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Allahabad High Court · body

2009 DIGILAW 672 (ALL)

SHYAM SUNDAR AGARWAL v. STATE OF U. P.

2009-03-02

SABHAJEET YADAV

body2009
JUDGMENT Hon’ble Sabhajeet Yadav, J.—With the consent of the learned counsel appearing for the parties the case is heard afresh for disposal. Heard learned counsel for the petitioner and Sri S.K. Mishra learned counsel appearing for the respondent No. 1 and perused the record. 2. It is not in dispute that against the order of demolition dated 13.10.2006 and demolition seizure dated 28.11.2006 prepared by the Vice Chairman of Kanpur Development Authority (hereinafter referred to as ‘Development Authority’) under Section 27 (1) of U.P. Urban Planning and Development Act (hereinafter referred to as the Act, 1973) the petitioner has instituted suit for permanent injunction and also moved application therein for temporary injunction. The temporary injunction application has been rejected by the Trial Court after hearing the parties on merit and appeal preferred against which by the petitioner has also been dismissed, hence this petition. 3. While raising preliminary objection against the maintainability of writ petition learned counsel for Development Authority has submitted that against the order of demolition passed by Vice Chairman of Development Authority under Section 27(1) of the Act, 1973, the petitioner has an alternative remedy of statutory appeal under Section 27 (2) of the said Act before the Chairman of Development Authority and under Section 27 (3) of the Act the Chairman of the Development Authority is empowered to stay the execution of an order against which an appeal is preferred before him under Section 27 (2) of the said Act. It is also contended that the decision of Chairman on appeal and subject only to such decision an order under sub-section (1) shall be final and shall not be questioned in any Court in view of provisions of sub­section-(4) of Section-27 of the said Act. He further submits that not only this but Section-37 of the Act,1973 also postulates that except as provided in Section-41 of the said Act every decision of Chairman on appeal and subject to any decision on an appeal (if it lies and is preferred), the order of Vice Chairman or other Officer under Section 15 or Section 27 of the Act shall be final and shall not be questioned in any Court. 4. 4. On the basis of indisputable facts on record, learned counsel appearing for the Development Authority has submitted that so long as the orders passed by Vice Chairman of Development Authority dated 13.10.2006 and 28.11.2006 which have been passed after affording an opportunity of hearing to the petitioner as transpires from the record, are not set-aside by any competent authority or Court of law, the Civil Court would not be capable of granting temporary injunction or permanent injunction in favour of the petitioner as the aforesaid orders could not be challenged before the Civil Court on account of express bar created by Section-27(4) and Section-37 of the Act,1973 and would ultimately come in the way of Civil Court. Therefore, this Court in exercise of supervisory jurisdiction under Articles 226 and 227 of the Constitution of India against refusal of temporary injunction should not grant any relief in favour of the petitioner as in given facts and circumstances of the case both the Courts below cannot be held to have committed any illegality in refusing to grant temporary injunction in favour of the petitioner. In my opinion the submissions of learned counsel for the respondent appears to have some substance. 5. Contrary to it, the learned counsel for the petitioner has submitted that since the repair work undertaken by the petitioner was not required any prior permission or approval or sanction by the officer of Development Authority, therefore, the provisions of the Act, 1973 would not be attracted in view of saving clause provided under Section-52 of the Act,1973 thus impugned order passed by Vice Chairman referred above is nullity and non-est, as such can be ignored by Civil Court while granting temporary injunction in favour of petitioner. In my opinion the submission of learned counsel for the petitioner appears to be misplaced and has to be rejected. 6. Section-27 of the Act,1973 deals with the order of demolition of building, which reads as under : “Section 27. In my opinion the submission of learned counsel for the petitioner appears to be misplaced and has to be rejected. 6. Section-27 of the Act,1973 deals with the order of demolition of building, which reads as under : “Section 27. (1) Where any development has been commenced or is being carried on or has been in contravention of the master plan or zonal development plan or without the permission, approval or sanction referred to in Section 14 or contravention of any conditions subject to which such permission, approval or sanction has been granted, in relation to the development area, then, without prejudice to the provisions of Section 26, the Vice-Chairman or any officer of the Authority empowered by him in that behalf may take an order directing that such development shall be removed by demolition, filling or otherwise by the owner thereof or by the person at whose instance development has been commenced or is being carried out or has been completed, within such period not being less than fifteen days and more than forty days from the date on which a copy of the order of removal, with a brief statement of the reasons therefor, has been delivered to the owner or that person as may be specified in the order and on his failure to comply with the order, the Vice Chairman or such officer may remove or cause to be removed the development, and the expenses of such removal as certified by the Vice Chairman or such officer shall be recoverable from the owner or the person at whose instance the development was commenced or was being carried out or was completed as arrears of land revenue and no suit shall lie in the civil Court for recovery of such expenses : Provided that no such order shall be made unless the owner or the person concerned has been given a reasonable opportunity to show cause why the order should not be made. (2) Any person aggrieved by an order under sub-section (1) may appeal to the Chairman against that order within thirty days from the date thereof and the Chairman may after hearing the parties to the appeal either allow or dismiss the appeal or may reverse or vary any part of the order. (3) The Chairman may stay the execution of an order against which an appeal has been filed before it under sub­section (2). (3) The Chairman may stay the execution of an order against which an appeal has been filed before it under sub­section (2). (4) The decision of the Chairman on the appeal and, subject only to such decision, the order under sub-section (1), shall be final and shall not be questioned in any Court. (5) The provisions of this section shall be in addition to, not in derogation of, any other provision relating to demolition of building contained in any other law for the time being in force." 