Research › Search › Judgment

Allahabad High Court · body

2016 DIGILAW 3104 (ALL)

Ashok Kumar Jakhodia v. State of U. P.

2016-09-09

TARUN AGARWALA, VIPIN SINHA

body2016
JUDGMENT Tarun Agarwala, J. – This writ petition was filed in the yer 2012 praying for certain reliefs. Affidavits have been exchanged. 2. By an order of the Chief Justice dated 11.08.2016 this Bench has been nominated to decide the matter. 3. When the hearing of the writ petition started, a preliminary objection was raised by Sri Shashi Nandan, the learned Senior Counsel appearing for respondent no.5 with regard to the maintainability of the writ petition. Accordingly, by an order dated 30.08.2016, we directed the parties to place their arguments on the maintainability of the writ petition. The Court has heard the learned Counsel for the parties at some length. 4. The facts leading to the filing of the writ petition in brief, is that respondent Nos. 6, 7 and 8 were the owners of plot Nos. 15/198 and 15/199. Plot no. 15/199 was carved out into 09 plots. A 25 feet wide road was also carved out in between plot Nos. 1 to 9 and plot Nos. 6 to 9. These plots were sold to various parties by respondent Nos. 6 to 8 in the year 1991. The purchasers have constructed their houses on these plots since long. The petitioner Nos. 1 to 7 are owners of these plots and have constructed their house after obtaining sanctioned maps from the Kanpur Development Authority. During the pendency of the writ petition, petitioner Nos. 1 and 2 have filed an application for withdrawal of the writ petition which has been allowed and now the writ petition is being pursued by the petitioner Nos. 3 to 7. 5. It transpires that respondent Nos. 7 and 8 had executed a licence dated 14.12.2005 in favour of respondent no. 6 for ingress and egress to plot no. 15/198 in favour of respondent no. 6. Thereafter respondent no. 6 demolished the wall and started using the passage for ingress and egress to plot no. 15 of 198. Petitioner Nos. 1 and 2 filed suit no. 89 of 2006 in which initially an injunction was granted and on 14.04.2010 the suit was decreed on the basis of a compromise wherein the common passage of 25 feet was allowed to be used as ingress and egress for plot no. 15 of 198. Respondent no. 6 executed a sale deed in favour of respondent no. 5 on 24.12.2011 with regard to plot no. 15/198. Respondent no. 15 of 198. Respondent no. 6 executed a sale deed in favour of respondent no. 5 on 24.12.2011 with regard to plot no. 15/198. Respondent no. 6 had also applied for construction of a four storied structure in plot no. 15 of 198, which was sanctioned by the Kanpur Development Authority on 26.04.2011. On the basis of the sanctioned map, respondent no. 5 started construction on the plot in question and constructed a sewer line in the common passage. The petitioners filed suit no. 1015 of 2012 in which initially an injunction was granted, which was vacated on 19.01.2013, against which a writ petition has been filed which is pending consideration before this Court. 6. The construction that was being raised by the respondent no. 5 was not in accordance with the sanctioned map and consequently one of the residents of the 09 plots in plot no. 15/198 filed a complaint before the Kanpur Development Authority. Another complaint dated 14.08.2012 was filed by the petitioner no. 3 contending that the construction was sanctioned on the stipulation that the common passage, which was 07 metres in width would be increased to 09 metres, which could not be done unless some land was carved out from the petitioners plot as well as from the plots of other residents. In the complaint it was also alleged that the parking area has been converted into a flat. Further setback has been reduced and instead of constructing 06 units the respondent no. 5 has constructed 22 units. 7. Based on this complaint, the Kanpur Development Authority issued notice to respondent Nos. 5 and 6 and thereafter passed an order of demolition dated 23.05.2012. On 16.08.2012 a sealing order was passed. Since nothing has been done to remove the illegal construction, the petitioners filed Writ Petition No. 4509 of 2012, which was disposed of directing the petitioners to make a representation, which would be decided by the Kanpur Development Authority. Such representation was eventually decided by an order dated 08.10.2012, against which the present writ petition has been filed. During the pendency of the writ petition, the writ petition was amended and various reliefs have been added, which has been allowed. The petitioner is now basically praying for cancellation of the map, which has been illegally sanctioned by the Kanpur Development authority and for its demolition. 8. During the pendency of the writ petition, the writ petition was amended and various reliefs have been added, which has been allowed. The petitioner is now basically praying for cancellation of the map, which has been illegally sanctioned by the Kanpur Development authority and for its demolition. 8. At the time when the writ petition was entertained an interim order dated 17.12.2012 was passed directing the Kanpur Development Authority to consider the application of respondent no. 5 for compounding of the alleged construction. The Court also restrained respondent no. 5 from raising any construction in the premises in question. Based on the order of the Court, the compounding application was rejected, which has attained finality inasmuch as respondent no. 5 has not filed any petition or appeal against the said order. The respondent no. 5 however, has filed an appeal before the Commissioner, Kanpur Mandal against the sealing order, which is pending consideration. 