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2020 DIGILAW 634 (ALL)

Santosh Kumar Srivastava v. State of U. P.

2020-02-27

VED PRAKASH VAISH, VIRENDRA KUMAR II

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ORDER : 1. Heard Shri Ravindra Kumar Sinha, learned counsel for petitioner, Shri S.P. Maury a, learned Standing Counsel, Shri Ratnesh Chandra, learned counsel for respondent No. 2 and the respondent No. 3-Shri S.P. Tripathi, who appeared in person. 2. The petitioner has instituted this writ petition assailing the impugned order dated 08.02.2012 passed under Section 82(1) of U.P. Housing & Development Board Act, 1965 by respondent No. 2 (Annexure No. 1 to the writ petition). 3. It is pleaded by the petitioner that he is owner of House No. C-4337, situated at Section-13, Rajaji Puram, Lucknow. The said house was allotted to the father of petitioner, late Shri Rajendra Prasad Srivastava under the Housing Scheme (E.W.S.) of respondents and the same is admeasuring 59.274 square meter. 4. It is further mentioned that after payment of total amount of installments due against him, the respondents transferred this house in favour of petitioner's father by means of registered sale deed dated 16.03.2001 (Annexure No. 2). The respondent No. 2, Housing Board, provided him the proposed map of the said house along with the sale deed. On the basis of map the petitioner constructed his house. The petitioner applied for approval of proposed map of his house, before the authorities of respondents on 22.04.2000. The approved map (Annexure No. 3) has been brought on record. 5. It is further pleaded by the petitioner that on 16.10.2011 the petitioner started collection of material for repairing of his said house. The officials of respondent No. 2 came at the spot and ordered to stop the work. When the petitioner opposed to stop the work, then they went away and came back again within two hours only, along with the show cause notice dated 15.10.2011 and the police personnel and directed to stop the work. The petitioner shown them all the papers of his house approved by Avas Vikas Parishad, but the officials of respondent No. 2 did not listen him. The show cause notice dated 15.10.2011 (Annexure No. 4) has been brought on record. 6. It was mentioned in the show cause notice that the petitioner was constructing his house without approval of map and he was directed to appear before the respondent No. 2 on 25.10.2011 and to file reply. The show cause notice dated 15.10.2011 (Annexure No. 4) has been brought on record. 6. It was mentioned in the show cause notice that the petitioner was constructing his house without approval of map and he was directed to appear before the respondent No. 2 on 25.10.2011 and to file reply. The petitioner appeared on 25.10.2011 before the respondent No. 2 and requested him that he was not making illegal constructions, by filing his reply. The petitioner apprised the respondent No. 2 that he was having approved map of his E.W.S. house and his house was constructed in accordance with the said map and requested to set aside the show cause notice dated 15.10.2011. The reply (Annexure No. 5) has been brought on record. 7. The respondent No. 2 did not respond to his reply, therefore, petitioner instituted a writ petition, bearing Writ Petition No. 12609 (M/B) of 2011, which was finally disposed of by this Court vide order dated 19.12.2011 (Annexure No. 6). 8. It is further mentioned that letter dated 21.01.2012 was sent by the Executive Engineer (respondent No. 2) to the petitioner and he was asked to file objections. The petitioner appeared on 02.02.2012 and submitted his reply/objections (Annexure No. 8). On 10.02.2012 the petitioner received copy of impugned order dated 08.02.2012 (Annexure No. 1) and he was directed to demolish his room already constructed in the year 2000 in the House No. C-4337, situated at Section-13, Rajaji Puram, Lucknow within 15 days. 9. The petitioner has relied upon the Government Order No. 1614/9-AA-3-37-38(Vividh)/97 dated 01.05.1997 and the Government Order No. 1617-AA-3-97-38(Vividh)/97m dated 01.05.1997 which clarified that there is no need of approval of map for the house/building in an area up to 100 square meter for residential purposes. 10. It is further provided that the allottee shall be provided standard map of his plot at the time of registry of the said plot and there shall be no requirement of any other approval. These Government Orders have been clarified by letter No. 4077/Elight-3-Naksa-Sarlikaran/2007 dated 28.12.2007, which has been brought on record as Annexure No. 9 in this regard. 11. It is further pleaded that boundary wall of house of the petitioner is very weak and it may fall at any time, but the respondent No. 2 is not allowing the petitioner to repair his own house arbitrarily and illegally with mala fide intention. 11. It is further pleaded that boundary wall of house of the petitioner is very weak and it may fall at any time, but the respondent No. 2 is not allowing the petitioner to repair his own house arbitrarily and illegally with mala fide intention. The officials of respondents No. 2 and 3 are threatening the petitioner to sell the said house and to leave it otherwise, he will have to face its result. 