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2018 DIGILAW 2446 (ALL)

Nanak Chand Sharma v. State of U. P.

2018-12-03

PRADEEP KUMAR SINGH BAGHEL, PRAKASH PADIA

body2018
JUDGMENT : 1. This writ petition takes exception of an order dated 16.3.2018 passed by respondent no.4 whereby the petitioner has been demanded to remove his alleged unauthorized construction within three days. 2. The salient and necessary facts of the case are: 3. The petitioner claims that he belongs to weaker section of the society. His father had been running a tea shop as well as sweet shop prior to 1969. He fell ill in the year 1980 and now the shop is being run by the petitioner. The petitioner was served a notice dated 23.5.2017 to vacate the said shop. He filed a reply on 17.1.2018 before the Secretary, Ghaziabad Development Authority. It is stated in his reply that his father was running the shop prior to 1969 and after him the petitioner is running his tea shop. He has denied the fact that Khasra Nos. 659 and 660 were acquired in 1969 because at that time neither Ghaziabad Development Authority was constituted nor Ghaziabad District was carved out. In support of his plea he had also filed a large number of documents to show his possession such as tax receipt issued by Nagar Nigam, Bank's Passbook etc.. The respondent without considering his reply passed an order dated 18.1.2018 to remove his unauthorized construction within three days. Aggrieved by the order dated 18.1.2018 he preferred a writ petition in this Court being Writ-C No. 5907 of 2018, wherein it was submitted that Section 26-A(4) of the U.P. Urban Planning and Development Act, 1973 provides that if a member of weaker section has made an encroachment, he shall not be removed unless an alternative place is allotted to him. The said writ petition was disposed of on 13.2.2018. Relevant part of the said judgment reads as under: "Counsel for the petitioner does not press this writ petition and seeks liberty to the petitioner to make an application for allotment of an alternative land/accommodation as provided for in the proviso to sub-section (4) of Section 26-A of the U.P. Urban Planning and Development Act, 1973 and seeks direction to consider his application within time frame. Petition is disposed of as not pressed. Petition is disposed of as not pressed. It is open to the petitioner to make an application, as aforementioned, to the concerned authority and if such an application is made, we hope and trust that the petitioner's application shall be considered on merits in accordance with law, in the light of the provisions contained in Section 26-A(4) of the Act, as expeditiously as possible and preferably within a period of eight weeks from the date of the application." 4. In compliance of the aforesaid order, the petitioner made a detailed representation on 26.2.2018 which is on the record as annexure-5 to the writ petition. 5. The learned counsel for the petitioner submits that the impugned order has been passed without application of mind and without assigning any reason. It is further submitted that the direction issued by this Court has been completely ignored. In the impugned order there is no consideration qua Section 26-A(4) of the Act, 1973, on this ground alone the order is vitiated. The learned counsel for the Development Authority submits that the petitioner's shop is unauthorized construction hence the impugned order does not suffer from any illegality. 6. We have heard learned counsel for the parties and perused the record. 7. By order dated 13.2.2018 the Division Bench while disposing of the writ petition, had directed the respondents to decide the representation of the petitioner. The representation of the petitioner has been rejected by the Executive Engineer, Zone-3, by a cryptic order dated 16.3.2018, which is impugned herein, that the petitioner has made an encroachment on the land and since the possession has been taken by the authority on 7.5.1969 hence his representation is rejected. From the impugned order it is evident that the authority concerned has not adverted to the facts mentioned by the petitioner in the representation. Without addressing any issue raised by the petitioner, his representation has been rejected by one line order that the petitioner has raised an illegal construction. 8. We find that the authority concerned has only recoded his conclusion without assigning any reason. It is a well settled law that not only administrative but judicial order also must be supported by the reasons recorded in it. The reason is heartbeat of every conclusion. The absence of reason makes an order unsustainable. 