9. Sri Gajendra Singh, the learned Senior Counsel appearing for the Kanpur Development Authority contends that the complaint was acted upon and an order of demolition as well as an order of sealing was passed but the said order was not given effect to as they could not get the requisite police force from the district administration. Learned Senior Counsel further submitted that the construction plan in plot no. 15/198 could not be sanctioned as per the bye-laws until and unless the existing road was widened from 07 metres to 09 metres and that the width of the road cannot be increased unless a portion of land is carved out from the plots of the petitioners. Sri Gajendra Singh, the learned Senior Counsel appearing for the Kanpur Development Authority further contended that such illegality committed by respondent no. 5 cannot be compounded. 10. In the light of the aforesaid assertions Sri Shashi Nandan, the learned Senior Counsel appearing for respondent no. 5 questioned the bonafides of the petitioners contending that the petitioners are nothing but blackmailers, who initially took a sum of Rs.40,000/- and then demanded Rs. 5.0 lakhs during the pendency of the writ petition. 11. 5 cannot be compounded. 10. In the light of the aforesaid assertions Sri Shashi Nandan, the learned Senior Counsel appearing for respondent no. 5 questioned the bonafides of the petitioners contending that the petitioners are nothing but blackmailers, who initially took a sum of Rs.40,000/- and then demanded Rs. 5.0 lakhs during the pendency of the writ petition. 11. The learned Senior Counsel further contended that if the writ petition is heard on merits, it will jeopardise the rights of the petitioners before the appellate authority or before the revisional authority, as the case may be, and contended that the writ petition should be dismissed and it would be open to the petitioners to raise all such objections as they may desire before the appellate or revisional authority, as the case may be. The learned Senior Counsel contended that the petitioners were not an "aggrieved person" and have no locus standi to file a writ petition. The Senior Counsel contended that only an "aggrieved person", who suffers from a legal injury could challenge the action or an order of the respondents in a Court of law. It was contended that a writ petition would be maintainable for the purpose of enforcing a statutory legal right, which in the instant case was missing and that the status of the petitioners at best was that of a complainant, who have no legal right to enforce the performance of a statutory duty by a public body by invoking the writ jurisdiction under Article 226 of the Constitution of India. It was contended that the petitioners' land has not been encroached upon nor do they suffer any easementary right. The laying of the sewer line on the common passage does not infringe their right. It was further contended that the petitioners have already filed a suit no. 1015 of 2012, which is pending, in which they could claim the reliefs, which have been sought in the present writ petition. The learned Senior Counsel contended that in the light of the aforesaid, the writ petition should be dismissed with cost. In support of his submission the learned Senior Counsel has placed reliance upon the decisions of the Supreme Court in Ravi Yashwant Bhoir v. District Collector, Raigad And Others, (2012) 4 SCC 407 and Ayaaubkhan Noorkhan Pathan v. State of Maharashtra and Ors., AIR 2013 SC 58 . 12. In support of his submission the learned Senior Counsel has placed reliance upon the decisions of the Supreme Court in Ravi Yashwant Bhoir v. District Collector, Raigad And Others, (2012) 4 SCC 407 and Ayaaubkhan Noorkhan Pathan v. State of Maharashtra and Ors., AIR 2013 SC 58 . 12. Having heard the learned counsel for the parties, we find that a legal right is a conferment of entitlement arising out of law. It is a benefit conferred upon a person by the Rule of Law. Consequently, a person, who suffers from a legal injury can challenge the action or order that may cause harm or loss to that person. The person has to establish that he has been deprived of or denied of a legal right and has sustained injury or could be injured if legal protection was not provided. 13. In the instant case we find prima facie that a map has been sanctioned with a condition to widen the existing road from 07 metres to 09 metres. The width of the road cannot be increased unless a portion of land is carved out from the petitioners' land. This by itself gives a legal right to the petitioners to question the veracity and legality of the map sanctioned by the Kanpur Development Authority in favour of respondent no. 5. Apart from that we find that the map was sanctioned for 06 units, which has been increased to 22 units. Easementary right of the petitioners relating to light and air is being hampered. Such violation of the petitioners' easementary right again prima facie gives them a right to approach in an appropriate forum for redressal of their grievance. 14. Consequently, at this stage it cannot be said that the petitioners do not have any legal right or that the petitioners are only a complainant and their status at best could be examined as a witness. Prima facie, at this stage, we find that the petitioners come under the expression "person aggrieved" and, thus, have a right to raise their grievance in a writ jurisdiction. The petitioners have validly made a complaint to the Kanpur Development Authority of a breach being committed by respondent no. 5 in raising the construction in violation of the sanctioned plan. Prima facie, at this stage, we find that the petitioners come under the expression "person aggrieved" and, thus, have a right to raise their grievance in a writ jurisdiction. The petitioners have validly made a complaint to the Kanpur Development Authority of a breach being committed by respondent no. 5 in raising the construction in violation of the sanctioned plan. The Court is prima facie of the opinion that it can enforce the performance of statutory duty by a public body using its writ jurisdiction if it finds that the statutory duty was not being performed by the public body. Prima facie, at this stage, we find that the writ petition is maintainable. The preliminary objection raised the learned Senior Counsel appearing for respondent no. 5 is rejected. Petition allowed.