12. It is further pleaded that the respondent has caused loss of two lacs rupees to the petitioner. The petitioner is entitled to get recovered this amount from respondent No. 2. The respondents are depriving the petitioner from his own property arbitrarily, illegally and against the principle of natural justice. The respondent No. 2 has no jurisdiction to issue notice under Section 82(1) of U.P. Avas Evam Vikas Parishad Act, 1965 (in short, 'Act, 1965') to demolish the E.W.S. house of petitioner on the basis of non approval of map. Only the Housing Commissioner is empowered to issue notice under Section 82(1) of the Act, 1965. 13. On the basis of above pleadings, the following reliefs have been sought by the petitioner in this writ petition: (i) issue a writ in the nature of certiorari quashing the impugned order dated 08.02.2012 passed by issued by Opp. Party No. 2 contained herewith as Annexure No. 1 to the writ petition. (ii) issue a writ in the nature of mandamus commanding the Opposite Parties not to make hindrance in repairing/construction of the House No. C-4331 Rajaji Puram, Lucknow of the petitioner in future. (iii) any other writ, order or direction which this Hon'ble Court deem fit in the circumstances of the case may also be passed. (iv) Allow the Writ Petition with a cost of Rs. 2,00,000.00 recoverable from opposite party No. 2 in favour of petitioner as damages. 14. During the pendency of writ petition, the respondent No. 3-Shri Sant Prasad Tripathi has been impleaded by the petitioner. 15. The respondent No. 2 has filed counter affidavit on 15.03.2012. It is pleaded on behalf of respondent No. 2 that complete building plan in respect of house in question was annexed with the sale deed executed in favour of petitioner's father. In the building plan, existing one room, one space, bathroom and space for construction of staircase for reaching at the roof of the existing room were shown. It is pleaded on behalf of respondent No. 2 that complete building plan in respect of house in question was annexed with the sale deed executed in favour of petitioner's father. In the building plan, existing one room, one space, bathroom and space for construction of staircase for reaching at the roof of the existing room were shown. The room which was to be constructed in future for which open space adjacent to front setback on one side and on the other side aforesaid existing room was also shown. The said staircase was to be constructed adjacent to water close set, i.e., latrine, bathroom. 16. It is further pleaded that the petitioner has raised construction in contravention of the aforesaid building plan by constructing a room on the front setback, over which, no construction is permitted nor can be compounded. The staircase was also not being constructed at the place provided in the said building plan. The construction of staircase and the room on the front setback was never sanctioned on the places, on which, the petitioner has constructed them. Moreover, according to the approved building plan, construction to be made in future was to be completed within five years from the date of sanction, whose period had expired. But the petitioner has not raised proposed construction. The petitioner wants to carry out unauthorized construction by concocting story of repair. 17. It is also mentioned that the officials of Parishad in discharge of their duties checked and asked him not to carry out such constructions, therefore, show cause notice was issued. The petitioner has not pleaded sufficient cause of action for institution of present writ petition. The construction was being carried out unauthorizedly by him. 18. It is further mentioned that since the petitioner gave assurance that he will not raise any such construction in future, therefore, final order for demolition in pursuance of show cause notice under Section 82(1) of the Act of 1965 were not passed. However, in compliance of the order dated 19.12.2011 passed by this Court in Writ Petition No. 12609 (M/B) of 2001, orders in respect of said show cause notice and reply to the same were passed by respondent No. 2 on 08.02.2012 (Annexure No. 1). 19. However, in compliance of the order dated 19.12.2011 passed by this Court in Writ Petition No. 12609 (M/B) of 2001, orders in respect of said show cause notice and reply to the same were passed by respondent No. 2 on 08.02.2012 (Annexure No. 1). 19. It is also pleaded by the respondent No. 2 that the Government orders relied upon by the petitioner are not applicable in the facts and circumstances of the case, specially when construction was to be raised in accordance with the plan annexed with the sale deed. Even if it is assumed that there is no need for getting a building plan sanctioned for a small plot of an area up to 100 square meter, the constructions cannot be raised in violation of building regulations and terms and conditions of sale deed, which includes building plan. 20. It is further pleaded that the repair of boundary wall was never objected, but in the garb of such repairs the petitioner cannot carry out any illegal construction. The notice dated 15.10.2011 is not illegal. The officials have discharged their duties in good faith. No loss amounting to two lacs rupees has been caused to the petitioner. 