8. We find that the authority concerned has only recoded his conclusion without assigning any reason. It is a well settled law that not only administrative but judicial order also must be supported by the reasons recorded in it. The reason is heartbeat of every conclusion. The absence of reason makes an order unsustainable. One of the most important aspects for insisting to record reason is that it substitutes the subjectivity with objectivity. It is also treated as a part of natural justice and fair play. 9. In the case of M/s Travancore Rayon Ltd. v. Union of India, 1969 (3) SCC 868 the Supreme Court has held as under: “11. ...The communication does not disclose the “points” which were considered, and the reasons for rejecting them. This is a totally unsatisfactory method of disposal of a case in exercise of the judicial power vested in the Central Government. Necessity to give sufficient reasons which disclose proper appreciation of the problem to be solved, and the mental process by which the conclusion is reached, in cases where an on-judicial authority exercises judicial functions, is obvious. When judicial power is exercised by an authority normally performing executive or administrative functions, this Court would require to be satisfied that the decision has been reached after due consideration of the merits of the dispute, uninfluenced by extraneous considerations of policy or expediency. The Court insists upon disclosure of reasons in support of the order on two grounds : one, that the party aggrieved in a proceeding before the High Court or this Court has the opportunity to demonstrate that the reasons which persuaded the authority to reject his case were erroneous; the other, that the obligation to record reasons operates as a deterrent against possible arbitrary action by the executive authority invested with the judicial power.” 10. The aforesaid said judgment has been quoted with approval by the Constitution Bench of the Supreme Court in the case of S.N. Mukherjee Vs. Union of India, AIR 1990 SC 1984 . Similar view has been taken by the Supreme Court in the cases of Union of India Vs. Mohan Lal Capoor, AIR 1974 SC 87 ; Raj Kishore Jha Vs. State of Bihar, (2003) 11 SCC 519 ; Kranti Associates Private Limited Vs. Union of India, AIR 1990 SC 1984 . Similar view has been taken by the Supreme Court in the cases of Union of India Vs. Mohan Lal Capoor, AIR 1974 SC 87 ; Raj Kishore Jha Vs. State of Bihar, (2003) 11 SCC 519 ; Kranti Associates Private Limited Vs. Masood Ahmed Khan, (2010) 9 SCC 496; Sant Lal Gupta and others v. Modern Cooperative Group Housing Society Limited and others, (2010) 13 SCC 336 and J. Ashoka v. University of Agricultural Science and others, (2017) 2 SCC 609 . 11. Section 26-A(4) of the Act, 1973 clearly provides that the person belonging to weaker section of the society cannot be evicted without providing alternative site. Section 26-A(4) reads thus: “26-A(4) If there are grounds to believe that a person has made any encroachment or obstruction on a land in a development area which is not a private property, the Authority or an Officer authorised by it in this behalf may serve upon the person making encroachment or obstruction, a notice requiring him to show cause why he shall not be required to remove the encroachment or obstruction within such period not being less than fifteen days as may be specified in the notice, and after considering the cause, if any, shown by such person, may order removal of such encroachment or obstruction for reasons to be recorded in writing.” 12. A careful reading of the aforesaid Section clearly indicates that the intention of legislature is that a person belonging to weaker section who is found to have encroached the land of the State, cannot be thrown out depriving him of his livelihood unless the State provides him an alternative place. The impugned order has not paid any attention to Section 26-A(4) of the Act, 1973. In fact said aspect has not been considered at all and in a most casual way the order impugned has been passed in spite of directions of this Court to consider the representation of the petitioner. Once the Court while disposing of the writ petition has directed the respondents to consider on merits in accordance with law, it was the duty of the competent authority to consider the matter in proper perspective. We do not appreciate the manner in which the concerned authority has dealt with the matter. It is obvious that the direction of this Court has been completely overlooked. 13. We do not appreciate the manner in which the concerned authority has dealt with the matter. It is obvious that the direction of this Court has been completely overlooked. 13. It is recorded in the impugned order that land in question was acquired in 1969 for Ghaziabad Development Authority. The said finding does not refer to any other fact or document. The Development Authorities have been constituted under the provisions of the U.P. Urban Planning and Development Act, 1973. Section-4 of the Act, 1973 provides that State Government may by notification constitute a Development Authority. Hence, prior to its constitution how the land was acquired for it, does not appear to be clear from the material on the record and the impugned order. 14. No useful purpose would be served to direct the respondents to file a counter affidavit as the reason cannot be supplemented by a counter affidavit. Reference may be made to the judgment of the Supreme Court in the case of Mohinder Singh Gill and another v. The Chief Election Commissioner, New Delhi and others, (1978) 1 SCC 405 . 15. For all the reasons mentioned above, we are of the view that the order impugned stands vitiated. Accordingly, the order dated 16.3.2018 is set aside. We direct the respondent authorities to pass a fresh order in accordance with law. The said order shall be passed by the Secretary, Ghaziabad Development Authority and not by the Executive Engineer. 16. The writ petition stands allowed accordingly. 17. No order as to costs.