to respondent No. 6 Ajay Kumar Singh. 3. The petitioner filed an application before the Vice-Chairman of the Development Authority on 4th October, 2006 alleging that respondent No. 4 Jitendra Kumar Katara had encroached 1.2 meters wide land of Plot No. 60-A belonging to respondent No. 5 Vishwanath Bhardwaj and respondent No. 5 Vishwanath Bhardwaj had in turn encroached 1.2 meters wide land of Plot No. 60-B belonging to the petitioner. The Vice Chairman of the Development Authority, after hearing the parties and after getting the spot measurements done, found that respondent No. 4 Jitendra Kumar Katara had encroached 1.2 meters wide land of Plot No. 60-A. He, accordingly, directed respondent No. 4 to remove the said encroachment by 30th March, 2007. 4. Feeling aggrieved, respondent No. 4 Jitendra Kumar Katara, filed Writ Petition No. 15262 of 2007 in this Court which was dismissed on the ground of alternative remedy of appeal being available before the Chairman of the Development Authority. Respondent No. 4 Jitendra Kumar Katara then filed an appeal under Section 27(4) of the Uttar Pradesh Urban Planning and Development Act, 1973 (hereinafter referred to as the ‘Act’) before the Chairman of the Development Authority in which only the Development Authority was arrayed as respondent. An interim order was passed in the said appeal on 26th March, 2007 and 16th April, 2007 was fixed. The Chairman of the Development Authority by the order dated 3rd May, 2007 allowed the appeal filed by respondent No. 4, Jitendra Kumar Katara. An interim order was passed in the said appeal on 26th March, 2007 and 16th April, 2007 was fixed. The Chairman of the Development Authority by the order dated 3rd May, 2007 allowed the appeal filed by respondent No. 4, Jitendra Kumar Katara. 5. A review application was then filed by the Development Authority on 1st June, 2007. The petitioner also filed an impleadment application in the review application when he came to know of the order passed by the Chairman of the Development Authority. The Chairman of the Development Authority by the order dated 12th August, 2009 rejected the review application filed by the Development Authority as also the impleadment application filed by the petitioner. 6. These two orders dated 3rd May, 2007 and 12th August, 2009 have been impugned in the present petition. 7. Sri Nirvikar Gupta, learned Counsel appearing for the petitioner submitted that when the Vice-Chairman of the Development Authority had passed the order on the application filed by the petitioner regarding encroachment of 1.2 meters wide land in his plot and the petitioner had also been impleaded as a respondent in Writ Petition No. 15262 of 2007 filed by respondent No. 4 Jitendra Kumar Katara for setting aside the order dated 26th February, 2007 passed by the Vice-Chairman of the Development Authority, it was incumbent upon the appellant to have impleaded the petitioner as respondent in the appeal along with Vishwanath Bhardwaj and Ajay Kumar Singh as they were necessary parties but that was not done. He further submitted that the Chairman of the Development Authority committed an illegality in holding that respondent No. 4 was not at fault as he had been given the possession of the plot by the Development Authority and so he may deposit amount before the Development Authority for the additional area provided to him by the Development Authority. He further submitted that the Chairman of the Development Authority committed an illegality in holding that respondent No. 4 was not at fault as he had been given the possession of the plot by the Development Authority and so he may deposit amount before the Development Authority for the additional area provided to him by the Development Authority. According to the learned Counsel for the petitioner, the dispute was as to whether land belonging to the petitioner and respondent No. 5 Vishwanath Bhardwaj was less than that sold by the Development Authority and if any excess area had been given to respondent No. 4, then the same was required to be given to the petitioner and respondent No. 5 as was directed by the Vice-Chairman of the Development Authority but direction for payment of cost for the excess land provided to respondent No. 4 could not have been given by the Chairman of the Development Authority. 8. Learned Standing Counsel appears for respondent Nos. 1 and 2. Respondent Nos. 3 and 7 are represented by Sri D.S. Chauhan, respondent No. 4 is represented by Sri Anil Tiwari. The interest of respondent Nos. 5 and 6 is common with that of the petitioner and, therefore, it is not necessary to issue notice to them. Sri D.S. Chauhan, learned Counsel appearing for respondent Nos. 3 and 7 states that he supports the petitioner. 9. Learned Standing Counsel and Sri Anil Tiwari, have submitted that it is not be necessary to file any counter affidavits in this petition and it may be disposed of at this stage. 10. Sri Anil Tiwari, learned Counsel appearing for respondent No. 4 has submitted that the review application filed by the Development Authority before the Chairman of the Development Authority was not maintainable and so the Chairman of the Development Authority committed no illegality in rejecting the review application by the order dated 12th August, 2009. He further submitted that in any view of the matter the petitioner can file a Revision before the State Government. 11. It is not in dispute that the order dated 26th February, 2007 was passed by the Vice-Chairman of the Development Authority on the application filed by the petitioner. The said order grants relief not only to the petitioner but to respondent No. 5 Vishwanath Bhardwaj also. 11. It is not in dispute that the order dated 26th February, 2007 was passed by the Vice-Chairman of the Development Authority on the application filed by the petitioner. The said order grants relief not only to the petitioner but to respondent No. 5 Vishwanath Bhardwaj also. It is for this reason that respondent No. 4 had impleaded the petitioner and Vishwanath Bhardwaj as respondent Nos. 1 and 3 in Writ Petition No. 15262 of 2007 filed by him. Ajay Kumar Singh was also impleaded as respondent No. 5 in the said petition. These respondents are necessary parties as any order in the Appeal will have a bearing on their plots. The petitioner should have, therefore, impleaded them as respondents in the appeal filed before the Chairman of the Development Authority but that was not done and only the Development Authority was impleaded as a respondent in the appeal. The order dated 3rd May, 2007 passed by the Chairman of the Development Authority allowing the appeal filed by respondent No. 4, therefore, deserves to be set aside only on this ground. As the order dated 3rd May, 2007 is being set aside, the subsequent order dated 12th August, 2009 also deserves to be set aside. 12. It is, therefore, not necessary to examine whether the review application at the behest of the Development Authority was maintainable or not. It is for this reason also that it is not possible to accept the contention of Sri Anil Tiwari learned Counsel appearing for Jitendra Kumar Katara that the petitioner should avail of the opportunity of filing a Revision before the State Government under the Act. 13. At this stage, Sri Anil Tiwari, learned Counsel appearing for respondent No. 4 very fairly stated that in the event the matter is remitted back to the Chairman of the Development Authority for a fresh decision in the appeal, he shall implead the petitioner, Vishwanath Bhardwaj and Ajay Kumar Singh as respondents in the appeal. 14. Thus, for all the reasons stated above, the orders dated 3rd May, 2007 and 12th August, 2009 passed by the Chairman of the Development Authority are set aside. 14. Thus, for all the reasons stated above, the orders dated 3rd May, 2007 and 12th August, 2009 passed by the Chairman of the Development Authority are set aside. The Chairman of the Development Authority shall now proceed to decide the appeal afresh in accordance with law after the appellant (respondent No. 4-Jitendra Kumar Katara) impleads the petitioner, Vishwanath Bhardwaj and Ajay Kumar Singh as respondents in the appeal which he shall do within four weeks from today failing which the appeal shall stand dismissed. 15. The writ petition succeeds and is allowed to the extent indicated above. ————