21. It is further mentioned that the Housing Commissioner had delegated powers in exercise of powers under Section 12 of the Act of 1965 in favour of the deponent. Annexure No. C.A.-1 dated 25.01.2011, order regarding delegation of powers has been brought on record. The petitioner has no right or even fundamental right to commit any illegality or act in contravention of provisions of law, rules and regulations. 22. On the basis of above pleadings, it is submitted by the respondent No. 2 that writ petition is not sustainable and the petitioner is not entitled to get any relief. The writ petition is not maintainable and deserves to be dismissed. 23. We have perused the sale deed (Annexure No. 2) and map (Annexure No. 3) provided to the petitioner's father along with the sale deed dated 16.03.2001. Annexure No. 3, building plan discloses that it was approved during period from 22.04.2000 up to 21.04.2005. The contentions of respondent No. 2 is corroborated by the building plan that the petitioner had not constructed the proposed staircase and room to be constructed in future on the places shown in the map provided with the sale deed. Annexure No. 3, building plan discloses that it was approved during period from 22.04.2000 up to 21.04.2005. The contentions of respondent No. 2 is corroborated by the building plan that the petitioner had not constructed the proposed staircase and room to be constructed in future on the places shown in the map provided with the sale deed. Therefore, notice dated 15.10.2011 (Annexure No. 4) was issued to the petitioner. The petitioner was asked by means of show cause notice that he was carrying out construction work without sanctioned building plan. 24. The petitioner, after receiving notice had instituted the Writ Petition No. 12609 (M/B) of 2011, Santosh Kumar Srivastava vs. State of U.P. and others, which was finally disposed of by a Division Bench of this Court on 19.11.2011 by passing the following order: Heard learned counsel for the petitioner and learned standing counsel. Sri K.S. Pawar appears for O.P. No. 2. Present writ petition has been preferred against the impugned show cause notice. Option is open to the petitioner to file objection to the show cause notice within two weeks. In case the objection is filed, the respondents shall consider the same after providing opportunity of hearing and pass a speaking and reasoned order in accordance with law expeditiously, within two months from the date of receipt of a certified copy of this order and communicate decision. For a period of three months or till disposal of objection/representation whichever is earlier, status quo shall be maintained. Subject to above, the writ petition is finally disposed of. 25. The petitioner replied on 25.10.2011 (Annexure No. 5). He assured that on 16.10.2011, he was collecting building material for construction of staircase in his house. He has stopped construction work. He is not carrying out any unauthorized construction and in future he will not make any illegal construction also. 26. The respondent No. 2, on the basis of order dated 19.12.2011 passed by this Court in Writ Petition No. 12609 (M/B) of 2011 has considered the objections filed by petitioner and passed the impugned order dated 08.02.2012 in compliance of directions given by this Court vide order dated 19.12.2011. 27. The respondent No. 2 have considered the reply dated 25.10.2011 and application dated 20.10.2011 and 02.02.2012 forwarded by his wife and the petitioner, respectively. 27. The respondent No. 2 have considered the reply dated 25.10.2011 and application dated 20.10.2011 and 02.02.2012 forwarded by his wife and the petitioner, respectively. The petitioner's wife has levelled allegations against respondent No. 3, Sant Prasad Tripathi that he threatened them to leave the house. He made hindrance in construction of main gate of house of the petitioner. He also raised objections when petitioner collected building material for construction of staircase on 16.10.2011, whereas, respondent No. 3 himself made unauthorized construction towards road on first and second floor of his house by making projection of width of three to four fit and obstructed air and light of the house of the petitioner. The petitioner apprised through his application dated 02.02.2012 that approved building plan was made available with the sale deed and he was constructing the staircase according to the building plan and there was no necessity for sanction of building plan up to the area of 100 square meter. 28. We have perused the impugned order dated 08.02.2012. It was found by the competent authority that notice under Section 82(2) of the Act, 1965 has been issued against Santosh Kumar Srivastava and also against the respondent No. 3, and that the action would be taken after hearing him. The complaint made by the petitioner against Shri O.P. Pandey and other staffs of respondent No. 2 was found baseless and it was found that the Assistant Engineer, Shri O.P. Pandey and other staffs performed their duties, therefore, no action was taken against them. 29. It is also mentioned in the order dated 08.02.2012 that petitioner made unauthorized construction of room in violation of the approved building plan on the place, which was not proposed in the approved map. Therefore, petitioner has been directed to remove unauthorized construction within 15 days, otherwise, it shall be removed on the expenses of the allottee. 