7. Section-37 of the Act,1973 deals with the finality of decision, which reads as under : “Section 37. Except as provided in Section 41, every decision of the Chairman on appeal, and subject only to any decision on appeal (if it lies and is preferred), the order of the Vice-Chairman or other officer under Section 15, or Section 27, shall be final and shall not be questioned in any Court." 8. Section-52 of the Act,1973 deals with the saving of certain activities which exclude the application of the provisions of said Act as under : “Section 52. Savings—Nothing in this Act shall apply to— (a) the carrying out of works for the maintenance, improvement or other alterations of any building, being works which affect only the interior of the building or which do not materially affect the external appearance of the building. (b) the carrying out by any local authority or by any department of Government of any works for the purpose of inspecting, repairing or renewing any drains, sewers, mains, pipe, cables or other apparatus including the breaking open of any street or other land for that purpose; (c) the operational construction (including maintenance, development and new construction), by or on behalf of a department of the Central Government; (d) the erection of a building not being dwelling-house, if such building, is required for the purpose subservient to agriculture; (e) the excavations (including wells) made in the ordinary course of agricultural operations; and (f) the construction of unmetalled road intended to give access to land solely for agricultural purposes: “ 9. From a plain reading of the provisions of Section-27(2) of the Act it is clear that order passed by Vice Chairman of Development Authority under Section-27(1) of the said Act is appealable before the Chairman of the Development Authority who is Divisional Commissioner i.e. Commissioner, Kanpur Division, Kanpur. From a plain reading of the provisions of Section-27(2) of the Act it is clear that order passed by Vice Chairman of Development Authority under Section-27(1) of the said Act is appealable before the Chairman of the Development Authority who is Divisional Commissioner i.e. Commissioner, Kanpur Division, Kanpur. Therefore, in case the petitioner have any grievance against impugned order passed by Vice Chairman under Section 27 (1) of the Act he could prefer the appeal before the Chairman under Section 27(2) of the Act and raise his grievances ventilated in the writ petition as well as in the plaint of the suit. In case the petitioner would still remain aggrieved by the order passed by the Chairman, he may challenge the order straight way before this Court but in wake of provisions of Section 27(4) and Section-37 of the Act,1973, which creates a bar and attach finality upon the orders passed under Section-15 or 27 of the Act,1973, it was not open for the petitioner to challenge the aforesaid orders directly or indirectly before the Civil Court which could not entertain the suit against the aforesaid orders. Therefore, the Suit No. 644 of 2007 (Shyam Sunder Agrawal v. Kanpur Development Authority) giving rise cause of action of writ petition, in my opinion, is not maintainable before the Civil Judge (Senior Division), Kanpur Nagar and is liable to be dismissed. I am of the further view that so long as the aforesaid orders passed by Vice-Chairman of Development Authority under Section 27(1) of the Act,1973 remains intact and is not set-aside by the competent authority, the Civil Court would not be able to grant any permanent injunction or temporary injunction in favour of the petitioner in the said suit. 10. So far as, applicability of the provisions of Section 52 of the Act, in respect of the alleged repair and maintenance activities undertaken by the petitioner is concerned, it is to be pointed out that the order of demolition of building of the petitioner was passed by Vice-Chairman of the Development Authority after affording opportunity of hearing to him. 10. So far as, applicability of the provisions of Section 52 of the Act, in respect of the alleged repair and maintenance activities undertaken by the petitioner is concerned, it is to be pointed out that the order of demolition of building of the petitioner was passed by Vice-Chairman of the Development Authority after affording opportunity of hearing to him. Since the impugned order of demolition has been passed holding that the activities undertaken by the petitioner are in contravention of the provisions of Act or that were without approval or sanction of competent authority and said order cannot be called in question before the Civil Court in view of Section 27(4) and Section 37 of the Act, therefore, Civil Court in civil suit cannot be held to be capable of taking different view in the matter than that of taken by the competent authority, as such, in my considered opinion, despite provisions of Section-52 of the Act, Civil Court is not competent to examine correctness or otherwise legality of decision of Vice Chairman of Development Authority taken under Section 27(1) of the Act, 1973 otherwise the object and purpose underlying the said provisions of the Act would be defeated. In my opinion, aforesaid provisions of the Act embodies sound public policy to exclude intervention of the Courts in the orders of the officers of Development Authority under Sections 15 and 27 of the Act, 1973. In this view of the matter, I am not inclined to examine correctness or otherwise legality of impugned orders passed by the Courts below while refusing to grant temporary injunction to the petitioner during the pendency of aforesaid civil suit. 11. Since I have held that original suit instituted by the petitioner is not maintainable and liable to be dismissed, therefore, the said suit stands dismissed. Accordingly the Registrar General of this Court is directed to communicate this order forthwith to the District Judge, Kanpur Nagar who shall place the order on the record of the suit in question and concerned Court is directed to consign the record of the case to the office. 12. In view of aforesaid observations and directions, the writ petition stands dismissed on the ground of alternative remedy. ————