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2019 DIGILAW 1545 (ALL)

S. K. Darbari v. State of U. P.

2019-06-26

ANIL KUMAR, YOGENDRA KUMAR SRIVASTAVA

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JUDGMENT : Anil Kumar and Dr. Yogendra Kumar Srivastava, JJ. 1. Heard learned Counsel for the petitioner, learned Standing Counsel for the opposite party Nos. 1 to 3 and Shri Ratnesh Chandra, learned Counsel for the opposite party No. 4. 2. Since the point involved in the present writ petition is trivial in nature, so with the consent of parties' Counsel, the writ petition is being decided at the admission stage. 3. Notice to the opposite party No. 5 is dispensed with. 4. Learned Counsel for the petitioner while pressing the relief submits that plot Nos. 101 & 102 measuring an area 2023.04 sq. mtr., situated in Village-Ismailganj, Sector-12 Indira Nagar Near Munshipulia Chauraha, Tehsil and District-Lucknow, were transferred by virtue of sale deed dated 31.3.2005 by Uttar Pradesh Avas Evam Vikas Parishad, Lucknow in favour of Dr. Nafees Ahmad and Dr. Jalees Ahmad sons of Dr. Anees Ahmad R/o B-970 Sector-A, Mahanagar, Lucknow for a consideration off 33,77,991/- and the vendees were put into possession. 5. Thereafter the aforesaid vendees executed" a registered Builder Agreement on 17.5.2006 in favour of the petitioner and two other persons-Sri Ajay Verma and Miss Saba Qamar in respect of 1213.80 sq. mtr. for developing the said property into a residential complex by utilising maximum Floor Area Ratio has been allowed in the area. 6. At a subsequent stage the, petitioner and his other partners decided to raise commercial complex instead of residential complex at the site and as such they applied for granting permission for the same to U.P. Avas Evam Vikas Parishad by converting the land use. In pursuance thereof, U.P. Avas Evam Vikas Parishad was pleased to change the land use on depositing the requisite charges of Rs. 1,13,00,000/- but the aforesaid charges, could not be deposited within time and as such an interest at the rate of 18% was added to it. It is stated that till now the petitioner has already deposited Rs. 1,50,00,000/- and further Rs. 2,12,97,683/- is to be deposited till 30.11.2019 for which U.P. Avas Evam Vikas Parishad has agreed to mortgage the land measuring an area of 769.79 sq. mtr. as security of the aforesaid amount and sought consent through letter dated 31.5.2019. 7. It is stated that till now the petitioner has already deposited Rs. 1,50,00,000/- and further Rs. 2,12,97,683/- is to be deposited till 30.11.2019 for which U.P. Avas Evam Vikas Parishad has agreed to mortgage the land measuring an area of 769.79 sq. mtr. as security of the aforesaid amount and sought consent through letter dated 31.5.2019. 7. It is further submitted that in pursuant to the aforementioned letter dated 31.5.2019 issued by U.P. Avas Evam Vikas Parishad, the requisite formalities have been completed by the petitioner for sanction of the map on 7.6.2011 but till date approval of the map has not been done by U.P. Avas Evam Vikas Parishad. 8. Learned Counsel for the petitioner submits that on 21.6.2019 a letter was sent by the petitioner to the opposite party No. 2/District Magistrate, Lucknow and opposite party No. 3/Senior Superintendent of Police, Lucknow requesting therein that opposite party No. 5/Sikandar Khan and his associates may be directed not to interfere in the possession of the petitioner over the land in dispute. However, no steps were taken by the said authority and on the other hand petitioner is suffering irreparable loss as approval of the map has not been done by the opposite party No. 4. 9. Learned Counsel for the petitioner while pressing the relief No. 1 submits that as opposite party No. 5 has got no right over the land in question and the petitioner is in possession over the same, so a direction may be issued to the opposite party Nos. 2 and 3 to take appropriate action for restraining the opposite party No. 5 from interfering in the possession of the petitioner over the land in question. 10. So far as the relief No. 2 is concerned, learned Counsel for the petitioner submits that as all necessary formalities have been completed as per letter dated 31.5.2019 in order to sanction the map of the petitioner's land but the same has not been done in spite of repeated requests and reminders made by the petitioner and due to non sanctioning of the map the petitioner is suffering irreparable loss as he has already deposited the requisite charges with interest in order to construct the commercial complex. 11. 11. In view of the above said facts, the petitioner has approached this Court by filing the present writ petition with the following main prayers: "Issue a writ, order or direction in the nature of mandamus commanding the opp. parties Nos. 1 to 3 by directing them to restrain the opposite party No. 5 from interfering in the peaceful possession of the petitioner over plot Nos. 101 and 102 measuring an area 2023.04 sq. mtr. situated in Village-Ismailganj, Sector-12 Indira Nagar, Near Munshipulia Chauraha, Tehsil and District-Lucknow. Issue a writ, order or direction in the nature of mandamus commanding the opposite party No. 4 by directing him to take decision regarding the matter relating to conversion of land use by mortgaging the land and release the map after sanctioning the same expeditiously." 12. Shri Ratnesh Chandra, learned Counsel for the opposite party No. 4 has raised a preliminary objection that so far as the relief No. 1 is concerned, the same is not maintainable under Article 226 of the Constitution of India. 13. After arguing at some length, Shri Rakesh Kumar Srivastava, learned Counsel for the petitioner submits that at this stage he does not want to press the relief No. 1 and he may be permitted to approach the appropriate forum/Court to press the same. 14. Shri Ratnesh Chandra, learned Counsel for the opposite party No. 4 does not oppose the said prayer. 15. Accordingly, in view of the above said facts, so far as the relief No. 1 is, concerned, the petitioner is permitted not to press the same with liberty to approach appropriate forum/Court, for redressal of his grievances and if the petitioner does so, Appropriate Authority shall take appropriate steps for redressal of the petitioner's grievances. 16. So far as the relief No. 2 is concerned, on the basis of the material on record, the position which emerges is that all necessary formalities have been completed by the petitioner in order to get his map sanctioned by the Appropriate Authority as required by the U.P. Avas Evam Vikas Parishad by its letter dated 31.5.2019 and in this regard a letter/representation has been written by the petitioner. However, without any justification or reason, the sanction of map has not been granted, as a result of which, petitioner is suffering irreparable loss. 17. However, without any justification or reason, the sanction of map has not been granted, as a result of which, petitioner is suffering irreparable loss. 17. In view of the above said facts, the interest of justice will be sub-served, if the concerned authority is directed to take a decision in regard to release the map of the petitioner's land. 18. For the foregoing reasons, writ petition is disposed of with a direction to the concerned authority to consider the matter in regard to sanction of the map of the petitioner's land for constructions on the land in question taking into consideration that the petitioner has already completed the necessary formalities as required by U.P. Avas Evam Vikas Parishad by its letter dated 31.5.2019, expeditiously, preferably, within a period of four weeks from the date of receiving a certified copy of this order.