30. It is further mentioned in the impugned order that duration of sanctioned building plan was up to 21.04.2005. This period is mentioned in Annexure No. 3, building plan, as 22.04.2000 up to 21.04.2005. It is also mentioned on sanctioned building plan (Annexure No. 3) that future construction would be carried out on the land possessed by the allottee on the basis of sale deed and boundary wall/compound wall would also be constructed according to prescribed design. 31. This period is mentioned in Annexure No. 3, building plan, as 22.04.2000 up to 21.04.2005. It is also mentioned on sanctioned building plan (Annexure No. 3) that future construction would be carried out on the land possessed by the allottee on the basis of sale deed and boundary wall/compound wall would also be constructed according to prescribed design. 31. We have also perused Government Order dated 28.12.2007 (Annexure No. 9). In clause (i) it is mentioned that in old locality and constructed area of the city, constructions of houses of residential plots admeasuring up to 100 square meter or for renovation, sanction for that purpose was not required. But it is prescribed that owner of house has to leave setback and he cannot construct more than three floors. The G.O. dated 28.12.2007 is not applicable to the house of petitioner, because sanctioned plan was provided along with the sale deed to the petitioner's father and specifications were mentioned for future construction of room and staircase and design of boundary wall. 32. The petitioner has already constructed room on unauthorized place and he was collecting building material on 16.10.2011 for construction of staircase on the unauthorized place which was not shown in the building plan (Annexure No. 2) and sale deed (Annexure No. 3). 33. It is pertinent to mention here that petitioner has pleaded contradictory fact in petition that he was collecting building material for repair of boundary wall, whereas he has mentioned in reply dated 25.10.2011 that he was collecting material for construction of staircase, therefore, he has suppressed real fact also regarding construction proposed by him. 34. On perusal of Annexure No. C.A.-1 it is revealed that vide order dated 25.01.2011, the Housing Commissioner has delegated his powers under Section 82 & 83 of the Act of 1965 by invoking the provisions of Section 12(2) of the Act, 1965 and delegated the powers to exercise his authority by Additional Housing Commissioner, Joint Housing Commissioner, Deputy Housing Commissioner, Superintending Engineer and Executive Engineer of Parishad. Therefore, there is no substance in the argument of learned counsel for petitioner that notice dated 15.10.2011 was issued by unauthorized person/authority. 35. Therefore, there is no substance in the argument of learned counsel for petitioner that notice dated 15.10.2011 was issued by unauthorized person/authority. 35. It is pertinent to mention here that in (Annexure No. 4), notice dated 15.10.2011 it is mentioned that authorized officer of Nirman Khand-12, U.P. Avas Evam Vikas Parishad, 3/77-78, Vrindavan Yojna No. 2, Raebareli Road, Lucknow has issued this notice to the petitioner. 36. The learned counsel for petitioner has relied upon the decision of Brahma Prakash and others vs. U.P. Avas Evam Vikas Parishad, Lucknow and others, 1986, UPLBEC 185 passed by a Division Bench of this Court and argued that in para-63 this Court has considered the provisions of Section 82, Section 35, Section 32(5) and Section 28 of the Act, 1965, that if notice for demolition has been issued, long after the expiry of two years, after issue of notice under Section 28 it would become illegal. Such notice is liable to be quashed and no demolition can be ordered. Para-63 of the said judgment is being reproduced as under: 63. Under Section 82 of the Adhiniyam on which the respondents' counsel placed reliance the provision made is that the Housing Commissioner may by notice require the owner of a building referred to in Section 73 stop further work on such building. If the notice is not complied with the Housing Commissioner may cause the building or any portion thereof to be altered or demolished as the case may be. Section 73 makes provision for penalty for buildings erected, re-erected or altered in contravention of Section 35. Section 35, prohibits erection etc. of building on the land in question during the period when a notice is published under Section 28 in respect of a housing or improvement scheme and continued up to two years from the date of the commencement of the scheme. The commencement of the scheme takes place, according to Section 32(5) from the date of the notification of the State Government, relating to the Scheme. To attract this provision, therefore, the respondents had to make out that the construction impugned came into being during March 8, 1980 to 17th April, 1983 the date when two years from the date of the commencement of the Scheme under Section 32(5) expired. To attract this provision, therefore, the respondents had to make out that the construction impugned came into being during March 8, 1980 to 17th April, 1983 the date when two years from the date of the commencement of the Scheme under Section 32(5) expired. On the respondents' own showing as stated in the notice the construction was commenced on October 28, 1983; the petitioners have maintained on the other hand that the construction is much older and they acquired it as such upon purchase. In support they have placed reliance on the assessment record in the Nagar Mahapalika right from 1968, the receipt for payment of Municipal taxes and the affidavit of Chhotey Lal Mali, the predecessor-in-interest, pointing that the construction had been made by him and the recitals contained in the deed of sale dated 21-5-1983 as well bear this out. The theory set up by the respondents, therefore, that the construction is liable to demolish under Section 82/83 of the Adhiniyam is not borne out. The notice issued on 14th December, 1983 has in consequence to be quashed. 37. Section 12 of the Act of 1965 reads as under: 12. Delegation of powers.- (1) Subject to the provisions of this Act and the rules, the Board may be general or special order delegate, either unconditionally or subject to such conditions, including the condition of review by itself, as may be specified in the order, to any committee appointed by it or to the Housing Commissioner or any officer of the Board such of its powers and duties under this Act, as it may deem necessary. (2) Subject to the provisions of this Act and the rules, the Housing Commissioner maybe general or special order delegate, either unconditionally or subject to such conditions, including the condition of review by himself, as may be specified in the order, to any officer of the Board such of his powers and duties under this Act, not being powers and duties delegated to him under sub-section (I), as he may deem necessary. 38. Section 82 of the Act of 1965 reads as under: 82. 38. Section 82 of the Act of 1965 reads as under: 82. Power to direct removal of unauthorized erections.-The Housing Commissioner may be notice require the owner of a building referred to in Section 73 to stop further work on such building and to alter or demolish the same in such manner and within such time as may be specified in the notice. (2) Where the notice under sub-section (1) is not complied with, the Housing Commissioner may cause the building or any portion thereof to be altered or demolished, as the case may be, and he may recover the expense incurred in so doing from the owner in such manner as may be prescribed. 39. The petitioner has not disclosed when he constructed the unauthorized room in violation of building plan provided to him with the sale deed. There is no documentary evidence available on record that the petitioner constructed his room in the year 2000. On perusal of notice dated 15.10.2011 which was given by competent authority under Section 82 of the Act of 1965 in which it was mentioned that petitioner was carrying out unauthorized construction in violation of building plan. Therefore, inference may safely be drawn that the petitioner started unauthorized construction in the same very period and the impugned order was passed on 08.02.2012 after hearing the petitioner and considering his reply dated 25.10.2011. Therefore, there is no violation of natural justice as claimed by the petitioner. Hence, the exposition of law of the Division Bench of this Court does not extend any benefit to him, because this exposition of law does not apply to the facts and circumstances of this case. The impugned order dated 08.02.2012 has been passed by competent authority after only about three and half months only. 40. The petitioner is unable to prove his allegations levelled against the respondent No. 2 that he has caused loss amounting to two lacs rupees to the petitioner. The petitioner is not entitled to recover the same from respondent No. 2. Moreover, petitioner has nowhere challenged the order dated 25.01.2011 (Annexure-C.A.I. to the counter affidavit), by which, Housing Commissioner delegated his powers under Section 12 of the Act, 1965. 41. The petitioner is not entitled to recover the same from respondent No. 2. Moreover, petitioner has nowhere challenged the order dated 25.01.2011 (Annexure-C.A.I. to the counter affidavit), by which, Housing Commissioner delegated his powers under Section 12 of the Act, 1965. 41. It is pertinent to mention here that it is mentioned in the impugned order dated 08.02.2012 that notice under Section 82 of the Act, 1965 has also been issued against the respondent No. 3 and further action shall be taken against him after hearing him. 42. The writ petition lacks merits and is liable to be dismissed. No interference by this Court is called for by invoking its powers under Article 226 of the Constitution of India. 43. Dismissed accordingly.